1/22/2018 From the Catholic Angle Texas Health & Safety Code - - PDF document

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From the Catholic Angle

Texas Health & Safety Code Chapter 166 concerns the following “Advance Directives:”

• Out of Hospital Do Not Resuscitate Order
• Medical Power of Attorney
• Directive to Family and Physicians (a/k/a “Living Will”)

Names a person to make medical decisions for you in the event that you cannot make them yourself.

• Essential: Possibly the most important document an

individual should sign.

• Most doctors want this! Most do not want to make decisions

without any guidance from their patient.

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• I belong to the Catholic Church and I direct that my health

care decisions be made in accordance with Catholic teaching.

• I direct that those making decisions on my behalf be guided

by the moral teachings of the Catholic Church. I direct them to consult my priest, my bishop, and/or the National Catholic Bioethics Center to help them in their decision-making, if necessary.

• On (date), I executed an Advance Directive, which contains

specific directions to be followed if and when I am in a terminal or irreversible condition. When it applies, that Advance Directive shall control any health care decisions to be made on my behalf.

In a Directive to Family and Physicians, a person states his preferences for treatment in the event of a “terminal” or “irreversible” condition when

• The patient is otherwise incompetent OR incapable of

communication; AND

• The diagnosis of “terminal” or “irreversible” has been

diagnosed and certified in writing by the attending physician

• Much more complicated and problematic than the Medical

POA.

• Statutory drafting issues

The explanatory narrative explains the statute incorrectly. The Directive itself summarizes the statute incorrectly. The Directive is always construed as a default DNR.

• Also for Catholics: Not consistent with Catholic teaching

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General Format:

• If I have a “Terminal Condition,” then

A: Cease Life Sustaining Treatment; OR B: Keep Going with Life Sustaining Treatment.

• If I have an “Irreversible Condition,” then

A: Cease Life Sustaining Treatment; OR B: Keep Going with Life Sustaining Treatment.

Stilted and Artificial Structure: No one has a crystal ball Vast majority of my clients – of all stripes – pick “A” “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 program under which the person receives hospice services … is presumed to have a terminal condition…” A condition, injury, or illness:

• that may be treated but is never cured or eliminated;
• that leaves a person unable to care for OR make decisions

for the person's own self; and

• that, without life-sustaining treatment provided in

accordance with the prevailing standard of medical care, is fatal.

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“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 artificially administered nutrition and

• hydration. The term does not include the administration
• f 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.”

• Church teaches that artificially administered nutrition and

hydration (“AANH”) generally is not “life-sustaining treatment,” but ordinary care

• Church teaches that people may refuse medical treatment

that is excessively burdensome or would merely delay death needlessly (prudential judgment)

• Church encourages the faithful to plan for their deaths.
• N.B.: The Church is Pro-Life, not Anti-Death!

“Life Sustaining Treatment” lumps too much together.

AANH is a “Life Sustaining Treatment,” Not “Ordinary Care” Routine maintenance meds (i.e., Blood pressure meds) are “Life Sustaining Treatments.”

“Irreversible Condition” is broadly drafted and not linked to an imminent death. In the absence of an advance directive, there is no presumption that a person wants life-sustaining treatment

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• In 2010, then Bishop Farrell asked the St. Thomas

More Society of the Diocese of Dallas to create an Advance Directive consistent with Catholic principles

• STMS consulted with Catholic physicians and

bioethicists

• The resulting Catholic form generally follows

statutory format, but begins with a list of “General Directives” to family and health care providers with respect to a Catholic patient’s wishes. I direct that those making decisions on my behalf be guided by the moral teachings of the Catholic Church. I direct them to consult my priest, my bishop, and/or the National Catholic Bioethics Center to help them in their decision-making, if necessary. I direct that those making decisions on my behalf consider only the quality and effectiveness of the proposed treatment and not make any judgment about my quality of life.

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Food (nutrition) or water (hydration) may not be withheld or withdrawn from me for the purpose of, or with the intent of, hastening my death. Food or water may only be withheld or withdrawn from me when my agent, after consulting with my attending physician, determines that (1) providing food and water would hasten my death; (2) providing food or water is medically contraindicated such that the provision of the food and water would seriously exacerbate my life-threatening medical problems; (3) providing food or water would result in substantial irremediable physical pain; or (4) providing food and water would be medically ineffective in prolonging my life. By this statement, I expressly reject any statutory language that “life-sustaining treatment” includes “artificially administered nutrition and hydration.”

• No drug or lethal injection may be given to me

for the purpose of, or with the intent of, hastening my death.

• Palliative care, as defined below, shall be

provided to me until I die.

• Palliative care: “A comprehensive non-curative

plan for prevention and relief of pain and other forms of physical, psychosocial, and spiritual suffering by means of early identification, assessment, and intervention”

• I wish all reasonable effort be made to contact a

Catholic priest so that I may receive the sacraments and prepare for my death, if imminent.

• Nothing in this Advance Directive shall be construed

to authorize my attending physician to sign an Out- Of-Hospital Do Not Resuscitate Order.

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• The “Futile Care” Provisions of the Advance Directives

Act Allow a Patient’s Stated Wishes to be Overridden in Some Circumstances.

• Physicians and HC Facilities protected from liability if

they cease LST (even if doing so is contrary to patient’s directive) if

Decision is reviewed by an ethics or medical committee. Patient’s representative is given 48 hours notice of the committee meeting and is allowed to attend; Referral allowed within 10 days

2015 Victory: AANH Cannot Be Discontinued!

The Definition (Again):

• Food (nutrition) or water (hydration) may not be withheld or withdrawn from me for

the purpose of, or with the intent of, hastening my death. Food or water may only be withheld or withdrawn from me when my agent, after consulting with my attending physician, determines that (1) providing food and water would hasten my death; (2) providing food or water is medically contraindicated such that the provision of the food and water would seriously exacerbate my life-threatening medical problems; (3) providing food or water would result in substantial irremediable physical pain; or (4) providing food and water would be medically ineffective in prolonging my life. By this statement, I expressly reject any statutory language that “life-sustaining treatment” includes “artificially administered nutrition and hydration.”

We have no facilities available to take Futile Care patients. See Registry List: http://dshs.texas.gov/THCIC/Registry.shtm

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• AANH is the bone of contention
• Often, for a faithful Catholic, the issue is one of days,

not weeks or months or years.

• See essay by Gilbert Meilaender, “I Want to Burden

my Loved Ones,” First Things (March, 2010), https://www.firstthings.com/article/2010/03/i-want- to-burden-my-loved-ones, and Annie Calovich, “Nothing is Wasted,” Catholic World Report (February, 2010) (not found online).

Law Office of

JEFF TURNER

3131 McKinney Avenue, Ste. 600 Dallas, Texas 75204 (214) 891-3033 (o) (214) 593-0816 (f) jeff@turneresq.com

Questions?