The Texas Advance Directives Act (1999), also known as the Texas Futile Care Law, describes certain provisions that are now Chapter 166 of the Texas Health & Safety Code. Controversy over these provisions mainly centers on Section 166.046, Subsection (e), which allows a health care facility to discontinue life-sustaining treatment ten days after giving written notice if the continuation of life-sustaining treatment is considered futile care by the treating medical team.
Although it is often stated that the act is officially named as the 'Futile Care Law' or the 'Futile Care Act', that is in fact incorrect and the statute has never legally had that title.
The statute
For the hospital personnel to take advantage of legal immunity from prosecution for this the following process must be followed:
The family must be given written information concerning hospital policy on the ethics consultation process. The family must be given 48 hours' notice and be invited to participate in the ethics consultation process. Family members may consult their own medical specialists and legal advisors if they wish. The ethics consultation process must provide a written report to the family of the findings of the ethics review process. If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must try to arrange transfer to another provider physician and institution who are willing to give the treatment requested by the family and refused by the current treatment team. If after 10 days, no such provider can be found, the hospital and physician may unilaterally withhold or withdraw the therapy that has been determined to be futile. The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of time before treatment is withdrawn. This extension is to be granted only if the judge determines that there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time is granted. If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution.
The bill was signed into law while George W. Bush was Governor of Texas. Critics have compared this law and its effects with Bush's response to Terri Schiavo's situation, in particular his stated intent to sign the proposed Incapacitated Person's Legal Protection Act.
Similar legislation, modeled on the Texas law, was proposed in Idaho in 2009, but was defeated.
Cases
Sun Hudson: On March 15, 2005, six-month-old infant Sun Hudson, who had a lethal congenital malformation, was one of the first children to have care withdrawn under the Texas Futile Treatment Law. Doctors demonstrated in the ethics committee reviews that keeping the infant on a respirator would only delay his inevitable death. Sun died shortly after his care was discontinued.
Tirhas Habtegiris: In December 2005, Tirhas Habtegiris, a young woman and legal immigrant from Eritrea, was removed from a respirator. Habtegiris died from complications of incurable and untreatable cancer that had spread to her lungs. She died 16 minutes after the respirator was removed.
Andrea Clark: In April 2006, relatives of 53-year-old Andrea Clark were given the 10-day notice under this act. She had reportedly signed a statement she did not wish to die and was cognizant, although having difficulties communicating while under heavy medication and after her brain was damaged by internal bleeding and the effects of heart disease. After publicity from both right and left political groups, St. Luke's hospital in Houston agreed to review the case again, eventually retracting the original decision this further review. Clark ultimately died on May 8, 2006, after an infection.
Emilio Lee Gonzales: In March 2007, Children's Hospital of Austin gave the mother of 16-month-old Emilio Lee Gonzales the 10 day notice under this act. This child suffered from Leigh's disease, an invariably fatal, progressive illness which eventually destroys all nerve function and thereby prevents breathing, swallowing, coughing, or any intentional or reflex movement. Joshua Carden, an attorney for the Gonzales family, reported that the family had made a "unified decision" to keep the child alive through artificial means, which at the time of the court dispute included constant use of a ventilator machine, pumping food and water into his body, and frequent suctioning fluids out of his lungs, even though the family was aware that the child would not recover.