Senate Bill 675 by Sen. Kelly Hancock significantly changes the Texas Advance Directives Act (TADA), which helps patients, family members, physicians, and other health care professionals in those days and hours when comfort treatment is the best medicine we have to give.
When written in 1999, TADA was adopted by unanimous consent and signed by then-Gov. George W. Bush. All pro-life, disability, and provider groups agreed upon the 1999 legislation. The most important goals of the law — then and now — are to encourage patients to discuss their end-of-life wishes with their families well before needed, and to provide families a reasonable process to resolve differences of opinion if difficult treatment decisions occur.
Medical Judgment
As drafted, SB 675 states that a physician may not refuse to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient. Physicians and other health care providers should not be required to provide care they believe is harmful, medically inappropriate, substantially painful, or unethical. SB 675 would likely result in abandonment of the ethics review process that provides a reasonable process for resolving disagreements about the appropriateness of care.
Distorts Patient Autonomy
We need to protect the autonomy of patients and families, including the right to request or refuse a particular treatment. Patients and families also have the right to seek second opinions or different care providers.
However, they don’t have an unlimited right to require a physician to do anything the patient or family requests. A physician exercises independent medical judgment to ensure a treatment is medically appropriate and effective for a patient. When a patient asks a physician to do something the physician believes is medically inappropriate, the physician can refuse to do so, and the patient may choose to seek another physician or provider. In the case of a patient who cannot make his or her wishes known, the law permits a surrogate to make treatment decisions based on what the patient would have wanted. If a physician believes the treatment decision is harmful, medically inappropriate, or unethical, current law provides a reasonable process for resolving such disputes without arbitrarily forcing physicians to abandon their moral conscience. A better option, Senate Bill 303 and House Bill 1444 improve that process by providing families more information sooner, more time for the process, and a liaison to shepherd the family through the process.
Casts Doubt on Physicians
Physicians regard their responsibility to their patient as paramount and seek to “do no harm.” Physicians seek to uphold high professional ethics standards, which include valuing the life of every patient. They didn’t become physicians and go to medical school and residency training for years to dishonor or devalue patients.
The language of SB 675 implies physicians devalue patients. This is NOT the case. In fact, physicians follow principles of medical ethics, which require that they put their patients before everything else. The bill language seems to cast significant doubt on the trust patients place in their physicians. This is helpful to neither the patients nor the physicians and providers entrusted with their care.
Legal Jeopardy
SB 675 prohibits individual physicians from making medical judgments based on certain “value factors.” It is not clear how the ethics committee members or any other observer can determine whether a particular value consideration did or did not have an impact on a physician’s decisionmaking, as required by this proposed bill. The bill does the exact opposite of why the Texas Advance Directives Act was created in the first place, which was to encourage patients to discuss their end-of-life wishes with their families well before their final days, and to provide families a reasonable process to resolve differences of opinion in difficult treatment decisions.
Physicians remain liable for the decisions they make outside of the standard of care. However, SB 675 would establish a new standard of care for a physician to provide unlimited treatment even when unethical and immoral. That standard would no longer be based upon science or what is in the best interest of the patient, but rather upon the emotions of family dynamics.
Ethical Criteria
Ethics reviews are important. The reason to make an ethics review available as outlined by Chapter 166 is to allow the ethics review committee to judge independently whether continuing or discontinuing a particular treatment is ethically correct for that specific patient. As outlined in SB 303, TMA supports changes to this review that would require the ethics consult team to base its decision to discontinue treatment on whether the patient’s situation meets one of these four criteria:
- The treatment would hasten the patient’s death or, if the patient is not terminally ill, threaten his or her life.
- It would seriously exacerbate other major medical problems.
- It would result in irremediable physical pain or discomfort not outweighed by the benefit of treatment.
- It would be medically ineffective in prolonging the patient’s life.
Requiring the ethics team members to base their determination on their own medical judgment and these four specific factors will produce better decisions than asking them to determine what values the treating physician applied. The language of SB 675 would complicate these rare and sensitive reviews and likely result in the abandonment of this reasonable process.
Lacks Clarity
Chapter 166 and TADA focus on the care of terminally ill patients. SB 675 will cloud the use of that code with language about nonterminally ill persons, such as the elderly and disabled. The law specifies who are the terminally ill — those for whom death is imminent, in minutes to hours. Physicians are trained to save lives. Physicians provide care and comfort for all patients no matter what stage of life, even when the patient is dying.