Texas Health & Safety Code - Section 166.039. Procedure When Person Has Not Executed Or Issued A Directive And Is Incompetent Or Incapable Of Communication
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§ 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR
ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. (a) If an adult qualified patient has not executed
or issued a directive and is incompetent or otherwise mentally or
physically incapable of communication, the attending physician and
the patient's legal guardian or an agent under a medical power of
attorney may make a treatment decision that may include a decision
to withhold or withdraw life-sustaining treatment from the patient.
(b) If the patient does not have a legal guardian or an agent
under a medical power of attorney, the attending physician and one
person, if available, from one of the following categories, in the
following priority, may make a treatment decision that may include
a decision to withhold or withdraw life-sustaining treatment:
(1) the patient's spouse;
(2) the patient's reasonably available adult children;
(3) the patient's parents; or
(4) the patient's nearest living relative.
(c) A treatment decision made under Subsection (a) or (b)
must be based on knowledge of what the patient would desire, if
known.
(d) A treatment decision made under Subsection (b) must be
documented in the patient's medical record and signed by the
attending physician.
(e) If the patient does not have a legal guardian and a
person listed in Subsection (b) is not available, a treatment
decision made under Subsection (b) must be concurred in by another
physician who is not involved in the treatment of the patient or who
is a representative of an ethics or medical committee of the health
care facility in which the person is a patient.
(f) The fact that an adult qualified patient has not
executed or issued a directive does not create a presumption that
the patient does not want a treatment decision to be made to
withhold or withdraw life-sustaining treatment.
(g) A person listed in Subsection (b) who wishes to
challenge a treatment decision made under this section must apply
for temporary guardianship under Section 875, Texas Probate Code.
The court may waive applicable fees in that proceeding.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended
by Acts 1997, 75th Leg., ch. 291, § 3, eff. Jan. 1, 1998.
Renumbered from § 672.009 and amended by Acts 1999, 76th Leg.,
ch. 450, § 1.03, eff. Sept. 1, 1999.
Section: 166.032 166.033 166.034 166.035 166.036 166.037 166.038 166.039 166.040 166.041 166.042 166.043 166.044 166.045 166.046
Last modified: August 11, 2007
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