Tuesday, January 24, 2006

When Does Texas Law Allow Doctors to Ignore Your Wishes?

In Texas, when you sign an advance directive instructing that life-sustaining treatment be given to you in the event you become incompetent or unable to communicate, you may expect your wishes to be honored. You may be wrong. The Texas Statutes allow a physician to ignore your directive upon effecting a procedure. From the Health & Safety Code:


(c) If an attending physician refuses to comply with a
directive or treatment decision and does not wish to follow the
procedure established under Section 166.046, life-sustaining
treatment shall be provided to the patient, but only until a
reasonable opportunity has been afforded for the transfer of the
patient to another physician or health care facility willing to
comply with the directive or treatment decision.

(d) A physician, health professional acting under the
direction of a physician, or health care facility is not civilly or
criminally liable or subject to review or disciplinary action by
the person's appropriate licensing board if the person has complied
with the procedures outlined in Section 166.046.

The procedure to be used is:
TREATMENT DECISION. (a) If an attending physician refuses to
honor a patient's advance directive or a health care or treatment
decision made by or on behalf of a patient, the physician's refusal
shall be reviewed by an ethics or medical committee. The attending
physician may not be a member of that committee. The patient shall
be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health
care decisions of the individual who has made the decision
regarding the directive or treatment decision:
(1) may be given a written description of the ethics or
medical committee review process and any other policies and
procedures related to this section adopted by the health care
(2) shall be informed of the committee review process
not less than 48 hours before the meeting called to discuss the
patient's directive, unless the time period is waived by mutual
(3) at the time of being so informed, shall be
(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 Texas Health Care Information Council under Section 166.053;
(4) is entitled to:
(A) attend the meeting; and
(B) receive a written explanation of the decision
reached during the review process.
(c) The written explanation required by Subsection
(b)(2)(B) must be included in the patient's medical record.
(d) If the attending physician, the patient, or the person
responsible for the health care decisions of the individual does
not agree with the decision reached during the review process under
Subsection (b), the physician shall make a reasonable effort to
transfer the patient to a physician who is willing to comply with
the directive. If the patient is a patient in a health care
facility, the 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;
(3) another facility.
(e) If the patient or the person responsible for the health
care decisions of the patient is requesting life-sustaining
treatment that the attending physician has decided and the review
process has affirmed is inappropriate treatment, the patient shall
be given available life-sustaining treatment pending transfer
under Subsection (d). The patient is responsible for any costs
incurred in transferring the patient to another facility. The
physician and the health care facility are not obligated to provide
life-sustaining treatment after the 10th day after the written
decision required under Subsection (b) is provided to the patient
or the person responsible for the health care decisions of the
patient unless ordered to do so under Subsection (g).
(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
(g) At the request of the patient or the person responsible
for the health care decisions of the patient, the appropriate
district or county court shall extend the time 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

The ten day period referred to above was won by Texas Right to Life in a hard fought battle prior to 1999. Before that, hospitals were not required, under law, to wait ten days before withdrawing treatment.

I will be continuing the discussion regarding this law. For now, consider this. After an ethics meeting, a patient has, under law, only a right to ten days of continued treatment if the ethics committee agrees that life-sustaining treatment should be withdrawn. The burden is on the patient to go to court to obtain an extension.

Given the way this law is written, it was harder and took longer for me to turn off utilities or evict tenants from my rental properties, than it is to turn off a patient's respirator in a hospital. I know that many hospitals actually work longer with patients and families to resolve these issues than the 48 hours plus ten days prescribed in the law. But why do we have a law written so blatantly in favor of the providers?

To be continued...

Monday, January 23, 2006

A Child of God

Wesley J. Smith and Michelle Malkin are both reporting that Gov. Romney is appointing a panel to look into the case of 11-year-old Haleigh Poutre. Romney explained his reasoning by saying:

Romney said he was appointing the panel because, "an individual is a child of God, and this is something that we care very deeply about and that's why were going to focus on this particular case."

Assuming that the panel is going to review the treatment decisions made by DSS, including the plan to withhold hydration and nutrition, we can only hope that the members of the panel will hold the belief that an individual is a child of God, and, therefore, has value outside cognitive and physical abilities. For some years,this has not been the prevalent belief among many social scientists, including those who go into government social services.

Francis Schaeffer, collaborating with C. Everett Koop, M.D. wrote about this in his book, Whatever Happened to the Human Race way back in 1979. One of the issues he discussed was the practice of setting aside newborn Downs Syndrome children born with short intestine syndrome, allowing them to die of starvation, rather than performing the very simple surgery that would reverse the problem. In fact, Johns Hopkins Hospital and Medical School produced a documentary entitled Who Shall Survive, portraying the death of such an infant.

I saw part of this documentary in one of my law school classes in 1979 or 1980. I walked out, and to this day have no recollection of what the class was. I do remember seeing a writhing, miserable baby on the screen crying for sustenance right before I left in disgust.

When writing Whatever Happened to the Human Race, Francis Schaeffer noted a report produced in 1975 by the Sonoma Conference (in California) on Ethical Issues in Neonatal Intensive Care entitled "Ethics of Newborn Intensive Care." In the report a panel of twenty answered yes to this question:

Would it be right to directly intervene to kill a self-sustaining infant?"

Schaeffer said...

One of the marks of our time is that many of the nonphysicians on the panel, including bioethicists, lawyers, a nurse, a social worker, a sociologist, an anthropologist, and a philosopher, could see no difference at all between not putting a child on a machine and not giving it food. Letting a dying child die and actually killing a living child by starvation were all the same to them. The physicians on the panel said they themselves would hesitate to kill such an infant directly, but would no prevent someone else from doing so.

Schaeffer calls this what it is by noting..

This is total relativism. Values are a purely subjective matter and could change with any circumstances.

Given the previous decision of the doctors that Haleigh's tube should be removed that I reported here, it appears that the position of physicans has drastically changed about the question of actively hastening the death of a cognitively impaired infant or child through dehydration and starvation. Now, rather than letting others do it, they would do it themselves.

So, we can only hope that Gov. Romney ensures that the panel he is appointing includes people who agree with his assessment of human life. The direction being taken in medicine and the social sciences is antithetical to that idea. If he does not take care to include people who do not hold a utilitarian, humanist view of life, the decision of the panel regarding the treatment decisions made in Haleigh's may not be in line with Gov. Romney's position.

I agree with Wesley J. Smith when he says:

By all means: Investigate. And let us hope that the conclusion is reached that food and water should not be removed from people based solely on "quality" of life considerations in the wake of a catastrophic brain injury.

Saturday, January 21, 2006

What Is the Legal Basis for Withdrawing Hydration & Nutrition Administered by Tube?

In Texas, hydration and nutrition administered by a tube is included in the definition of "life-sustaining treatment."

"Life-sustaining treatment" means treatment
that, based on reasonable medical judgment, sustains the life of a
patient and without which the patient will die. The term includes
both life-sustaining medications and artificial life support, such
as mechanical breathing machines, kidney dialysis treatment, and
artificial nutrition and hydration
. The term does not include the
administration of pain management medication or the performance of
a medical procedure considered to be necessary to provide comfort
care, or any other medical care provided to alleviate a patient's
Texas Health & Safety Code § 166.002(emphasis added)

Because it is included in this definition, it can be withdrawn from a patient under other provisions of the law. It makes no sense to me that food and water, however administered, should be considered a medical "treatment." As Wesley J. Smith notes, the only outcome one can expect from withdrawal of food and water is certain death. Withdrawal of other treatments does not always result in death. There are medical miracles, and there are recoveries that cannot be explained by doctors.

Wesley J. Smith weighs in on the Haleigh Poutre story...

Nutritional termination can only have one result: Death. As a consequence, I believe the decision to withdraw or withhold such care should be treated differently than other such decisions. Benefits of doubt should go to providing nutritional sustenance. Indeed, in my view, absent clear written instructions by the patient or the presence of other urgent medical issues, dehydration should never be done based on the decisions of others, particularly if they are steeped in quality of life considerations about the lack of a life worth living.

Read more »

Friday, January 20, 2006

Science & Medicine Don't Know Everything

For the last thirty years, the focus of medical ethics has been patient autonomy. Because not every patient is competent to exercise choices in treatment, the law has evolved to allow "surrogates" to make choices for the incompetent. Of course, in the case of children, surrogates (parents, guardians, etc.) make treatment decisions. Surrogates are supposed to make such decisions in the best interest of the patient.

In a terrible case, a State Agency is making treatment decisions for a child who was severely beaten by her stepfather. Michelle Malkin has the story:

Last fall, Haleigh was hospitalized after her stepfather allegedly burned her and beat her nearly to death with a baseball bat. Haleigh, in a coma, was kept alive by a feeding tube and ventilator. Doctors said she was "virtually brain dead" -- in a persistent vegetative state with no hope of recovery.

The Massachusetts Department of Social Services wanted to remove Haleigh's feeding and breathing tubes.

The Court gave permission to withdraw life-sustaining treatments and the respirator was removed. Maxed Out Mama has the story about how this child has come out of her coma and started breathing after the respirator was removed:

They took her off the ventilator, and she continued to breathe. Obviously her condition is slowly improving, and now her life is conditioned on whether society is willing to pay for her care. She is now reportedly moving somewhat, so the "sheared brain stem" is obviously not accurate. Lord only knows what was in those medical records and what testimony the court heard.

Now the doctors are disagreeing as to whether or not the feeding tube should be removed, again from Maxed Out Mama:

Virginia Peel, a lawyer for DSS, which has legal custody of the girl, said Haleigh’s doctors have agreed she will not come out of her vegetative state.

“This is not about the right to life,” Peel said. “This is about the circumstance under which this person is allowed to die.”

Both of Haleigh’s doctors agree she should be removed from the ventilator, but they are split over whether her feeding tube should be disconnected.

They have said that with her feeding tube alone, Haleigh could live as long as two months.

Without any life support assistance, she would die much sooner, the doctors said.

Egan said Strickland should be allowed to have another doctor examine the girl, but Peel said that isn’t necessary.

“When you have consistent medical opinions, why do you have to find a doctor who might — who might — challenge that,” she said.
Is Ms. Peel acting in the best interest of this child, given that attitude? Wouldn't a caring parent get multiple opinions?

Why would anyone be willing to place their fate in the hands of a bureaucrat?

The Anchoress discusses this and says:

Doctors DON’T know everything, particularly when it comes to the human brain, and the spirit, as well. This child is a minor, could not have declared her intentions for herself even if - at some point previous - she’d had a chance to. I hope to get a chance to write on it later or tomorrow.


Save Us From The utilitarian and Call to Texas Lawyers who are Pro-Life

A utilitarian society is one in which small, crabbed, self-important
bureaucrats have won the day - wherein they have managed to dot every i and
cross every t, and blot each entry before locking those valuable ledgers away. A
utilitarian society may even have trains that run on time. But it is a society
that is essentially empty because balanced books, as satisfying to the eye as
they might be, do not bring love or goodness or generosity or philosophy or
beauty to the world. And a soul (or a country) enslaved to their upkeep dies a
dreary death - alone, unmourned and unsung.

The Anchoress

The Anchoress was talking about the Kelo decision in the above quote. But as Maxed Out Mama notes, the reasoning is equally valid in discussions about so called "futile care" in medicine.

This blog is dedicated to making changes in Texas law regarding Advance Directives, specifically with regard to the section in the law that deals with so called "Futile Care." The contributors are lawyers and are members of a self-formed committee dedicated to ensuring that all discussion, debate and political processes regarding end-of-life laws are properly informed by morality and ethics that value human life as a gift from our Creator.

We reject the utilitarian construct that the value of human life is measurable by subjective opinions posited by so-called experts based on their idea of "quality." We reject the idea of "personhood." That is, that some human life is not worth preserving because that human does not rise to the level of "personhood" as dictated by the "experts.

We do not believe that a medical provider should have the right to cut off life-sustaining treatment to a patient who has specified that such treatment should continue. We do not believe that a medical provider should cut off such treatment contrary to the wishes of family members who represent the wishes of the patient.

If you are a Texas Lawyer who would like to join us in this fight, please let us know. If you are a Texas pro-life blogger, please let us know. We will need you in this upcoming fight.