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James L. Holly, M.D. |
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| James L. Holly,M.D. |
| April 07, 2005 |
| Your Life Your Health - The Examiner |
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Recent events have focused attention on the issues surrounding death which different cultures, faiths and personalities respond to
in different ways. Some respond with a blanket, "Keep me alive no matter what my state of consciousness for as long as you can."
Others, taught by their culture or faith not to fear death, are said to seek a good death. By good, it is commonly understood a
noble, brave and worthwhile death. In the movie Exodus, a Jewish leader stands over the grave of his Arab and Muslim
friend and laments his untimely death with the words, "Death should have come to him as a friend as he was surrounded by his
children, not as a thief in the dark." The concept of death as a friend or of death as noble or ignoble is alien to many
cultures and faiths, but whatever one's approach to or attitude toward death it is very personal.
We all see death differently at different times and stages of our lives. The very young have no fear of death for they have
no consciousness of the possibility and/or of the reality of death. As we advance in age, death becomes less and less fearsome
as the pleasure and vigor of life wanes. Most decisions about life and death, however, seem to fall to those who are in the
transition between these two stages of life. Those decisions fall to children or others who are neither unconscious of the
possibility or permanence of death nor yet comfortable with their own mortality.
For all of these reasons and more, the personal wishes, beliefs and values of each individual should be known concerning
their own life and death. There was a time when people lived and died. The issues were fairly simple for while we could
offer comfort and compassion, we could offer little else. Today, however, it is possible to prolong the death process
almost interminably. That is why the Texas State Legislature has written the Advanced Directive Act.
Disclaimer
This review is not intended as legal advice, as I am not a licensed attorney. It is intended as a review of applicable
statutes which are public documents. For personal application of any of these statutes and/or for a competent legal opinion
the counsel of an attorney and/or the decision of a court of law should be obtained.
The Law
The applicable Texas law which regulates end-of-life issues is found in the following section: Health & Safety Code Chapter 166.
Advanced Directives. The complete text of the law can be found at
http://www.capitol.state.tx.us/statutes/hs.toc.htm.
Section 166.002 of the Health and Safety Code gives a list of definitions. The first definition which helps us understand the
legal context of the current debate is number 2 which states: "'Artificial nutrition and hydration' means the provision of nutrients
or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the stomach (gastrointestinal tract)."
It is important to recognize that nutrition and hydration, other than that provided by the voluntary consumption of food and water, in
Texas is legally considered artificial, even when it is simply provided by a tube in the stomach.
Definition number 9 states: "'Irreversible condition' means a condition, injury, or illness: (A) that may be treated but is never
cured or eliminated; (B) that leaves a person unable to care for or make decisions for the person's own self; and that, without
life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal."
Definition number 10 states: "'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..."
Definitions 9 and 10, coupled with number 2, make it clear that the legislature of Texas recognizes nutrition and hydration as
"life-sustaining treatment" when it is provided other than by voluntary consumption of food and water.
Definition 13 defines the term "terminal condition" which is stated to mean "...an incurable condition caused by injury, disease,
or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining
treatment provided in accordance with the prevailing standard of medical care..." In subsequent discussions, this definition will
play an important part in our understanding the current debate about end-of-life issues.
Section 166.033 which is entitled Form of Written Directive, in a paragraph entitled Additional Directive, states in part
that "...the patient...After discussion with your physician, you may wish to consider listing particular treatments in this
space that you do or do not want in specific circumstances, such as artificial nutrition and fluids, intravenous antibiotics,
etc. Be sure to state whether you do or do not want the particular treatment." This would suggest that unless the advanced
directive specifically addresses the issue of hydration and nutrition that neither will be withheld.
This seems to be confirmed by Section 166.081 entitled Out-of-hospital Do-Not-Resuscitate (DNR) Order. Paragraph 6.B in the
Definitions section of this subchapter states, "...does not include authorization to withhold medical interventions or therapies
considered necessary to provide comfort care or to alleviate pain or to provide water or nutrition." Apparently, unless the DNR
specifically addresses the issues of nutrition and hydration, in a non-hospital setting, nutrition and hydration are required to
be provided.
What Does It Mean?
Trying to put all of these elements of the statute together, it would appear that to have a terminal illness, a person must
have an illness which would cause one's death in six months, even with artificial hydration and nutrition. And, while the
statute does appear to allow a person to refuse life-sustaining measures, including artificial hydration and nutrition, a person
whose life is preserved beyond six months by those measures is not by this statute considered to be terminally ill.
The complexity of the statute makes it important for each person to make their desires known so that neither their healthcare
provider nor their family will be put in the position of having to guess what their desires might have been. Every person ought
to have an Advanced Directive and particularly every person who is beyond sixty years of age or who has a serious, chronic or
acute illness regardless of age. And, while it is not necessary to have an attorney draw up the Advanced Directive, at a minimum
following the format given in the Advance Directive Act would make certain that your wishes are carried out. In cases where there
are key relationships which might see things differently, an attorney's guidance would be valuable.
Priority of Decision Making
Paragraph 166.039 of the Advanced Directive Act addresses the issue of who has medical-decision-making authority in the case of a
patient who does not have a legal guardian or an agent under a medical power of attorney. In that case, the decisions about
medical care will be made by "the attending physician and one person, if available, from one of the following categories, in
the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining
treatment: (1) the patient's spouse; (2) the patient's reasonably available adult children; (3) the patient's parents; or (4) the
patient's nearest living relative." However, the statute requires that "...A treatment decision made under Subsection (a) or (b)
must be based on knowledge of what the patient would desire, if known."
It is clear that in Texas the husband has priority in such cases and that where it is known, even if it is not written, the
patient's desire must control decisions made even by the husband.
In the event no person in one of the above four categories is available, the statute states, "(e) If the patient does not
have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b)
must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of
an ethics or medical committee of the health care facility in which the person is a patient."
This section of the law also expressly declares, "(f) the fact that an adult qualified patient has not executed or issued a
directive does not create a presumption that The patient does not want a treatment decision to be made to withhold or withdraw
life-sustaining treatment."
And, the statute adds, "(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this
section must apply for temporary guardianship under Section 875, Texas Probate Code. The court may waive applicable fees
in that proceeding."
With a close-knit family which is in harmony over values and principles, these matters seldom become a problem. However,
when there are conflicts, or divisions in the family, and particularly when there are legal relationships which are not
representative of commitments and on-going common interests, these matters can become contentious. An Advanced Directive
allows a person to make sure that all of those who care about them and who have an interest in their well-being can be confident
that their wishes are being carried out.
Three Issues
Three issues about an out-of-hospital do-not-resuscitate order which are important and commonly misunderstood are addressed by the statute:
1. Section 166.042 is entitled Revocation of Directive and states that "(a) A declarant may revoke a directive at any time without
regard to the declarant's mental state or competency. A directive may be revoked by: (1) the declarant or someone in the declarant's
presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the
directive; (2) the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive;
or (3) the declarant orally stating the declarant's intent to revoke the directive."
2. Often EMS and other emergency services refuse to honor an out-of-hospital DNR unless the original copy is available at the
patient's bedside. This is a misunderstanding of the law as Section 166.090, entitled IDENTIFICATION DEVICE states: "(a) A person
who has a valid out-of-hospital... (DNR) order under this subchapter may wear a... (DNR) identification device around the neck or on
the wrist as prescribed by board rule adopted under Section 166.101. (b) The presence of a (DNR) identification device on the body
of a person is conclusive evidence that the person has executed or issued a valid out-of-hospital (DNR)...order or has a
valid out-of-hospital (DNR)...order executed or issued on the person's behalf. Responding health care
professionals shall honor the (DNR)...identification device as if a valid out-of-hospital (DNR)...orders form executed or issued
by the person were found in the possession of the person."
3. If a person is known to be pregnant, DNR forms are not valid. Section 166.098 entitled Pregnant Persons states, "A person may
not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board under this
subchapter from a person known by the responding health care professionals to be pregnant."
Next week, we will address some of the moral and ethic issues surrounding the current debate over the end-of-life issues.
How, now we can do it in the context of Texas State Law. And, remember, it is your life and it is your health. If you want to
control both, write an advanced directive.
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