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TEXAS

http://www.capitol.state.tx.us/statutes/docs/HS/content/htm/hs.002.00.000171.00.
htm

HEALTH & SAFETY CODE

CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT

§ 313.001.  SHORT TITLE.  This chapter may be cited as the Consent to Medical Treatment Act.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.

§ 313.002.  DEFINITIONS.  In this chapter:
(1)  "Adult" means a person 18 years of age or older or a person under 18 years of age who has had the disabilities ofminority removed.
(2)  "Attending physician" means the physician with primary responsibility for a patient's treatment and care.
(3)  "Decision-making capacity" means the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment and the ability to reach an informed decision in the matter.
(4)  "Hospital" means a facility licensed under Chapter 241.                
(5)  "Incapacitated" means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.
(6)  "Medical treatment" means a health care treatment, service, or procedure designed to maintain or treat a patient's physical or mental condition, as well as preventative care.
(7)  "Nursing home" means a facility licensed under Chapter 242.
(8)  "Patient" means a person who is admitted to a hospital or residing in a nursing home.
(9)  "Physician" means:
(A)  a physician licensed by the Texas State Board of Medical Examiners;  or
(B)  a physician with proper credentials who holds a commission in a branch of the armed services of the United States and who is serving on active duty in this state.
(10)  "Surrogate decision-maker" means an individual with decision-making capacity who is identified as the person who has authority to consent to medical treatment on behalf of an incapacitated patient in need of medical treatment.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.

§ 313.003.  EXCEPTIONS AND APPLICATION.  

(a)  This chapter does not apply to:
(1)  a decision to withhold or withdraw life-sustaining treatment from qualified terminal or irreversible patients under Subchapter B, Chapter 166;
(2)  a health care decision made under a medical power of attorney under Subchapter D, Chapter 166, or under Chapter XII, Texas Probate Code;
(3)  consent to medical treatment of minors underChapter 32, Family Code;  
(4)  consent for emergency care under Chapter 773;
(5)  hospital patient transfers under Chapter 241; or
(6)  a patient's legal guardian who has the authority to make a decision regarding the patient's medical treatment.

(b)  This chapter does not authorize a decision to withhold or withdraw life-sustaining treatment.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.  
Amended by Acts 1999, 76th Leg., ch. 450, § 2.01, eff. Sept. 1, 1999.

§ 313.004.  CONSENT FOR MEDICAL TREATMENT.
(a)  If an adult patient in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list, in order of priority, who has decision-making capacity, is available after a reasonably diligent inquiry, and is willing to consent to medical treatment on behalf of the patient may consent to medical treatment on behalf of the patient:
(1)  the patient's spouse;
(2)  an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
(3)  a majority of the patient's reasonably available adult children;
(4)  the patient's parents;  or
(5)  the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy.

(b)  Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by a court of record having jurisdiction under Chapter V, Texas Probate Code.

(c)  Any medical treatment consented to under Subsection (a) must be based on knowledge of what the patient would desire, if known.

(d)  Notwithstanding any other provision of this chapter, a surrogate decision-maker may not consent to:
(1)  voluntary inpatient mental health services;
(2)  electro-convulsive treatment;  or
(3)  the appointment of another surrogate decision-maker.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.

§ 313.005.  PREREQUISITES FOR CONSENT.
(a)  If an adult patient in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication and, according to reasonable medical judgment, is in need of medical treatment, the attending physician shall describe the:
(1)  patient's comatose state, incapacity, or other mental or physical inability to communicate in the patient's medical record;  and
(2)  proposed medical treatment in the patient's medical record.

(b)  The attending physician shall make a reasonably diligent effort to contact or cause to be contacted the persons eligible to serve as surrogate decision-makers.  Efforts to contact those persons shall be recorded in detail in the patient's medical
record.

(c)  If a surrogate decision-maker consents to medical treatment on behalf of the patient, the attending physician shall record the date and time of the consent and sign the patient's medical record.  The surrogate decision-maker shall countersign the patient's medical record or execute an informed consent form.

(d)  A surrogate decision-maker's consent to medical treatment that is not made in person shall be reduced to writing in the patient's medical record, signed by the hospital or nursing home staff member receiving the consent, and countersigned in the patient's medical record or on an informed consent form by the surrogate decision-maker as soon as possible.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.

§ 313.006.  LIABILITY FOR MEDICAL TREATMENT COSTS.  Liability for the cost of medical treatment provided as a result of consent to medical treatment by a surrogate decision-maker is the same as the liability for that cost if the medical treatment were provided as a result of the patient's own consent to the treatment.

Added by Acts 1993, 73rd Leg., ch. 407, § 1, eff. Sept. 1, 1993.

§ 313.007.  LIMITATION ON LIABILITY.  
(a)  A surrogate decision-maker is not subject to criminal or civil liability for consenting to medical care under this chapter if the consent is made in good faith.

(b)  An attending physician, hospital, or nursing home or a person acting as an agent for or under the control of the physician, hospital, or nursing home is not subject to criminal or civil liability and has not engaged in unprofessional conduct if the medical treatment consented to under this chapter:
(1)  is done in good faith under the consent to medical treatment;  and
(2)  does not constitute a failure to exercise due care in the provision of the medical treatment.

TEXAS REGUALTIONS CONCERNING INFORMED CONSENT FOR ABORTIONS

HEALTH & SAFETY CODE
§ 171.011.  INFORMED CONSENT REQUIRED.  A person may not perform an abortion without the voluntary and informed consent of the woman on whom the abortion is to be performed. Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.

§ 171.012.  VOLUNTARY AND INFORMED CONSENT.  
(a)  Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:
(1)  the physician who is to perform the abortion or the referring physician informs the woman on whom the abortion is to be performed of:
(A)  the name of the physician who will perform the abortion;
(B)  the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
(i)  the risks of infection and hemorrhage;
(ii)  the potential danger to a subsequent pregnancy and of infertility;  and
(iii)  the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
(C)  the probable gestational age of the unborn child at the time the abortion is to be performed;  and
(D)  the medical risks associated with carrying the child to term;
(2)  the physician who is to perform the abortion or the physician's agent informs the woman that:
(A)  medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
(B)  the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion;
(C)  public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest;  and
(D)  the woman has the right to review the printed materials described by Section 171.014, that those materials have been provided by the Texas Department of Health and are accessible on an Internet website sponsored by the department, and that the materials describe the unborn child and list agencies that offer alternatives to abortion;
(3)  the woman certifies in writing before the abortion is performed that the information described by Subdivisions (1) and (2) has been provided to her and that she has been informed of her opportunity to review the information described by Section 171.014; and
(4)  before the abortion is performed, the physician who is to perform the abortion receives a copy of the written certification required by Subdivision (3).

(b)  The information required to be provided under Subsections (a)(1) and (2) must be provided:
(1)  orally by telephone or in person;  and
(2)  at least 24 hours before the abortion is to be performed.

(c)  When providing the information under Subsection (a)(2)(D), the physician or the physician's agent must provide the woman with the address of the Internet website on which the printed materials described by Section 171.014 may be viewed as required by
Section 171.014(e).

(d)  The information provided to the woman under Subsection (a)(2)(B) must include, based on information available from the Office of the Attorney General and the United States Department of Health and Human Services Office of Child Support Enforcement for the three-year period preceding the publication of the information, information regarding the statistical likelihood of collecting child support.

(e)  The department is not required to republish informational materials described by Subsection (a)(2)(B) because of a change in information described by Subsection (d) unless the statistical information in the materials changes by five percent or more.

Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.

§ 171.013.  DISTRIBUTION OF STATE MATERIALS.  
(a)  If the woman chooses to view the materials described by Section 171.014, the physician or the physician's agent shall furnish copies of the materials to her at least 24 hours before the abortion is to be performed.  A physician or the physician's agent may furnish the materials to the woman by mail if the materials are mailed, restricted delivery to addressee, at least 72 hours before the abortion is to be performed.

(b)  A physician or the physician's agent is not required to furnish copies of the materials if the woman provides the physician with a written statement that she chooses to view the materials on the Internet website sponsored by the department.

(c)  The physician and the physician's agent may disassociate themselves from the materials and may choose to comment on the materials or to refrain from commenting.

Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003.

§ 171.014.  INFORMATIONAL MATERIALS.  
(a)  The department shall publish informational materials that include:
(1)  the information required to be provided under Sections 171.012(a)(1)(B) and (D) and (a)(2)(A), (B), and (C);  and
(2)  the materials required by Sections 171.015 and 171.016.

(b)  The materials shall be published in:
(1)  English and Spanish;
(2)  an easily comprehensible form;  and
(3)  a typeface large enough to be clearly legible.

(c)  The materials shall be available at no cost from the department on request.  The department shall provide appropriate quantities of the materials to any person.

(d)  The department shall annually review the materials to determine if changes to the contents of the materials are necessary.  The department shall adopt rules necessary for considering and making changes to the materials.

(e)  The department shall develop and maintain an Internet website to display the information required to be published under this section.  In developing and maintaining the website the department shall, to the extent reasonably practicable, safeguard the website against alterations by anyone other than the department and shall monitor the website each day to prevent and correct tampering.  The department shall ensure that the website does not collect or maintain information regarding access to the website.

(f)  In addition to any other organization or entity, the department shall use the American College of Obstetricians and Gynecologists as the resource in developing information required to be provided under Sections 171.012(a)(1)(B) and (D), Sections 171.012(a)(2)(A), (B), and (C), and Section 171.016, and in maintaining the department's Internet website.
Added by Acts 2003, 78th Leg., ch. 999, § 1, eff. Sept. 1, 2003



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