CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE F. POWERS AND DUTIES OF HOSPITALS
CHAPTER 313. CONSENT TO MEDICAL TREATMENT ACT
Sec. 313.001. SHORT TITLE. This chapter may be cited as the
Consent to Medical Treatment Act.
Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1,
1993.
Sec. 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.
(3-a) "Home and community support services agency" means a
facility licensed under Chapter 142.
(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:
(A) is admitted to a hospital;
(B) is residing in a nursing home; or
(C) is receiving services from a home and community support
services agency.
(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, Sec. 1, eff. Sept. 1,
1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1271, Sec. 1, eff. September 1, 2007.
Sec. 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, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 450, Sec. 2.01, eff.
Sept. 1, 1999.
Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an adult
patient of a home and community support services agency or 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, Sec. 1, eff. Sept. 1,
1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1271, Sec. 2, eff. September 1, 2007.
Sec. 313.005. PREREQUISITES FOR CONSENT. (a) If an adult
patient of a home and community support services agency or 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 home and community
support services agency, 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, Sec. 1, eff. Sept. 1,
1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1271, Sec. 3, eff. September 1, 2007.
Sec. 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, Sec. 1, eff. Sept. 1,
1993.
Sec. 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, home and community support services
agency, hospital, or nursing home or a person acting as an agent
for or under the control of the physician, home and community
support services agency, 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, Sec. 1, eff. Sept. 1,
1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1271, Sec. 4, eff. September 1, 2007.