Your Pocket Guide to Texas' New DNR Law

The Texas Medical Association provides this ready reference guide for physicians to the key portions of Texas' new DNR law. 

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Senate Bill 11, which the 2017 Texas Legislature passed in special session, provides a framework that regulates in-facility do-not-resuscitate (DNR) orders. The bill takes effect April 1, 2018. Previously, only out-of-hospital DNR (“OOH DNR”) orders were explicitly regulated, so the bill marks a significant change. Note that regulation of OOH DNR orders has not changed. 

This is not a substitute for the advice of an attorney. (See full disclaimer.)

What is an SB 11 “DNR order”?

What makes an SB 11 DNR order valid?

When must a physician enter an SB 11 DNR order into a patient’s medical records?

What notices of an SB 11 DNR order must be given?

Can an SB 11 DNR order be overridden?

What must be done when an attending physician does not wish to execute or comply with an SB11 DNR order or the patient’s instructions concerning the provision of CPR?

What liability protections exist regarding SB 11 DNR orders?

What are the possible criminal penalties in the new DNR law?

• Read the bill. (All statutory citations below are excerpts from Chapter 166, Texas Health and Safety Code. Citations to “the bill” refer to Senate Bill 11, 85th Texas Legislature, 1st Called Session (2017). All text from the bill is indicated by italicized type.)
• See the TMA SB 11 White Paper. (This document summarizes SB 11’s requirements relating to in-facility DNR orders; however, the touchstone for legal compliance is the language of the law itself. If you have any questions about complying with the requirements of SB 11, please review the law and consult with a private attorney and/or consult hospital or health care facility policy and legal counsel.)
• Read "For End-of-Life Care, Fresh Challenges Begin" in the March 2018 edition of Texas Medicine magazine.

What is an SB 11 “DNR order”?

Statute: Sec. 166.201. In this subchapter, "DNR order" means an order instructing a health care professional not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function ceases.

Sec. 166.202. APPLICABILITY OF SUBCHAPTER.

1. This subchapter applies to a DNR order issued in a health care facility or hospital.
2. This subchapter does not apply to an out-of-hospital DNR order as defined by Section 166.081.

TMA SB 11 White Paper: The bill defines a “DNR order” as an “order instructing a health care professional not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function ceases.”

Notably, this bill’s regulations apply only to “cardiopulmonary resuscitation,” which is a more narrow scope than that of an out-of-hospital DNR order (which applies to life-sustaining treatment), but this term is still broader than just chest compressions. Texas law defines “cardiopulmonary resuscitation” as “any medical intervention used to restore circulatory or respiratory function that has ceased.” It is also important to note that this bill applies to a “DNR order” issued only in a hospital or health care facility, and does not affect an OOH-DNR order as the term is defined in state law. (In this document, “DNR” or “DNR order” refers what is defined and regulated in SB 11, and does not include an OOH-DNR order).

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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What makes an SB 11 DNR order valid?

Statute: Sec. 166.203. (a) DNR order issued for a patient is valid only if the patient’s attending physician issues the order, the order is dated, and the order:

1. is issued in compliance with:
   1. the written and dated directions of a patient who was competent at the time the patient wrote the directions;
   2. the oral directions of a competent patient delivered to or observed by two competent adult witnesses, at least one of whom must be a person not listed under Section 166.003(2)(E) or (F);
   3. the directions in an advance directive enforceable under Section 166.005 or executed in accordance with Section 166.032, 166.034, or 166.035;
   4. the directions of a patient ’s legal guardian or agent under a medical power of attorney acting in accordance with Subchapter D; or
   5. a treatment decision made in accordance with Section 166.039; or
    
2. is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions and, in the reasonable medical judgment of the patient ’s attending physician:
   1. the patient ’s death is imminent, regardless of the provision of cardiopulmonary resuscitation; and
   2. the DNR order is medically appropriate.
    

TMA SB 11 White Paper: A physician may enter an order to not attempt CPR on a patient whose circulatory or respiratory function ceases, but unless it complies with the requirements of S.B. 11, the order would not be valid and the physician may thus be subject to civil, criminal and administrative liability. The bill establishes that in order to be valid, the DNR order must be dated, issued by the patient’s attending physician, and be in compliance with one of the following. (Note that the following are intended to be only general descriptions of the circumstances in which an attending physician may issue a DNR order, and there may be more specific requirements relating to a particular circumstance described in state law.):

1. Written and dated directions of a patient who was competent at the time the patient wrote the directions
2. Oral directions of a competent patient, if the directions are delivered to or observed by two competent adult witnesses, at least one of whom is not:
   1. an employee of the attending physician or
   2. an employee of the facility who is
      1. providing direct patient care to the patient or
      2. an officer, director, partner, or business office employee of the facility or any parent organization of the facility
       
    
3. An advance directive that was validly executed in another state
4. A properly executed written directive, meaning it is witnessed by qualified witnesses or notary public
5. A nonwritten directive of a competent, adult, "qualified patient," witnessed by the attending physician and two other qualifying witnesses (one of whom must not have certain relations to the patient according to state law)
   NOTE: A “qualified patient” for purposes of the nonwritten directive, the directive on behalf of a minor (No. 6 in this list), and the mutual decision (No. 8 in this list), means a patient who has a terminal or irreversible condition diagnosed and certified in writing by the patient’s attending physician.
   Also, there are subtle differences between this option and option no. 2 above. The requirements under this option are slightly more stringent, requiring more witnesses with less flexibility, and specifying that the patient be certified as having a terminal or irreversible condition. On the other hand, this option allows for types of nonwritten communication other than oral communication. 
6. A directive issued on behalf of a "qualified patient" younger than 18 years of age, by the patient’s adult spouse, parents, or legal guardian
7. The directions of the patient’s legal guardian or agent under a medical power of attorney
8. A mutual decision made on behalf of an adult “qualified patient,” when the patient is incompetent or otherwise mentally or physically incapable of communication, that is agreed upon by the patient’s attending physician and:
   1. the patient’s legal guardian or agent under medical power of attorney
   2. if no guardian or agent under a medical power of attorney, the patient’s (listed in priority):
      1. spouse,
      2. reasonably available adult children,
      3. parents, or
      4. nearest living relative: or
       
   3. if no guardian, agent under a medical power of attorney, or other relative, another physician who is:
      1. not involved in treating the patient, or
      2. a representative of the facility’s ethics or medical committee 
       
    
9. A physician’s reasonable medical judgment, if the patient has not conveyed directions against a DNR order at a time when the patient was competent, and if the physician’s judgment is that:
   1. the patient’s death is imminent (though the bill does not specify a time frame for what is meant by “imminent”) regardless of the provision of CPR; AND
   2. the DNR is medically appropriate
    

Note: A valid DNR order may be overridden or, in some circumstances, must be revoked. See explanation below.

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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When must a physician enter an SB 11 DNR order into a patient’s medical records?

Statute: Sec. 166.203(b) The DNR order takes effect at the time the order is issued, provided the order is placed in the patient ’s medical record as soon as practicable.

TMA SB 11 White Paper: A valid DNR order takes effect at the time of issuance as long as it is placed in the patient’s medical records as soon as practicable. When placing the order in the patient’s medical records, though, a physician should keep in mind that: (i) certain notice requirements (discussed next) apply to DNR orders issued under certain circumstances (i.e., option 9 described above) and (ii) some of these notice requirements must be satisfied before placing the order in the medical record. The bill leaves open the question of whether failure to provide the required notice before placing the order in the medical records could invalidate the DNR order itself. Ensuring compliance with the notice requirement before the DNR order is placed in the medical records is thus of significant importance.

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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What notices of an SB 11 DNR order must be given?

Statute: Sec. 166.203(c) Before placing in a patient’s medical record a DNR order issued under Subsection (a)(2), the physician, physician assistant, nurse, or other person acting on behalf of a health care facility or hospital shall:

Sec. 166.204(a) If an individual arrives at a health care facility or hospital that is treating a patient for whom a DNR order is issued under Section 166.203(a)(2) and the individual notifies a physician, physician assistant, or nurse providing direct care to the patient of the individual ’s arrival, the physician, physician assistant, or nurse who has actual knowledge of the order shall disclose the order to the individual, provided the individual is:

1. the patient ’s known agent under a medical power of attorney or legal guardian; or
2. for a patient who does not have a known agent under a medical power of attorney or legal guardian, a person described by Section 166.039(b)(1), (2), or (3).

. . .

(d) A physician, physician assistant, or nurse may satisfy the notice requirement under Subsection (a) by notifying the patient’s known agent under a medical power of attorney or legal guardian or, for a patient who does not have a known agent or guardian, one person in accordance with the priority established under Section 166.039(b). The physician, physician assistant, or nurse is not required to notify additional persons beyond the first person notified.

TMA SB 11 White Paper: If an attending physician issues a DNR order under option 9 above (i.e., on the basis that the DNR order is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions and, in the physician’s reasonable medical judgment,: (i) the DNR order is medically appropriate and (ii) the patient’s death is imminent, regardless of the provision of CPR), two distinct notices may be required. Both notices apply after the decision to issue the DNR order has been made, but one notice is conditional upon the occurrence of a trigger.

1. The first notice: before the DNR order is placed in a patient’s medical record, the physician or a physician assistant, nurse, or another person acting on behalf of a health care facility or hospital shall inform the patient of the order’s issuance, or if the patient is incompetent, make a reasonably diligent effort to contact the patient’s legal guardian or agent under a medical power of attorney, or if no guardian or agent is known, the patient’s spouse, adult children, or parents. For liability protection purposes, record of the notice or notice effort should be placed in the patient’s medical record.
2. The second notice: if an individual arrives at the patient’s hospital/ health care facility and notifies a physician, physician assistant, or nurse providing direct care to the patient that the individual has arrived and if the individual is the patient’s known agent under a medical power of attorney or known legal guardian, or (if the patient has no known agent or guardian) the patient’s spouse, adult child, or parents, the applicable physician, physician assistant or nurse is required to disclose the DNR order to the arriving individual and, for liability protection purposes, should record the notice in the patient’s medical records. If one person has already received this notice, it is not required that additional persons receive the same notice.

The bill does not clarify how these two notice requirements work together. In some cases, it may be that notice to one individual may satisfy both requirements. On the other hand, there may be other circumstances in which physicians must provide two distinct notices. Because of the lack of clarity surrounding the notice provisions, being aware of the requirements and making a good faith effort to comply and recording that effort is crucial. The bill provides that a person who makes a good faith effort to comply with the notice requirements and contemporaneously records those efforts is afforded protection from civil liability and criminal, as well as from disciplinary action from the person’s licensing authority (i.e., the Texas Medical Board).

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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Can an SB 11 DNR order be overridden?

Statute: Sec. 166.203(d) To the extent a DNR order described by Subsection (a)(1) conflicts with a treatment decision or advance directive validly executed or issued under this chapter, the treatment decision made in compliance with this subchapter, advance directive validly executed or issued as described by this subchapter, or DNR order dated and validly executed or issued in compliance with this subchapter later in time controls.

Sec. 166.205. (a) A physician providing direct care to a patient for whom a DNR order is issued shall revoke the patient ’s DNR order if the patient or, as applicable, the patient ’s agent under a medical power of attorney or the patient ’s legal guardian if the patient is incompetent:

1. effectively revokes an advance directive, in accordance with Section 166.042, for which a DNR order is issued under Section 166.203(a); or
2. expresses to any person providing direct care to the patient a revocation of consent to or intent to revoke a DNR order issued under Section 166.203(a).

. . .

(c) A patient’s attending physician may at any time revoke a DNR order issued under Section 166.203(a)(2).

TMA SB 11 White Paper: The short answer is yes. S.B. 11 requires a physician providing direct care to a patient for whom a DNR order is issued to revoke a DNR order for a patient if the patient or, as applicable and if the patient is not competent, the patient’s agent under a medical power of attorney or the patient’s legal guardian, either:

1. effectively revokes the advance directive, in accordance with Texas Health and Safety Code Section 166.042, on which the DNR order was based (i.e., by destroying or defacing the directive, by signing and dating a written revocation, or by orally stating an intent to revoke the directive); or
2. expresses to anyone providing direct care to the patient a revocation of consent to the DNR order or an intent to revoke a DNR order.

This is also consistent with the general “last-in-time” principle stated in the bill. The bill states that if a DNR order conflicts with a treatment decision made in compliance with the laws related to DNR orders or another advance directive, that decision or directive, if made later in time, would control. On the other hand, if a valid DNR order is issued later in time and conflicts with a previous treatment decision or advance directive, the DNR order would control.

Additionally, the bill states that an attending physician may at any time revoke a DNR order if the DNR order was issued on the basis set forth in option 9, above (i.e., on the basis that the DNR order is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions and, in the attending physician’s reasonable medical judgment,: (i) the DNR order is medically appropriate and (ii) the patient’s death is imminent, regardless of the provision of CPR).

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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What must be done when an attending physician does not wish to execute or comply with an SB11 DNR order or the patient’s instructions concerning the provision of CPR?

Statute: Sec. 166.206. (a) If an attending physician, health care facility, or hospital does not wish to execute or comply with a DNR order or the patient’s instructions concerning the provision of cardiopulmonary resuscitation, the physician, facility, or hospital shall inform the patient, the legal guardian or qualified relatives of the patient, or the agent of the patient under a medical power of attorney of the benefits and burdens of cardiopulmonary resuscitation.

(b) If, after receiving notice under Subsection (a), the patient or another person authorized to act on behalf of the patient and the attending physician, health care facility, or hospital remain in disagreement, the physician, facility, or hospital shall make a reasonable effort to transfer the patient to another physician, facility, or hospital willing to execute or comply with a DNR order or the patient’s instructions concerning the provision of cardiopulmonary resuscitation.

(c) The procedures required by this section may not be construed to control or supersede Section 166.203(a).

TMA SB 11 White Paper: Whenever an attending physician does not wish to execute or comply with a DNR order or a patient’s instructions concerning the provision of CPR, the physician is required to inform the patient, the legal guardian or qualified relatives of the patient, or the agent of the patient under a medical power of attorney of the benefits and burdens of performing CPR on the patient.

If the attending physician and the patient or other person authorized to make decisions on behalf of the patient are still in disagreement after the physician has explained the benefits and burdens of performing CPR on the patient, the physician or facility must make a reasonable effort to transfer the patient to another physician or facility that is willing to execute or comply with the DNR order or the patient’s instructions concerning the provision of CPR.

Taking the aforementioned steps does not permit the physician to issue a DNR order that would otherwise be invalid. When there is still disagreement about a course of treatment for a patient after a reasonable but unsuccessful effort to transfer the patient, it is important that a physician consult with a private attorney and/or consult hospital or health care facility policy and legal counsel to determine how to proceed.

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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What liability protections exist regarding SB 11 DNR orders?

Statute: Sec. 166.207. A physician, health care professional, health care facility, hospital, or entity that in good faith issues a DNR order under this subchapter or that, in accordance with this subchapter, causes cardiopulmonary resuscitation to be withheld or withdrawn from a patient in accordance with a DNR order issued under this subchapter is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority for that action.

Sec. 166.208. A physician, health care professional, health care facility, hospital, or entity that has no actual knowledge of a DNR order is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority for failing to act in accordance with the order.

TMA SB 11 White Paper: The bill does provide limited liability protection (and protection from disciplinary review and action) for physicians and other health care professionals who act in good faith to issue a DNR order under the subchapter or who, in accordance with the subchapter, cause CPR to be withheld or withdrawn from a patient in accordance with a DNR order. Similarly, the bill provides that physicians and other health care professionals are not liable or subject to disciplinary action if they fail to act in accordance with a DNR order of which they have no actual knowledge.

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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What are the possible criminal penalties in the new DNR law?

Statute: Sec. 166.209. (a) A physician, physician assistant, nurse, or other person commits an offense if the person intentionally conceals, cancels, effectuates, or falsifies another person ’s DNR order or if the person intentionally conceals or withholds personal knowledge of another person ’s revocation of a DNR order in violation of this subchapter. An offense under this subsection is a Class A misdemeanor. This subsection does not preclude prosecution for any other applicable offense.

(b) A physician, health care professional, health care facility, hospital, or entity is subject to review and disciplinary action by the appropriate licensing authority for intentionally:

1. failing to effectuate a DNR order in violation of this subchapter; or
2. issuing a DNR order in violation of this subchapter.

The bill added a criminal Class A misdemeanor offense that applies when a physician or other person intentionally conceals, cancels, effectuates, or falsifies another person’s DNR order or if the person intentionally conceals or withholds personal knowledge of another person’s revocation of a DNR order in violation of the law.

Additionally, a physician or other health care professional is also subject to review and disciplinary action by the Texas Medical Board or other appropriate licensing board if the person intentionally fails to effectuate a DNR order in violation of the law, or intentionally issues a DNR order in violation of the law.

These two enforcement provisions are drafted very broadly and it thus may be difficult to properly and adequately assess associated legal risks. Thus, it is recommended that physicians consult with private counsel and/or consult hospital/health care facility policies and legal counsel in order to understand where individual physicians may face the greatest legal risks.

This is not a substitute for the advice of an attorney. (See full disclaimer.)
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Revised: April 19, 2018;

NOTICE: The Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.