New Texas law simplifies end-of-life care planning
Creates a legal safe harbor for futility disputes
A new law gives broader powers to ethics committees in Texas involved in end-of-life and withdrawal of treatment decisions. Perhaps more importantly, the Texas Advance Directives Act, which went into effect Sept. 1, creates a legal safe harbor for hospitals that follow a predetermined process to resolve medical futility disputes with patients or their surrogates.
"The law is the culmination of a statewide task force’s recommendations to both the legislature and Governor Bush that are medically and ethically sound as well as politically acceptable to everyone involved," says Robert L. Fine, MD, FACP, director of the Office of Clinical Ethics for Baylor Health Care System in Dallas. Fine also serves as chairman of the Baylor University Medical Center’s clinical ethics committee and served on the statewide task force that recommended changes to the state law.
The task force consisted of representatives from various organizations, including hospitals, physicians, nurses, nursing homes, hospices, state agency representatives, and national and state right-to-life organizations. The new law actually combined and simplified three existing state laws that governed the following topics separately:
• living wills;
• durable powers of attorney for health care;
• out-of-hospital do-not-resuscitate (DNR) orders.
"The law provides for a new advance directive which we believe is more user-friendly," adds Fine. Definitions have been clarified, clearer instructions are provided, and witnessing is much simpler. Also, new and distinct definitions for terminal and irreversible illness are given. The new living will allows patients to request continuation of or withdrawal of treatment in terminal illness, irreversible illness, or both. In addition, the state’s out-of-hospital DNR directive no longer requires that the patient be terminally ill. (The revised advance directive appears on pp. 120-121.)
Reaching a concensus among right-to-life representatives and health care providers was very much a political process, notes Fine. "For those interested in ethics, it’s a good reminder of Plato’s observation that ethics belongs to the body polis.’" Both sides brought perceptions to the process they felt needed changing, he says.
Right-to-life advocacy groups said:
• Medical treatments are too easily withdrawn from patients.
• Terminal illness is defined too broadly.
• Active euthanasia is routinely practiced under the guise of pain control.
• Stopping artificial nutrition and hydration is morally wrong.
Health care provider representatives said:
• Futile treatments are provided too frequently and are too difficult to stop.
• Treatment wishes of patients with irreversible illnesses — including advance directives — often are ignored because the patients are not deemed "terminal" and can be kept alive for years.
• Too many patients suffer to inevitable death with inadequate palliative care.
• Active euthanasia is wrong and rare in Texas.
• Providing artificial nutrition and hydration to dying patients often increases suffering, whereas withholding it is recognized as an acceptable option in palliative care.
Texas’ new law hopes to help resolve the issue of medical futility, which has long been one of the most ethically troubling and legally problematic issues facing hospitals. "When there is a dispute between provider and surrogate, now there’s a mechanism to resolve it," explains Fine. (For a summary of the bill, see story, p. 122.) "The mechanism writes into law a process many of us already follow and is, in essence, the same process outlined in the recent American Medical Association policy statement on medical futility."
If the medical treatment team feels ongoing therapy other than comfort care is futile, but they are unable to persuade the family of that opinion, the treatment team may consult with the institution’s ethics committee. The family must be given 48 hours notice, invited into the process of ethics consultation, and given a written report or summary of the process. If the ethics consultation process concludes that ongoing treatment other than palliation is futile, the family, working with the institution, has 10 days to arrange transfer to another provider and institution willing to provide the treatment judged to be futile. If no such provider is found within 10 days, treatment may be withdrawn, even over the objection of the family. As long as the process is followed, the physician and health care facility are immune from civil or criminal prosecution. The family may petition the state court to request an extension of the 10-day time frame. If a court action is invoked, the court rules based on the adequacy of the search for a transfer, not on the judgment of futility itself, he notes. "If a hospital chooses to ignore the new process, they are no worse off than [under] current laws where they may find themselves in a court battle they may either win or lose.
"At our large tertiary care institution, the ethics committee is frequently consulted regarding issues of medical futility. In those circumstances, the ethics process sometimes leads the family that is requesting ongoing futile therapy to drop the request. In other cases, however, the ethics committee agrees with the treatment team that ongoing therapy is futile, but the ethics consultants are unable to persuade the family to shift to a comfort care only approach. In the past, our medical staff tended to continue futile care in such circumstances out of legal liability fears if they withdrew treatment over family objection. Under the new law, those fears are removed," Fine says.
"The statute makes clear what only a handful of hospitals in Texas have made clear in their policies — that providers have no obligation to provide futile care. What it doesn’t make clear, because there was no consensus among our committee members — and I think no concensus across the state — is just exactly what we mean by futility’ when we make that statement. Individual physicians and ethics committees will have to struggle with that, and this statute strongly encourages that discussion," says Tom Mayo, adjunct associate professor of law at Southern Methodist University in Dallas and a task force member.
Fine says the new law strikes a reasonable balance in the ongoing dialogue related to futility. Although the law can’t resolve every case of medical futility, it provides guidance and safeguards for both patients and providers. "I think this will allow us to begin discussing futility earlier in the course of treatment rather than waiting to the last bitter moments," he says.
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