Infusing new life into the right to die: Texas Advance Directives Act receives overhaul

Let us speak of life and death. In 1999, Texas passed the Advance Directives Act. The act permitted you to sign a paper – called a Directive to Physicians – that stated your end-of-life instructions ahead of time. It also set forth procedures for physicians and hospitals regarding the directives, and allowed physicians to sign a Do Not Resuscitate Order for your benefit.

The 1999 law did not please everyone. Physicians and hospitals complained that it did not give them enough liability protection. Patients and their families complained that it did not give them enough input into final decisions or time to find an alternative provider.

Yet for almost a quarter of a century, no one could agree how to fix it. That changed in 2023, when the legislature passed HB 3162, a sweeping overhaul of the Advance Directives Act, with an effective date of Sept. 1, 2023.

The change in the law primarily addresses how disagreements will be handled regarding your life-sustaining treatment and Do Not Resuscitate orders when you are incompetent or otherwise mentally or physically incapable of communicating your wishes, i.e., when your physician disagrees with your designated health care agent – or family member if you neglected to sign a medical power of attorney – about whether you should receive medical care that extends your life.

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Let me digress for a moment. This is why it is so important that you designate, in writing, an agent to make your medical decisions and why you need to make sure your agent knows what you want and will follow your wishes. Sign your medical power of attorney and directive to physicians. Don’t make everyone guess what you want, and don’t leave it up to your nearest relative, by default, to make medical decisions for you.

Back to the changes in law. When a physician in a facility disagrees with your agent about your end-of-life treatment, the obvious answer is either get another physician or transfer to another facility. That sounds simple in theory, but in practice it has proven to be extremely difficult.

The doctor or facility you are being transferred to, for example, may be willing to take you only if you have had a certain medical procedure. Under the new law, physicians are required to perform certain procedures to facilitate your transfer to another physician or health care facility.

Some physicians may refuse to honor your advance directive or your agent’s health care or treatment decision. The new law sets out requirements for ethics or medical committees to review that refusal. What should they consider if they are deciding whether the requested life-sustaining treatment is medically inappropriate? They must consider whether the treatment will:

• Prolong the natural process of dying or hasten death.

• Result in you feeling substantial, irremediable and objectively measurable physical pain that is not outweighed by the treatment’s benefit.

• Be medically contraindicated, and any benefit will be outweighed because it seriously exacerbates your life-threatening medical problems.

• Be consistent with the prevailing standard of care.

• Be contrary to your clearly documented desires.

The ethics or medical committee is prohibited from considering any disabilities that you have when it considers your situation. The new law prohibits your wishes regarding a DNR order from being overridden by other medical decision-makers.

The new law also gives you more time. The previous law gave your agents only 10 days to find a new facility. The new law gives them 25 days.

The changes to Texas Health & Safety Code Chapter 166 are significant. For you, it could mean the difference between life and death.

Attorney Virginia Hammerle has been board-certified in civil trial law for 25 years. Her practice includes estate planning, guardianship, probate and litigation. See her blog at hammerle.com or sign up for her newsletter at legaltalktexas@hammerle.com. This column does not constitute legal advice.