Decenher 2$, 1987

Honorable Charles D.Penick Opinion No. .Jk-837 Criminal District Attorney Bastrop County Courthouse Re: Whether artificial or Bastrop, Texas 78602 tube feeding constitutes a life-sustaining procedure for purposes of article 4590h, V.T.C.S. (RQ-1036)
**Dear** Mr. Penick:
Inyour inquiry you ask the following question:
Ifapatient cf anursing home who meets the definitions of aDeclarant and qualified patient of article ~4590h, V.T.C.S., the Natural Death Act, isunable to,feed him or herself and it becomes necessary to tube feed orartificially feed that person, must the hospital feed that patient artificially or does the procedure for artificially feeding 'or tube feeding fall under the definition ofalife sustaining procedure as defined in section 2, subsection 4, of article 4590h? Article 4590h, V.T.C.S., makes it possible for any competent adult person, at any **time,** to execute a directive for the withholding or withdrawal of life-sustaining procedures in the event of a terminal condition. Provisions of the act relating to the execution of such adocument provide as follows:

Sec. 2. Inthis Act: .(I) 'Attending physician' means the physician who has primary responsibility for the treatment and care of the patient. (2) 'Declarant' means a oerson who has executed or issued a directive under this &&. *

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(3) 'Directive' means: (A) adocument voluntarily executed by the declarant asprescribed by Section 3(a) of this Act: (B) anonwritten directive issued by the declarant asprescribed by Section 3(b) of this Act: or (c) adocument executed asprescribed by Section 4Dof this Act. (4) 'Life-sustaining procedure' means a medical procedure or intervention which utilizes mechanical or other artificial means to sustain, restore, or supplant a vital function, which, when applied to a qualified patient, would serve only to artificially prolong themoment ofdeath and where, in the judgment of the attending physician, noted inthe qualified patient's medical records, death is imminent whether or not such procedures are utilized. 'Life-sustaining procedure' shall not include the administration ofmedication or the performance of any medical procedure deemed necessary toprovide comfort or care oralleviate pain. (5) 'Physician' means a physician and surgeon licensed by the Texas State Board of Medical Examiners oraproperly credentialed physician holding a commission in the uniformed services of the United States who isserving on active duty inthis state. (6) 'Oualified oatient' means a natient diaanosed and certified inwritina to be afflicted with a terminal condition bv two phvsicians, one of whom shall be the attending physician, who have personally examined the patient. (7) 'Terminal condition' means an incurable condition caused by injury, disease, or illness, which, regardless of the application of life-sustaining procedures, would, within reasonable medical 'judgment, produce death, and where the ?

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application of life-sustaining procedures serves only topostpone themoment of death of the patient. Directive forwithholding orwithdrawal of life-sustaining procedures in event ofterminal condition
Sec. 3. (a)Any competent adult person may, at any time, execute adirective for the withholding or withdrawal of lifesustaining procedures in the event of a terminal condition. The directive shall be signed by the declarant inthe presence of two witnesses not related to the declarant byblood or marriage andwho would not be entitled toany portion of the estate of the declarant onhis decease under anywill of the declarant or codicil thereto or by operation of law. Inaddition, awitness to a directive shall not be the attending physician, an employee of the attending physician orahealth facility inwhich the declarant is a patient, a patient in a health care facility inwhich the declarant isapatient, orany person who has a claim against any portion of the estate of the declarant upon his decease at the time of the execution of the directive. The two witnesses to the declarant's signature shall sign the directive. (b)Acompetent qualified patient who is an adult may issue a directive by a nonwritten means of communication. The declarant must issue the directive in the presence of the attending physician and two witnesses. The witnesses must possess the same qualifications as are required by Subsection (a) of this section. The physician shall make the fact of the existence of the directive apart of the declarant's'medical record and the witnesses shall sign said entry in the declarant's medical record. (0)A declarant shall notify the attending physician ofthe existence of a written directive. If the declarant is comatose, incompetent, orotherwise mentally

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orphysically incapable of communication, another person may notify the physician of the existence of awritten directive. The physician shall make the directive apart of the declarant's medical record. [subsection (d)sets forth aform that w beused by adeclarant] (e)The directive may include other directions, including a designation of another person tomake atreatment decisiorl inaccordance with Section 4A of this Act for the declarant if the declarant is comatose, incompe=ent, orotherwise mentally orphysically incapable of communication. (Emphasis added.)
Asommon thread running throughout the act is the expression of the legislature's intent that the desire o_f aaualified declarantshall b~follow~. The followiho oraJisions of the act reflect theparamount importancs Oi the declarcnt's wishes and provide for penal sanctions for any person who takes any action to defeat the desire cf the dcclarant. The following sections oi the act reflect ? su.2hlegislative intent, as .follows:

Sec. 4. (a)A directive mav be revat anv time bv the d~eclarant. without reaard -mental state or comvetengy .~. . .

. . . . Sec. 4A. The desireof patient who is comvetent 

### s.1 at all times m directive. If an adult qualified patient iscomatose, in;,ompetent, or otherwise mentally or physically incapable ofcommunication and has issued a directive under this Act without designating aperson to make atreatment decision, tile attending physician shall comply with the directive unless the Dhvsician believes that the direct=does not reflect the wresent desire of the natient.

. . . . Sec. 4C. (a)If an adult qualified patient is comatose, incompetent, or

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# r otherwise mentally orphysically incapable ofcommunication, and the person has not issued a directive under this Act, the attending physician and the legal guardian of the patient may make atreatment decision that may, based on knowledae of what the patient would desire, if known, include a decision to withhold or withdraw lifesustaining procedures from the patient. (b)Ifthe patient does not have a legal guardian, the attending physician and at least two, ifavailable, of the following categories of persons, in the following priority, may make atreatment decision that may, based onknowledae ofwhat the oatient would desire, ifknown . . . .

. . . . Sec. 4D. (a)The following persons may execute adirective onbehalf of aqualified patient who isunder (1)the patient's isan adult: 18years of age:
spouse, ifthe spouse

(2)the patient's parents; or (3)the patient's legal guardian. (b)The desire ofaoualified natient who is under 18 vears of aae and who * comnetent shall at all times suversede tit: effect ofadirective executed inaccordance with this section.

. . . . Sec. 7. (a).Before withholding or withdrawing life-sustaining procedures from aqualified patient under this Act, the attending physician shall determine that all steps proposed to be undertaken are in accord with the provisions of this Act and the existina desires of the aualified patient.

. . . .

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Sec. 8. (c)No nhvsician. health facilitv. orother health nrovider, and no health care service vlan. or insurer issuina a- . insurance, mav reoulre anv nerson to execute adirective asacondition forbeing insured for, or receiving, health care services nor may the execution or failure to execute a directive be considered in any way in establishing the premiums for insurance.~
Sec. 9. Aperson who willfully conceals, cancels, defaces, obliterates, or damages the directive of another without such declarant's consent shall be guilty of a s Class Amisdemeanor. Aperson who falsifies or forges the directive of another, or willfully conceals or withholds personal knowledge of a revocation as provided in Section 4of this Act, with the intent to cause a withdrawal of life-sustaining procedures contrarv to the wishes of the declarant, and thereby,.because of any such act, directly causes~ life-sustaining procedures tobe withheld orwithdrawn and death' to thereby be hastened, shall be subject toprosecution for criminal homicide under the provisions of the Penal Code. (Emphasis added.) The question you pose is limited to the issue of whether artificially feeding or tube feeding isa lifesustaining procedure as~those items are defined in the act. You assume that the patient isa "declarant@' and a "aualified watient" as those terms are defined in section 2ofarticle 4590h. Senator Ray ,Farabee, sponsor in the Texas Senate of the "Natural Death Act" (Acts 1977, 65th Leg., ch. 398, at 1085), writing in41 Texas Bar J. 241 (1978), noted that itwas impossible to establish criteria indetermining when aperson is ina "terminal condition" orwhat will constitute a "life-sustaining procedure." We believe the following observations by Senator Farabee to be pertinent toyour inquiry.

The law does not attempt to establish criteria to determine when aperson istobe deemed 'terminal' for the purposes of implementing such a directive. It does outline a general statement of the circumstances in which it will be legally effective. Restrictive criteria would

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render the law almost immediately obsolete inthe face of emerging medical advances. Only the medical profession can determine when apatient's prognosis ishopeless and the death process irreversible. Similarlv. the statute does not itemize what Drocedures are to be reaarded as 'life-sustainins' and senarate from standard medical treatment which mav be aiven reaardless ofa natient's condition. Such distinctions must bemade bvmedical nractitioners accordins to accewted medical standards. For instance, many physicians maintain that therapy, such as the use of antibiotics, qualifies as 'extraordinary' when the patient is acancerous, comatose go-year old. On the other hand, administration of pain-killing drugs falls in a separate category. (Emphasis supplied). Turning to other jurisdictions, in Corbett D'Alessandro, 487 So.Zd 368, 371 (Fla. Dist. Ct. Ap;: 1986), the matter of what constitutes a "life-sustaining procedure11 was addressed as follows:

Judge Hersey, in his opinion for the fourth district inKennedv v. Bludworth, 432 So.2d at 619, in astatement not commented upon but apparently approved by our supreme court in Kennedv v. Bludworth, 452 So.2d 291, wrote: 'Life sustaining procedures are medical procedures which utilize mechanical or other artificial means to sustain, restore or supplant avital function, which serve only or primarily to prolong the moment ofdeath, andwhere, inthe judgment. of the attending and consulting physicians, as reflected in the patient's medical records, death is imminent if such procedures are not utilized.' Although artificial or tube feeding may constitute a life-maintaining procedure within the meaning of article 4590h, V.T.C.S., whether it will serve to artificially prolong the moment ofdeath is aquestion which depends upon the expertise of themedical profession for its resolution ineach individual case. While the resolution of this question is for the medical profession, the legislature has made itplain that care should be taken



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that a oualified declarant's wishes be observed in withdrawing life-sustaining procedures when there is a terminal condition.
SUMMARY

Although artificial or tube feeding may constitute a life-maintaining procedure within the meaning of article 459013, V.T.C.S., whether it will serve to artificially prolong the moment ofdeath is aquestion which depends upon the expertise of the medical profession for its resolution ineach individual case. The article 4399, V.T.C.S., opinion process was not intended to resolve factual disputes.
Jzh

MATTOX Attorney General of Texas
MARYKKLLKR Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General



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