Advance Directives Act

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The Texas Advance Directives Act (1999), also known as the Texas Futile Care Law, describes certain provisions that are now Chapter 166 of the Texas Health & Safety Code. Controversy over these provisions mainly centers on Section 166.046, Subsection (e),[1] which allows a health care facility to discontinue life-sustaining treatment against the wishes of the patient or guardian ten days after giving written notice if the continuation of life-sustaining treatment is considered medically inappropriate by the treating medical team. For the hospital personnel to take advantage of legal immunity from prosecution for this the following process must be followed:

  • The family must be given written information concerning hospital policy on the ethics consultation process.
  • The family must be given 48 hours' notice and be invited to participate in the ethics consultation process.
  • The ethics consultation process must provide a written report to the family of the findings of the ethics review process.
  • If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must try to arrange transfer to another provider physician and institution who are willing to give the treatment requested by the family and refused by the current treatment team.
  • If after 10 days, no such provider can be found, the hospital and physician may unilaterally withhold or withdraw the therapy that has been determined to be futile.
  • The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of time before treatment is withdrawn. This extension is to be granted only if the judge determines that there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time is granted.
  • If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution. [2]

The bill was signed into law while George W. Bush was Governor of Texas; critics have compared this law and its effects with Bush's response to Terri Schiavo's situation, in particular his signing of the Incapacitated Person's Legal Protection Act. [3]The Houston Chronicle noted that Schiavo's case wouldn't be applicable in Texas if she lived in the state.[1] (broken link) However, prior to the passage of this law, no protections or "grace period" existed.[2]

Contents

[edit] Cases

On March 15, 2005, six-month-old infant Sun Hudson, who had a lethal congenital malformation, was one of the first children to have care withdrawn under the Texas Futile Treatment Law. [3]

In December 2005, Tirhas Habtegiris, a young woman and legal immigrant from Africa, was removed from a respirator.[4]

In April 2006, relatives of 53-year old Andrea Clark were given the 10-day notice under this act.[5] [6] She had reportedly signed a statement she did not wish to die and was cognizant although having difficulties communicating while under heavy medication. After publicity from both right and left political groups, St. Luke's hospital in Houston agreed to review the case again, eventually retracting the original decision this further review. Andrea Clark, once deemed a "futile" case, then began to recover [7], but ultimately died on May 8, 2006 after an infection. [8]

In March 2007, Children's Hospital of Austin gave the mother of 16 month old Emilio Lee Gonzales the 10 day notice under this act. Doctors had diagnosed the toddler with Leigh's disease based on symptoms alone.[citation needed] Hospital administrators did not wait for results of tests that might confirm (but not conclusively prove) the suspected diagnosis before deciding to discontinue treatment.[citation needed] On March 12, 2007 the hospital ethics committee set a date of March 23rd for removing Emilio from his respirator. Lawyers representing Emilio's mother Catarina filed for a restraining order on March 20th to allow the family more time to locate another facility willing to accept Emilio. Later that evening, the hospital agreed to postpone removal of the respirator until April 10th.

Although there is much press about these cases, due to the lack of a reporting clause in the current statute, there is little information on how often these cases occur. Dr. Robert Fine, director of the Office of Clinical Ethics for the Baylor Health Care System says he collected five years’ worth of information from 11 large hospitals in Texas and two years’ worth of data from five other large hospitals in the state. According to Fine’s data, the hospitals surveyed held 2,922 ethics committee consultations, 974 of which concerned medical futility cases. From those 974 consultations, the hospitals issued 65 letters stating agreement with the attending physicians that treatment should be withdrawn, Fine says. But he says the hospitals actually withdrew treatment in only 27 of the cases, while 22 patients died receiving treatment as they awaited transfers. [4]

[edit] Criticism

Under the Advance Directives Act, Texas hospitals and physicians have the right to withdraw life support on a patient whom they declare terminally ill, if that patient doesn't transfer to another facility within 10 days. The 10 day cushion provides a family with a choice about whether life sustaining treatment will continue, as would be the case if the patient is transferred, but the 10-day period is the subject of some criticism by those who believe the time period is too short. If no facility will accept the patient, which can happen with gravely ill patients, the hospital is legally permitted to withdraw life sustaining-treament from the patient, and allow the disease process(es) to bring about patient's death. This situation can occur (as it did in the Andrea Clark case) even if the patient is fully insured and able to pay for treatment.

Furthermore, life support may be withdrawn even if the patient has indicated a desire to continue treatment. In cases where there is a dispute, the decision is made by the hospital's ethics committee.

[edit] Repeal Efforts

State Senator Bob Duell (R-Greenville), who is also a practicing family physician, introduced Senate Bill 439 [9]. SB 439 is also known as the "Patient and Family Treatment Choice Rights Act of 2007" and would amend the applicable provisions of the Advance Directives Act to "ensure that, when an attending physician is unwilling to respect a patient’s advance directive or a patient’s or family’s decision to choose the treatment necessary to prevent the patient’s death, life-sustaining medical treatment will be provided until the patient can be transferred to a health care provider willing to honor the directive or treatment decision." SB 439 was referred to the Senate Health and Human Services Committee on February 21, 2007.

State Representative Bryan Hughes (R-Mineola) introduced an identical bill, HB 1094 with 59 co-sponsors. It was referred to the House Public Health Committee on February 22, 2007.

Media coverage of the Emilio Gonzales case has brought debate over SB 439 and HB 1094 to the forefront. [10]

[edit] Notes

[edit] See also

[edit] External links

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