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Statutes > Texas > Health-and-safety-code > Title-4-health-facilities > Chapter-313-consent-to-medical-treatment-act

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.