Chapter 7-4 Texas Consent to Medical Treatment Act

• Jurisdiction: United States

7-4 Texas Consent to Medical Treatment Act

Following passage of the PSDA in 1990, Texas enacted its state counterpart, the Consent to Medical Treatment Act (CMTA).¹⁶ The statute effectively makes decisions for the patients under its ambit, first by selecting a medical decision maker—called a surrogate—for those patients who have not selected their own,¹⁷ second, by determining what the surrogate may or may not do,¹⁸ and third, by deciding just who may serve as surrogate.¹⁹

7-4:1 State-Designated Surrogates

After a patient's physician declares that he or she cannot provide his or her own medical consent, a court of competent jurisdiction can appoint a surrogate to make these decisions on the patient's behalf. Once that decision is made and the surrogate has been appointed, the surrogate does not need to obtain the patient's permission to make medical decisions on his or her behalf; all he or she must do is ensure that, to the extent he or she knows the patient's desires, the medical treatment decisions made are based on such desires.²⁰

Following is the list of potential state-selected surrogates:

1. the patient's spouse;

2. a sole child who has written permission from the other children to act alone on the patient's behalf;

3. the majority of the patient's children (if they have not selected a sole representative);

4. the patient's parents, if any;

5. someone the patient "clearly identified" before becoming ill;

6. the patient's nearest living relative (if the patient's children or parents are not available); and

7. any member of the clergy, whether or not the patient knows him or her.²¹

7-4:2 Decisions Withheld from the Surrogate

The CMTA forbids the surrogate from making two types of medical decisions. Specifically, the surrogate may not:

1. make a decision to admit the patient to an inpatient mental health facility; or

2. authorize electro-convulsive therapy.²²

7-4:3 Summary of Texas Consent to Medical Treatment Act

The provisions of the Texas Consent to Medical Treatment Act are limited. As an initial matter, the Act covers people who are in hospitals or nursing homes.²³ Then, for the provisions of the act to take effect, the patient must be "comatose incapacitated, or otherwise mentally or physically incapable of communication."²⁴ Thus, someone who is in good health may not take advantage of the statute to appoint a surrogate medical decision maker. Instead, he or she should take advantage of the provisions of the Texas Advance Directives...