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:

§ 166.045. LIABILITY FOR FAILURE TO EFFECTUATE
DIRECTIVE.
...

(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:

§ 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR
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
facility;
(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
agreement;
(3) at the time of being so informed, 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 Texas Health Care Information Council under Section 166.053;
and
(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;
or
(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
expired.
(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
142.

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...