2005 Texas Health & Safety Code CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT

HEALTH & SAFETY CODE

CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT


	§ 313.001. SHORT TITLE.  This chapter may be cited as the 
Consent to Medical Treatment Act.

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


	§ 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.
		(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 is admitted to a 
hospital or residing in a nursing home.
		(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, § 1, eff. Sept. 1, 1993.           


	§ 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, § 1, eff. Sept. 1, 1993.  
Amended by Acts 1999, 76th Leg., ch. 450, § 2.01, eff. Sept. 1, 
1999.


	§ 313.004. CONSENT FOR MEDICAL TREATMENT.  (a) If an 
adult patient 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, § 1, eff. Sept. 1, 1993.           


	§ 313.005. PREREQUISITES FOR CONSENT.  (a) If an adult 
patient 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 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, § 1, eff. Sept. 1, 1993.           


	§ 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, § 1, eff. Sept. 1, 1993.           


	§ 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, hospital, or nursing home or a 
person acting as an agent for or under the control of the physician, 
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, § 1, eff. Sept. 1, 1993.