By S. Van McCrary
Previously on this Web site, I discussed changes in witnessing requirements for advance directives under the revised law, Texas Senate Bill 1260, which will take effect on September 1 ( Death/990706New.html ). This bill consolidates all the previous Texas statutes related to advance directives--including the Natural Death Act, Durable Power of Attorney for Health Care, and Out-of-Hospital DNR Orders--into a unified statutory form. The new law contains a distinctive provision that may alter the balance of power between physicians and patients on issues related to end-of-life treatment decisions--an authorization of disciplinary action against health professionals who fail to effectuate a directive.
Subchapter B of the new law, Directive to Physicians, provides "a physician, or a health professional acting under the direction of a physician, is subject to review and disciplinary action by the appropriate licensing board for failing to effectuate a qualified patient's directive in violation of this subchapter or other laws of this state" [Texas Health & Safety Code § 166.045 (b) (effective 9-1-99)]. A similar provision is contained in Subchapter C regarding out-of-hospital DNR orders [Texas Health & Safety Code § 166.095 (b)], but not in Subchapter D covering medical powers of attorney.
There have been reported cases of physicians refusing to honor advance directives. Physicians have disregarded directives for a variety of reasons, including disagreement with the patient's decision and pressure from family members. Most advance directive laws across the U.S. (including the previous Texas law) provide only negligible financial penalties for failure to honor directives, and even these provisions are rarely, if ever, enforced. Presumably, the new Texas statutory provision is designed to put some "teeth" into the new law by providing additional remedies for patients or families to pursue. It could be argued that the threat of a patient or family complaint to a professional board, with the corresponding risk of disciplinary action or revocation of a license to practice, might ensure better compliance of health care providers with patients' expressed preferences. This statutory provision parallels a recent development in Oregon where the board of medical examiners considered action against a physician for undertreatment of pain by failing to prescribe adequate amounts of opioid pain relievers. These trends suggest that board action may be increasingly used against doctors for omissions as well as acts.
The possibility of greater enforcement authority for advance directives may be interpreted by some persons as a positive development because it may empower patients and enable them better to achieve their desired medical goals. However, the possibility of unintended consequences may be high in this case since it is not known how the medical community may react to these statutory provisions. Further, the inconsistency in the new statute--the absence of a parallel provision in the subchapter on powers of attorney--may cause other problems, e.g., physicians might be more eager to comply with directives than powers of attorney. This could prove to be unfortunate because many bioethicists consider powers of attorney to be more helpful in difficult decisions than explicit directives. Since the Texas law is not yet in force it remains to be seen what its effect will be on physician compliance with advance directives of all sorts, as well as relationships between individual physicians and patients.