Advance directives — questions from physicians

by Rachel Pollock, Marketing and Brand Specialist,
Tanya Babitch, Assistant Vice President of Risk Management, and
Robin Desrocher, Director, Risk Management

A “Directive to Physicians” or an “Advance directive” is a legal document designed to help patients communicate their wishes about medical treatment if they become unable to make their wishes known because of illness or injury. The Texas Health and Safety Code Chapter 166 authorizes the use of these written “Directive to Physicians.”

In addition to “Directive to Physicians,” Texas law authorizes the use of two other directives that can be important during a serious illness. These are the Medical Power of Attorney and the Out-of-Hospital Do-Not-Resuscitate Order.

Below are common questions from physicians regarding advance directives.

Do advance directives need to be notarized?

No. Directives must be witnessed by two competent adults, or the declarant’s signature of the directive may be acknowledged by a notary public. If using witnesses, specific requirements must be met. (See more below.) A physician or health care facility may not require that a directive be notarized or that a person use a form provided by the health care professionals.

Do both witnesses to advance directives need to meet the statutory requirements?

No. While both witnesses must be competent adults, only one must meet certain statutory requirements, such as:

not designated by the declarant to make treatment decisions;
not related to the patient by blood or marriage;
not mentioned in the patient's will or having any claim to his/her estate; and
not the attending physician, his/her employees, or certain employees of the health care facility in which the patient is being treated.

Are advance directives executed in another state valid?

Yes. A directive executed in another state is enforceable provided that it complies with the laws of the State of Texas. For guidelines, please review the Texas Medical Association's Death Act: Directive to Physicians.

Who can execute a directive on the behalf of a minor?

A directive may be executed on behalf of a qualified minor by:

the patient's spouse, if the spouse is an adult;
the patient’s parents; or
the patient’s legal guardian.

What about advance directives for pregnant patients?

A person may not withdraw or withhold life-sustaining treatment from a pregnant patient.

What is my liability in following or refusing to follow an advance directive?

A physician, health care facility, or health care professional with no knowledge of a directive is not civilly or criminally liable for failing to act in accordance with the directive. However, if an attending physician refuses to comply with the directive, life-sustaining treatment must be provided to the patient only until a reasonable opportunity has been afforded for the transfer of the patient to another physician willing to comply with the directive or treatment decision.

Failure to follow a qualified patient's directive will subject the physician or health care professional to review and disciplinary action by the appropriate licensing board.

What can I do when I disagree with the surrogate decision-maker?

Whether the physician is recommending that treatment be continued or that it be stopped because it is medically futile, the law codifies a process that includes a mandatory ethics consultation; a reasonable attempt to transfer the patient to another physician or institution willing to honor the directive; and, in the case of medical futility disputes, continuation of life-sustaining procedures for at least 10 days after the ethics committee explains its conclusion in writing to the patient's surrogate.

The ethics consultation process includes:

giving family 48 hours’ notice of ethics consultation and invitation to participate
giving family written information concerning hospital policy on ethics consultation process
opportunity of arrangement to transfer to another provider that is willing to give the requested treatment
opportunity for the disagreeing party to appeal for an extension of time in addition to the 10 days required