By Julie Grimstad
When Senate Bill 303 first came to our attention, we looked to the experts to tell us what in the world was going on among Texas legislators. What we learned is now going to be shared with you”and it will astound you.
The real problem, of course, is that laws are not doctors and they are not family members, but laws can give excuses to individuals and can provide a reason to end a patients life prematurely. Further, laws can get in the way of actually helping a patient live the rest of his life comfortably and with as little pain as possible.
What is futility? Who decides when someones life should end? And it will end if the patient is not resuscitated or if treatment and ordinary care sustaining the patients life is stopped. When common sense is replaced by legislative interference, bad things can happen.
Read the following about SB 303/HB 1444. Then contact your Texas legislators and tell them to say no to SB 303/HB 1444.
The current medical futility section of the Texas advance directive law (Chapter 166.046 of the Health & Safety Code) is silent on DNAR orders. Because of this silence, some physicians write DNAR orders without the consent of the patient/surrogate, without notifying him, and without a medical futility decision. The solution to this concern is not SB 303/HB 1444, which explicitly permits a physician to write a DNAR order without patient consent and with merely verbal notification. The solution is to legally prohibit the placement of a DNAR order in a patients medical record without explicit consent of the patient/surrogate.
SB 303/HB 1444 merely requires that the physician or the facilitys personnel shall inform the patient . . . or make a reasonably diligent effort to contact or cause to be contacted the surrogate. This notice will be given verbally according to Section (2)(c). There is no notice signed by the ordering physician, no requirement that there be witnesses to verify that notice was given and nothing for the patient/surrogate to sign acknowledging that notice was given. So, are we supposed to trust implicitly the word of the DNAR-ordering physician or the facilitys personnel? Notice that the physician, who merely has to say that he verbally notified the patient/surrogate, is afforded all protections from liability provided under Section 166.045(d).
If the patient/surrogate disagrees with the DNAR order, he must put his request for an ethics committee meeting in writing. The ethics committee might consider revocation of the DNAR, but this hospital-appointed committee makes the final decision. The patient/surrogate has no legal power to revoke a DNAR order. This process is stacked in favor of the facility and the physician and against the patients right to make his own medical decisions.
SB 303/HB 1444 states that the DNAR order must be removed from the patients medical record at the time the request is made in writing. However, the DNAR is in effect at the time it is written until the patient/surrogate request is made in writing, which may take some time for the patient/surrogate to accomplish. It might require leaving the patients bedside in order to type a letter requesting an ethics consultation.
There are notable exceptions to the notification requirement in subsection (c) and the right to request a review of the DNAR order by the ethics committee in subsection (e). There are two exceptions of particular concern: Neither subsection (c) nor (e) applies to a DNAR order placed in the medical record of a patient whose death is imminent and/or whose resuscitation would be medically ineffective based on reasonable medical judgment. Those are huge loopholes. Imminent as it pertains to the expected time frame in which the patient will likely die is not defined. The phrase death . . . is imminent would be more specific if it read death . . . is imminent within minutes or hours. Likewise, medically ineffective is not defined and may be interpreted as not effective in maintaining what the doctor deems an acceptable quality of life.
As noted, current law is silent on DNAR orders, but most hospitals have adopted their own DNAR policies. When Texas Right to Life has helped families and identified a DNAR order in the patients file, upon the familys or attorneys petition to remove the DNAR order, the hospital has almost always done so. Also, currently, if a hospital should refuse to remove the DNAR order upon request, the patient/surrogate could pursue justice in a court of law. If SB 303/HB 1444 becomes law, the patients attorney will have to challenge the law, not just a hospital policy. This bill provides the doctor and treating facility more cover to order DNAR without patient/surrogate consent and gives explicit power to the hospital ethics committee to override a patient/surrogate objection to the DNAR order. Others may disagree with this assessment, but weve seen the abuses that the DNAR section of this bill will only exacerbate.
MEDICAL FUTILITY DISPUTE RESOLUTION PROCESS
Under current law, once the ethics committee issues a medical futility decree, the patient must be transferred within 10 days or all life-sustaining treatment, including artificially administered nutrition and hydration, will be stopped. SB 303/HB 1444 extends the 10 days to 21 days. This bill also extends the notification time to a family/surrogate from 48 hours to seven days in advance of an ethics committee meeting, giving the patient/surrogate more time to prepare for the ethics committee meeting. However, the dispute resolution process does not really give the patient/family/surrogate 28 days to make a transfer. During the first seven days, the patient/family/surrogate is usually not aware of the meaning of the futility meeting or is hoping the decision will be in the patients favor, so they are not looking for a transfer during that time.
SB 303/HB 1444 will allow the patient/surrogate to have up to five people accompany him to the meeting (more may be allowed, but only at the committees discretion). There is no limit to the number of people the ethics committee can have or call upon to be there to represent the hospitals point of view.
Once the ethics committee has affirmed a physicians medical futility judgment, the gauntlet has been laid down to transfer the patient to another facility within 21 days. Negotiations and discussions are finished at the ethics committee meeting. Faced with no avenue of appeal, the patient/family/surrogate will begin scrambling to move the patient. They will have only 21 days to clear insurance red tape and bureaucratic obstacles, search for another facility willing to take a patient who has been ruled a medical futility case, and overcome countless other hurdles in order to move the patient. If transfer has not been accomplished before the 21 days expire, life-sustaining treatment will be stopped, ensuring the patients death within a few days to a few weeks.
SAFEGUARD PATIENTS RIGHTS
We recommend repeal of the entire Medical Futility section of chapter 166.046 of the Health & Safety Code or an amendment to require treatment pending transfer.
The whole medical futility section of the law should be repealed in order to truly safeguard patients rights, that is, the right to make ones own medical decisions and, most importantly, the right to life. Instead, SB 303/HB 1444 is an added approval of medical futility decisions. This bill does nothing substantial to make the law more patient-friendly.
The medical futility section (added in 1999) of the Texas advance directive law is the euthanasia promoters dream come true. It renders advance directives useless for the purpose of expressing a wish for treatment and ordinary care (e.g., the provision of food and fluids) or for appointing a surrogate decision-maker, since both can be overridden by a hospitals death panel. A patient can be certain his wishes will be followed only when he refuses treatment. The default position is Hes better off dead.
We are told not to use the term death panel, but we dont know what else to call a committee that decides when it is time for a patient to die. Ethics committee is a euphemistic legal term which we hardly find appropriate to describe a committee that makes unethical decisions.
The Catechism of the Catholic Church states, The decisions [to discontinue medical procedures] should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected.  The current medical futility section of the Texas advance directive law strips patients/their legally-appointed surrogates of the right to make their most important healthcare decisions and empowers strangers, that is, a hospital-appointed committee, to usurp this right.
Regrettably, patient autonomy only works when patients refuse treatment. Patients who want treatment when they are seriously ill are considered unreasonable by many healthcare providers. Medical futility laws enshrine this mindset, abrogating patients rights in favor of those who serve the hospitals interests.
Repeal of the Texas medical futility law would be the ideal solution if we could be assured that hospitals would not just implement their own medical futility policies, as is presently the case with DNAR orders. Repeal of the law might leave physicians to do as they wish with nothing in place to guide them or tie their hands. An alternative to total repeal would be consideration of the type of medical futility law 11 states have adopted, which requires that a medical facility continue treatment until a transfer is accomplished. This would ensure that no patient would be denied treatment before they could find another facility and be transferred there.
It is essential that ALL concerned parties come to the table together to develop the best strategy to protect the rights and lives of vulnerable patients.
On Thursday, April 18, the Texas Senate approved Senate Bill 303 by an overwhelming majority. It now goes to the Texas House.
To contact your lawmakers in Texas, go to http://www.fyi.legis.state.tx.us/Home.aspx or http://www.capitol.state.tx.us.
Julie Grimstad is the executive director of Life is Worth Living, Inc; the chair of Pro-life Healthcare Alliance, a committee of Human Life Alliance; serves on the Human Life Alliance board of advisors; and is a member of Pro-Life Wisconsin’s Speakers’ Bureau.