The COVID-19 pandemic sweeping the globe has put a spotlight on Texas health care policy regarding the provision of life-sustaining treatment. An integral part of your life-saving mission is advocating for patients in Texas hospitals who are experiencing a denial, or threat of denial, of basic life-sustaining health care.
Texas laws on patients’ rights are some of the least protective in the country in these situations. During a worldwide health crisis, residents of the Lone Star State, particularly members of demographics especially susceptible to the virus, should be aware of their legal rights.
At any time, Texas hospitals have the ability to unilaterally remove wanted life-sustaining treatment, such as a ventilator or dialysis, through the 10-Day Rule.
The same legislation that allows Texans to dictate their decisions for medical treatment while they are incapacitated also contains a provision allowing hospitals under any circumstance to forcefully remove wanted treatment that is merely sustaining the life of the patient. Section 166.046 of the Texas Advance Directives Act, termed the “10-Day Rule,” lays out a process for the removal of desired treatment. Under this law, medical professionals and institutions receive total immunity from any legal or administrative repercussions as long as they correctly follow a few procedural steps. These procedural steps merely include a physician who wishes to remove life-sustaining treatment over a patient or surrogate’s decision to ask for a meeting of the hospital’s ethics committee, provide 48 hours notice of the meeting to the patient or surrogate, and after the decision is made by the committee, a second notice that the hospital will remove life-sustaining treatment after the next 10 days. As the name suggests, the removal of life-sustaining treatment almost always results in the patient’s death.
The 10-Day Rule has been used in several high-profile cases, such as Tinslee Lewis, Carolyn Jones, and Chris Dunn. Texas Attorney General Ken Paxton has repeatedly denounced the law as unconstitutional, citing the law’s complete lack of due process. If you suspect you or your loved one may be a victim of the 10-Day Rule during the COVID-19 crisis, call Texas Right to Life immediately to be connected with a patient advocate: 713-782-5433.
While the 10-Day Rule is a serious problem in Texas, Texas Right to Life also routinely counsels many families through additional types of denial of treatment situations.
While you are incapacitated, the decisions of your surrogate, or medical power of attorney, have the same legal weight as any written advance directive. Do you know who your legal surrogate is?
A surrogate medical decision maker or medical power of attorney is a person who makes medical decisions for a patient while he or she is incapacitated, and is intended to be someone close to the patient who is able to carry out the patient’s known preferences and values. A surrogate’s decisions carry the same weight as if you had completed a written advance directive. If you have never legally indicated a person to be your surrogate decision maker, Texas law gives that position to various family members by default: first your spouse, to your adult children, then your parents, and so on. If you are concerned that your default surrogate by law may not carry out your wishes regarding the provision of life-sustaining treatment, you may wish to seek out legal help to properly designate a different surrogate.
Forced or unwanted Do-Not-Resuscitate (DNR) orders are illegal in Texas, and a patient or surrogate has the right at any time to revoke a DNR.
Amidst fears of healthcare rationing due to COVID-19 and of the spread of the virus, there has been discussion in the media of DNR orders being signed unilaterally for coronavirus patients. However, Chapter 166, Subchapter E of the Texas Health and Safety Code clearly states that a patient or surrogate has the right to revoke a DNR at any time, verbally or in writing. The law also requires that proper notice be given to the patient or surrogate before placing a DNR in the patient’s file.
If you believe you or your loved one may be subject to an unwanted or unknown DNR order, please contact Texas Right to Life: 713-782-5433.
Do you have an advanced directive?
While Texas Right to Life advises that your primary means of indicating your intentions for medical treatment while incapacitated should be designating an appropriate surrogate medical decision maker and extensively discussing these issues with him or her, you may also wish to complete a written advance directive. In so doing, you should refrain from signing a DNR or similar document outside of the hospital and make sure that the document could not be misconstrued to allow the hospital to remove you from a ventilator (or refuse to provide one) without even needing to use the 10-Day Rule. We recommend the attached living will to indicate your wishes in written form.
There is no need for unnecessary fear when approaching the issue of ensuring a hospital will follow your wishes for life-sustaining treatment, but there is need for prudence and planning ahead, especially if you are at increased risk for contracting COVID-19 or going to the hospital during this time due to age, disability, or other risk factors. If you are concerned about one or more of the issues above, please feel free to contact our experienced patient advocacy team by calling 713-782-5433.