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Written Testimony in OPPOSITION to SB 303

No Due Process, No Justice for a Patient:  SB 303 Only Makes TADA Worse; Representative King’s Amendments Do Not Remedy the Problems

By Kassi Dee Patrick Marks, JD

1.         The recently passed SB 303, even with Rep. King’s amendments, does not address the fundamental problems inherent in the Texas Advance Directive Act (TADA) and creates entirely new problems.  This committee should not set a vote for it at all.  In the event a vote is set, this committee should vote against it.

2.         At the outset, one must begin this analysis with questioning why any doctor would believe it is so necessary to have enshrined in law an ability to withdraw care from a patient rather than just say, “I don’t want to treat you, here’s a referral to another doctor” and have that followed with treatment until transfer.  The proponents of SB 303 assume all doctors would have the same opinion or that such a doctor is infallible. Instead ofthat more balanced approach that would err on the side of life, proponents of SB 303 would further set into our law and insist on a (as in one) treating physician having the RIGHT according to CONSCIENCE to determine DENIAL of any further care for that patient and have a hospital “ethics” committee rubber stamp that after a kangaroo court.  It simply makes no sense and makes a mockery out of any claim to “do no harm.”  SB 303 changes nothing about the current law which does just this.  What SB 303 does is codify this same result with regard to Do-Not-Attempt-to-Resuscitate Orders (DNARs).  There is no rebalancing of powers here; there is no justice; there is no due process.  There is a patient being handed a death warrant by a doctor and “ethics” committee without any recourse to court.  TADA is bad law.  SB 303 only makes it worse.

3.         Patients[1] (or their family members) in Texas should have a right under the law to determine whether a DNAR is put in their chart at all.  If they choose not to have a DNAR in their chart, that should be entirely respected.  With regard to continuing life-sustaining treatment, patients should have the right to dictate their destiny.  If a doctor no longer wants to treat the patient, then the doctor should tell that to the patient, give a list of referrals to the patient, and thenrecuse himself.  Another doctor should then oversee treatment until transfer to either another doctor within that facility, transfer to another facility entirely, or the patient goes home with home health care arrangements made.

4.         One particularly avid supporter of SB 303 wrote me recently and stated that SB 303 “vastly improve[s] protections for families to be able to protect their loved ones at the end of life.  It does this while preserving the dispute resolution process so that physicians are not required by law to provide harmful, unethical, or futile procedures indefinitely.”  What is missing from this statement is any concept giving the family and patient ultimate authority over what treatments are desired and what are not and deferring to their judgment, their moral beliefs, their decisions.  Catholic moral teaching on this issue does not support the language in this bill despite what some may say.  The concepts of justice and equity do not support what the current law allows or what SB 303 would allow if passed.

5.         An analysis of just a couple of sections of SB 303 makes it quite clear that patients and families have little to no actual rights under this bill, which thereby maintains the status quo under the current law but extends it to DNARs.  This may explain why disability advocates and patients’ rights groups do not support SB 303, including Bobby Schindler, brother of Terri Schiavo.  Proponents, who initially used Schiavo’s name to promote SB 303 until her family objected, initially claimed that SB 303 would prevent another Schiavo.  After her family objected to the use of her name, proponents changed tactics and said that Schiavo’s situation would not occur here because it was a legally different matter that a judge ordered her death at the request of her estranged husband.  Schiavo is an appropriate analogy to TADA and SB 303 because life-sustaining treatment in the form of artificially administered nutrition and hydration was removed and a she died.  That is allowed under current law.  That would continue to be allowed even with SB 303.

Do-Not-Attempt-Resuscitation (DNAR) Orders

6.         Supporters claim that: “Secret DNARs are not possible.  If the patient or surrogate can be reasonably reached, they must be notified.”  They further state that if the patient/surrogate objects to the DNAR in writing, it cannot go into effect for the duration of the review process.

7.         Look to the language itself.  DNAR would be an entirely new section, Section 166.012.  The relevant subsections are 166.012(b) and (c) which state in their entirety[2]:

(b)       Before placing a do-not-attempt-resuscitation (DNAR) order in a patient’s medical record, the physician or the facility’s personnel shall inform the patient or, if the patient is incompetent, make a reasonably diligent effort to contact orcause to be contacted the surrogate.  The facility shall establish a policy regarding the notification required underthis section.  The policy must authorize:

(1) the notification to be given verbally by a physician or facility   personnel; and

(2) any request under Subsection (d) to be given verbally by the   patient or surrogate or surrogate if the request is:

(A) witnessed, in person or telephonically, by two facility                          personnel; and

(B) documented by the facility personnel in the patient’s                            medical record.

(c)       The DNAR order takes effect at the time it is written in the patient’s chart or otherwise placed in the patient’s medical record.

8.         Immediately the problem here is that the patient is not asked whether he wants a DNAR.  That life and death decision is made for  him, a decision he may or may not be aware of as there are a number of undefinedterms to navigate.  Beyond this insurmountable problem, the language is vague and ambiguous, which gives both power and cover to the health care provider.  What is a “reasonably diligent effort” is all that is required to “contact” or “cause to be contacted the surrogate.”  What is a “reasonably diligent effort”?  What does “cause to be contacted” mean?  Neither of these terms indicate that contact must actually be made.  Therefore, without actually having made contact, a DNAR order could be placed in the file of the patient without the patient’s or surrogate’s knowledge.  Therefore, the result is a “secret” DNAR.  Supporters may say this could never happen.  Is that what the law should be in Texas?  How hard is it to actually require contact be made? Why not take all uncertainty out and draft a better piece of legislation?  Others have already noted that if contact is made the discussion need only be verbal.  Others have noted that the witnesses are paid personnel of the facility, thus creating one of many conflicts of interest.

9.         What happens if the patient or surrogate disagrees with the order?  What recourse do they have?  That is found in subsection (d); in pertinent part:

If the patient or surrogate disagrees with the DNAR order being placed in or removed from the medical record, the patient or surrogate may request in writing or as provided by Subsection (b) and is entitled to a consultation or a review of the disagreement by the ethics or medical committee in the manner described by Section 166.046, with the patient or surrogate afforded all rights provided under that section, and with the physician afforded all protections from liability provided under section 166.045(d).

10.       Note that the request must be in writing.  Keep in mind that this will be a time when the patient is either feeble or weak because they are in the hospital for some illness, and the family or surrogate is busy seeing to their needs. Yet, the health care provider, through the Legislature mandates that the patient or surrogate step away from caring for their loved one to go write out a request that the DNAR decision be reviewed.

11.       Supporters will note that the DNAR must be removed from the file from the moment the review process is requested.  That’s cold comfort, for if the ethics committee agrees with the physician, there is no additional recourse.  Note again that there is immunity from lawsuit and no cause of action is created or liability possible against a physician acting under this Section.  Indeed, lack of liability and/or immunity is mentioned no less than three times in just this one Section.

12.       Note also there are exceptions in subsection (f) where the notice provisions, such as they are, in subsection (b) do not apply.  These exceptions are full of undefined, subjective terms such as “reasonable medical judgment”, “imminent”, “medically ineffective”.  What do these terms mean?  How will they be applied?  It also requires the physician to predict the future.  One exception states that notice is not required for a DNAR if the physician’s “reasonable medical judgment” is that that despite attempted resuscitation the patient’s death is imminent.  See Section 166.012(f)(1). Another exception is that if the physician’s “reasonable medical judgment” is that resuscitation will be medically ineffective, subsection (b) does not apply.  How can the physician know this?   See Section 166.012(f)(2).

13.       A word of caution about the term “surrogate” is in order here.  That is a new definition under Section 166.002(16).  A “surrogate” means a legal guardian, an agent under a medical power of attorney, or a person authorized under Section 166.039(b) to make a health care or treatment decision for anincompetent patient under this chapter.”  “Incompetent” is defined (sort of, there is rather broad language used and the term “reasonable medical judgment”), but who makes that determination and when is not set forth.  Further, under 166.039(b), “If a patient does not have a legal guardian or an agent under a medical power of attorney, 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.

14.       Note that the surrogate is the physician AND one of the above, if available, if one does not have a legal guardian or agent under a medical power of attorney.  Section 166.039(b) is existing law and is now part of the formal definition of surrogate that hasbeen added to the definitions section of the bill.

15.       But the analysis of the DNAR issue should begin and end withthe fact that when it comes to one’s health and medical treatment, that should be the patient’s decision or made on his behalf by his surrogate (which should not include the doctor).

Artificially Administered Nutrition and Hydration (AANH)

16.       The same enthusiastic SB 303 supporter also noted that: “AANH cannot be involuntarily denied, except if one or more of the four conditions are met. See Sec. 166.046(e),…”. . . except that artificially administered nutrition and hydration must be provided unless, . . .[except with the conditions].”  (Emphasis by supporter.)  This one may be the most troubling section.

17.       Section 166.002(2) already has a definition for artificial nutrition and hydration which has been tweaked only slightly to be worded “Artificially administered nutrition and hydration” which is defined as “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).”

18.       Section 166.046(e) states in full:

If the patient or surrogate is requesting life-sustaining treatment that the attending physician has decided and the ethics or medical committee has affirmed is medically inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d).  This subsection does not authorize withholding or withdrawing pain management medication, medical procedures considered necessary to provide comfort care, or any other medical care provided to alleviate the patient’s pain.  The patient is responsible for any costs incurred in transferring the patient to another facility.  The attending physician, any other physician responsible for the care of the patient, and the health care facility are not obligated to provide life-sustaining treatment after the 21st calendar day after the written decision required under Subsection (b-1) is provided to the patient or the surrogate unless ordered to do so under Subsection (g), except that artificially administered nutrition and hydration must be provided unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would:

(1)          hasten the patient’s death;

(2)          seriously exacerbate other major medical problems not outweighed by the benefit of the provision of the treatment;

(3)          result in substantial irremediable physical pain or discomfort not outweighed by the benefit of the provision of the treatment; or

(4)          be medically ineffective in prolonging the patient’s life.

(Emphasis added.)

19.       To be clear, this is the situation where the patient or surrogate is requesting that life-sustaining treatment be continued but thephysician disagrees and the ethics committee at the hospital has affirmed that disagreement  (“Medically inappropriate treatment” is another undefined term).  “Life-sustaining treatment” is defined to include “artificially administered nutrition and hydration” among many other things.  See Sec. 166.002(10).  If the patient or his surrogate has gone through the review process and lost (See Sec. 166.046), there is no further recourse, and their treatment may only continue 21 days at this facility.  The only hope is that another facility will take them within that time period.

20.       If you need more time for the transfer, you may make a motion to a court, but that court will only give you more time “if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that the patient or surrogate may find a physician or health care facility that will honor the patient’s or surrogate’s health care treatment or decision if the time extension is granted.”  See Sec. 166.046(g).  But here’s the kicker, once you read through the “except” and the “unlesses” if the physician determines that “based on reasonable medical judgment” one of those four exceptions applies, AANH does not have to be continued even during this court-ordered reprieve!  Note also that the underlying decision cannot be challenged.  That is, the fact that the physician or ethics committee has determined that the patient is no longer entitled to receive care or his wishes will not be honored, is not part of Subsection (g) or any part of Section 166.046 at all that one may have recourse to courts to challenge the ethics committee’s decision.

21.       The preceding was analysis of just a couple of sections of this bill and just one part of the definition of life-sustaining treatment, specifically AANH.  The process for an “appeal” to the ethics committee is fraught with difficulties, allows for the hearing without the family being given all the information they need in a timely fashion, and, again, provides no recourse after the ethicscommittee makes its decision.

22.       Proponents argue that more process has been given to the patient and there are more days provided, records given, people allowed in the committee hearing.  But that is form without substance.  Ultimately, if the medical ethics committee agrees with the doctor, and given the inherent conflict of interest in having that committee made up ofpeople from within the same facility where the doctor practices, that is highly likely, the patient has no further recourse.  This is not due process, this is not a balanced or equitable process or result.

23.       Even on the basis of “incrementalism,” this bill is too flawed to support that argument.  In the final analysis, the convicted felon has more due process rights and guarantee to a conflict of interest free proceeding, which might actually change the ultimate finding of his guilt, than the sick patient in a hospital once a physician has determined that continuing care for that person violates his “conscience” and is futile.  That is not right, just, or equitable.  Texas can do better.  Patients deserve better.  And doctors whose consciences prevent them from caring further for a patient can assuage their consciences simply by “firing” the patient, not mandating his death.  Amending the Advanced Directives Act (AKA the Futile Care Law) is something that is certainly needed.  However, it needs to be done correctly and with full understanding of the results of such amendments.  As it stands now, this bill must be opposed.  The stakes are too high, indeed, they do not get any higher than life and death, to make another mistake with regard to TADA’s language.

[2] References are to the bill as it has been amended by Rep. King as of Friday, May 10, 2013.