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March 22, 2005

Texas Futile Care Law worse than I initially thought

According to a post from Mark Kleiman, the Texas Futile Care Law is even more intrusive than I had initially thought. Apparentely, not only does it allow doctors to ignore the wishes of a patient's family and any advanced directives the patient may have left, but they can also ignore the wishes of a patient who is conscious and asserting their own, current desire to live!

Moreover, the law allows for (even if in the Hudson and and Nikolouzos cases it did not actually involve) the termination of life-sustaining treatment for patients with "irreversible" conditions (i.e., conditions from which they will not recover and which leave them unable to care for themselves) even if their higher brain functions are completely normal. Indeed, the law contemplates that a fully competent patient may be served by his health-care provider with a 10-day notice to find another provider or have his plug pulled; it even provides that the patient has the right to attend the committee meeting at which his fate is to be decided. (Sec. 166.046) And the law provides no substantive guidance other than the provider's decision that the requested life-sustaining care would be "inappropriate."

So, if I read the Texas law correctly, it would allow for Terri Schiavo's feedling tube to be disconnected if her health care provider so decided, and if her family couldn't find another provider willing to take the case, even if her higher brain functions were entirely normal (rather than, as appears to be the case, entirely absent), even if she were awake and asking to be allowed to live.

Now, I will say that it I would imagine there wouldn't be too many situations in which a fully conscious and cognizent patient is requiring life sustaining treatment and hospitalization that the doctors feel is futile or "inappropriate", but it is possible - and if it were to happen, the doctors could decide to terminate that person's life regardless of what that person wants for themselves, unless they can find another care facility that will take them within the 10-day notification period.

Since I believe that, in the case of an incapacitated person, the decision should be left entirely to the descretion of the individual's legal guardian, I considered the law to be outrageous when I thought it only applied to patients in a persistant vegetative state. But now that I find it applies to conscious, aware individuals who are able to know and understand their situation and who can state their own desires clearly and rationally? I cannot even begin to fathom the level of coldness and unfeeling that it would take to consider such a law "appropriate"!

How - in any way, shape or form - does this kind of a law fit into the idea of the Right's beloved "culture of life"? (Obviously, it doesn't.)

For those who are interested, here is the text of the section of the Texas Advanced Directives Law (which also contains the Texas Futile Care Law) which details the procedure if a doctor is refusing to honour an advanced directive. Note that in all cases, it talks about how the patient or the patient's representative will be given certain information or allowed to attend the review process, etc. This phrasing shows that it was clearly anticipated that this section of the law might, under some circumstances, be applied to individuals who were still conscious, aware and able to be involved in their own treatment decisions.

Oh, and be sure to note the lovely little provision for what happens if a person's care has been found futile and that person managed to find another facility to take them, but then, for some reason, ends up back at the original facility within 6 months. If the patient hasn't improved any or if their condition has worsened - in the opinion of the attending physician and a memeber of the ethics board - then no additional review is required and the hospital can just go ahead and terminate life support.

ยง 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR TREATMENT DECISION.
  • (a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.
  • (b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
    • (1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;
    • (2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;
    • (3) at the time of being so informed, shall be provided:
      • (A) a copy of the appropriate statement set forth in Section 166.052; and
      • (B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and
    • (4) is entitled to:
      • (A) attend the meeting; and
      • (B) receive a written explanation of the decision reached during the review process.
  • (c) The written explanation required by Subsection (b)(2)(B) must be included in the patient's medical record.
  • (d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to:
    • (1) another physician;
    • (2) an alternative care setting within that facility; or
    • (3) another facility.
  • (e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).
  • (e-1) If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.
  • (f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.
  • (g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.
  • (h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.
If you want to read the rest of the law, you can find the full text here.

Posted by thorswitch at March 22, 2005 03:39 AM

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Comments

"Now, I will say that it I would imagine there wouldn't be too many situations in which a fully conscious and cognizent patient is requiring life sustaining treatment and hospitalization that the doctors feel is futile or "inappropriate", but it is possible - and if it were to happen, the doctors could decide to terminate that person's life regardless of what that person wants for themselves, unless they can find another care facility that will take them within the 10-day notification period."



Technically, this is true, but (see my comment to your "Interesting Counterpoint" post) rather far-fetched. There is no likelihood that a competent patient who is requesting continued useful treatment would not receive it. Under the terms of the statute, this could only happen if: (a) the treating physician refused to provide it, and (b) the hospital ethics committee agreed with that physician, and (c) no other physician in the hospital was willing to provide it, and (d) no other facility could be located anywhere that would take that patient in transfer. In other words, it could happen only on the basis of a coordinated conspiracy involving the treating physician, the ethics committee, and the entire medical community. If just one other doctor, or one doctor at another willing facility, agrees to provide the requested treatment, then under the terms of the statute not only would the patient receive that treatment but they must receive that treatment.



Under what conditions would this "conspiracy" actually take place? Only one: when the treatment requested is in fact medically futile treatment. The purpose of the statute is to allow facilities to deny requested care that is "inappropriate". In practice, this means care that is futile - that medically cannot provide any tangible improvement in the patient's condition. "Futility" does not occur only in cases of severe debility; patients who are alert and competent may certainly - and often do - request futile treatment. If a patient demands Laetrile for their cancer, or an MRI for their headache, or a lung transplant in a case of advanced metastatic cancer, it would be worse than useless to provide those treatments, and hospitals - though they do tend to try to accomodate patients' wishes - should not be required to provide anything a patient demands even when it is costly, disruptive, and useless or even counterproductive. In these cases, the hospital can invoke the futility statute - but, again, even then the patient will actually be denied the treatment only if all the local doctors, all the potential transfer facilities, and the local facility's ethics committee all agree.



Certainly one can imagine scenarios in which a malicious medical community gangs up to deny care to patients they just don't like - but that seems rather unlikely. Under the terms of the statute, it is true that a doctor can refuse to provide any treatment for any reason - but under the terms of the statute, a patient will actually be denied that treatment only if every doctor refuses to provide the same treatment for the same reason. That seems like a reasonable safeguard.

Posted by: Kevin T. Keith [TypeKey Profile Page] at March 22, 2005 05:35 PM

Kevin,

Thanks for taking time to explain your viewpoint on both this and the next post up. I still have some qualms about the Texas Futile Care Law - some of which may be from my own personal squishiness when it comes to having people other than me (preferrably) or my family making decisions that affect me - but I appreciate the additional food for thought!

Posted by: thorswitch [TypeKey Profile Page] at March 22, 2005 08:44 PM

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