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Texas ‘Futile Care’ Law May Soon Be Less Authoritarian

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Wesley J. Smith
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Texas’s infamous “futile care” law (contained within TADA, the Texas Advanced Directives Act) looks to soon become less authoritarian. Under current law, a patient in the ICU can be cut off from wanted treatment based on the doctor’s perception of his or her quality of life. If the MD thinks the wanted treatment is “inappropriate,” a behind-closed-doors ethics-committee hearing can be called, and if the committee decrees that the treatment will be withdrawn, the patient and/or family has only ten days to find another facility willing to provide the care. There is no appeal process and no written record of who said what and the bases for the decision.

Many attempts have been made over the years to repeal the futile-care provisions — which I participated in several times as a legislative-committee-hearing witness — which were fought tooth and nail by the medical establishment, including, to their shame, Texas Catholic bishops and hospitals.

But then, the law faced a stiff constitutional challenge by the mother of Tinslee Lewis, who was told by doctors years ago that her daughter had only weeks to live and that continued life support was inappropriate. An ethics committee said that treatment should be withdrawn. And, the hospital refused a tracheotomy that was required for Tinslee to be transferred. Heads we win, tails Tinslee loses. The courts stopped the treatment withdrawal, and eventually the case settled. Tinslee was given the care she needed to leave the hospital and continues living in another venue.

Now, pro- and anti-TADA political forces have agreed to reform the law (H.B. 3162) and make it less authoritarian. For example, the ten-day rule will become a 25-day rule. Further, as described in the Texas Right to Life Press Release:

  • “HB 3162 would improve current law is to require the hospital to perform any procedures that are needed in order to facilitate a transfer before the countdown begins. For example, under the current 10-Day Rule, if a patient needs a tracheotomy to be transferred, the hospital can deny that procedure while still counting down the days that patient has left to live, effectively blocking a transfer from happening.”
  • “The process cannot be imposed on patients who are competent and capable of communication.”
  • “HB 3162 would require that the ethics committee must consider the patient’s well-being, and cannot make judgements based on the perceived “quality of life” of the patient. This includes a prohibition on discrimination against a patient for any unrelated disability they may have.”
  • “HB 3162 requires hospitals to report non-identifying information whenever they use this process. Texas Right to Life maintains internal data on the patients and families we assist, but there is no state reporting required, so there is no way of knowing how often this law is used against fragile patients across Texas.”

I would prefer that the futile-care provision be repealed altogether, but politics, as they say, is the art of the possible. I applaud the years of tireless efforts by Texas Right to Life and their allies on this issue in the disability-rights community, among others, for finally gaining some traction against a very unjust law. Lives may well be saved, while sick patients close to death will be less likely to be treated as if remaining alive — when that is what they want — is “inappropriate.”

If, for some reason, H.B. 3162 does not make it all the way through the legislative process to law, may the lawsuits pour down like hail on Texas hospitals that impose futile-care impositions.