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CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT

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HEALTH AND SAFETY CODETITLE 4. HEALTH FACILITIESSUBTITLE F. POWERS AND DUTIES OF HOSPITALSCHAPTER 313. CONSENT TO MEDICAL TREATMENT ACTSec. 313.001.SHORT TITLE.This chapter may be cited as theConsent to Medical Treatment Act.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993.Sec. 313.002.DEFINITIONS.In this chapter:(1)"Adult" means a person 18 years of age or older or a personunder 18 years of age who has had the disabilities of minorityremoved.(2)"Attending physician" means the physician with primaryresponsibility for a patient's treatment and care.(3)"Decision-making capacity" means the ability to understandand appreciate the nature and consequences of a decisionregarding medical treatment and the ability to reach an informeddecision in the matter.(3-a)"Home and community support services agency" means afacility licensed under Chapter 142.(4)"Hospital" means a facility licensed under Chapter 241.(5)"Incapacitated" means lacking the ability, based onreasonable medical judgment, to understand and appreciate thenature and consequences of a treatment decision, including thesignificant benefits and harms of and reasonable alternatives toany proposed treatment decision.(6)"Medical treatment" means a health care treatment, service,or procedure designed to maintain or treat a patient's physicalor mental condition, as well as preventative care.(7)"Nursing home" means a facility licensed under Chapter 242.(8)"Patient" means a person who:(A)is admitted to a hospital;(B)is residing in a nursing home; or(C)is receiving services from a home and community supportservices agency.(9)"Physician" means:(A)a physician licensed by the Texas State Board of MedicalExaminers; or(B)a physician with proper credentials who holds a commissionin a branch of the armed services of the United States and who isserving on active duty in this state.(10)"Surrogate decision-maker" means an individual withdecision-making capacity who is identified as the person who hasauthority to consent to medical treatment on behalf of anincapacitated patient in need of medical treatment.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993.Amended by:Acts 2007, 80th Leg., R.S., Ch.1271, Sec. 1, eff. September 1, 2007.Sec. 313.003.EXCEPTIONS AND APPLICATION.(a)This chapterdoes not apply to:(1)a decision to withhold or withdraw life-sustaining treatmentfrom qualified terminal or irreversible patients under SubchapterB, Chapter 166;(2)a health care decision made under a medical power ofattorney under Subchapter D, Chapter 166, or under Chapter XII,Texas Probate Code;(3)consent to medical treatment of minors under Chapter 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 adecision regarding the patient's medical treatment.(b)This chapter does not authorize a decision to withhold orwithdraw life-sustaining treatment.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993. Amended by Acts 1999, 76th Leg., ch. 450, Sec. 2.01, eff.Sept. 1, 1999.Sec. 313.004.CONSENT FOR MEDICAL TREATMENT.(a)If an adultpatient of a home and community support services agency or in ahospital or nursing home is comatose, incapacitated, or otherwisementally or physically incapable of communication, an adultsurrogate from the following list, in order of priority, who hasdecision-making capacity, is available after a reasonablydiligent inquiry, and is willing to consent to medical treatmenton behalf of the patient may consent to medical treatment onbehalf of the patient:(1)the patient's spouse;(2)an adult child of the patient who has the waiver and consentof all other qualified adult children of the patient to act asthe sole decision-maker;(3)a majority of the patient's reasonably available adultchildren;(4)the patient's parents;or(5)the individual clearly identified to act for the patient bythe patient before the patient became incapacitated, thepatient's nearest living relative, or a member of the clergy.(b)Any dispute as to the right of a party to act as a surrogatedecision-maker may be resolved only by a court of record havingjurisdiction under Chapter V, Texas Probate Code.(c)Any medical treatment consented to under Subsection (a) mustbe based on knowledge of what the patient would desire, if known.(d)Notwithstanding any other provision of this chapter, asurrogate 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, Sec. 1, eff. Sept. 1,1993.Amended by:Acts 2007, 80th Leg., R.S., Ch.1271, Sec. 2, eff. September 1, 2007.Sec. 313.005.PREREQUISITES FOR CONSENT.(a)If an adultpatient of a home and community support services agency or in ahospital or nursing home is comatose, incapacitated, or otherwisementally or physically incapable of communication and, accordingto reasonable medical judgment, is in need of medical treatment,the attending physician shall describe the:(1)patient's comatose state, incapacity, or other mental orphysical inability to communicate in the patient's medicalrecord;and(2)proposed medical treatment in the patient's medical record.(b)The attending physician shall make a reasonably diligenteffort to contact or cause to be contacted the persons eligibleto serve as surrogate decision-makers. Efforts to contact thosepersons shall be recorded in detail in the patient's medicalrecord.(c)If a surrogate decision-maker consents to medical treatmenton behalf of the patient, the attending physician shall recordthe date and time of the consent and sign the patient's medicalrecord. The surrogate decision-maker shall countersign thepatient's medical record or execute an informed consent form.(d)A surrogate decision-maker's consent to medical treatmentthat is not made in person shall be reduced to writing in thepatient's medical record, signed by the home and communitysupport services agency, hospital, or nursing home staff memberreceiving the consent, and countersigned in the patient's medicalrecord or on an informed consent form by the surrogatedecision-maker as soon as possible.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993.Amended by:Acts 2007, 80th Leg., R.S., Ch.1271, Sec. 3, eff. September 1, 2007.Sec. 313.006.LIABILITY FOR MEDICAL TREATMENT COSTS.Liabilityfor the cost of medical treatment provided as a result of consentto medical treatment by a surrogate decision-maker is the same asthe liability for that cost if the medical treatment wereprovided as a result of the patient's own consent to thetreatment.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993.Sec. 313.007.LIMITATION ON LIABILITY.(a)A surrogatedecision-maker is not subject to criminal or civil liability forconsenting to medical care under this chapter if the consent ismade in good faith.(b)An attending physician, home and community support servicesagency, hospital, or nursing home or a person acting as an agentfor or under the control of the physician, home and communitysupport services agency, hospital, or nursing home is not subjectto criminal or civil liability and has not engaged inunprofessional conduct if the medical treatment consented tounder this chapter:(1)is done in good faith under the consent to medicaltreatment;and(2)does not constitute a failure to exercise due care in theprovision of the medical treatment.Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,1993.Amended by:Acts 2007, 80th Leg., R.S., Ch.1271, Sec. 4, eff. September 1, 2007.
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  • HEALTH AND SAFETY CODE

    TITLE 4. HEALTH FACILITIES

    SUBTITLE F. POWERS AND DUTIES OF HOSPITALS

    CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT

    Sec. 313.001. SHORT TITLE. This chapter may be cited as the

    Consent to Medical Treatment Act.

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

    1993.

    Sec. 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 of minority

    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.

    (3-a) "Home and community support services agency" means a

    facility licensed under Chapter 142.

    (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:

    (A) is admitted to a hospital;

    (B) is residing in a nursing home; or

    (C) is receiving services from a home and community support

    services agency.

    (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, Sec. 1, eff. Sept. 1,

    1993.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1271, Sec. 1, eff. September 1, 2007.

    Sec. 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 under Chapter 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, Sec. 1, eff. Sept. 1,

    1993. Amended by Acts 1999, 76th Leg., ch. 450, Sec. 2.01, eff.

    Sept. 1, 1999.

    Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an adult

    patient of a home and community support services agency or 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, Sec. 1, eff. Sept. 1,

    1993.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1271, Sec. 2, eff. September 1, 2007.

    Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult

    patient of a home and community support services agency or 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 home and community

    support services agency, 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, Sec. 1, eff. Sept. 1,

    1993.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1271, Sec. 3, eff. September 1, 2007.

    Sec. 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, Sec. 1, eff. Sept. 1,

    1993.

    Sec. 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, home and community support services

    agency, hospital, or nursing home or a person acting as an agent

    for or under the control of the physician, home and community

    support services agency, 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.

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

    1993.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1271, Sec. 4, eff. September 1, 2007.

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