Texas Advance Directives Act

Last updated

The Texas Advance Directives Act (1999), also known as the Texas Futile Care Law, describes certain provisions that are now Chapter 166 of the Texas Health & Safety Code. Controversy over these provisions mainly centers on Section 166.046, Subsection (e), 1 which allows a health care facility to discontinue life-sustaining treatment ten days after giving written notice if the continuation of life-sustaining treatment is considered futile care by the treating medical team.

Contents

Although it is often stated that the act is officially named as the 'Futile Care Law' or the 'Futile Care Act', that is in fact incorrect and the statute has never legally had that title.

The statute

For the hospital personnel to take advantage of legal immunity from prosecution for this the following process must be followed:

The bill was signed into law while George W. Bush was Governor of Texas. Critics have compared this law and its effects with Bush's response to Terri Schiavo's situation, in particular his stated intent to sign the proposed Incapacitated Person's Legal Protection Act. 3

Similar legislation, modeled on the Texas law, was proposed in Idaho in 2009, but was defeated.[ citation needed ]

Cases

Sun Hudson: On March 15, 2005, six-month-old infant Sun Hudson, who had a lethal congenital malformation, was one of the first children to have care withdrawn under the Texas Futile Treatment Law. [1] [2] Doctors demonstrated in the ethics committee reviews that keeping the infant on a respirator would only delay his inevitable death. Sun died shortly after his care was discontinued.

Tirhas Habtegiris: In December 2005, Tirhas Habtegiris, a young woman and legal immigrant from Eritrea, was removed from a respirator. Habtegiris died from complications of incurable and untreatable cancer that had spread to her lungs. She died 16 minutes after the respirator was removed.

Andrea Clark: In April 2006, relatives of 53-year-old Andrea Clark were given the 10-day notice under this act. [3] [4] She had reportedly signed a statement she did not wish to die and was cognizant, although having difficulties communicating while under heavy medication and after her brain was damaged by internal bleeding and the effects of heart disease. After publicity from both right and left political groups, St. Luke's hospital in Houston agreed to review the case again, eventually retracting the original decision this further review. Clark ultimately died on May 8, 2006, after an infection.

Emilio Lee Gonzales: In March 2007, Children's Hospital of Austin gave the mother of 16-month-old Emilio Lee Gonzales the 10 day notice under this act. This child suffered from Leigh's disease, an invariably fatal, progressive illness which eventually destroys all nerve function and thereby prevents breathing, swallowing, coughing, or any intentional or reflex movement. Joshua Carden, an attorney for the Gonzales family, reported that the family had made a "unified decision" to keep the child alive through artificial means, which at the time of the court dispute included constant use of a ventilator machine, pumping food and water into his body, and frequent suctioning fluids out of his lungs, even though the family was aware that the child would not recover. [5]

On March 12, 2007, the hospital ethics committee set a date of March 23 for removing Gonzales from his respirator. Lawyers representing Gonzales' mother Catarina filed for a restraining order on March 20 to allow the family more time to locate another facility willing to accept Gonzales. Later that evening, the hospital agreed to postpone removal of the respirator until April 10. On April 4, lawyers for Catarina Gonzales challenged the constitutionality of the ADA in Federal court, saying that it violated Emilio Gonzales' 1st and 14th Amendment rights. [6] However, on April 6, federal judge Sam Sparks declined to intervene and sent the matter back to state court. [7] As of April 9, over 30 hospitals nationwide had refused to accept Emilio as a transfer patient. [5] On April 10, Travis County Probate Judge Guy Herman issued an emergency restraining order to prevent the hospital from removing Emilio Gonzales from his respirator. A hearing was scheduled for April 19. [8] He died at the hospital from the disease on Saturday, May 19, 2007, at the age of 19 months. He spent a total of five months on a mechanical respirator at the hospital before his death.

Other cases: Although there is much press about these cases, due to the lack of a reporting clause in the current statute, there is little information on how often these cases occur. Dr. Robert Fine, director of the Office of Clinical Ethics for the Baylor Health Care System says he collected five years' worth of information from eleven large hospitals in Texas and two years' worth of data from five other large hospitals in the state. According to Fine's data, the hospitals surveyed held 2,922 ethics committee consultations, 974 of which concerned medical futility cases. From those 974 consultations, the hospitals issued 65 letters stating agreement with the attending physicians that treatment should be withdrawn, Fine says. But he says the hospitals actually withdrew treatment in only 27 of the cases, while 22 patients died receiving treatment as they awaited transfers. 4

Support

Before the Act, a hospital could obtain a court injunction to withdraw treatment without giving the family any time to arrange a transfer.

Unlike many previous policies, the Act does not take money into an account. A poor person has the same rights under the Act as a wealthy person.

Bioethicst and practicing MD Beverly B. Nuckols has argued: "There are no futile patients... there is only futile medicine and technology. If my patient suffers organ failure after organ failure, some medicines and technology can become harmful – sometimes by causing side effects and more organ failure, often by prolonging the patient's dying." [9]

Criticism

The major criticisms of the Act involve the period of time allowed to transfer, and the ability of the ethics committee to make the final decision on whether continued care is considered futile.

The current Act provides a 10-day period for the patient's family either to find another facility to accept the patient or to obtain a court injunction to extend the time period. If no other facility will accept the patient within the period of time and the family is unable to obtain a court injunction, then the hospital is legally permitted to withdraw life sustaining-treatment from the patient, and to allow the disease process(es) to bring about patient's death. Critics maintain that ten days is not enough time to secure alternate care.

Reform efforts

State Senator Bob Deuell (R-Greenville), who is also a practicing family physician, introduced Senate Bill 439. [10] SB 439 is also known as the "Patient and Family Treatment Choice Rights Act of 2007" and would amend the applicable provisions of the Advance Directives Act to "ensure that, when an attending physician is unwilling to respect a patient's advance directive or a patient's or family's decision to choose the treatment necessary to prevent the patient's death, life-sustaining medical treatment will be provided until the patient can be transferred to a health care provider willing to honor the directive or treatment decision." SB 439 was referred to the Senate Health and Human Services Committee on February 21, 2007. A hearing was scheduled for April 12, 2007.

State Representative Bryan Hughes (R-Mineola) introduced an identical bill, HB 1094 with 59 co-sponsors. It was referred to the House Public Health Committee on February 22, 2007.

Media coverage of the Emilio Gonzales case has brought debate over SB 439 and HB 1094 to the forefront. [11]

The attempt to change this law did not make it through the 2007 legislative session. It died in the House after the Senate had passed a version of it. Supporters have stated they intend to work toward acceptance of changes.

In 2015, the Texas Legislature unanimously passed HB 3074 [12] by State Representative Drew Springer (R-Gainesville), a bill to stop dehydration and starvation of persons with disabilities by reforming the aspect of the statute which allowed healthcare providers to remove artificial nutrition and hydration against a patient's wishes. HB 3074 is the first reform effort to garner universal support from advocacy groups and boasted 4 joint authors and 81 co-authors in the House of Representatives. It was unopposed in the House and Senate and was signed into law by Governor Abbott. It is the first reform to the Texas Advance Directives Act since 2003. [13]

See also

Notes

Related Research Articles

<span class="mw-page-title-main">Advance healthcare directive</span> Legal document

An advance healthcare directive, also known as living will, personal directive, advance directive, medical directive or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. In the U.S. it has a legal status in itself, whereas in some countries it is legally persuasive without being a legal document.

<span class="mw-page-title-main">Do not resuscitate</span> Legal order saying not to perform CPR if heart stops

A do-not-resuscitate order (DNR), also known as Do Not Attempt Resuscitation (DNAR), Do Not Attempt Cardiopulmonary Resuscitation (DNACPR), no code or allow natural death, is a medical order, written or oral depending on country, indicating that a person should not receive cardiopulmonary resuscitation (CPR) if that person's heart stops beating. Sometimes these decisions and the relevant documents also encompass decisions around other critical or life-prolonging medical interventions. The legal status and processes surrounding DNR orders vary from country to country. Most commonly, the order is placed by a physician based on a combination of medical judgement and patient involvement.

Medical ethics is an applied branch of ethics which analyzes the practice of clinical medicine and related scientific research. Medical ethics is based on a set of values that professionals can refer to in the case of any confusion or conflict. These values include the respect for autonomy, non-maleficence, beneficence, and justice. Such tenets may allow doctors, care providers, and families to create a treatment plan and work towards the same common goal. It is important to note that these four values are not ranked in order of importance or relevance and that they all encompass values pertaining to medical ethics. However, a conflict may arise leading to the need for hierarchy in an ethical system, such that some moral elements overrule others with the purpose of applying the best moral judgement to a difficult medical situation. Medical ethics is particularly relevant in decisions regarding involuntary treatment and involuntary commitment.

The right to die is a concept based on the opinion that human beings are entitled to end their life or undergo voluntary euthanasia. Possession of this right is often understood that a person with a terminal illness, incurable pain, or without the will to continue living, should be allowed to end their own life, use assisted suicide, or to decline life-prolonging treatment. The question of who, if anyone, may be empowered to make this decision is often the subject of debate.

Measure 16 of 1994 established the U.S. state of Oregon's Death with Dignity Act, which legalizes medical aid in dying with certain restrictions. Passage of this initiative made Oregon the first U.S. state and one of the first jurisdictions in the world to permit some terminally ill patients to determine the time of their own death.

<span class="mw-page-title-main">Primary care</span> Day-to-day health care given by a health care provider

Primary care is the day-to-day healthcare given by a health care provider. Typically this provider acts as the first contact and principal point of continuing care for patients within a healthcare system, and coordinates other specialist care that the patient may need. Patients commonly receive primary care from professionals such as a primary care physician, a physician assistant, a physical therapist, or a nurse practitioner. In some localities, such a professional may be a registered nurse, a pharmacist, a clinical officer, or an Ayurvedic or other traditional medicine professional. Depending on the nature of the health condition, patients may then be referred for secondary or tertiary care.

Terminal illness or end-stage disease is a disease that cannot be cured or adequately treated and is expected to result in the death of the patient. This term is more commonly used for progressive diseases such as cancer, dementia or advanced heart disease than for injury. In popular use, it indicates a disease that will progress until death with near absolute certainty, regardless of treatment. A patient who has such an illness may be referred to as a terminal patient, terminally ill or simply as being terminal. There is no standardized life expectancy for a patient to be considered terminal, although it is generally months or less. Life expectancy for terminal patients is a rough estimate given by the physician based on previous data and does not always reflect true longevity. An illness which is lifelong but not fatal is a chronic condition.

Futile medical care is the continued provision of medical care or treatment to a patient when there is no reasonable hope of a cure or benefit.

<span class="mw-page-title-main">Medical record</span> Medical term

The terms medical record, health record and medical chart are used somewhat interchangeably to describe the systematic documentation of a single patient's medical history and care across time within one particular health care provider's jurisdiction. A medical record includes a variety of types of "notes" entered over time by healthcare professionals, recording observations and administration of drugs and therapies, orders for the administration of drugs and therapies, test results, X-rays, reports, etc. The maintenance of complete and accurate medical records is a requirement of health care providers and is generally enforced as a licensing or certification prerequisite.

The case of Sun Hudson concerned Wanda Hudson and her infant son, who was allowed to die via removal of his breathing tube, contrary to her wishes.

Spiro Nikolouzos was a Texas man incapacitated from bleeding related to a cerebral shunt, whose care was the subject of an appeal of The Texas Futile Care Law.

The Patient Self-Determination Act (PSDA) was passed by the United States Congress in 1990 as an amendment to the Omnibus Budget Reconciliation Act of 1990. Effective on December 1, 1991, this legislation required many hospitals, nursing homes, home health agencies, hospice providers, health maintenance organizations (HMOs), and other health care institutions to provide information about advance health care directives to adult patients upon their admission to the healthcare facility. This law does not apply to individual physicians.

Tirhas Habtegiris was a United States resident originally from Eritrea, who, after being diagnosed as terminally ill, was removed from a respirator against the wishes of her family. Habtegiris had a form of cancer known as an abdominal angiosarcoma which had spread to her lungs.

Euthanasia is currently illegal in all 50 states of the United States. Assisted suicide is legal in 10 jurisdictions in the US: Washington, D.C. and the states of California, Colorado, Oregon, Vermont, New Mexico, Maine, New Jersey, Hawaii, and Washington. The status of assisted suicide is disputed in Montana, though currently authorized per the Montana Supreme Court's ruling in Baxter v. Montana that "nothing in Montana Supreme Court precedent or Montana statutes [indicates] that physician aid in dying is against public policy."

<span class="mw-page-title-main">Philosophy of healthcare</span>

The philosophy of healthcare is the study of the ethics, processes, and people which constitute the maintenance of health for human beings. For the most part, however, the philosophy of healthcare is best approached as an indelible component of human social structures. That is, the societal institution of healthcare can be seen as a necessary phenomenon of human civilization whereby an individual continually seeks to improve, mend, and alter the overall nature and quality of their life. This perennial concern is especially prominent in modern political liberalism, wherein health has been understood as the foundational good necessary for public life.

Ambulatory care nursing is the nursing care of patients who receive treatment on an outpatient basis, ie they do not require admission to a hospital for an overnight stay. Ambulatory care includes those clinical, organizational and professional activities engaged in by registered nurses with and for individuals, groups, and populations who seek assistance with improving health and/or seek care for health-related problems. The American Academy of Ambulatory Care Nursing (AAACN) describes ambulatory care nursing as a comprehensive practice which is built on a broad knowledge base of nursing and health sciences, and applies clinical expertise rooted in the nursing process.

A surrogate decision maker, also known as a health care proxy or as agents, is an advocate for incompetent patients. If a patient is unable to make decisions for themselves about personal care, some agent must make decisions for them. If there is a durable power of attorney for health care, the agent appointed by that document is authorized to make health care decisions within the scope of authority granted by the document. If people have court-appointed guardians with authority to make health care decisions, the guardian is the authorized surrogate.

<span class="mw-page-title-main">Philippine Health Insurance Corporation</span> State-owned health insurance company of the Philippines

The Philippine Health Insurance Corporation (PhilHealth) was created in 1995 to implement universal health coverage in the Philippines. It is a tax-exempt, government-owned and controlled corporation (GOCC) of the Philippines, and is attached to the Department of Health. Its stated goal is to "ensure a sustainable national health insurance program for all", according to the company. In 2010, it claimed to have achieved "universal" coverage at 86% of the population, although the 2008 National Demographic Health Survey showed that only 38 percent of respondents were aware of at least one household member being enrolled in PhilHealth. Nevertheless, this social insurance program provides a means for the healthy to pay for the care of the sick and for those who can afford medical care to subsidize those who cannot. Both local and national governments allocate funds to subsidize the indigent.

Maternal somatic support after brain death occurs when a brain dead patient is pregnant and their body is kept alive to deliver a fetus. It occurs very rarely internationally. Even among brain dead patients, in a U.S. study of 252 brain dead patients from 1990–96, only 5 (2.8%) cases involved pregnant women between 15 and 45 years of age.

Involuntary commitment or civil commitment is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily.

References

  1. ↑ "HealthLawProf Blog: Life-Support Stopped for 6-Month-Old in Houston". Lawprofessors.typepad.com. Retrieved 1 June 2019.
  2. ↑ "Hudson v. Texas Children's Hospital (Tex.App 2005) 177 S.W.3d 232". Scholar.google.com. Retrieved 1 June 2019.
  3. ↑ "What Value is Life? | TexasSparkle | a Chron.com blog". blog.chron.com. Archived from the original on 24 June 2012. Retrieved 22 February 2022.
  4. ↑ "Wesley J. Smith on Futile-Care Theory on National Review Online". www.nationalreview.com. Archived from the original on 7 May 2006. Retrieved 22 February 2022.
  5. 1 2 "Dallas Morning News | News for Dallas, Texas | Texas/Southwest". Archived from the original on 2007-09-30. Retrieved 2007-04-10.
  6. ↑ [ dead link ]
  7. ↑ "Lifeissues News". Lifeissues.net. Retrieved 1 June 2019.
  8. ↑ [ dead link ]
  9. ↑ bnuckols (16 February 2007). "There's (Still) No "Futile Care Act" in Texas". Lifeethics.org. Retrieved 1 June 2019.
  10. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 2007-09-28. Retrieved 2007-03-21.{{cite web}}: CS1 maint: archived copy as title (link)
  11. ↑ [ dead link ]
  12. ↑ "Texas Legislature Online - 84(R) Bill Stages for HB 3074". Capitol.texas.gov. Retrieved 1 June 2019.
  13. ↑ "Landmark Bill to Stop Forced Dehydration Passes Texas House, Heads to Senate". Euthanasia Prevention Coalition International News and Information. Retrieved 1 June 2019.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.