Futility & Feeding Tubes in Texas: Can We End the End-of-Life Impasse?
"Can twelve years of bad blood and bickering be set aside for even this most noble of causes?"
The following article was written by Dr. Jacqueline C. Harvey of the Euthanasia Prevention Coalition International and originally appeared on TexasInsider.org.
After five consecutive sessions of bitter battles over end-of-life bills, the Texas Legislature is finally poised to pass the first reform to the Texas Advance Directives Act (TADA) in 12 years. An issue that created uncanny adversaries out of natural allies, and equally odd bedfellows, has finally found common ground in H.B. 3074 by State Rep. Drew Springer.
H.B. 3074 simply prohibits doctor-imposed euthanasia by starvation and dehydration.
Since H.B. 3074 includes only those provisions and language that all major organizations are on record as having deemed acceptable in previous legislative sessions, there is finally hope of ending the end-of-life impasse in the Texas Capitol.
Many would be surprised to learn that Texas law allows physicians to forcibly remove a feeding tube against the will of the patient and their family. In fact, there is a greater legal penalty for failing to feed or water an animal than for a hospital to deny a human being food and water through a tube. This is because there is no penalty whatsoever for a healthcare provider who wishes to deny artificially-administered nutrition and hydration (AANH). According to Texas Health and Safety Code, “every living dumb creature” is legally entitled to access to suitable food and water.
Denying an animal food and water, like in this January case in San Antonio, is punishable by civil fines up to $10,000 and criminal penalties up to two years in jail per offense. Yet Texas law allows health care providers to forcibly deny food and water from human beings – what they would not be able to legally do to their housecat. And healthcare providers are immune from civil and criminal penalties for denial of food and water to human beings as long as they follow the current statutory process which is sorely lacking in safeguards.
Therefore, while it is surprising that Texas has the only state law that explicitly mentions food and water delivered artificially for the purpose of completely permitting its forced denial (the other six states mention AANH explicitly for the opposite purpose, to limit or prohibit its refusal), it is not at all surprising that the issue of protecting a patient’s right to food and water is perhaps the one point of consensus across all major stakeholders.
H.B. 3074 is the first TADA reform bill to include only this provision that is agreed upon across all major players in previous legislative sessions.
There are irreconcilable ideological differences between two major right-to-life organizations that should supposedly be like-minded: Texas Alliance for Life and Texas Right to Life. Each faction (along with their respective allies) have previously sponsored broad and ambitious bills to either preserve but reform the current law (Texas Alliance for Life’s position) or overturn it altogether as Texas Right to Life aims to do.
Prior to H.B. 3074, bills filed by major advocacy organizations have often included AANH, but also a host of other provisions that were so contentious and unacceptable to other organizations that each bill ultimately died, and this mutually-agreed-upon and vital reform always died along with it.
2011 & 2013 Legislative Sessions present prime example
This 2011 media report shows the clear consensus on need for legislation to simply address the need to protect patients’ rights to food and water:
“Hughes [bill sponsor for Texas Right to Life] has widespread support for one of his bill’s goals: making food and water a necessary part of treatment and not something that can be discontinued, unless providing it would harm the patient.”
Nonetheless, in 2013, both organizations and their allies filed complicated, contentious opposing bills, both of which would have protected a patient’s right to food and water but each bill also included provisions the rival group saw as contrary to their goals. Both bills were ultimately defeated and neither group was able to achieve protections for patients at risk of forced starvation and dehydration – a mutual goal that could have been met through a third, narrow bill like H.B. 3074.
H.B. 3074 finally focuses on what unites the organizations involved rather than what divides them, since these differences have resulted in a 12 year standoff with no progress whatsoever.
H.B. 3074 is progress that is pre-negotiated and pre-approved.
It is not a fertile springboard for negotiations on an area of mutual agreement. Rather it is the culmination of years of previous negotiations on bills that all came too late, either due to the complex nature of rival bills, the controversy involved, or even both.
On the contrary, H.B. 3074 is not just simply an area of agreement; moreover, it is has already been negotiated. It should not be stymied by disagreements on language, since Texas Alliance for Life and Texas Right to Life (along with their allies) were able to agree on language in 2007 with C.S.S.B. 439. C.S.S.B. 439 reads that, unlike the status quo that places no legal conditions on when food and water may be withdrawn, it would be permitted for those in a terminal condition if, “reasonable medical evidence indicates the provision of artificial nutrition and hydration may hasten the patient’s death or seriously exacerbate other major medical problems and the risk of serious medical pain or discomfort that cannot be alleviated based on reasonable medical judgment outweighs the benefit of continued artificial nutrition and hydration.”
This language is strikingly similar to H.B. 3074 which states, “except that artificially administered nutrition and hydration must be provided unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would:
- Hasten the patient’s death;
- Seriously exacerbate other major medical problems not outweighed by the benefit of the provision of the treatment;
- Result in substantial irremediable physical pain, suffering, or discomfort not outweighed by the benefit of the provision of the treatment;
- Be medically ineffective; or
- Be contrary to the patient’s clearly stated desire not to receive artificially administered nutrition or hydration.
With minimal exceptions (the explicit mention of the word terminal, the issue of medical effectiveness and the patient’s right to refuse), the language is virtually identical, and in 2007 Texas Right to Life affirmed this language as clarifying that “ANH can only be withdrawn if the risk of providing ANH is greater than the benefit of continuing it.”
Texas Right to Life would support the language in H.B. 3074 that already has Texas Alliance for Life’s endorsement. Any reconciliation on the minor differences in language would therefore be minimal and could be made by either side, but ultimately, both sides and their allies would gain a huge victory – the first victory in 12 years on this vital issue.
It seems that the Texas Advance Directive Act, even among its sympathizers, has something for everyone to oppose.
The passage of H.B. 3074 and the legal restoration of rights to feeding tubes for Texas patients will not begin to satisfy critics of the Texas Advance Directives Act who desire much greater changes to the law and will assuredly continue to pursue them. H.B. 3074 in no way marks the end for healthcare reform, but perhaps a shift from the belief that anything short of sweeping changes is an endorsement of the status quo.
Rather, we can look at H.B. 3074 as breaking a barrier and indicating larger changes are possible.
And if nothing else, by passing H.B. 3074 introduced by State Rep. Drew Springer, we afford human beings in Texas the same legal access to food and water that we give to our horses. What is cruel to do to an animal remains legal to do to humans in Texas if organizations continue to insist on the whole of their agenda rather than agreeing to smaller bills like H.B. 3074.
The question is, can twelve years of bad blood and bickering be set aside for even this most noble of causes?
Dr. Jacqueline C. Harvey of the Euthanasia Prevention Coalition International is former faculty at the University of North Texas and the University of Michigan-Dearborn and has authored extensive research on Texas end-of-life legislation. Her work is available at http://umd-umich.academia.edu/JacquelineCHarvey.