Time to Strengthen – Not Weaken – the Advance Directives Act
By Joey Berlin

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UNDER THE ROTUNDA 

Texas law for handling end-of-life care situations has endured a hard road in recent years. Although the house of medicine believes the Texas Advance Directives Act (TADA) ably balances physicians’ consciences and judgment with the wishes of patients and their families, opponents of the law have weakened TADA or thrown pieces of it into doubt with both legislation and court decisions.

But the Texas Medical Association and the Texas Catholic Conference of Bishops (TCCB) – both staunch supporters of TADA – are striving to strengthen the law with their support of bills filed last week.

Senate Bill 1944 by Sen. Eddie Lucio Jr. (D-Brownsville) and its companion, House Bill 3099 by Rep. Garnet Coleman (D-Houston), would create more clarity around the do-not-resuscitate (DNR) order law for patients, their families, and physicians. It also would allow for patients and their families to have a greater understanding of the medical ethics-committee process, in which a hospital resolves disputes over the appropriateness of life-sustaining treatment; and increase the time a facility has to find a transfer facility for the patient if the ethics committee deems the treatment medically inappropriate.

TMA says the bill would strengthen the ethics-committee process in several ways by:

  • Requiring the ethics committee to appoint a liaison to assist the patient or the patient’s surrogate through the committee process;
  • Requiring the ethics committee to give notice to a patient or patient’s surrogate of a committee meeting at least seven days in advance, instead of the current 48 hours;
  • Prohibiting the patient’s attending physician from participating in case review as part of the committee;
  • Extending the time to find a transfer facility for the patient to 14 days, instead of the current 10 days, before physicians and facilities are criminally and civilly immune from liability for discontinuing medically inappropriate treatment; and
  • Prohibiting ethics committees from considering a patient’s permanent disability during the review, unless it’s relevant to determining the appropriateness of treatment.

SB 1944 also would ensure that a patient’s surrogate would be able to revoke a patient’s DNR order only if the order was originally issued at the surrogate’s direction. A separate measure, House Bill 2943 by Rep. James Frank (R-Wichita Falls), would do the same. Either bill would correct one of the major problems with an end-of-life measure that passed during the 2017 session. That bill gave the patient’s legal guardian or agent acting under medical power of attorney the ability to revoke any DNR order issued in a health care facility or hospital if the patient is incompetent.

“A balanced approach to end-of-life care equally respects the rights of patients in the natural process of dying and the conscience of healthcare professionals providing their care,” TCCB said in a release urging support of the companion measure to SB 1944, HB 3099. “The Texas Advance Directives Act dispute resolution process protects patients and physicians by providing a fair and reasonable process to resolve disagreements regarding end-of-life care decisions. The law is generally used appropriately and compassionately. Even with its advantages, however, some aspects of the TADA would benefit from more specificity and clarity.”

Filed last week, SB 1944 already has bipartisan support. Its joint authorship roster includes two Democrats and three Republicans, including Sen. Donna Campbell, MD (R-New Braunfels).

Death certificate notifications 

TMA submitted written comments Wednesday to the House Public Health Committee on House Bill 723. That measure by Rep. Jared Patterson (R-Frisco) would require someone who requests a modification to a death certificate to notify the deceased person’s next of kin.

According to media reports, the bill was filed in response to authorities’ failure to notify next of kin in the deaths of several North Texas senior living-center residents linked to a capital murder case. In some cases, the deaths were initially attributed to natural causes, but those causes of death were later amended without notifying next of kin.

In written testimony, Debra Patt, MD, chair of TMA’s Council on Legislation, said TMA supports the intent of the legislation, but suggested clarification on some pieces of it. She wrote that TMA’s primary concern was how the notification should occur and who should be required to make it.

“Most Texas physicians infrequently deal with death certificate requirements,” Dr. Patt wrote, noting that physicians may or may not have access to a patient’s immediate next of kin. She added that law enforcement could “obtain the necessary contact information if a county medical examiner or Justice of the Peace is involved.”

Rather than placing the burden on physicians, TMA has asked the bill’s author to focus the measure to apply to  judicial inquiry.

TMA Needs Your Expert Help

The 2021 legislative session is already nearing the halfway point, and the opportunities to stop bad bills and promote good ones are mounting. Time-sensitive Action Alerts are an effective and an efficient way for you to share your messages of concern and support with legislators from the convenience of your desk or mobile phone. Action Alerts arrive by email and have a pre-written response, to which we strongly encourage you to add a personalized story or anecdote about how the proposed legislation will affect you, your patients, and your practice. You can access Action Alerts from the email you receive, our Grassroots Action Center, or the VoterVoice mobile app. Just click the link and go. In fact, there’s one waiting for you now!

Easy Ways to Get Involved in TMA Advocacy 

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Stay up to date on bills TMA is following closely. And take advantage of other opportunities to get involved with our advocacy efforts.

Last Updated On

March 18, 2021

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DNR | Texas legislation

Joey Berlin

Associate Editor

(512) 370-1393
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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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