Laws relating to medical ethics debates are generally behind medical advances.
Unfortunately, those debates often become emotional and heated, and the individuals who are affected often face the “hard questions” of ethical dilemmas while reacting to life and death emergencies. When law-making is controversial, it’s best to go back to the basics of ethics for guidance: the inalienable rights to “Life, Liberty and the Pursuit of Happiness,” the Declaration of Independence, and the Constitution.
All laws limit our rights, but good laws are based on the fact that these inalienable rights are negative rights: they are meant to prevent one person — or the government — from infringing the rights of another.
Ethical laws strike a balance between seemingly conflicting rights. They prohibit or punish harmful actions, but they don’t compel a desired action against the will.
Hierarchy of Rights
However, since there is a hierarchy of rights (the right to life trumps the right to liberty and property, liberty trumps property, etc.), there are very rare circumstances when it is appropriate for laws to compel individuals to act for the benefit of another. These laws should only go so far as to protect the life and freedom of the vulnerable patient or client, for a limited time with the goal of allowing safe transfer of the obligation to someone else.
For instance, parents are required to care for and protect their minor children since they are helpless and unable to legally consent or make contracts. And state laws require that doctors and lawyers be licensed, obtain certain levels of education, and follow specific, positive actions when they wish to withdraw from a professional relationship with or refuse the request of a patient or client.
The Texas Advance Directives Act
That brings us to the controversy over the Texas Advance Directive Act of 1999 (“TADA” or “the Act”). In addition to describing “Advance Directives to Physicians” (also known as a “Living Will), TADA also attempts to outline the procedure for resolving any disagreement between a doctor and patients or their surrogates regarding medical treatments, especially concerning end-of-life care.
When I first read the Act, I (naively) thought it was malpractice protection for doctors who did not want to withdraw or withhold care. There have actually been a few “wrongful prolongation of life” lawsuits against doctors who — knowingly or not — used CPR when the patient had a Living Will.
Most of the time, however, TADA is invoked when the attending physician “refuses” a request to actively administer medical treatment that he or she believes is medically inappropriate. The steps laid out in the law involve the doctor’s notification of his refusal to the patient or the surrogate, the rules for assisting with the transfer of care to another doctor who believes the treatment request is appropriate, and asking for a medical or ethics committee to be convened at the hospital. If no other willing doctor can be found and the committee agrees with the doctor, the treatment can be withheld or withdrawn (after 10 days). During that time, full life-sustaining treatment must continue and the hospital is required to provide medical records and to actively assist in looking for another doctor and/or hospital.
Limits on Physicians Imposed by the Texas Advance Directives Act
The law [TADA] never allows patients to be killed by intentionally stopping breathing. The law does prohibit withholding of pain medicine or comfort care and the removal of “artificially administered nutrition and hydration.”
Medical Judgment Regarding Life-Sustaining Treatments
Medical judgment is how doctors utilize our education, experience, and consciences as we plan and anticipate the effect of each medical intervention or treatment. “Life-sustaining” treatments are not “basic” or “usual care.” Nor are they one-time events without consequences. The interventions require a physician to administer and maintain. They must be monitored by observation and tests, and adjustments need to be made intermittently so that the treatment is effective and not harmful. They may lead to further more invasive and aggressive interventions and the need for the skills of other doctors in other specialties.
Finding Other Physicians Willing to Provide Life-Sustaining Treatments
In some cases, patients and their advocates report trouble finding other doctors willing to provide the treatment that the first doctor thought was inappropriate. In my opinion, that difficulty is due to physicians’ common education and shared experiences — to medical reality, not ill intent.
Texas law is clear that only doctors may practice medicine by diagnosing and treating patients directly or “ordering” other medical personnel. Although TADA outlines specific duties for hospitals and hospital medical or ethics committees who determine whether or not the care is medically inappropriate, the process can only be invoked by the “attending physician” who is being asked to act against his medical judgment. The committee acts as a safeguard, to uphold medical ethics and the standard of medical care. In a formal meeting, the committee members review the case and either agree or disagree with the doctor as to whether he or she is correct about what is “medically inappropriate” treatment, for the patient.
Unfortunately, the Act has become known as the “Texas Futile Care Law,” and divides even the pro-life community. One side claims that doctors, hospitals, and hospital committees are biased and should not be allowed to determine medically inappropriate care and that doctors are obligated to give any and all desired treatment “until transfer.” Others want each case to go to court, where lawyers, judges, and juries would settle every difference of opinion about “medically appropriate treatment.”
Ultimately, even the lawyers would need to consult doctors, unless the judges start writing orders for doctors, nurses, and medical professionals.
Balance Between Patients’ Wishes and the Physicians’ Judgment
Our laws normally prohibit actions and only very rarely compel people to act. Under the conditions laid out in TADA, it is possible that the doctor can be forced to act against his medical judgment, but only for a limited, stated period of time. TADA is an attempt to balance conflicting rights: the patient’s wishes for medical intervention with the liberty of the physician to practice medicine to the best of his judgment and conscience.
This article is reproduced from the blog WingRight with permission of the author.
Beverly Nuckols, M.D., is a family practice physician who resides in New Braunfels. She is a member of Texas Alliance for Life’s Public Policy Committee and a former board member. She has lobbied for numerous pro-life bills in the Texas Legislature since 2003, including the Prenatal Protection (personhood) Act, the Parental Consent Act, defunding Planned Parenthood, the sonogram-informed consent law, the 20-week abortion ban, and many others. Her medical degree is from the University of Texas Medical School at San Antonio, and she holds a Masters of Arts in Bioethics from Trinity International University.
7 Responses to “The Ethics of the Texas Advance Directives Act”
Thank you for a thought provoking view. I (naively) saw pro-life and assumed your view would be to dismantle the physician’s medical opinion. I apologize for that. I am a nurse in an ICU. Patients come in with Advance Directives acknowledging their desire for limited treatment but no extraordinary measures. Once they reach the point of being unable to speak for themselves, a family member rejects the Advance Directive and demands everything be done, against the patient’s original wishes. I believe this is injustice to the patient. The patient has the right to a peaceful natural death. No one wants to hasten death but prolonging the suffering by denying a natural death, against the patient’s original, stated wishes is heart wrenching. Thank you again for printing you views.
Doctors can make mistakes. They do all the time. My husband was euthanized by a local hospice though he was not terminal. He had a stroke and had dementia. The hospice doctor never saw him but ordered Levaquin thinking he might have a UTI. The side effects on an 80 yr old were tendenitis and GI cramping. With proper lab tests and treatment perhaps he would still be alive today. Hospice put him into Terminal Sedation with Ativan and Morphine. Dehydrated and gasping for breath, he died. No one can determine in advance what medical care they will need. Advance directives are a product of secular rationing of care. Every person has value.
And what was your 80 year old husband’s quality of life having dementia and then suffering a stroke? Do you believe that we are all meant to live forever? At 80 years old he had already surpassed the average life expectancy. No, this does not decrease his value as a human being, but often times family members forget the value of quality over quantity for their loved one. Advanced directives are an individual’s way of expressing their wishes when they can no longer speak. If our society didnt live in denial that we will all one day leave this earth, maybe more people, your husband included, would take the time to talk about what living means to them, and at what point they no longer want to be kept alive via artificial means. Then we would know what that person values, and make decisions based on their wishes, instead of selfishly prolonging their suffering because we dont want to let them go. That is not valuing life.
Mary M Stevenson
Right, makes all of us with loved ones with dementia and stroke feel bad if we administer meds to them at home trying to relieve pain. Maybe the answer is to give several people the Medical POA with the main one with it thinking they have sole power, then if they don’t follow their wishes the others step in and overrule the person who is selfishly trying to keep them alive. That is what I was told at a conference at Senior Source in Dallas, TX.
Beverly Nuckols, MD
The question about Advance Directives should be whether to honor the previous, formal wishes of the patient or those of a surrogate who disagrees after the patient can’t make decisions.
What is the recommendation for resolution in a case where a pregnant Mom becomes brain-dead and her advanced directives say not to prolong life. Her MPA says transfer her to hospice. Doctors want to get a trach and feeding tube.
This is just an assignment for my BSN
The courts haven’t ruled on this, so this is just my opinion.
The Advance Directive – and the Advance Directive Act – doesn’t apply when a person is dead. The body would be/should be treated like any other dead body.
The complication is that the prenatal human might be alive, and if so, like all humans, possesses the inalienable right not to be killed – the right to life. The mother is dead, but the only way to provide “life sustaining treatment” is by organ support for her body.
Then, again, just because it’s possible doesn’t mean we have to do it. If life sustaining treatment isn’t given, the baby’s death would be a natural death, not euthanasia. The baby would die because of the death of the mother, not due to the intentions of whomever decides about organ support.
The surrogate for the baby should make the decision, hopefully in coordination with the doctors who can best evaluate the possibility of gestation to birth.