top of page

In Depth: Medical-Legal Issues (Advance Directives)


(c) 2014 Paul Premack
Consumer/Patient Complaints about Physicians

Texas law allows you to get information about your physician. The Texas State Board of Medical Examiners is required to create a public database of all physicians licensed in Texas. They gather data annually, including information about any disciplinary action against the physician in the prior 10 years, data on the final resolution taken by the board on medical malpractice claims (if they are otherwise open to the public), and information on any formal complaint against the physician on file with the board. The information can be valuable when you select a new physician. Access the Board’s Website.


Confidentiality: HIPAA and State Laws

The Health Insurance Portability and Accountability Act (HIPAA) has been on the books since 1996. However, the federal government only got around to issuing regulations in April 2003 as standards for enforcing the law.


HIPAA’s goal is to “provide patients with access to their medical records and more control over how their personal health information is used and disclosed.” HIPAA forbids your doctor from discussing your private medical information with an unauthorized person. The law automatically allows your Agent in a Medical Power of Attorney (or anyone else closely involved in your medical decision-making) to obtain your medical information – but restricts them by denying disclosure at any time that you (the patient) are still capable of making your own decisions. Consider specifically authorizing disclosure to the agent of otherwise confidential medical information under HIPAA even while the patient has full capacity to make decisions. A standard Medical Power of Attorney, without modification, should be legally adequate to authorize disclosure of confidential medical information to the agent after the patient is incapacitated. My conservative advice is that your agent, a person you have chosen and you trust, should have access to medical information as soon as your agent desires that access. That way, your agent will not be relegated to the sidelines. Your agent can get into the game early, so all decisions can then be well informed and made without undue time pressure. To give that authority to your Agent you must either 1) modify the standard Medical Power of Attorney with a new provision that grants access to medical information even if the other powers of your Agent have not yet been invoked, or 2) create a separate HIPAA authorization that grants that authority but is not restricted to one doctor or to one event.


Texas Advance Directives Act

The Advance Directives Act was passed by the Texas Legislature and signed by the Governor on June 19, 1999. It took effect on September 1, 1999. It has been modified slightly since then in a few minor ways.


The Act replaced three prior laws, and in doing so coordinated and updated their provisions. They are the Texas Natural Death Act from 1977, the Texas Medical Power of Attorney Act from 1989, and the Out of Hospital Do-Not-Resuscitate Act from 1993.


The Natural Death Act allowed a competent individual to direct his or her health care provider to withhold life sustaining procedures. It was stringent in its requirements, but since it predated the Medical Power of Attorney Act, the two laws had room for conflict.

The Advance Directives Act can still be broken down into three major parts, matching the laws that are replaced.


Institutional Policies


The Advance Directive Act includes a new requirement that any health care provider must develop and maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to provide or withhold in accordance with an advance directive.


The term “health care provider” is broadly defined to include any hospital, licensed nursing facilities, home and community support services agencies, personal care facilities and special care facilities. Note that this does not require your individual physician to develop a policy. Still, most physicians must accept institutional policies of the health care facilities in which they practice – so you can ask the facility to see its policy to learn its position.


You need not even ask. The Act requires the facility to provide you a written notice of its written policies either when you (1)  are admitted to receive services from the facility; or (2)  begin receiving care from the facility (whichever is sooner). If you are not competent at that time, the facility must give the notice to your representative, in the following order of preference:


(a)  your court appointed guardian;

(b) the person responsible for your health care decisions (under your Advance Directives);

(c) your spouse;

(d) one of your adult children;

(e) your parent (if you are so lucky); or

(f)  the person admitting you to the facility.


The facility must do a “diligent search” to locate the preferred representative. (The statute does not define “diligent,” but typically this means a search that is persistent, attentive and untiring.) If they still cannot locate a representative, the facility is not required to provide the notice. But if you recover your competence, they must then give you the notice.


Directives to Physicians, Family or Surrogate


The new Act recognizes that your doctor is not the only person who needs to receive your instructions. It therefore calls your written instructions a “Directive to Physicians, Family or Surrogate.”


The Act also makes it clear that not every person chooses to have a Directive. By law, your physician, health facility, health care provider, insurer, or health care service plan may not require you to sign an Advance Directive.


Definitions


“Artificial nutrition and hydration” means providing nutrients or fluids by a tube inserted in a vein, under the skin, or in the stomach.


“Competent” means possessing 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 a proposed treatment decision.


“Irreversible condition” means a condition, injury, or illness:

(A)  that may be treated but is never cured or eliminated;

(B)  that leaves a person unable to care for or make decisions for the person’s own self; and

(C)  that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.


“Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.


“Terminal condition” means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care. A patient who has been admitted to a hospice program is presumed to have a terminal condition.


Better than the Prior Law


The Advance Directives Act liberalizes the situations under which you can avoid artificial life support. Under it, life support can be withheld or withdrawn if you have a terminal condition that is expected to cause your death within six months. The old law required death to be “imminent” or due shortly. This allows you, as a patient, to avoid life support at an earlier date and gives you more control over the final months of life.


The Advance Directives Act also authorizes you to avoid artificial life support if you have an “irreversible condition” from which you are expected to die. There is no time limit imposed by the Advance Directives Act when your condition is irreversible. Theoretically, this could be used to remove life support from a comatose patient, even if life support could have maintained the vital signs for years.


The Directive also states (in a manner similar to the old law) that if your condition is terminal and death is imminent, it is your desire to not have artificial life support.

You are not legally required to throw away your old Directive. It is still valid after September 1, 1999. On the other hand, you old Directive will continue to follow the old law – you will not receive the benefits of the Advance Directives Act unless you sign a new, updated Directive.


Under the 1977 law and the 1999 law, the desire of a competent patient at the moment always supersedes a written directive.


It is important to note that the Advance Directives Act allows your “Directive to Physicians” to impose any conditions and restrictions that you may individually desire. While there is a special form defined in the law, there is no requirement that the form be used. Howeve