Decenher 2$, 1987
Honorable Charles D. Penick Opinion No. .Jk-837
Criminal District Attorney
Bastrop County Courthouse Re: Whether artificial or
Bastrop, Texas 78602 tube feeding constitutes a
life-sustaining procedure
for purposes of article
4590h, V.T.C.S. (RQ-1036)
Dear Mr. Penick:
In your inquiry you ask the following question:
If a patient cf a nursing home who meets
the definitions of a Declarant and qualified
patient of article ~4590h, V.T.C.S., the
Natural Death Act, is unable to,feed him or
herself and it becomes necessary to tube
feed or artificially feed that person, must
the hospital feed that patient artificially
or does the procedure for artificially
feeding 'or tube feeding fall under the
definition of a life sustaining procedure as
defined in section 2, subsection 4, of
article 4590h?
Article 4590h, V.T.C.S., makes it possible for any
competent adult person, at any time, to execute a
directive for the withholding or withdrawal of
life-sustaining procedures in the event of a terminal
condition. Provisions of the act relating to the
execution of such a document provide as follows:
Sec. 2. In this Act:
.(I) 'Attending physician' means the
physician who has primary responsibility for
the treatment and care of the patient.
(2) 'Declarant' means a oerson who has
executed or issued a directive under this
&&. *
p. 4026
Honorable Charles D. Penick - Page 2 LTI+837)
(3) 'Directive' means:
(A) a document voluntarily executed by
the declarant as prescribed by Section 3(a)
of this Act:
(B) a nonwritten directive issued by the
declarant as prescribed by Section 3(b) of
this Act: or
(c) a document executed as prescribed by
Section 4D of this Act.
(4) 'Life-sustaining procedure' means a
medical procedure or intervention which
utilizes mechanical or other artificial
means to sustain, restore, or supplant a
vital function, which, when applied to a
qualified patient, would serve only to
artificially prolong the moment of death and
where, in the judgment of the attending
physician, noted in the qualified patient's
medical records, death is imminent whether
or not such procedures are utilized. ?
'Life-sustaining procedure' shall not
include the administration of medication or
the performance of any medical procedure
deemed necessary to provide comfort or care
or alleviate pain.
(5) 'Physician' means a physician and
surgeon licensed by the Texas State Board of
Medical Examiners or a properly credentialed
physician holding a commission in the
uniformed services of the United States who
is serving on active duty in this state.
(6) 'Oualified oatient' means a natient
diaanosed and certified in writina to be
afflicted with a terminal condition bv two
phvsicians, one of whom shall be the
attending physician, who have personally
examined the patient.
(7) 'Terminal condition' means an ?
incurable condition caused by injury,
disease, or illness, which, regardless of
the application of life-sustaining
procedures, would, within reasonable medical
'judgment, produce death, and where the ?
p. 4027
Honorable Charles D. Penick - Page 3 UM-837)
application of life-sustaining procedures
serves only to postpone the moment of death
of the patient.
Directive for withholding or withdrawal
of life-sustaining procedures in
event of terminal condition
Sec. 3. (a) Any competent adult person
may, at any time, execute a directive for
the withholding or withdrawal of life-
sustaining procedures in the event of a
terminal condition. The directive shall be
signed by the declarant in the presence of
two witnesses not related to the declarant
by blood or marriage and who would not be
entitled to any portion of the estate of the
declarant on his decease under any will of
the declarant or codicil thereto or by
operation of law. In addition, a witness to
a directive shall not be the attending
physician, an employee of the attending
physician or a health facility in which the
declarant is a patient, a patient in a
health care facility in which the declarant
is a patient, or any person who has a claim
against any portion of the estate of the
declarant upon his decease at the time of
the execution of the directive. The two
witnesses to the declarant's signature shall
sign the directive.
(b) A competent qualified patient who is
an adult may issue a directive by a
nonwritten means of communication. The
declarant must issue the directive in the
presence of the attending physician and two
witnesses. The witnesses must possess the
same qualifications as are required by
Subsection (a) of this section. The
physician shall make the fact of the
existence of the directive a part of the
declarant's'medical record and the witnesses
shall sign said entry in the declarant's
medical record.
(0) A declarant shall notify the
attending physician of the existence of a
written directive. If the declarant is
comatose, incompetent, or otherwise mentally
p. 4028
Honorable Charles D. Penick - Page 4 UM-837)
or physically incapable of communication,
another person may notify the physician of
the existence of a written directive. The
physician shall make the directive a part of
the declarant's medical record.
[subsection (d) sets forth a form that w
be used by a declarant]
(e) The directive may include other
directions, including a designation of
another person to make a treatment decisiorl
in accordance with Section 4A of this Act
for the declarant if the declarant is
comatose, incompe=ent, or otherwise mentally
or physically incapable of communication.
(Emphasis added.)
A sommon thread running throughout the act is the
expression of the legislature's intent that the desire o_f
a aualified declarant shall b~follow~. The followiho
oraJisions of the act reflect the paramount importancs Oi
the declarcnt's wishes and provide for penal sanctions for
any person who takes any action to defeat the desire cf
the dcclarant. The following sections oi the act reflect ?
su.2h legislative intent, as .follows:
Sec. 4. (a) A directive mav be rev-
at anv time bv the d~eclarant. without reaard
-mental state or comvetengy .~ . . .
. . . .
Sec. 4A. The desireof
patient who is comvetent s.1
at all times
m directive. If an
adult qualified patient is comatose, in;,om-
petent, or otherwise mentally or physically
incapable of communication and has issued a
directive under this Act without designating
a person to make a treatment decision, tile
attending physician shall comply with the
directive unless the Dhvsician believes that
the direct=does not reflect the wresent
desire of the natient.
. . . .
Sec. 4C. (a) If an adult qualified
patient is comatose, incompetent, or
p. 4029
Honorable Charles D. Penick - Page 5 UM-837)
otherwise mentally or physically incapable
of communication, and the person has not
issued a directive under this Act, the
attending physician and the legal guardian
of the patient may make a treatment decision
that may, based on knowledae of what the
patient would desire, if known, include a
decision to withhold or withdraw life-
sustaining procedures from the patient.
(b) If the patient does not have a legal
guardian, the attending physician and at
least two, if available, of the following
categories of persons, in the following
priority, may make a treatment decision that
may, based on knowledae of what the oatient
would desire, if known . . . .
. . . .
Sec. 4D. (a) The following persons may
execute a directive on behalf of a qualified
patient who is under 18 years of age:
,P,
(1) the patient's spouse, if the spouse
is an adult:
(2) the patient's parents; or
(3) the patient's legal guardian.
(b) The desire of a oualified natient who
is under 18 vears of aae and who *
comnetent shall at all times suversede tit:
effect of a directive executed in accordance
with this section.
. . . .
Sec. 7. (a) .Before withholding or
withdrawing life-sustaining procedures from
a qualified patient under this Act, the
attending physician shall determine that all
steps proposed to be undertaken are in
r accord with the provisions
the existina desires of
of this Act
the
and
aualified
patient.
. . . .
p. 4030
Honorable Charles D. Penick - Page 6 (JM-837)
Sec. 8. (c) No nhvsician. health
facilitv. or other health nrovider, and no
health care service vlan. or insurer issuina
a- .
insurance, mav reoulre anv nerson to execute
a directive as a condition for being insured
for, or receiving, health care services nor
may the execution or failure to execute a
directive be considered in any way in
establishing the premiums for insurance.~
Sec. 9. A person who willfully conceals,
cancels, defaces, obliterates, or damages
the directive of another without such
declarant's consent shall be guilty of a s
Class A misdemeanor. A person who falsifies
or forges the directive of another, or
willfully conceals or withholds personal
knowledge of a revocation as provided in
Section 4 of this Act, with the intent to
cause a withdrawal of life-sustaining
procedures contrar v to the wishes of the
declarant, and thereby,.because of any such
act, directly causes~ life-sustaining
procedures to be withheld or withdrawn and
death' to thereby be hastened, shall be
subject to prosecution for criminal homicide
under the provisions of the Penal Code.
(Emphasis added.)
The question you pose is limited to the issue of
whether artificially feeding or tube feeding is a life-
sustaining procedure as~those items are defined in the
act. You assume that the patient is a "declarant@' and a
"aualified watient" as those terms are defined in section
2 of article 4590h. Senator Ray ,Farabee, sponsor in the
Texas Senate of the "Natural Death Act" (Acts 1977, 65th
Leg., ch. 398, at 1085), writing in 41 Texas Bar J. 241
(1978), noted that it was impossible to establish criteria
in determining when a person is in a "terminal condition"
or what will constitute a "life-sustaining procedure." We
believe the following observations by Senator Farabee to
be pertinent to your inquiry.
The law does not attempt to establish
criteria to determine when a person is to be
deemed 'terminal' for the purposes of
implementing such a directive. It does
outline a general statement of the
circumstances in which it will be legally
effective. Restrictive criteria would
p. 4031
, Honorable Charles D. Penick - Page 7 UM-837)
P
render the law almost immediately obsolete
in the face of emerging medical advances.
Only the medical profession can determine
when a patient's prognosis is hopeless and
the death process irreversible.
Similarlv. the statute does not itemize
what Drocedures are to be reaarded as
'life-sustainins' and senarate from standard
medical treatment which mav be aiven
reaardless of a natient's condition. Such
distinctions must be made bv medical nracti-
tioners accordins to accewted medical
standards. For instance, many physicians
maintain that therapy, such as the use of
antibiotics, qualifies as 'extraordinary'
when the patient is a cancerous, comatose
go-year old. On the other hand, adminis-
tration of pain-killing drugs falls in a
separate category. (Emphasis supplied).
Turning to other jurisdictions, in Corbett
D'Alessandro, 487 So.Zd 368, 371 (Fla. Dist. Ct. Ap;:
1986), the matter of what constitutes a "life-sustaining
procedure11 was addressed as follows:
Judge Hersey, in his opinion for the
fourth district in Kennedv v. Bludworth, 432
So.2d at 619, in a statement not commented
upon but apparently approved by our supreme
court in Kennedv v. Bludworth, 452 So.2d
291, wrote: 'Life sustaining procedures are
medical procedures which utilize mechanical
or other artificial means to sustain,
restore or supplant a vital function, which
serve only or primarily to prolong the
moment of death, and where, in the judgment.
of the attending and consulting physicians,
as reflected in the patient's medical
records, death is imminent if such
procedures are not utilized.'
Although artificial or tube feeding may constitute a
life-maintaining procedure within the meaning of article
4590h, V.T.C.S., whether it will serve to artificially
prolong the moment of death is a question which depends
upon the expertise of the medical profession for its
resolution in each individual case. While the resolution
of this question is for the medical profession, the
legislature has made it plain that care should be taken
p. 4032
Honorable Charles D. Penick - Page 8 (JM-837)
,
that a oualified declarant's wishes be observed in
withdrawing life-sustaining procedures when there is a
terminal condition.
SUMMARY
Although artificial or tube feeding may
constitute a life-maintaining procedure
within the meaning of article 459013,
V.T.C.S., whether it will serve to
artificially prolong the moment of death is
a question which depends upon the expertise
of the medical profession for its resolution
in each individual case. The article 4399,
V.T.C.S., opinion process was not intended
to resolve factual disputes.
Jzh
MATTOX
Attorney General of Texas
MARYKKLLKR
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4033