2023 Texas Statutes › Health and Safety Code › Title 2 - Health › Subtitle H - Public Health Provisions › Chapter 166 - Advance Directives › Subchapter B. Directive to Physicians › Section 166.046. Procedure if Not Effectuating Directive or Treatment Decision for Certain Patients

Sec. 166.046.  PROCEDURE IF NOT EFFECTUATING DIRECTIVE OR TREATMENT DECISION FOR CERTAIN PATIENTS.  (a)  This section applies only to health care and treatment for a patient who is determined to be incompetent or is otherwise mentally or physically incapable of communication.
(a-1)  If an attending physician refuses to honor an advance directive of or health care or treatment decision made by or on behalf of a patient to whom this section applies, the physician's refusal shall be reviewed by an ethics or medical committee.  The attending physician may not be a member of that committee during the review.  The patient shall be given life-sustaining treatment during the review.
(a-2)  An ethics or medical committee that reviews a physician's refusal to honor an advance directive or health care or treatment decision under Subsection (a-1) shall consider the patient's well-being in conducting the review but may not make any judgment on the patient's quality of life.  For purposes of this section, a decision by the committee based on any of the considerations described by Subdivisions (1) through (5) is not a judgment on the patient's quality of life.  If the review requires the committee to determine whether life-sustaining treatment requested in the patient's advance directive or by the person responsible for the patient's health care decisions is medically inappropriate, the committee shall consider whether provision of the life-sustaining treatment:
(1)  will prolong the natural process of dying or hasten the patient's death;
(2)  will result in substantial, irremediable, and objectively measurable physical pain that is not outweighed by the benefit of providing the treatment;
(3)  is medically contraindicated such that the provision of the treatment seriously exacerbates life-threatening medical problems not outweighed by the benefit of providing the treatment;
(4)  is consistent with the prevailing standard of care; or
(5)  is contrary to the patient's clearly documented desires.
(b)  The person responsible for the patient's health care decisions:
(1)  shall be informed in writing not less than seven calendar days before the meeting called to discuss the patient's directive, unless the period is waived by written mutual agreement, of:
(A)  the ethics or medical committee review process and any other related policies and procedures adopted by the health care facility, including any policy described by Subsection (b-1);
(B)  the rights described in Subdivisions (3)(A)-(D);
(C)  the date, time, and location of the meeting;
(D)  the work contact information of the facility's personnel who, in the event of a disagreement, will be responsible for overseeing the reasonable effort to transfer the patient to another physician or facility willing to comply with the directive;
(E)  the factors the committee is required to consider under Subsection (a-2); and
(F)  the language in Section 166.0465;
(2)  at the time of being informed under Subdivision (1), shall be provided:
(A)  a copy of the appropriate statement set forth in Section 166.052; and
(B)  a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the department under Section 166.053; and
(3)  is entitled to:
(A)  attend and participate in the meeting as scheduled by the committee;
(B)  receive during the meeting a written statement of the first name, first initial of the last name, and title of each committee member who will participate in the meeting;
(C)  subject to Subsection (b-1):
(i)  be accompanied at the meeting by the patient's spouse, parents, adult children, and not more than four additional individuals, including legal counsel, a physician, a health care professional, or a patient advocate, selected by the person responsible for the patient's health care decisions; and
(ii)  have an opportunity during the open portion of the meeting to either directly or through another individual attending the meeting:
(a)  explain the justification for the health care or treatment request made by or on behalf of the patient;
(b)  respond to information relating to the patient that is submitted or presented during the open portion of the meeting; and
(c)  state any concerns of the person responsible for the patient's health care decisions regarding compliance with this section or Section 166.0465, including stating an opinion that one or more of the patient's disabilities are not relevant to the committee's determination of whether the medical or surgical intervention is medically appropriate;
(D)  receive a written notice of:
(i)  the decision reached during the review process accompanied by an explanation of the decision, including, if applicable, the committee's reasoning for affirming that requested life-sustaining treatment is medically inappropriate;
(ii)  the patient's major medical conditions as identified by the committee, including any disability of the patient considered by the committee in reaching the decision, except the notice is not required to specify whether any medical condition qualifies as a disability;
(iii)  a statement that the committee has complied with Subsection (a-2) and Section 166.0465; and
(iv)  the health care facilities contacted before the meeting as part of the transfer efforts under Subsection (d) and, for each listed facility that denied the request to transfer the patient and provided a reason for the denial, the provided reason;
(E)  receive a copy of or electronic access to the portion of the patient's medical record related to the treatment received by the patient in the facility for the period of the patient's current admission to the facility; and
(F)  receive a copy of or electronic access to all of the patient's reasonably available diagnostic results and reports related to the medical record provided under Paragraph (E).
(b-1)  A health care facility may adopt and implement a written policy for meetings held under this section that is reasonable and necessary to:
(1)  facilitate information sharing and discussion of the patient's medical status and treatment requirements, including provisions related to attendance, confidentiality, and timing regarding any agenda item; and
(2)  preserve the effectiveness of the meeting, including provisions disclosing that the meeting is not a legal proceeding and the committee will enter into an executive session for deliberations.
(b-2)  Notwithstanding Subsection (b)(3), the following individuals may not attend or participate in the executive session of an ethics or medical committee under this section:
(1)  the physicians or health care professionals providing health care and treatment to the patient; or
(2)  the person responsible for the patient's health care decisions or any person attending the meeting under Subsection (b)(3)(C)(i).
(b-3)  If the health care facility or person responsible for the patient's health care decisions intends to have legal counsel attend the meeting of the ethics or medical committee, the facility or person, as applicable, shall make a good faith effort to provide written notice of that intention not less than 48 hours before the meeting begins.
(c)  The written notice required by Subsection (b)(3)(D)(i) must be included in the patient's medical record.
(d)  After written notice is provided under Subsection (b)(1), the patient's attending physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive.  The health care facility's personnel shall assist the physician in arranging the patient's transfer to:
(1)  another physician;
(2)  an alternative care setting within that facility; or
(3)  another facility.
(d-1)  If another health care facility denies the patient's transfer request, the personnel of the health care facility assisting with the patient's transfer efforts under Subsection (d) shall make a good faith effort to inquire whether the facility that denied the patient's transfer request would be more likely to approve the transfer request if a medical procedure, as that term is defined in this section, is performed on the patient.
(d-2)  If the patient's advance directive or the person responsible for the patient's health care decisions is requesting life-sustaining treatment that the attending physician has decided and the ethics or medical committee has affirmed is medically inappropriate:
(1)  the attending physician or another physician responsible for the care of the patient shall perform on the patient each medical procedure that satisfies all of the following conditions:
(A)  in the attending physician's judgment, the medical procedure is reasonable and necessary to help effect the patient's transfer under Subsection (d);
(B)  an authorized representative for another health care facility with the ability to comply with the patient's advance directive or the health care or treatment decision made by or on behalf of the patient has expressed to the personnel described by Subsection (b)(1)(D) or the attending physician that the facility is more likely to accept the patient's transfer to the other facility if the medical procedure is performed on the patient;
(C)  in the medical judgment of the physician who would perform the medical procedure, performing the medical procedure is:
(i)  within the prevailing standard of medical care; and
(ii)  not medically contraindicated or medically inappropriate under the circumstances;
(D)  in the medical judgment of the physician who would perform the medical procedure, the physician has the training and experience to perform the medical procedure;
(E)  the physician who would perform the medical procedure has medical privileges at the facility where the patient is receiving care authorizing the physician to perform the medical procedure at the facility;
(F)  the facility where the patient is receiving care has determined the facility has the resources for the performance of the medical procedure at the facility; and
(G)  the person responsible for the patient's health care decisions provides consent on behalf of the patient for the medical procedure; and
(2)  the person responsible for the patient's health care decisions is entitled to receive:
(A)  a delay notice:
(i)  if, at the time the written decision is provided as required by Subsection (b)(3)(D)(i), a medical procedure satisfies all of the conditions described by Subdivision (1); or
(ii)  if:
(a)  at the time the written decision is provided as required by Subsection (b)(3)(D)(i), a medical procedure satisfies all of the conditions described by Subdivision (1) except Subdivision (1)(G); and
(b)  the person responsible for the patient's health care decisions provides to the attending physician or another physician or health care professional providing direct care to the patient consent on behalf of the patient for the medical procedure within 24 hours of the request for consent;
(B)  a start notice:
(i)  if, at the time the written decision is provided as required by Subsection (b)(3)(D)(i), no medical procedure satisfies all of the conditions described by Subdivisions (1)(A) through (F); or
(ii)  if:
(a)  at the time the written decision is provided as required by Subsection (b)(3)(D)(i), a medical procedure satisfies all of the conditions described by Subdivision (1) except Subdivision (1)(G); and
(b)  the person responsible for the patient's health care decisions does not provide to the attending physician or another physician or health care professional providing direct care to the patient consent on behalf of the patient for the medical procedure within 24 hours of the request for consent; and
(C)  a start notice accompanied by a statement that one or more of the conditions described by Subdivisions (1)(A) through (G) are no longer satisfied if, after a delay notice is provided in accordance with Subdivision (2)(A) and before the medical procedure on which the delay notice is based is performed on the patient, one or more of those conditions are no longer satisfied.
(d-3)  After the 25-day period described by Subsection (e) begins, the period may not be suspended or stopped for any reason.  This subsection does not limit or affect a court's ability to order an extension of the period in accordance with Subsection (g).  Subsection (d-2) does not require a medical procedure to be performed on the patient after the expiration of the 25-day period.
(e)  If the patient's advance directive or the person responsible for the patient's health care decisions is requesting life-sustaining treatment that the attending physician has decided and the ethics or medical committee has affirmed is medically inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d).  This subsection does not authorize withholding or withdrawing pain management medication, medical interventions necessary to provide comfort, or any other health care provided to alleviate a patient's pain.  The patient is responsible for any costs incurred in transferring the patient to another health care facility.  The attending physician, any other physician responsible for the care of the patient, and the health care facility are not obligated to provide life-sustaining treatment after the 25th calendar day after a start notice is provided in accordance with Subsection (d-2)(2)(B) or (C) to the person responsible for the patient's health care decisions or a medical procedure for which a delay notice was provided in accordance with Subsection (d-2)(2)(A) is performed, whichever occurs first, unless ordered to extend the 25-day period under Subsection (g), except that artificially administered nutrition and hydration must be provided unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would:
(1)  hasten the patient's death;
(2)  be medically contraindicated such that the provision of the treatment seriously exacerbates life-threatening medical problems not outweighed by the benefit of providing the treatment;
(3)  result in substantial, irremediable, and objectively measurable physical pain not outweighed by the benefit of providing the treatment;
(4)  be medically ineffective in prolonging life; or
(5)  be contrary to the patient's or surrogate's clearly documented desire not to receive artificially administered nutrition or hydration.
(e-1)  If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.
(f)  Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.
(g)  At the request of the person responsible for the patient's health care decisions, the appropriate district or county court shall extend the period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.
(h)  This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency.  This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.
(i)  In this section:
(1)  "Delay notice" means a written notice that the first day of the 25-day period provided under Subsection (e), after which life-sustaining treatment may be withheld or withdrawn unless a court has granted an extension under Subsection (g), will be delayed until the calendar day after a medical procedure required by Subsection (d-2)(1) is performed unless, before the medical procedure is performed, the person receives written notice of an earlier first day because one or more conditions described by that subdivision are no longer satisfied.
(2)  "Medical procedure" means only a tracheostomy or a percutaneous endoscopic gastrostomy.
(3)  "Start notice" means a written notice that the 25-day period provided under Subsection (e), after which life-sustaining treatment may be withheld or withdrawn unless a court has granted an extension under Subsection (g), will begin on the first calendar day after the date the notice is provided.
Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.03, eff. Sept. 1, 1999.  Amended by Acts 2003, 78th Leg., ch. 1228, Sec. 3, 4, eff. June 20, 2003.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0503, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 435 (H.B. 3074), Sec. 5, eff. September 1, 2015.
Acts 2023, 88th Leg., R.S., Ch. 915 (H.B. 3162), Sec. 2, eff. September 1, 2023.
Acts 2023, 88th Leg., R.S., Ch. 915 (H.B. 3162), Sec. 3, eff. September 1, 2023.