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James L. Holly, M.D. |
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| James L. Holly,M.D. |
| April 14, 2005 |
| Your Life Your Health - The Examiner |
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As we continue to examine the Texas Advanced Directive Act, it is important to know how to execute a legally, binding document to
make certain that your wishes are followed. First, there is no form which you must use. In fact, the statute specifically prohibits
the requirement of a special form. Second, an Advanced Directive may be revoked at any time in writing or verbally, even if the
patient who is revoking it is mentally incompetent. Third, the physician is not responsible for complying with the advanced
directive until or unless he/she has been made aware of it. Four, once the physician has been made aware of the advanced directive,
particularly in a hospitalized patient, he/she must document the DNR in writing with a time, date and circumstances of how he/she
became aware of the DNR.
It is obvious that in cases where the family and the patient are in harmony and where there is no disagreement, the details of
the advanced directive process become less critical. However, with the emotional stress associated with a family member's final or
critical illness, it is best to make certain the requirements of the Act are fulfilled precisely.
Disclaimer
Once again, I am not a licensed attorney. This 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.
Who Can Witness an Advanced Directive?
There are several important issues about the Texas Advanced Directive Act which were not covered in Part I of this four-part
series. One of the critical aspects of a binding Advanced Directive is the selection of the witnesses to the Do-Not-Resuscitate
Order. Paragraph § 166.003 of the Health and Safety Code Chapter 166 is entitled Witnesses. It states: "In any circumstance in
which this chapter requires the execution of an advance directive or the issuance of a nonwritten advance directive to be witnessed:
"(1) each witness must be a competent adult; and
"(2) at least one of the witnesses must be a person who is not:
(A) a person designated by the declarant to make a treatment decision;
(B) a person related to the declarant by blood or marriage;
(C) a person entitled to any part of the declarant's estate after the declarant's death under a will or codicil executed
by the declarant or by operation of law;
(D) the attending physician;
(E) an employee of the attending physician;
(F) an employee of a health care facility in which the declarant is a patient if the employee is providing direct
patient care to the declarant or is an officer, director, partner, or business office employee of the health care
facility or of any parent organization of the health care facility; or
(G) a person who, at the time the written advance directive is executed or, if the directive is a nonwritten directive issued
under this chapter, at the time the nonwritten directive is issued, has a claim against any part of the declarant's estate
after the declarant's death."
The intent of the legislature seems obvious and that is to preserve the desire of the one establishing an Advanced Directive
while at the same time protecting him/her from undue pressure and/or inappropriate influence by those who might appear to have
an interest other than that of the patient. The intent is also to protect the healthcare provider from any appearance of a
conflict in the patient's establishment of an advanced directive. If the witnesses meet the above restrictions, each of these
goals will be met.
What If a Physician Refuses to Comply with the Patient's Request?
The preservation of the desire of a patient and the protection of the person of a patient is also addressed in Paragraph 166.052 of
the statue, which is entitled Statements Explaining Patients Right of Transfer. There are two circumstances in which a patient may
need to request or desire a transfer of care to another healthcare provider because of end-of-life issues. This could happen when:
1. A physician refuses to honor an advanced directive. This could happen under a number of circumstances where a well-informed and
well-motivated physician argues that a patient is not terminally ill and should therefore be treated aggressively. If the
physician's conscience will not allow him/her to comply with the advanced directive neither the physician nor the patient
is stuck with one anther. The patient's care can be transfer to another physician who will comply with the advanced directive.
The statute outlines the proper procedures for accomplishing this and even goes into detail as to the wording of the physician's
notification of the patient's family of the existence of such a conflict. Again, the statute provides protection for the wishes
of the patient and family and for the protection of the healthcare provider.
2. A physician refuses to provide treatment when a family requests life-sustaining treatment. A physician may believe a patient is
terminal and should not receive further care. The statute provides for continuation of the life-sustaining treatment until a review
board makes a determination as to whether the treatment should or should not continue. Once again the interests of both parties are
protected by the statute.
In either of the above cases, paragraph 166.052 provides language for how patients and their family must be notified of the steps
to effect a transfer of care to a physician who is willing to provide the life-sustaining treatment, or who is willing to comply
with the advanced directive.
Remember, the definition of life-sustaining treatment is "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."
Advanced Directive Requires That the Patient be Terminally Ill
In Texas, the Advanced Directive Act is clear that terminal condition "means 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."
To be terminal, the probability of death within six months must exist even with the provision of the life-sustaining
treatment. The Advanced Directive Act has no provision whereby an active causing of the death of human being is allowable under the law.
The paragraph which defines a terminal condition concludes with the statement, "A patient who has been admitted to a program under
which the person receives hospice services provided by a home and community support services agency licensed under Chapter 142 is
presumed to have a terminal condition for purposes of this chapter."
Hospice and Advanced Directives
This second part of the definition of being terminal ill is almost tautological. This means that it simply repeats itself.
To be legally and legitimately on Hospice care, you must have a terminal illness. Therefore, the statute declares that if a
patient is on Hospice care "is presumed to have a terminal condition," because only persons with terminal conditions are eligible
to be on Hospice. If a person is inappropriately on Hospice care, at least in Texas, which means that they are not terminally ill,
this provision of the statute does not provide a novel definition of terminal illness.
Hospice has a noble and honorable goal and that is to aid terminally ill patients to live comfortably with their terminal condition
and to give support to the family so that they can participate constructively and positively in the dying process of their loved one.
Hospice does not - and it is totally alien to the Hospice movement - participate in causing or facilitating the death of a
patient. In fact, Hospice care often results in a patient living longer because their pain, anxiety and fear have been dealt
with. The overwhelming majority of families find Hospice care a valuable service.
Suicide and/or Mercy Killing Are Not Legal in Texas
While Advanced Directives are and should be executed before a person becomes terminally ill, the Advanced Directive provisions are
valid only upon a person becoming terminally ill. Anything else would be assisted suicide. If a patient has an Advanced Directive
but does not have a terminal illness, the provisions of the Advanced Directive are invalid.
Two specific sections of the Act address the issue of suicide:
1. "§ 166.047. Honoring Directive Does not Constitute Offense of Aiding Suicide. A person does not commit an offense under
Section 22.08, Penal Code, by withholding or withdrawing life-sustaining treatment from a qualified patient in accordance
with this subchapter."
2. "§ 166.096. Honoring Out-of-Hospital DNR Order Does Not Constitute-Offense of Aiding Suicide. A person does not commit an
offense under Section 22.08, Penal Code, by withholding cardiopulmonary resuscitation or certain other life-sustaining treatment
designated by the board from a person in accordance with this subchapter."
The larger issue of mercy killing and/or assisted suicide is explicitly addressed in the code where it is
stated, "§ 166.099. Mercy Killing Not Condoned. This subchapter does not condone, authorize, or approve mercy killing or
permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying as provided by
this subchapter."
Conclusion
In Texas, it would appear that presently the only circumstance in which a valid Advanced Directive can be invoked is in the
case of a terminally ill patient, which is defined as one who will die within six months, even if life-sustaining treatment
is given. While the statute appears to be silent on the issue, in a legal layman's reading of the statute, it could be
inferred that if the patient will not die within six months in the face of life-sustaining treatment being maintained, then
that life-sustaining treatment cannot be withdrawn. This would particularly seem to apply to artificial hydration and nutrition.
In the future, medical ethicists, religious leaders and legislators will need to give more guidance to families and physicians
on this issue.
Next week, in the third part of this series, we will deal with Medical Power of Attorney and with the Advanced Directive Form.
Remember, there is no point in which it is more your life and your health than when you come to the point of dealing with your death.
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