                              Decenher 2$,    1987




Honorable Charles D. Penick                    Opinion    No.   .Jk-837
Criminal District Attorney
Bastrop County Courthouse                      Re:    Whether artificial   or
Bastrop, Texas    78602                        tube feeding constitutes      a
                                               life-sustaining     procedure
                                               for   purposes  of    article
                                               4590h, V.T.C.S.   (RQ-1036)

Dear   Mr.   Penick:

       In your      inquiry    you   ask the        following   question:

             If a patient cf a nursing home who           meets
         the definitions    of a Declarant     and qualified
         patient    of   article    ~4590h,   V.T.C.S.,      the
         Natural Death Act, is unable to,feed him             or
         herself and     it becomes necessary         to    tube
         feed or artificially      feed that person,        must
         the hospital    feed that patient       artificially
         or   does   the   procedure     for     artificially
         feeding    'or tube     feeding    fall   under     the
         definition    of a life sustaining      procedure    as
         defined    in   section     2,  subsection      4,   of
         article 4590h?

      Article 4590h, V.T.C.S.,        makes it     possible    for any
competent    adult    person,    at   any   time,    to    execute    a
directive     for     the    withholding       or    withdrawal     of
life-sustaining    procedures     in the event       of    a terminal
condition.      Provisions    of    the    act    relating     to  the
execution   of such a document provide as follows:

              Sec.     2.   In this    Act:

            .(I) 'Attending   physician'    means                     the
         physician  who has primary responsibility                    for
         the treatment  and care of the patient.

              (2)      'Declarant'     means a oerson who            has
         executed       or   issued    a directive  under           this
         &&.           *



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Honorable   Charles   D. Penick        - Page   2   LTI+837)




            (3)   'Directive'      means:

            (A) a document   voluntarily  executed   by
        the declarant  as prescribed  by Section   3(a)
        of this Act:

            (B) a nonwritten  directive   issued by the
        declarant as prescribed    by Section 3(b)   of
        this Act: or

            (c)   a document    executed        as prescribed   by
        Section   4D of this    Act.

            (4)   'Life-sustaining      procedure'   means     a
        medical    procedure     or    intervention      which
        utilizes    mechanical      or   other     artificial
        means to    sustain,     restore, or      supplant     a
        vital function,      which,     when applied     to    a
        qualified    patient,     would     serve   only     to
        artificially    prolong the moment of death and
        where, in the       judgment     of   the   attending
        physician,   noted in the qualified         patient's
        medical records, death         is imminent     whether
        or   not    such    procedures       are    utilized.        ?
        'Life-sustaining        procedure'       shall      not
        include the administration         of medication     or
        the performance      of   any    medical    procedure
        deemed necessary     to provide comfort or         care
        or alleviate    pain.

            (5)   'Physician'   means    a physician     and
        surgeon licensed by the Texas State Board of
        Medical Examiners     or a properly   credentialed
        physician    holding    a    commission    in    the
        uniformed   services of the United States       who
        is serving on active duty in this state.

            (6)   'Oualified   oatient' means a natient
        diaanosed   and   certified     in writina    to  be
        afflicted   with a terminal condition        bv  two
        phvsicians,     one   of    whom   shall   be    the
        attending    physician,     who   have   personally
        examined the patient.

            (7)   'Terminal     condition'      means      an        ?
        incurable     condition     caused    by     injury,
        disease,   or   illness, which,     regardless     of
        the      application      of       life-sustaining
        procedures,    would, within reasonable      medical
       'judgment,     produce   death,    and   where     the        ?




                                  p.   4027
Honorable   Charles   D. Penick        - Page   3   UM-837)




        application   of life-sustaining  procedures
        serves only to postpone the moment of   death
        of the patient.

            Directive   for withholding   or withdrawal
               of life-sustaining    procedures   in
                   event of terminal condition

           Sec. 3.    (a) Any    competent   adult     person
       may, at any     time, execute      a directive      for
       the   withholding      or withdrawal      of     life-
       sustaining   procedures      in the     event    of    a
       terminal condition.       The directive     shall    be
       signed by the declarant        in the presence       of
       two witnesses     not   related to the      declarant
       by blood or     marriage   and who    would not      be
       entitled to any portion of the estate of the
       declarant   on his decease      under any will       of
       the   declarant     or   codicil    thereto     or   by
       operation   of law.     In addition,    a witness to
       a directive       shall   not   be   the    attending
       physician,     an   employee    of   the    attending
       physician   or a health facility in which           the
       declarant   is    a patient,     a patient       in   a
       health care facility in which the           declarant
       is a patient, or any person who has a claim
       against any     portion of     the estate     of    the
       declarant   upon his     decease at    the time      of
       the execution      of   the directive.       The    two
       witnesses   to the declarant's      signature    shall
       sign the directive.

           (b) A competent    qualified     patient who     is
       an   adult   may    issue     a   directive      by   a
       nonwritten     means   of   communication.          The
       declarant   must    issue the     directive    in   the
       presence   of the attending      physician    and   two
       witnesses.     The witnesses      must possess      the
       same   qualifications      as    are   required      by
       Subsection     (a)    of   this      section.       The
       physician    shall    make      the   fact    of    the
       existence   of   the directive       a part    of   the
       declarant's'medical      record and the witnesses
       shall sign     said   entry in the        declarant's
       medical record.

           (0) A   declarant     shall    notify       the
       attending  physician    of the   existence   of   a
       written   directive.     If  the   declarant     is
       comatose,  incompetent,   or otherwise   mentally




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Honorable   Charles          D. Penick    - Page        4   UM-837)



        or physically    incapable    of   communication,
        another person may      notify the physician      of
        the existence   of   a written directive.       The
        physician  shall make the directive      a part of
        the declarant's    medical record.

        [subsection (d) sets forth                   a form     that   w
        be used by a declarant]

            (e) The   directive       may   include     other
        directions,     including      a designation        of
        another person to make a treatment          decisiorl
        in accordance    with   Section 4A     of this    Act
        for   the   declarant     if   the   declarant      is
        comatose,   incompe=ent,     or otherwise   mentally
        or physically     incapable     of   communication.
        (Emphasis added.)

      A sommon    thread running     throughout   the   act is   the
expression   of the legislature's     intent that the desire      o_f
a aualified   declarant shall     b~follow~.        The   followiho
oraJisions   of the act reflect the paramount       importancs    Oi
the declarcnt's    wishes   and provide for penal sanctions      for
any person who takes      any action to     defeat the desire     cf
the dcclarant.     The following    sections oi the act     reflect        ?
su.2h legislative   intent, as .follows:

            Sec. 4.            (a) A directive   mav be    rev-
        at anv time            bv the d~eclarant. without   reaard
        -mental                  state or comvetengy   .~ . . .

            .   .   .    .

            Sec.         4A.      The    desireof
        patient         who is    comvetent       s.1
                                             at all    times
        m                              directive.     If   an
        adult qualified   patient   is comatose,      in;,om-
        petent, or otherwise    mentally    or   physically
        incapable  of communication      and has issued      a
        directive  under this Act without designating
        a person to make     a treatment    decision,     tile
        attending  physician    shall comply      with    the
        directive  unless the Dhvsician      believes    that
        the direct=does        not reflect the       wresent
        desire of the natient.

            .   .   .    .

            Sec.         4C.      (a) If    an      adult    qualified
        patient           is      comatose,         incompetent,     or




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      Honorable   Charles   D. Penick     - Page     5    UM-837)




              otherwise  mentally     or physically      incapable
              of communication,      and   the person     has   not
              issued    a directive      under    this   Act,   the
              attending   physician   and    the legal    guardian
              of the patient may make a treatment         decision
              that may,    based on     knowledae   of   what   the
              patient would     desire, if known, include          a
              decision    to   withhold     or  withdraw      life-
              sustaining   procedures    from the patient.

                  (b) If the patient does not have a       legal
              guardian,  the  attending    physician    and   at
              least two,   if available,    of the    following
              categories   of  persons,    in the     following
              priority,  may make a treatment    decision   that
              may, based on knowledae    of what the    oatient
              would desire, if known . . . .

                  . . . .

                  Sec.   4D.   (a) The   following persons   may
              execute    a directive   on behalf of a qualified
              patient    who is under 18 years of age:
,P,
                 (1) the patient's        spouse,        if the     spouse
              is an adult:

                  (2) the   patient's     parents;       or

                  (3) the patient's       legal    guardian.

                  (b) The desire of a oualified   natient who
              is   under  18 vears    of   aae  and  who     *
              comnetent  shall at   all times suversede    tit:
              effect of a directive   executed  in accordance
              with this section.

                  . . . .

                  Sec.   7.      (a) .Before    withholding      or
              withdrawing    life-sustaining    procedures     from
              a qualified     patient    under    this  Act,    the
              attending   physician    shall determine   that all
              steps    proposed    to   be   undertaken    are   in
r             accord with the provisions
              the   existina    desires      of
                                                 of this Act
                                                  the
                                                                and
                                                        aualified
              patient.

                  . . . .




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Honorable   Charles   D. Penick    - Page    6   (JM-837)




            Sec.    8.    (c) No      nhvsician.      health
        facilitv.   or other     health nrovider,   and    no
        health care service vlan. or insurer issuina
                                a-    .
        insurance,   mav reoulre anv nerson to execute
        a directive    as a condition     for being insured
        for, or receiving,      health care services      nor
        may the execution       or failure    to execute    a
        directive    be    considered     in  any  way     in
        establishing    the premiums    for insurance.~

            Sec. 9. A person who willfully             conceals,
        cancels, defaces,       obliterates,        or   damages
        the   directive     of     another      without      such
        declarant's    consent     shall     be guilty      of   a   s
        Class A misdemeanor.        A person who falsifies
        or   forges    the   directive       of   another,      or
        willfully    conceals      or    withholds      personal
        knowledge   of   a revocation        as   provided      in
        Section 4 of     this Act, with         the intent      to
        cause   a    withdrawal        of     life-sustaining
        procedures   contrar v     to    the wishes      of    the
        declarant,   and thereby,.because         of any     such
        act,    directly        causes~       life-sustaining
        procedures   to be     withheld    or withdrawn        and
        death' to    thereby     be    hastened,       shall    be
        subject to prosecution        for criminal homicide
        under the    provisions       of   the     Penal    Code.
        (Emphasis added.)

      The question     you pose     is limited    to the     issue   of
whether artificially      feeding    or tube feeding      is a    life-
sustaining   procedure     as~those     items are    defined   in   the
act.   You assume that the       patient is a "declarant@' and         a
"aualified   watient" as those terms are defined in            section
2 of article 4590h.      Senator     Ray ,Farabee, sponsor in       the
Texas Senate of the "Natural         Death Act" (Acts 1977,        65th
Leg., ch. 398, at      1085), writing in 41       Texas Bar J.      241
(1978), noted that it was impossible          to establish    criteria
in determining    when a person is in a "terminal          condition"
or what will constitute      a "life-sustaining      procedure."     We
believe the following      observations      by Senator Farabee      to
be pertinent   to your inquiry.

            The law   does    not attempt    to    establish
        criteria to determine      when a person is to be
        deemed    'terminal'     for   the   purposes       of
        implementing     such    a directive.       It   does
        outline     a    general     statement      of    the
        circumstances    in which it will be         legally
        effective.       Restrictive      criteria      would



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,   Honorable   Charles   D. Penick    - Page    7    UM-837)

P

            render the law    almost immediately    obsolete
            in the   face of   emerging medical    advances.
            Only the   medical profession    can   determine
            when a patient's    prognosis  is hopeless    and
            the death process irreversible.

                Similarlv.    the statute       does not     itemize
            what    Drocedures     are    to    be   reaarded      as
            'life-sustainins'      and senarate      from standard
            medical     treatment      which     mav     be    aiven
            reaardless    of a natient's        condition.       Such
            distinctions     must be made bv medical nracti-
            tioners     accordins      to     accewted       medical
            standards.      For   instance,      many    physicians
            maintain    that therapy,      such as     the use     of
            antibiotics,      qualifies      as    'extraordinary'
            when the     patient is     a cancerous,        comatose
            go-year old.        On the    other hand,       adminis-
            tration of     pain-killing       drugs falls       in   a
            separate category.        (Emphasis supplied).

          Turning  to   other   jurisdictions,            in   Corbett
    D'Alessandro,  487   So.Zd 368,   371   (Fla.         Dist.    Ct.  Ap;:
    1986), the matter of what constitutes      a          "life-sustaining
    procedure11 was addressed  as follows:

               Judge Hersey,       in his      opinion     for    the
            fourth district     in Kennedv v. Bludworth,          432
            So.2d at 619, in a statement           not   commented
            upon but apparently       approved by our        supreme
            court in    Kennedv     v. Bludworth,       452    So.2d
            291, wrote:      'Life sustaining      procedures     are
            medical procedures      which utilize       mechanical
            or   other    artificial       means    to     sustain,
            restore or supplant a vital function,              which
            serve    only   or    primarily     to   prolong      the
            moment of death, and where, in the             judgment.
            of the attending      and consulting       physicians,
            as   reflected     in     the   patient's        medical
            records,      death      is    imminent       if     such
            procedures    are not utilized.'

          Although artificial      or tube feeding may constitute          a
    life-maintaining    procedure     within    the meaning of     article
    4590h, V.T.C.S.,      whether    it will serve      to   artificially
    prolong the moment      of death is       a question which     depends
    upon the    expertise     of   the medical     profession     for    its
    resolution    in each individual      case.   While the    resolution
    of this    question    is    for   the   medical    profession,     the
    legislature    has made    it plain that      care should be      taken




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Honorable    Charles     D. Penick     - Page     8   (JM-837)
                                                                                ,




that   a   oualified     declarant's    wishes           be    observed    in
withdrawing    life-sustaining    procedures            when   there    is  a
terminal   condition.

                              SUMMARY

            Although   artificial    or   tube feeding     may
        constitute     a     life-maintaining       procedure
        within    the     meaning    of    article      459013,
        V.T.C.S.,      whether      it    will     serve     to
        artificially     prolong the moment of death         is
        a question which depends upon the           expertise
        of the medical profession        for its resolution
        in each individual      case.    The article     4399,
        V.T.C.S.,    opinion process      was not    intended
        to resolve factual disputes.

                                          Jzh




                                                        MATTOX
                                            Attorney     General   of Texas

MARYKKLLKR
Executive    Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney           General

RICK GILPIN
Chairman,  Opinion       Committee

Prepared by Tom G. Davis
Assistant Attorney General




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