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May 2, 2006

Disability Advocates: Texas 'Futile Care' Law Should Be Euthanized

Topics: Euthanasia

The publicity surrounding the struggle to save the life of Andrea Clark - sentenced to die under Texas' "Futile Care" Statute - has brought attention once again to little-known hospital policies regarding so-called "futility." There is also a second case in Texas right now that hasn't gotten as much attention involving a Vietnamese woman named Yenlang Vo, in Austin, TX. Ms. Clark is in a hospital in Houston, TX.

This isn't the first time the Texas law on "futile care" has received national attention. During the struggle for Terri Schiavo's life, Sun Hudson, a 6-month-old boy with a serious condition was removed from a feeding tube over his mother's objections under the Texas law. It received brief attention from Democrats pointing out that Sun Hudson was dying against his mother's wishes under a law signed by ex-governor George Bush. But the critics (U.S. Rep. John Conyers for one) seemed more motivated to score political points than in having serious moral qualms about the Texas "futile care" law.

The law is back in the public eye and is under criticism from grassroots activists as diverse as the Democratic Underground and ProLife Blogs. Essentially, futile care policies provide that a physician may overrule a patient or their authorized decision-maker in denying wanted life-sustaining treatment. Futile care policies do not generally require that the treatment be objectively futile, but allow doctors to use subjective criteria such as quality of life judgments and even economic factors as grounds for denying treatment.

It's also a concern to disability advocates who, until recently, were excluded from the relatively small group of players that has played a major role in pushing for the "futility" statute and other changes in Texas health care policies. "We think that all health care consumers should be questioning whether it's advisable, or even constitutional, for doctors to have this kind of power," said Diane Coleman, president of Not Dead Yet.

Coincidentally, Bob Kafka, Texas NDY Organizer, withdrew from the Advance Directives Coalition just days before the news hit the web about Andrea Clark. He withdrew over efforts to "improve" the "futility" statute.

"I have come to the conclusion that the essence of any futility law embraces involuntary euthanasia," says Kafka. "The ability of a doctor to overrule both the patient and their surrogate in withdrawing life-sustaining treatment is in violation of the principle of patient autonomy. There's no way to 'fix' this law. It just needs to be killed - or euthanized, for those who prefer softer language. I am increasingly suspicious of the willingness of the medical community to honor 'autonomy' of old, ill and disabled people ONLY in those cases where they want to die."

Stephen Drake, research analyst for Not Dead Yet, agrees.

"These policies are obviously directed with the aim to protect hospitals, doctors and other medical staff. There is absolutely no concern for the rights of patients reflected in these policies. And these policies are spreading, thanks to cooperation from both Democrats and Republicans."

Not Dead Yet calls for a halt to the backroom lobbying by special interest groups that have resulted in bills like this one. The Texas futility bill should be killed ­ followed by open and public hearings. In the end, that's the only way to craft legislation that will protect the rights and lives of people in the health care system.

Source: Not Dead Yet

Posted by tim at May 2, 2006 1:17 PM

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Quite right. The plug should be pulled on the legislation. I do want to point out, FWIW, that Sun Hudson did not die of dehydration like Terri. The statement that his feeding tube was removed has been repeated a lot, and I think a lot of people think that means he died because of the removal of the feeding tube. The removal of the feeding tube was pretty much a moot point. He died very quickly of lack of oxygen because his respirator was removed.

About the Texas legislation: The point has been made that under the previous situation the Houston hospitals were kicking people out with _no_ notice and that by requiring 10 days' notice this legislation is an improvement. But I'd like to know more about that. For example, I _doubt_ that the legislation simply says, "Give the people ten days' notice or else_______legal penalties will follow." There's obviously more to it than that, some sort of _protection_ for the hospital if they _do_ jump through the hoops, have the care declared "futile" by their ethics board, and give the 10 days' notice. What is it? Is it indemnification from lawsuit for malpractice?

If so, _that's_ the place to push. Tell the Texas lawmakers to write a whole new law that requires, under some sort of penalty otherwise, a minimum of 10 days' notice before removing life support but that _explicitly_ says that this provides no protection from civil suit and that this does not mean that it's somehow legally "okay" so long as they give them the 10 days' notice. This seems like a win-win idea: patients don't then just go back to the old no-notice situation, but the hospitals get no protection from giving the 10-days' notice.

Posted by: Lydia at May 2, 2006 8:16 PM

Here is the relevant portion of the law:

(a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.
(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;
(2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;

The entire act can be found here:


Posted by: tim at May 2, 2006 8:37 PM

Okay, thanks for the link, Tim. I've found the rot in the law. First, it _does_ say (chalk one up to me as a good guesser) that they aren't civilly liable if they follow the whole 10-day procedure. That's gotta go.

Second, it _expressly_ says that they "are not obligated to provide life-sustaining treatment after the 10th day..." So that's explicit. It's not just saying that they have to give them at least 10 days' notice or else; it's saying they _need not_ give them life-sustaining treatment judged "inappropriate" (by the ethics board, blah, blah) after that 10 days. A much more objectionable statement. Finally, it says that even a court should extend the time limit only if it seems plausible that a different facility will be found that will provide the treatment desired. So that's the only basis a judge is even supposed to use to give an extension. Here are the objectionable sections, cut and pasted from the link you provided. This is much, much worse than some of the Bush defenders led us to believe, in my opinion.

A physician, health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the person's appropriate licensing board if the person has complied with the procedures outlined in Section 166.046.
If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection g.
(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.

Posted by: Lydia at May 2, 2006 9:10 PM

The typekey page was down yesterday, so I have a comment waiting in moderation that makes this same point, but it contains quotes from the law. Thanks for the link, Tim.

I was right. The law expressly protects the hospital from civil penalties (lawsuits) if it follows the procedures, and it expressly says they "are not obligated" to provide the life-saving measures beyond 10 days. FWIW, it also lumps "artificial" food and water administration together with dialysis and everything else. No distinction.

It seems obvious to me that this is a lot more objectionable than we were led to believe by some who wanted to defend Bush against what was, in truth, a politically motivated attack. This law does not _just_ require the hospitals to give 10-day notice. It goes beyond that and say they can't be sued if they do that. In other words, it _endorses_ the whole futile care proceeding and all the rest and rewards hospitals for following it with legal protection even from civil suit.

If only it were possible to think of a positive penalty that would be just right--not too harsh and not too lenient--the obvious thing to do would be to scrap this law entirely and replace it with one that simply says that you have to give 10 days' notice on pain of X punishment but aren't thereby protected against civil suit. Period. Simple enough, I would think.

Posted by: Lydia [TypeKey Profile Page] at May 3, 2006 1:09 PM

Jerri Ward has written a recent post regarding her experience with the law. Among many issues, the redefinition of what constitutes "futile care" must also be closely examined. It appears that there has been a gradual shift based upon cost and quality of life... In addition, 10 days is simply unrealistic to find a facility to transfer to (the bill Bush Jr. vetoed gave only three!).

Posted by: tim [TypeKey Profile Page] at May 3, 2006 1:25 PM