S.B. No. 414
RECODIFICATION OF NATURAL DEATH ACT, DURABLE POWER
OF ATTORNEY FOR HEALTH CARE STATUTE
|
This is the text of SB 414, which was vetoed by Governor Bush on June 20, 1997. |
AN ACT
relating to certain advance directives for medical treatment; providing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. ADVANCE DIRECTIVES
SECTION 1.01. Subtitle H, Title 2, Health and Safety Code, is amended by adding a chapter heading for Chapter 166 to read as follows:
CHAPTER 166. ADVANCE DIRECTIVES
SECTION 1.02. Subtitle H, Title 2, Health and Safety Code, is amended by adding Subchapter A, Chapter 166, to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 166.001. SHORT TITLE. This chapter may be cited as the Advance Directives Act.
Sec. 166.002. DEFINITIONS. In this chapter:
(1) "Advance directive" means:
(A) a directive, as that term is defined by Section 166.031;
(B) an out-of-hospital DNR order, as that term is defined by Section 166.081; or
(C) a durable power of attorney for health care.
(2) "Attending physician" means a physician selected by or assigned to a patient who has primary responsibility for a patient's treatment and care.
(3) "Competent" means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
(4) "Declarant" means a person who has executed or issued a directive under this chapter.
(5) "Durable power of attorney for health care" means a document delegating to an agent authority to make health care decisions executed or issued under Subchapter D.
(6) "Incompetent" means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
(7) "Life-sustaining procedure" means a medical procedure, treatment, or intervention that uses mechanical or other artificial means to sustain, restore, or supplant a vital function and, when applied to a person in a terminal condition, serves only to prolong the process of dying. The term does not include the administration of medication or the performance of a medical procedure considered to be necessary to provide comfort or care or to alleviate pain.
(8) "Physician" means:
(A) a physician licensed by the Texas State Board of Medical Examiners; or
(B) a properly credentialed physician who holds a commission in the uniformed services of the United States and who is serving on active duty in this state.
(9) "Terminal condition" means an incurable or irreversible condition caused by injury, disease, or illness that would produce death without the application of life-sustaining procedures, according to reasonable medical judgment, and in which the application of life-sustaining procedures serves only to postpone the moment of the patient's death. A patient who has been admitted to a program under which the person receives hospice services provided by a home and community support services agency licensed under Chapter 142 is presumed to have a terminal condition for purposes of this chapter.
(10) "Witness" means a person who may serve as a witness under Section 166.003.
Sec. 166.003. WITNESSES. (a) In any circumstance in which this chapter requires the execution of an advance directive or the issuance of a nonwritten advance directive to be witnessed, a witness may not be:
(1) related to the declarant by blood or marriage;
(2) entitled to any part of the declarant's estate after the declarant's death under a will or codicil executed by the declarant or by operation of law;
(3) the attending physician;
(4) an employee of the attending physician;
(5) a person or agent designated by the declarant to make a treatment decision;
(6) a person who, at the time the directive is executed or the nonwritten directive is issued, has a claim against any part of the declarant's estate after the declarant's death; or
(7) an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care or is directly involved in the financial affairs of the facility.
(b) For purposes of Subsection (a)(7), a person is directly involved in the financial affairs of a health care facility if the person serves as an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. (a) A health care provider shall maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to withhold in accordance with an advance directive.
(b) Except as provided by Subsection (g), the health care provider shall provide written notice to an individual of the written policies described by Subsection (a). The notice must be provided at the earlier of:
(1) the time the individual is admitted to receive services from the health care provider; or
(2) the time the health care provider begins providing care to the individual.
(c) If, at the time notice is to be provided under Subsection (b), the individual is incompetent or otherwise incapacitated and unable to receive the notice required by this section, the provider shall provide the required written notice, in the following order of preference, to:
(1) the individual's legal guardian;
(2) the individual's spouse;
(3) the individual's adult child;
(4) the individual's parent;
(5) the person admitting the individual; or
(6) another person responsible for the health care decisions of the individual.
(d) If Subsection (c) applies and except as provided by Subsection (e), if a health care provider is unable, after diligent search, to locate an individual listed by Subsection (c), the health care provider is not required to provide the required notice.
(e) If an individual who was incompetent or otherwise incapacitated and unable to receive the notice required by this section at the time notice was to be provided under Subsection (b) later becomes able to receive the notice, the health care provider shall provide the written notice at the time the individual becomes able to receive the notice.
(f) In this section, health care provider means:
(1) a hospital, including a rural primary care hospital;
(2) an institution licensed under Chapter 242, including skilled nursing facilities;
(3) a home and community support services agency;
(4) a personal care facility; and
(5) a special care facility.
(g) This section does not apply to outpatient hospital services, including emergency services.
SECTION 1.03. Chapter 672, Health and Safety Code, is transferred to Subtitle H, Title 2, Health and Safety Code, is redesignated as Subchapter B, Chapter 166, Health and Safety Code, and is amended to read as follows:
SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT
[Sec. 672.001. SHORT TITLE. This chapter may be cited as the Natural Death Act.]
Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter [chapter]:
(1) ["Attending physician" means the physician who has primary responsibility for a patient's
treatment and care.
[(2) "Competent" means possessing the ability, based on reasonable medical judgment, to
understand and appreciate the nature and consequences of a treatment decision, including the
significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
[(3) "Declarant" means a person who has executed or issued a directive under this chapter.
[(4)] "Directive" means an instruction made under Section 166.032, 166.034, or
166.035[672.003, 672.005, or 672.006] to withhold or withdraw life-sustaining procedures in the
event of a terminal condition.
(2) [(5) "Incompetent" means lacking the ability, based on reasonable medical judgment, to
understand and appreciate the nature and consequences of a treatment decision, including the
significant benefits and harms of and reasonable alternatives to a proposed treatment decision.
[(6) "Life-sustaining procedure" means a medical procedure or intervention that uses mechanical
or other artificial means to sustain, restore, or supplant a vital function, and only artificially
postpones the moment of death of a patient in a terminal condition whose death is imminent or
will result within a relatively short time without the application of the procedure. The term does
not include the administration of medication or the performance of a medical procedure
considered to be necessary to provide comfort or care or to alleviate pain.
[(7) "Physician" means a physician licensed by the Texas State Board of Medical Examiners or a
properly credentialed physician who holds a commission in the uniformed services of the United
States and who is serving on active duty in this state.
[(8)] "Qualified patient" means a patient with a terminal condition that has been diagnosed and
certified in writing by the attending physician and one other physician who have personally
examined the patient.
[(9) "Terminal condition" means an incurable or irreversible condition caused by injury, disease,
or illness that would produce death without the application of life-sustaining procedures,
according to reasonable medical judgment, and in which the application of life-sustaining
procedures serves only to postpone the moment of the patient's death.]
Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO
PHYSICIAN. (a) A competent adult may at any time execute a written directive.
(b) The declarant must sign the directive in the presence of two witnesses, and those witnesses must sign the directive.
(c) [A witness may not be:
[(1) related to the declarant by blood or marriage;
[(2) entitled to any part of the declarant's estate after the declarant's death under a will or codicil
executed by the declarant or by operation of law;
[(3) the attending physician;
[(4) an employee of the attending physician;
[(5) an employee of a health care facility in which the declarant is a patient if the employee is
providing direct patient care to the declarant or is directly involved in the financial affairs of the
facility;
[(6) a patient in a health care facility in which the declarant is a patient; or
[(7) a person who, at the time the directive is executed, has a claim against any part of the
declarant's estate after the declarant's death.
[(d)] A declarant may include in a directive directions other than those provided by Section
166.033 [672.004] and may designate in a directive a person to make a treatment decision for the
declarant in the event the declarant becomes comatose, incompetent, or otherwise mentally or
physically incapable of communication.
(d) [(e)] A declarant shall notify the attending physician of the existence of a written directive. If
the declarant is comatose, incompetent, or otherwise mentally or physically incapable of
communication, another person may notify the attending physician of the existence of the written
directive. The attending physician shall make the directive a part of the declarant's medical
record.
Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A written directive may be in the
following form:
"DIRECTIVE TO PHYSICIANS
"Directive made this __________ day of __________ (month, year).
"I ________________________, being of sound mind, wilfully and voluntarily make known my desire that my life shall not be artificially prolonged under the circumstances set forth in this directive.
"1. If at any time I should have an incurable or irreversible condition caused by injury, disease, or illness certified to be a terminal condition by two physicians, and if the application of life-sustaining procedures would serve only to artificially postpone the moment of my death, and if my attending physician determines that my death is imminent or will result within a relatively short time without the application of life-sustaining procedures, I direct that those procedures be withheld or withdrawn, and that I be permitted to die naturally.
"2. In the absence of my ability to give directions regarding the use of those life-sustaining procedures, it is my intention that this directive be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from that refusal.
"3. If I have been diagnosed as pregnant and that diagnosis is known to my physician, this directive has no effect during my pregnancy.
"4. This directive is in effect until it is revoked.
"5. I understand the full import of this directive and I am emotionally and mentally competent to make this directive.
"6. I understand that I may revoke this directive at any time.
"Signed ______________________________
(City, County, and State of Residence)
I am not related to the declarant by blood or marriage. I would not be entitled to any portion of
the declarant's estate on the declarant's death. I am not the attending physician of the declarant or
an employee of the attending physician. [I am not a patient in the health care facility in which the
declarant is a patient.] I have no claim against any portion of the declarant's estate on the
declarant's death. Furthermore, if I am an employee of a health care facility in which the declarant
is a patient, I am not involved in providing direct patient care to the declarant and am not an
officer, director, partner, or business office employee of the health care facility or of any
parent organization of the health care [directly involved in the financial affairs of the health]
facility.
"Witness_______________________________
"Witness______________________________"
Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT
ADULT QUALIFIED PATIENT. (a) A competent qualified patient who is an adult may issue a
directive by a nonwritten means of communication.
(b) A declarant must issue the nonwritten directive in the presence of the attending physician and
two witnesses. [The witnesses must possess the same qualifications as are required by Section
672.003(c).]
(c) The physician shall make the fact of the existence of the directive a part of the declarant's medical record and the witnesses shall sign the entry in the medical record.
Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT
YOUNGER THAN 18 YEARS OF AGE. The following persons may execute a directive on
behalf of a qualified patient who is younger than 18 years of age:
(1) the patient's spouse, if the spouse is an adult;
(2) the patient's parents; or
(3) the patient's legal guardian.
Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF SPECIFIC FORM PROHIBITED. (a) A written directive executed under Section 166.033 or 166.035 is effective without regard to whether the document has been notarized.
(b) A physician, health care facility, or health care professional may not require that:
(1) a directive be notarized; or
(2) a person use a form provided by the physician, health care facility, or health care professional.
Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE. The desire of a
competent qualified patient, including a competent qualified patient younger than 18 years of age,
supersedes the effect of a directive.
Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR
INCAPABLE OF COMMUNICATION. (a) This section applies when an adult qualified patient
has executed or issued a directive and is comatose, incompetent, or otherwise mentally or
physically incapable of communication.
(b) If the adult qualified patient has designated a person to make a treatment decision as
authorized by Section 166.032(c) [672.003(d)], the attending physician and the designated person
may make a treatment decision to withhold or withdraw life-sustaining procedures from the
patient.
(c) If the adult qualified patient has not designated a person to make a treatment decision, the attending physician shall comply with the directive unless the physician believes that the directive does not reflect the patient's present desire.
Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR
ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. (a) If an adult qualified patient has not executed or issued a directive and
is comatose, incompetent, or otherwise mentally or physically incapable of communication, the
attending physician and the patient's legal guardian or an agent under a durable power of attorney
for health care may make a treatment decision that may include a decision to withhold or
withdraw life-sustaining procedures from the patient.
(b) If the patient does not have a legal guardian or an agent under a durable power of attorney
for health care, the attending physician and one person from one [at least two persons, if
available,] of the following categories, in the following priority, may make a treatment decision
that may include a decision to withhold or withdraw life-sustaining procedures:
(1) the patient's spouse;
(2) [a majority of] the patient's reasonably available adult children;
(3) the patient's parents; or
(4) the patient's nearest living relative.
(c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.
(d) A treatment decision made under Subsection (b) must be documented in the patient's medical
record and signed by the attending physician [made in the presence of at least two witnesses who
possess the same qualifications as are required by Section 672.003(c)].
(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be witnessed by another physician who is not involved in the treatment of the patient.
(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining procedures.
Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND PREREQUISITES FOR
COMPLYING WITH DIRECTIVE. (a) An attending physician who has been notified of the
existence of a directive shall provide for the declarant's certification as a qualified patient on
diagnosis of a terminal condition.
(b) Before withholding or withdrawing life-sustaining procedures from a qualified patient under
this subchapter [chapter], the attending physician must:
(1) determine that the patient's death is imminent or will result within a relatively short time without application of those procedures;
(2) note that determination in the patient's medical record; and
(3) determine that the steps proposed to be taken are in accord with this subchapter [chapter]
and the patient's existing desires.
Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive is effective until it is
revoked as prescribed by Section 166.042 [672.012].
Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A declarant may revoke a
directive at any time without regard to the declarant's mental state or competency. A directive
may be revoked by:
(1) the declarant or someone in the declarant's presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive;
(2) the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive; or
(3) the declarant orally stating the declarant's intent to revoke the directive.
(b) A written revocation executed as prescribed by Subsection (a)(2) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of its existence or mails the revocation to the attending physician. The attending physician or the physician's designee shall record in the patient's medical record the time and date when the physician received notice of the written revocation and shall enter the word "VOID" on each page of the copy of the directive in the patient's medical record.
(c) An oral revocation issued as prescribed by Subsection (a)(3) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of the revocation. The attending physician or the physician's designee shall record in the patient's medical record the time, date, and place of the revocation, and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designees shall also enter the word "VOID" on each page of the copy of the directive in the patient's medical record.
(d) Except as otherwise provided by this subchapter [chapter], a person is not civilly or
criminally liable for failure to act on a revocation made under this section unless the person has
actual knowledge of the revocation.
Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A declarant may at any time
reexecute a directive in accordance with the procedures prescribed by Section 166.032 [672.003],
including reexecution after the declarant is diagnosed as having a terminal condition.
Sec. 166.044 [672.014]. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND
PREMIUMS. (a) The fact that a person has executed or issued a directive under this
subchapter[chapter] does not:
(1) restrict, inhibit, or impair in any manner the sale, procurement, or issuance of a life insurance policy to that person; or
(2) modify the terms of an existing life insurance policy.
(b) Notwithstanding the terms of any life insurance policy, the fact that life-sustaining procedures
are withheld or withdrawn from an insured qualified patient under this subchapter [chapter] does
not legally impair or invalidate that person's life insurance policy.
(c) A physician, health facility, health provider, insurer, or health care service plan may not require a person to execute or issue a directive as a condition for obtaining insurance for health care services or receiving health care services.
(d) The fact that a person has executed or issued or failed to execute or issue a directive under
this subchapter [chapter] may not be considered in any way in establishing insurance premiums.
Sec. 166.045 [672.015]. LIMITATION OF LIABILITY FOR WITHHOLDING OR
WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A physician or health facility that,
in good faith, causes life-sustaining procedures to be withheld or withdrawn from a qualified
patient in accordance with this subchapter [chapter] is not civilly liable for that action [unless
negligent].
(b) A health professional, acting under the direction of a physician, who participates, in good
faith, in withholding or withdrawing life-sustaining procedures from a qualified patient in
accordance with this subchapter [chapter] is not civilly liable for that action [unless negligent].
(c) A physician, or a health professional acting under the direction of a physician, who
participates, in good faith, in withholding or withdrawing life-sustaining procedures from a
qualified patient in accordance with this subchapter [chapter] is not criminally liable or guilty of
unprofessional conduct as a result of that action [unless negligent].
Sec. 166.046 [672.016]. LIMITATION OF LIABILITY FOR FAILURE TO EFFECTUATE
DIRECTIVE. (a) A physician, health care facility, or health care professional who has no
knowledge of a directive is not civilly or criminally liable for failing to act in accordance with the
directive.
(b) A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effectuate a qualified patient's directive.
(c) If an attending physician refuses to comply with a directive or treatment decision, the physician shall make a reasonable effort to transfer the patient to another physician.
Sec. 166.047 [672.017]. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF
AIDING SUICIDE. A person does not commit an offense under Section 22.08, Penal Code, by
withholding or withdrawing life-sustaining procedures from a qualified patient in accordance with
this subchapter [chapter].
Sec. 166.048 [672.018]. CRIMINAL PENALTY; PROSECUTION. (a) A person commits an
offense if the person intentionally conceals, cancels, defaces, obliterates, or damages another
person's directive without that person's consent. An offense under this subsection is a Class A
misdemeanor.
(b) A person is subject to prosecution for criminal homicide under Chapter 19, Penal Code, if the person, with the intent to cause life-sustaining procedures to be withheld or withdrawn from another person contrary to the other person's desires, falsifies or forges a directive or intentionally conceals or withholds personal knowledge of a revocation and thereby directly causes life-sustaining procedures to be withheld or withdrawn from the other person with the result that the other person's death is hastened.
Sec. 166.049 [672.019]. PREGNANT PATIENTS. A person may not withdraw or withhold
life-sustaining procedures under this subchapter [chapter] from a pregnant patient.
Sec. 166.050 [672.020]. MERCY KILLING NOT CONDONED. This subchapter [chapter]
does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or
omission to end life except to permit the natural process of dying as provided by this
subchapter[chapter].
Sec. 166.051 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This
subchapter [chapter] does not impair or supersede any legal right or responsibility a person may
have to effect the withholding or withdrawal of life-sustaining procedures in a lawful manner.
SECTION 1.04. Chapter 674, Health and Safety Code, is transferred to Subtitle H, Title 2, Health and Safety Code, is redesignated as Subchapter C, Chapter 166, Health and Safety Code, and is amended to read as follows:
SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
DO-NOT-RESUSCITATE ORDERS
Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter [chapter]:
(1) ["Attending physician" means the physician who has primary responsibility for a person's
treatment and care.
[(2) "Board" means the Texas Board of Health.
[(3)] "Cardiopulmonary resuscitation" includes a component of cardiopulmonary resuscitation.
(2) [(4) "Competent" means possessing the ability, based on reasonable medical judgment, to
understand and appreciate the nature and consequences of a treatment decision, including the
significant benefits and harms of, and reasonable alternatives to, a proposed treatment decision.
[(5) "Declarant" means a person who has executed or issued an out-of-hospital
do-not-resuscitate order under this chapter.
[(6) "Department" means the Texas Department of Health.
[(7)] "DNR identification device" means an identification device specified by the board under
Section 166.103 [674.023] that is worn for the purpose of identifying a person who has executed
or issued an out-of-hospital DNR order or on whose behalf an out-of-hospital DNR order has
been executed or issued under this subchapter [chapter].
(3) [(8) "Durable power of attorney for health care" means a document delegating to an agent the
authority to make health care decisions for a person in accordance with Chapter 135, Civil
Practice and Remedies Code.
[(9)] "Emergency medical services" has the meaning assigned by Section 773.003.
(4) [(10)] "Emergency medical services personnel" has the meaning assigned by Section 773.003.
(5) [(11)] "Health care professionals" means physicians, nurses, and emergency medical services
personnel and, unless the context requires otherwise, includes hospital emergency personnel.
(6) [(12) "Incompetent" means lacking the ability, based on reasonable medical judgment, to
understand and appreciate the nature and consequences of a treatment decision, including the
significant benefits and harms of, and reasonable alternatives to, a proposed treatment decision.
[(13) "Life-sustaining procedure" means a medical procedure, treatment, or intervention that uses
mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function
and, when applied to a person in a terminal condition, serves only to prolong the process of dying.
The term does not include the administration of medication or the performance of a medical
procedure considered to be necessary to provide comfort or care or to alleviate pain or the
provision of water or nutrition.
[(14)] "Out-of-hospital DNR order":
(A) means a legally binding out-of-hospital do-not-resuscitate order, in the form specified by the
board under Section 166.083 [674.003], prepared and signed by the attending physician of a
person who has been diagnosed as having a terminal condition, that documents the instructions of
a person or the person's legally authorized representative and directs health care professionals
acting in an out-of-hospital setting not to initiate or continue the following life-sustaining
procedures:
(i) cardiopulmonary resuscitation;
(ii) endotracheal intubation or other means of advanced airway management;
(iii) artificial ventilation;
(iv) defibrillation;
(v) transcutaneous cardiac pacing;
(vi) the administration of cardiac resuscitation medications; and
(vii) other life-sustaining procedures specified by the board under Section
166.103(a)[674.023(a)]; and
(B) does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort or care or to alleviate pain or to provide water or nutrition.
(7) [(15)] "Out-of-hospital setting" means any setting outside of a licensed acute care hospital in
which health care professionals are called for assistance, including long-term care facilities,
in-patient hospice facilities, private homes, and vehicles during transport.
(8) [(16) "Physician" means a physician licensed by the Texas State Board of Medical Examiners
or a properly credentialed physician who holds a commission in the uniformed services of the
United States and who is serving on active duty in this state.
[(17)] "Proxy" means a person designated and authorized by a directive executed or issued in
accordance with Subchapter B [Chapter 672] to make a treatment decision for another person in
the event the other person becomes comatose, incompetent, or otherwise mentally or physically
incapable of communication.
(9) [(18)] "Qualified relatives" means those persons authorized to execute or issue an
out-of-hospital DNR order on behalf of a person who is comatose, incompetent, or otherwise
mentally or physically incapable of communication under Section 166.088 [674.008].
(10) [(19)] "Statewide out-of-hospital DNR protocol" means a set of statewide standardized
procedures adopted by the board under Section 166.103 [674.023] for withholding
cardiopulmonary resuscitation and certain other life-sustaining procedures by health care
professionals acting in out-of-hospital settings.
[(20) "Terminal condition" means an incurable or irreversible condition caused by injury, disease,
or illness that would produce death without the application of life-sustaining procedures,
according to reasonable medical judgment, and in which the application of life-sustaining
procedures serves only to postpone the moment of the person's death.]
Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO PHYSICIANS.
(a) A competent person who has been diagnosed by a physician as having a terminal condition
may at any time execute a written out-of-hospital DNR order directing health care professionals
acting in an out-of-hospital setting to withhold cardiopulmonary resuscitation and certain other
life-sustaining procedures designated by the board.
(b) The declarant must sign the out-of-hospital DNR order in the presence of two witnesses, and those witnesses must sign the order. The attending physician of the declarant must sign the order and shall make the fact of the existence of the order and the reasons for execution of the order a part of the declarant's medical record.
(c) [A witness must have the same qualifications as those provided by Section 672.003(c).
[(d)] If the person is incompetent but previously executed or issued a directive to physicians in
accordance with Subchapter B [Chapter 672], the physician may rely on the directive as the
person's instructions to issue an out-of-hospital DNR order and shall place a copy of the directive
in the person's medical record. The physician shall sign the order in lieu of the person signing
under Subsection (b).
(d) [(e)] If the person is incompetent but previously executed or issued a directive to physicians
in accordance with Subchapter B [Chapter 672] designating a proxy, the proxy may make any
decisions required of the designating person as to an out-of-hospital DNR order and shall sign the
order in lieu of the person signing under Subsection (b).
(e) [(f)] If the person is now incompetent but previously executed or issued a durable power of
attorney for health care [in accordance with Chapter 135, Civil Practice and Remedies Code],
designating an agent, the agent may make any decisions required of the designating person as to
an out-of-hospital DNR order and shall sign the order in lieu of the person signing under
Subsection (b).
(f) [(g)] The board, on the recommendation of the department, shall by rule adopt procedures for
the disposition and maintenance of records of an original out-of-hospital DNR order and any
copies of the order.
(g) [(h)] An out-of-hospital DNR order is effective on its execution.
Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER. (a) A written
out-of-hospital DNR order shall be in the standard form specified by board rule as recommended
by the department.
(b) The standard form of an out-of-hospital DNR order specified by the board must, at a minimum, contain the following:
(1) a distinctive single-page format that readily identifies the document as an out-of-hospital DNR order;
(2) a title that readily identifies the document as an out-of-hospital DNR order;
(3) the printed or typed name of the person;
(4) a statement that the physician signing the document is the attending physician of the person, that the physician has diagnosed the person as having a terminal condition, and that the physician is directing health care professionals acting in out-of-hospital settings not to initiate or continue certain life-sustaining procedures on behalf of the person, and a listing of those procedures not to be initiated or continued;
(5) a statement that the person understands that the person may revoke the out-of-hospital DNR order at any time by destroying the order and removing the DNR identification device, if any, or by communicating to health care professionals at the scene the person's desire to revoke the out-of-hospital DNR order;
(6) places for the printed names and signatures of the witnesses and attending physician of the person and the medical license number of the attending physician;
(7) a separate section for execution of the document by the legal guardian of the person, the
person's proxy, an agent of the person having a durable power of attorney for health care, or the
attending physician attesting to the issuance of an out-of-hospital DNR order by nonwritten
means of communication or acting in accordance with a previously executed or previously issued
directive to physicians under Section 166.082(c) [674.002(d)] that includes the following:
(A) a statement that the legal guardian, the proxy, the agent, the person by nonwritten means of communication, or the physician directs that the listed life-sustaining procedures should not be initiated or continued in behalf of the person; and
(B) places for the printed names and signatures of the witnesses and, as applicable, the legal guardian, proxy, agent, or physician;
(8) a separate section for execution of the document by at least two qualified relatives of the person when the person does not have a legal guardian, proxy, or agent having a durable power of attorney for health care and is comatose, incompetent, or otherwise mentally or physically incapable of communication, including:
(A) a statement that the relatives of the person are qualified to make a treatment decision to
withhold cardiopulmonary resuscitation and certain other designated life-sustaining procedures
under Section 166.088 [674.008] and, based on the known desires of the person or a
determination of the best interest of the person, direct that the listed life-sustaining procedures
should not be initiated or continued in behalf of the person; and
(B) places for the printed names and signatures of the witnesses and qualified relatives of the person;
(9) a place for entry of the date of execution of the document;
(10) a statement that the document is in effect on the date of its execution and remains in effect until the death of the person or until the document is revoked;
(11) a statement that the document must accompany the person during transport;
(12) a statement regarding the proper disposition of the document or copies of the document, as the board determines appropriate; and
(13) a statement at the bottom of the document, with places for the signature of each person executing the document, that the document has been properly completed.
(c) The board may, by rule and as recommended by the department, modify the standard form of
the out-of-hospital DNR order described by Subsection (b) in order to accomplish the purposes of
this subchapter [chapter].
Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY
NONWRITTEN COMMUNICATION. (a) A competent person who is an adult may issue an
out-of-hospital DNR order by nonwritten communication.
(b) A declarant must issue the nonwritten out-of-hospital DNR order in the presence of the
attending physician and two witnesses. [The witnesses must possess the same qualifications as
those provided by Section 672.003(c).]
(c) The attending physician and witnesses shall sign the out-of-hospital DNR order in the [that]
place of the document provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
physician shall sign the document in the place required by Section
166.083(b)(13)[674.003(b)(13)]. The physician shall make the fact of the existence of the
out-of-hospital DNR order a part of the declarant's medical record and the witnesses shall sign
that entry in the medical record.
(d) An out-of-hospital DNR order issued in the manner provided by this section is valid and shall
be honored by responding health care professionals as if executed in the manner provided by
Section 166.082 [674.002].
Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF
OF A MINOR. The following persons may execute an out-of-hospital DNR order on behalf of a
minor:
(1) the minor's parents;
(2) the minor's legal guardian; or
(3) the minor's managing conservator.
Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR
ORDER. The desire of a competent person, including a competent minor, supersedes the effect
of an out-of-hospital DNR order executed or issued by or on behalf of the person when the desire
is communicated to responding health care professionals as provided by this subchapter [chapter].
Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR
INCAPABLE OF COMMUNICATION. (a) This section applies when a person 18 years of age
or older has executed or issued an out-of-hospital DNR order and subsequently becomes
comatose, incompetent, or otherwise mentally or physically incapable of communication.
(b) If the adult person has designated a person to make a treatment decision as authorized by
Section 166.032(c) [672.003(d)], the attending physician and the designated person shall comply
with the out-of-hospital DNR order.
(c) If the adult person has not designated a person to make a treatment decision as authorized by
Section 166.032(c) [672.003(d)], the attending physician shall comply with the out-of-hospital
DNR order unless the physician believes that the order does not reflect the person's present desire.
Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR
ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. (a) If an adult person has not executed or issued an out-of-hospital DNR
order and is comatose, incompetent, or otherwise mentally or physically incapable of
communication, the attending physician and the person's legal guardian, proxy, or agent having a
durable power of attorney for health care may execute an out-of-hospital DNR order on behalf of
the person.
(b) If the person does not have a legal guardian, proxy, or agent, the attending physician and at
least two qualified relatives may execute an out-of-hospital DNR order in the same manner as a
treatment decision made under Section 166.039(b) [672.009(b)].
(c) A decision to execute an out-of-hospital DNR order made under Subsection (a) or (b) must be based on knowledge of what the person would desire, if known.
(d) An out-of-hospital DNR order executed under Subsection (b) must be made in the presence
of at least two witnesses [who possess the same qualifications that are required by Section
672.003(c)].
(e) The fact that an adult person has not executed or issued an out-of-hospital DNR order does not create a presumption that the person does not want a treatment decision made to withhold cardiopulmonary resuscitation and certain other designated life-sustaining procedures designated by the board.
Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER.
(a) When responding to a call for assistance, health care professionals shall honor an
out-of-hospital DNR order in accordance with the statewide out-of-hospital DNR protocol and,
where applicable, locally adopted out-of-hospital DNR protocols not in conflict with the
statewide protocol if:
(1) the responding health care professionals discover an executed or issued out-of-hospital DNR order form on their arrival at the scene; and
(2) the responding health care professionals comply with this section.
(b) If the person is wearing a DNR identification device, the responding health care professionals
must comply with Section 166.090 [674.010].
(c) The responding health care professionals must establish the identity of the person as the person who executed or issued the out-of-hospital DNR order or for whom the out-of-hospital DNR order was executed or issued.
(d) The responding health care professionals must determine that the out-of-hospital DNR order form appears to be valid in that it includes:
(1) written responses in the places designated on the form for the names, signatures, and other information required of persons executing or issuing, or witnessing the execution or issuance of, the order;
(2) a date in the place designated on the form for the date the order was executed or issued; and
(3) the signature of the declarant or persons executing or issuing the order and the attending physician in the appropriate places designated on the form for indicating that the order form has been properly completed.
(e) If the conditions prescribed by Subsections (a) through (d) are not determined to apply by the
responding health care professionals at the scene, the out-of-hospital DNR order may not be
honored and life-sustaining procedures otherwise required by law or local emergency medical
services protocols shall be initiated or continued. Health care professionals acting in
out-of-hospital settings are not required to accept or interpret an out-of-hospital DNR order that
does not meet the requirements of this subchapter [chapter].
(f) The out-of-hospital DNR order form, when available, must accompany the person during transport.
(g) A record shall be made and maintained of the circumstances of each emergency medical services response in which an out-of-hospital DNR order or DNR identification device is encountered, in accordance with the statewide out-of-hospital DNR protocol and any applicable local out-of-hospital DNR protocol not in conflict with the statewide protocol.
(h) An out-of-hospital DNR order executed or issued and documented or evidenced in the
manner prescribed by this subchapter [chapter] is valid and shall be honored by responding health
care professionals unless the person or persons found at the scene:
(1) identify themselves as the declarant or as the attending physician, legal guardian, qualified relative, or agent of the person having a durable power of attorney for health care who executed or issued the out-of-hospital DNR order on behalf of the person; and
(2) request that cardiopulmonary resuscitation or certain other life-sustaining procedures designated by the board be initiated or continued.
(i) If the policies of a health care facility preclude compliance with the out-of-hospital DNR order
of a person or an out-of-hospital DNR order issued by an attending physician on behalf of a
person who is admitted to or a resident of the facility, or if the facility is unwilling to accept DNR
identification devices as evidence of the existence of an out-of-hospital DNR order, that facility
shall take all reasonable steps to notify the person or, if the person is incompetent, the person's
guardian or the person or persons having authority to make health care treatment decisions on
behalf of the person, of the facility's policy and shall take all reasonable steps to effect the transfer
of the person to the person's home or to a facility where the provisions of this
subchapter[chapter] can be carried out.
Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A person who has a valid
out-of-hospital DNR order under this subchapter [chapter] may wear a DNR identification device
around the neck or on the wrist as prescribed by board rule adopted under Section
166.103[674.023].
(b) The presence of a DNR identification device on the body of a person is conclusive evidence that the person has executed or issued a valid out-of-hospital DNR order or has a valid out-of-hospital DNR order executed or issued on the person's behalf. Responding health care professionals shall honor the DNR identification device as if a valid out-of-hospital DNR order form executed or issued by the person were found in the possession of the person.
Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR ORDER. An
out-of-hospital DNR order is effective until it is revoked as prescribed by Section
166.092[674.012].
Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. (a) A
declarant may revoke an out-of-hospital DNR order at any time without regard to the declarant's
mental state or competency. An order may be revoked by:
(1) the declarant or someone in the declarant's presence and at the declarant's direction destroying the order form and removing the DNR identification device, if any;
(2) a person who identifies himself or herself as the legal guardian, as a qualified relative, or as the agent of the declarant having a durable power of attorney for health care who executed the out-of-hospital DNR order or another person in the person's presence and at the person's direction destroying the order form and removing the DNR identification device, if any;
(3) the declarant communicating the declarant's intent to revoke the order; or
(4) a person who identifies himself or herself as the legal guardian, a qualified relative, or the agent of the declarant having a durable power of attorney for health care who executed the out-of-hospital DNR order orally stating the person's intent to revoke the order.
(b) An oral revocation under Subsection (a)(3) or (a)(4) takes effect only when the declarant or a person who identifies himself or herself as the legal guardian, a qualified relative, or the agent of the declarant having a durable power of attorney for health care who executed the out-of-hospital DNR order communicates the intent to revoke the order to the responding health care professionals or the attending physician at the scene. The responding health care professionals shall record the time, date, and place of the revocation in accordance with the statewide out-of-hospital DNR protocol and rules adopted by the board and any applicable local out-of-hospital DNR protocol. The attending physician or the physician's designee shall record in the person's medical record the time, date, and place of the revocation and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designee shall also enter the word "VOID" on each page of the copy of the order in the person's medical record.
(c) Except as otherwise provided by this subchapter [chapter], a person is not civilly or criminally
liable for failure to act on a revocation made under this section unless the person has actual
knowledge of the revocation.
Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. A
declarant may at any time reexecute or reissue an out-of-hospital DNR order in accordance with
the procedures prescribed by Section 166.082 [674.002], including reexecution or reissuance after
the declarant is diagnosed as having a terminal condition.
Sec. 166.094 [674.014]. CONFLICT WITH NATURAL DEATH LAW [ACT] OR DURABLE
POWER OF ATTORNEY FOR HEALTH CARE. To the extent that an out-of-hospital DNR
order conflicts with a directive or treatment decision executed or issued under Subchapter
B[Chapter 672] or a durable power of attorney for health care [executed or issued in accordance
with Chapter 135, Civil Practice and Remedies Code], the instrument executed later in time
controls.
Sec. 166.095 [674.015]. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON INSURANCE
POLICY AND PREMIUMS. (a) The fact that a person has executed or issued an
out-of-hospital DNR order under this subchapter [chapter] does not:
(1) restrict, inhibit, or impair in any manner the sale, procurement, or issuance of a life insurance policy to that person; or
(2) modify the terms of an existing life insurance policy.
(b) Notwithstanding the terms of any life insurance policy, the fact that cardiopulmonary
resuscitation or certain other life-sustaining procedures designated by the board are withheld from
an insured person under this subchapter [chapter] does not legally impair or invalidate that
person's life insurance policy and may not be a factor for the purpose of determining the payability
of benefits or the cause of death under the life insurance policy.
(c) A physician, health facility, health care provider, insurer, or health care service plan may not require a person to execute or issue an out-of-hospital DNR order as a condition for obtaining insurance for health care services or receiving health care services.
(d) The fact that a person has executed or issued or failed to execute or issue an out-of-hospital
DNR order under this subchapter [chapter] may not be considered in any way in establishing
insurance premiums.
Sec. 166.096 [674.016]. LIMITATION ON LIABILITY FOR WITHHOLDING
CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING
PROCEDURES. (a) A health care professional or health care facility or entity that in good faith
causes cardiopulmonary resuscitation or certain other life-sustaining procedures designated by the
board to be withheld from a person in accordance with this subchapter [chapter] is not civilly
liable for that action.
(b) A health care professional or health care facility or entity that in good faith participates in
withholding cardiopulmonary resuscitation or certain other life-sustaining procedures designated
by the board from a person in accordance with this subchapter [chapter] is not civilly liable for
that action.
(c) A health care professional or health care facility or entity that in good faith participates in
withholding cardiopulmonary resuscitation or certain other life-sustaining procedures designated
by the board from a person in accordance with this subchapter [chapter] is not criminally liable or
guilty of unprofessional conduct as a result of that action.
(d) A health care professional or health care facility or entity that in good faith causes or
participates in withholding cardiopulmonary resuscitation or certain other life-sustaining
procedures designated by the board from a person in accordance with this subchapter [chapter]
and rules adopted under this subchapter [chapter] is not in violation of any other licensing or
regulatory laws or rules of this state and is not subject to any disciplinary action or sanction by
any licensing or regulatory agency of this state as a result of that action.
Sec. 166.097 [674.017]. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE
OUT-OF-HOSPITAL DNR ORDER. (a) A health care professional or health care facility or
entity that has no actual knowledge of an out-of-hospital DNR order is not civilly or criminally
liable for failing to act in accordance with the order.
(b) A health care professional or health care facility or entity is not civilly or criminally liable for failing to effectuate an out-of-hospital DNR order.
(c) If an attending physician refuses to execute or comply with an out-of-hospital DNR order, the physician shall inform the person, the legal guardian or qualified relatives of the person, or the agent of the person having a durable power of attorney for health care and, if the person or another authorized to act on behalf of the person so directs, shall make a reasonable effort to transfer the person to another physician who is willing to execute or comply with an out-of-hospital DNR order.
Sec. 166.098 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT
CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an offense under
Section 22.08, Penal Code, by withholding cardiopulmonary resuscitation or certain other
life-sustaining procedures designated by the board from a person in accordance with this
subchapter [chapter].
Sec. 166.099 [674.019]. CRIMINAL PENALTY; PROSECUTION. (a) A person commits an
offense if the person intentionally conceals, cancels, defaces, obliterates, or damages another
person's out-of-hospital DNR order or DNR identification device without that person's consent or
the consent of the person or persons authorized to execute or issue an out-of-hospital DNR order
on behalf of the person under this subchapter [chapter]. An offense under this subsection is a
Class A misdemeanor.
(b) A person is subject to prosecution for criminal homicide under Chapter 19, Penal Code, if the person, with the intent to cause cardiopulmonary resuscitation or certain other life-sustaining procedures designated by the board to be withheld from another person contrary to the other person's desires, falsifies or forges an out-of-hospital DNR order or intentionally conceals or withholds personal knowledge of a revocation and thereby directly causes cardiopulmonary resuscitation and certain other life-sustaining procedures designated by the board to be withheld from the other person with the result that the other person's death is hastened.
Sec. 166.100 [674.020]. PREGNANT PERSONS. A person may not withhold cardiopulmonary
resuscitation or certain other life-sustaining procedures designated by the board under this
subchapter [chapter] from a person known by the responding health care professionals to be
pregnant.
Sec. 166.101 [674.021]. MERCY KILLING NOT CONDONED. This subchapter [chapter]
does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or
omission to end life except to permit the natural process of dying as provided by this
subchapter[chapter].
Sec. 166.102 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This
subchapter [chapter] does not impair or supersede any legal right or responsibility a person may
have under a constitution, other statute, regulation, or court decision to effect the withholding of
cardiopulmonary resuscitation or certain other life-sustaining procedures designated by the board.
Sec. 166.103 [674.023]. DUTIES OF DEPARTMENT AND BOARD. (a) The board shall, on
the recommendation of the department, adopt all reasonable and necessary rules to carry out the
purposes of this subchapter [chapter], including rules:
(1) adopting a statewide out-of-hospital DNR order protocol that sets out standard procedures for the withholding of cardiopulmonary resuscitation and certain other life-sustaining procedures by health care professionals acting in out-of-hospital settings;
(2) designating life-sustaining procedures that may be included in an out-of-hospital DNR order,
including all procedures listed in Sections 166.081(6)(A)(i) through (vi) [Section
674.001(14)(A)(i) through (vi)]; and
(3) governing recordkeeping in circumstances in which an out-of-hospital DNR order or DNR identification device is encountered by responding health care professionals.
(b) The rules adopted by the board under Subsection (a) are not effective until approved by the Texas State Board of Medical Examiners.
(c) Local emergency medical services authorities may adopt local out-of-hospital DNR order protocols if the local protocols do not conflict with the statewide out-of-hospital DNR order protocol adopted by the board.
(d) The board by rule shall specify a distinctive standard design for a necklace and a bracelet
DNR identification device that signifies, when worn by a person, that the possessor has executed
or issued a valid out-of-hospital DNR order under this subchapter [chapter] or is a person for
whom a valid out-of-hospital DNR order has been executed or issued.
(e) The department shall report to the board from time to time regarding issues identified in emergency medical services responses in which an out-of-hospital DNR order or DNR identification device is encountered. The report may contain recommendations to the board for necessary modifications to the form of the standard out-of-hospital DNR order or the designated life-sustaining procedures listed in the standard out-of-hospital DNR order, the statewide out-of-hospital DNR order protocol, or the DNR identification devices.
Sec. 166.104 [674.024]. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER
EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR order executed, issued,
or authorized in another state or a territory or possession of the United States in compliance with
the law of that jurisdiction is effective for purposes of this subchapter [chapter].
SECTION 1.05. Chapter 135, Civil Practice and Remedies Code, is transferred to Subtitle H, Title 2, Health and Safety Code, is redesignated as Subchapter D, Chapter 166, Health and Safety Code, and is amended to read as follows:
SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
HEALTH CARE
Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter [chapter]:
(1) "Adult" means a person 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed.
(2) "Agent" means an adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.
(3) ["Attending physician" means the physician, selected by or assigned to a patient, who has
primary responsibility for the treatment and care of the patient.
[(4) "Capacity to make health care decisions" means the ability to understand and appreciate the
nature and consequences of a health care decision, including the significant benefits and harms of
and reasonable alternatives to any proposed health care.
[(5) "Durable power of attorney for health care" means a document delegating to an agent the
authority to make health care decisions as provided by this chapter.
[(6) "Health care decision" means consent, refusal to consent, or withdrawal of consent to health
care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or
mental condition.
[(7)] "Health care provider" means an individual or facility licensed, certified, or otherwise
authorized to administer health care, for profit or otherwise, in the ordinary course of business or
professional practice and includes a physician.
(4) [(8) "Physician" means:
[(A) a physician licensed by the Texas State Board of Medical Examiners; or
[(B) a physician with proper credentials who holds a commission in a branch of the armed
services of the United States and who is serving on active duty in this state.
[(9)] "Principal" means an adult who has executed a durable power of attorney for health care.
(5) [(10)] "Residential care provider" means an individual or facility licensed, certified, or
otherwise authorized to operate, for profit or otherwise, a residential care home.
Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY. (a) Subject to this
subchapter [chapter] or any express limitation on the authority of the agent contained in the
durable power of attorney for health care, the agent may make any health care decision on the
principal's behalf that the principal could make if the principal were competent [but for the
principal's lack of capacity to make health care decisions].
(b) An agent may exercise authority only if the principal's attending physician certifies in writing
and files the certification in the principal's medical record that, based on the attending physician's
reasonable medical judgment, the principal is incompetent [lacks capacity to make health care
decisions].
(c) Notwithstanding any other provisions of this subchapter [chapter], treatment may not be
given to or withheld from the principal if the principal objects regardless of whether, at the time of
the objection:
(1) a durable power of attorney for health care is in effect; or
(2) the principal is competent [has the capacity to make health care decisions].
(d) The principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's directive.
(e) After consultation with the attending physician and other health care providers, the agent shall make a health care decision:
(1) according to the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs; or
(2) if the agent does not know the principal's wishes, according to the agent's assessment of the principal's best interests.
(f) Notwithstanding any other provision of this subchapter [chapter], an agent may not consent
to:
(1) voluntary inpatient mental health services;
(2) convulsive treatment;
(3) psychosurgery;
(4) abortion; or
(5) neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.
(g) The power of attorney is effective indefinitely on execution as provided by this
subchapter[chapter] and delivery of the document to the agent, unless it is revoked as provided by
this subchapter [chapter] or the principal becomes competent [regains the capacity to make health
care decisions]. If the durable power of attorney includes an expiration date and on that date the
principal becomes incompetent [lacks the capacity to make health care decisions], the power of
attorney continues to be effective until the principal becomes competent [regains the capacity to
make health care decisions] unless it is revoked as provided by this subchapter [chapter].
Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT.
A person may not exercise the authority of an agent while the person serves as:
(1) the principal's health care provider;
(2) an employee of the principal's health care provider unless the person is a relative of the principal;
(3) the principal's residential care provider; or
(4) an employee of the principal's residential care provider unless the person is a relative of the principal.
Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The durable power of attorney
for health care must be signed by the principal in the presence of at least two [or more]
subscribing witnesses.
(b) A witness must possess the qualifications and be subject to the restrictions provided by
Section 166.003. In addition, a witness may not, at the time of execution, be[:
[(1)] the agent[;
[(2) the principal's health or residential care provider or the provider's employee;
[(3) the principal's spouse or heir;
[(4) a person entitled to any part of the estate of the principal on the death of the principal under
a will or deed in existence or by operation of law; or
[(5) any other person who has any claim against the estate] of the principal.
(c) The witnesses shall affirm that, at the time the durable power of attorney for health care was signed, the principal:
(1) [appeared to be of sound mind to make a health care decision;
[(2)] stated in the witness's presence that the principal was aware of the nature of the durable
power of attorney for health care and that the principal was signing the document voluntarily and
free from any duress; and
(2) [(3)] requested that the witness serve as a witness to the principal's execution of the
document.
(d) If the principal is physically unable to sign, another person may sign the durable power of attorney for health care with the principal's name in the principal's presence and at the principal's express direction.
Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of attorney for health care is
revoked by:
(1) oral or written notification at any time by the principal to the agent or a licensed or certified
health or residential care provider or by any other act evidencing a specific intent to revoke the
power, without regard to whether the principal is competent or the principal's mental state[,
competency, or capacity to make health care decisions];
(2) execution by the principal of a subsequent durable power of attorney for health care; or
(3) the divorce of the principal and spouse, if the spouse is the principal's agent.
(b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a durable power of attorney for health care shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care.
Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On motion filed in connection
with a petition for appointment of a guardian or, if a guardian has been appointed, on petition of
the guardian, a probate court shall determine whether to suspend or revoke the authority of the
agent.
(b) The court shall consider the preferences of the principal as expressed in the durable power of attorney for health care.
(c) During the pendency of the court's determination under Subsection (a), the guardian has the sole authority to make any health care decisions unless the court orders otherwise. If a guardian has not been appointed, the agent has the authority to make any health care decisions unless the court orders otherwise.
(d) A person, including any attending physician or health or residential care provider, who does not have actual knowledge of the appointment of a guardian or an order of the court granting authority to someone other than the agent to make health care decisions is not subject to criminal or civil liability and has not engaged in unprofessional conduct for implementing an agent's health care decision.
Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION. Subject to any
limitations in the durable power of attorney for health care, an agent may, for the purpose of
making a health care decision:
(1) request, review, and receive any information, oral or written, regarding the principal's physical or mental health, including medical and hospital records;
(2) execute a release or other document required to obtain the information; and
(3) consent to the disclosure of the information.
Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. (a) A
principal's health or residential care provider and an employee of the provider who knows of the
existence of the principal's durable power of attorney for health care shall follow a directive of the
principal's agent to the extent it is consistent with the desires of the principal, this
subchapter[chapter], and the durable power of attorney for health care.
(b) The attending physician does not have a duty to verify that the agent's directive is consistent with the principal's wishes or religious or moral beliefs.
(c) A principal's health or residential care provider who finds it impossible to follow a directive by
the agent because of a conflict with this subchapter [chapter] or the durable power of attorney for
health care shall inform the agent as soon as is reasonably possible. The agent may select another
attending physician.
(d) This subchapter [chapter] may not be construed to require a health or residential care
provider who is not a physician to act in a manner contrary to a physician's order.
Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION OF DURABLE
POWER OF ATTORNEY FOR HEALTH CARE. A health or residential care provider, health
care service plan, insurer issuing disability insurance, self-insured employee benefit plan, or
nonprofit hospital service plan may not:
(1) charge a person a different rate solely because the person has executed a durable power of attorney for health care;
(2) require a person to execute a durable power of attorney for health care before:
(A) admitting the person to a hospital, nursing home, or residential care home;
(B) insuring the person; or
(C) allowing the person to receive health or residential care; or
(3) refuse health or residential care to a person solely because the person has executed a durable power of attorney for health care.
Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An agent is not subject to criminal
or civil liability for a health care decision if the decision is made in good faith under the terms of
the durable power of attorney for health care and the provisions of this subchapter [chapter].
(b) An attending physician, health or residential care provider, or a person acting as an agent for or under the physician's or provider's control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission:
(1) is done in good faith under the terms of the durable power of attorney for health care, the
directives of the agent, and the provisions of this subchapter [chapter]; and
(2) does not constitute a failure to exercise due care in the provision of health care services.
(c) An attending physician, health or residential care provider, or person acting as an agent for or under the physician's or provider's control has not engaged in unprofessional conduct for:
(1) failure to act as required by the directive of an agent or a durable power of attorney for health care if the physician, provider, or person was not provided with a copy of the durable power of attorney for health care or had no knowledge of a directive; or
(2) acting as required by an agent's directive if the durable power of attorney for health care has expired or been revoked but the physician, provider, or person does not have knowledge of the expiration or revocation.
Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS. Liability for the cost of
health care provided as a result of the agent's decision is the same as if the health care were
provided as a result of the principal's decision.
Sec. 166.162 [135.012]. NATURAL DEATH LAW [ACT]. To the extent that a durable power
of attorney for health care conflicts with a directive or treatment decision executed under
Subchapter B [the Natural Death Act (Chapter 672, Health and Safety Code)], the instrument
executed later in time controls. A physician who withholds or withdraws life-sustaining
procedures from a principal with a terminal condition as required by an agent's directive is not
required to comply with Subchapter B [the Natural Death Act].
Sec. 166.163 [135.013]. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY
EXECUTED IN ANOTHER JURISDICTION. This subchapter [chapter] does not limit the
enforceability of a durable power of attorney for health care or similar instrument executed in
another state or jurisdiction if the instrument complies with the law of the state or jurisdiction.
Sec. 166.164 [135.014]. DISCLOSURE STATEMENT. A durable power of attorney for health
care is not effective unless the principal, before executing the durable power of attorney for health
care, signs a statement that the principal has received a disclosure statement and has read and
understood its contents.
Sec. 166.165 [135.015]. FORM OF DISCLOSURE STATEMENT. The disclosure statement
must be in substantially the following form:
INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR
HEALTH CARE
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician.
Your agent's authority begins when your doctor certifies that you lack the capacity to make health care decisions.
Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.
It is important that you discuss this document with your physician or other health care provider before you sign it to make sure that you understand the nature and range of decisions that may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer's assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.
The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.
You should inform the person you appoint that you want the person to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who have signed copies. Your agent is not liable for health care decisions made in good faith on your behalf.
Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing your agent or your health or residential care provider orally or in writing or by your execution of a subsequent durable power of attorney for health care. Unless you state otherwise, your appointment of a spouse dissolves on divorce.
This document may not be changed or modified. If you want to make changes in the document, you must make an entirely new one.
You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate has the same authority to make health care decisions for you.
THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE
PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES. THE FOLLOWING
PERSONS MAY NOT ACT AS WITNESSES:
(1) the person you have designated as your agent;
(2) a person related to you by blood or marriage [your health or residential care provider or an
employee of your health or residential care provider];
(3) a person entitled to any part of your estate after your death under a will or codicil executed
by you or by operation of law [your spouse];
(4) your attending physician [lawful heirs or beneficiaries named in your will or a deed]; [or]
(5) an employee of the attending physician;
(6) an employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or
(7) a person who, at the time this power of attorney is executed, has a claim against any part of
your estate after your death [creditors or persons who have a claim against you].
Sec. 166.166 [135.016]. FORM OF DURABLE POWER OF ATTORNEY. The durable power
of attorney for health care must be in substantially the following form:
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
DESIGNATION OF HEALTH CARE AGENT.
I,_____________________________(insert your name) appoint:
Name:____________________________________________
Address:_________________________________________
Phone________________________________
as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This durable power of attorney for health care takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.
LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:___________________________ _______________________________________________________ DESIGNATION OF ALTERNATE AGENT.
(You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)
If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:
A. First Alternate Agent
Name:________________________________________
Address:_____________________________________
Phone____________________________
B. Second Alternate Agent
Name:________________________________________
Address:_____________________________________
Phone____________________________
The original of this document is kept at_____________________________________________________ _______________________________________________________ _______________________________________________________
The following individuals or institutions have signed copies:
Name:____________________________________________
Address:_________________________________________
_________________________________________________
Name:____________________________________________
Address:_________________________________________
_________________________________________________
DURATION.
I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.
(IF APPLICABLE) This power of attorney ends on the following date:________________
PRIOR DESIGNATIONS REVOKED.
I revoke any prior durable power of attorney for health care.
ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the disclosure statement.
(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.) I sign my name to this durable power of attorney for health care on _____ day of ______________ 19 _________
at_________________________________________________
(City and State)
___________________________________________________
(Signature)
___________________________________________________
(Print Name)
STATEMENT OF WITNESSES.
I declare under penalty of perjury that the principal has identified himself or herself to me, that the
principal signed or acknowledged this durable power of attorney in my presence, [that I believe
the principal to be of sound mind,] that the principal has affirmed that the principal is aware of the
nature of the document and is signing it voluntarily and free from duress, that the principal
requested that I serve as witness to the principal's execution of this document, that I am not the
person appointed as agent by this document, and that I am not related to the principal by blood
or marriage, I would not be entitled to any portion of the principal's estate on the principal's
death, I am not the attending physician of the principal or an employee of the attending
physician, and I have no claim against any portion of the principal's estate on the principal's
death. Furthermore, if I am an employee of a health care facility in which the principal is a
patient, I am not involved in providing direct patient care to the principal and am not an officer,
director, partner, or business office employee of the health care facility or of any parent
organization of the health care facility [a provider of health or residential care, an employee of a
provider of health or residential care, the operator of a community care facility, or an employee of
an operator of a health care facility.
[I declare that I am not related to the principal by blood, marriage, or adoption and that to the
best of my knowledge I am not entitled to any part of the estate of the principal on the death of
the principal under a will or by operation of law].
Witness Signature:_____________________________________
Print Name:_______________________Date:________________
Address:_______________________________________________
Witness Signature:_____________________________________
Print Name:_______________________Date:________________
Address:_______________________________________________
Sec. 166.167 [135.017]. CIVIL ACTION. (a) A person who is a near relative of the principal or
a responsible adult who is directly interested in the principal, including a guardian, social worker,
physician, or clergyman, may bring an action in district court to request that the durable power of
attorney for health care be revoked because the principal, at the time the durable power of
attorney for health care was signed:
(1) was not competent [of sound mind to make a health care decision]; or
(2) was under duress, fraud, or undue influence.
(b) The action may be brought in the county of the principal's residence or the residence of the person bringing the action.
(c) During the pendency of the action, the authority of the agent to make health care decisions continues in effect unless the district court orders otherwise.
Sec. 166.168 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. This
subchapter [chapter] does not limit or impair any legal right or responsibility that any person,
including a physician or health or residential care provider, may have to make or implement health
care decisions on behalf of a person.
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Subsection (a), Section 313.003, Health and Safety Code, is amended to read as follows:
(a) This chapter does not apply to:
(1) a decision to withhold or withdraw life-sustaining treatment from qualified terminal patients
under Subchapter B, Chapter 166 [the terms of Chapter 672];
(2) a health care decision made under a durable power of attorney for health care under
Subchapter D, Chapter 166 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
XII, Texas Probate Code;
(3) consent to medical treatment of minors under Chapter 32 [35], Family Code;
(4) consent for emergency care under Chapter 773;
(5) hospital patient transfers under Chapter 241; or
(6) a patient's legal guardian who has the authority to make a decision regarding the patient's medical treatment.
SECTION 2.02. Subchapter A, Chapter 142, Health and Safety Code, is amended by adding Section 142.0145 to read as follows:
Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) The department shall assess an administrative penalty against a home and community support services agency that violates Section 166.004.
(b) A penalty assessed under this section shall be $500.
(c) The penalty shall be assessed in accordance with department rules. The rules must provide for notice and an opportunity for a hearing.
SECTION 2.03. Subsections (a) and (c), Section 241.059, Health and Safety Code, are amended to read as follows:
(a) The commissioner of health may assess an administrative penalty against a hospital that violates this chapter, a rule adopted pursuant to this chapter, a special license provision, an order or emergency order issued by the commissioner or the commissioner's designee, or another enforcement procedure permitted under this chapter. The commissioner shall assess an administrative penalty against a hospital that violates Section 166.004.
(c) The penalty may not exceed $1,000 for each violation, except that the penalty for a violation of Section 166.004 shall be $500. Each day of a continuing violation, other than a violation of Section 166.004, may be considered a separate violation.
SECTION 2.04. Subchapter C, Chapter 242, Health and Safety Code, is amended by adding Section 242.071 to read as follows:
Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. The commissioner shall assess an administrative penalty under this subchapter against an institution that violates Section 166.004. Notwithstanding Sections 242.066(b) and (c), a penalty assessed in accordance with this section shall be $500 and a separate penalty may not be assessed for a separate day of a continuing violation.
SECTION 2.05. Subchapter C, Chapter 247, Health and Safety Code, is amended by adding Section 247.0455 to read as follows:
Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) The department shall assess an administrative penalty against a personal care facility that violates Section 166.004.
(b) A penalty assessed under this section shall be $500.
(c) The penalty shall be assessed in accordance with department rules. The rules must provide for notice and an opportunity for a hearing.
SECTION 2.06. Subchapter C, Chapter 248, Health and Safety Code, is amended by adding Section 248.0545 to read as follows:
Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) The department shall assess an administrative penalty against a special care facility that violates Section 166.004.
(b) A penalty assessed under this section shall be $500.
(c) The penalty shall be assessed in accordance with department rules. The rules must provide for notice and an opportunity for a hearing.
ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
SECTION 3.01. This Act takes effect January 1, 1998.
SECTION 3.02. The change in law made by this Act does not affect the validity of a document executed under Chapter 672 or 674, Health and Safety Code, or Chapter 135, Civil Practice and Remedies Code, before the effective date of this Act. A document executed before the effective date of this Act is governed by the law in effect on the date the document was executed, and that law continues in effect for that purpose.
SECTION 3.03. (a) The change in law made by this Act applies only to the punishment for an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.
SECTION 3.04. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.