The Texas Advance Directives Act, passed in 1999, established Section 166.046 of the Texas Health and Safety Code. Contained in this law is an anti-Life measure that has quietly taken the lives of vulnerable Texas patients for two decades.
This anti-Life policy is known as the 10-Day Rule, a reference to the number of calendar days a vulnerable patient or her surrogate is given once a hospital committee declines to continue providing life-sustaining treatment to a patient, contrary to the patient’s expressed will and medical decisions. Life-sustaining treatment is a narrow legal category that includes measures like dialysis treatments and breathing assistance, such as a ventilator. At the end of ten days’ time, a hospital is sanctioned by law to withdraw such treatment and awarded total immunity, an action that often results in a patient’s death.
The 10-Day Rule nullifies a patient’s valid advance directive requesting such treatment, a duly executed medical power of attorney, or the decision of a legitimate surrogate like a spouse or adult child. The law even ignores the medical decisions of a conscious patient who can make his or her wishes known in real time, such as the 2015 case of the Harris County man, Chris Dunn.
Zero due process is afforded patients who find themselves at the mercy of this law, making the deprivation of Life written into the end of the ten-day process entirely unconstitutional.
In this 86th Session of the Texas Legislature, Texas Right to Life and countless state and national leaders and organizations are fighting to repeal the anti-Life 10-Day Rule. The Respecting Texas Patients’ Right to Life Act was filed as HB 3158 by Representative Richard Raymond (D-Laredo) and SB 2089 by Senator Hughes (R-Mineola). This Pro-Life, pro-patients’ rights bill will:
- Keep in place the dispute resolution process allowing for the physician and hospital to formally discuss their disagreements about treatment decisions with the patient and surrogates;
- Revoke the unilateral power of the hospital’s committee to impose a death sentence on a patient who wishes to live;
- Ensure that the medical decisions of Texas patients and their families on basic life-sustaining treatment are honored until the patient is transferred to another physician or facility; and
- Remove the burdensome and unethical countdown provision that places all the responsibility of a transfer on the patient and her family.
When determining the Pro-Life Legislative Priorities for the legislative session, Texas Right to Life asks the vital question; “will this measure save lives?” Repealing the 10-Day Rule will undoubtedly save the lives of vulnerable Texas patients.
For more than a decade, Texas Right to Life has assisted an average of two vulnerable patients a month whose lives are being threatened in a Texas hospital. There is no way to know for sure how many patients the 10-Day Rule has affected since 1999 because Texas does not collect any data or require hospitals to report their use of the unique law. These patients and their family members come to Texas Right to Life for help in the most desperate of circumstances, often after the hospital’s committee has already handed down the determination that the patient’s life is no longer worth living and the countdown has already begun.
The experiences of some of these patients have resulted in court action attempting to delay or stop the injustice of the law. Chris Dunn was a patient in the Houston medical center whose case has resulted in a lawsuit challenging the constitutionality of the Texas Advance Directives Act. Chris tragically passed away in 2015 shortly before Christmas after a fierce battle for his right to receive basic life-sustaining treatment, and now his mother is bringing suit against the hospital which invoked the 10-Day Rule against him. Carolyn Jones, a patient who is currently being assisted by Texas Right to Life, is still alive and fighting, although her ten-day countdown began last week on March 8. Only after the involvement of Texas Right to Life and Pro-Life attorneys has the hospital agreed to pause the ten-day clock and work with Carolyn’s husband to pursue a solution on treatment issues and a possible transfer.
Twelve states have strong policies on the books that protect the patient’s right to receive basic life-sustaining treatment while awaiting transfer to another facility that will agree to provide her with this care. By providing this solution, the Respecting Patients’ Right to Life Act would incentivize hospitals and patients to work together to find a resolution to their disagreement, which protects the patient’s life and respects the recommendations of the physician. These Pro-Life laws Texas seeks to emulate protect Texans from the possibility of abuse by medical professionals, ultimately creating a system which works more efficiently toward transferring patients to facilities where doctors and patients agree on the provision of life-sustaining treatment.
The Respecting Patients’ Right to Life Act has rightly garnered support from both sides of the political aisle. This proposal is a tried-and-true, incremental solution that will have an immediate effect of saving real lives. Texas should follow the example of other states in providing essential safety measures for patients. Patient advocates can and will do everything possible to protect them, but until the legislature repeals the 10-Day Rule, vulnerable patients in Texas have little recourse but to pray for their lives.