Feeding Tubes and Futility in Texas.

We Can End the End-of-Life Impasse in the Texas Legislature.

Dr Jacqueline Harvey

By Jacqueline C. Harvey, Ph.D . 

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 twelve years. An issue that created uncanny adversaries out of natural allies and equally odd bedfellows has finally found common ground in H.B. 3074: an act that 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 people are 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 (ANH). 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, such as a case this January 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 pet cat. And healthcare providers are immune from civil and criminal penalties deny 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 is the only state law that explicitly mentions food and water delivered artificially for the purpose of completely permitting its forced denial (six other states mention ANH 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. Texas Alliance for Life and Texas Right to Life have each 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 ANH, but also a host of other provisions that were so contentious and unacceptable to other organizations each bill ultimately died, and this mutually-agreed-upon and vital reform always died along with it. The 2011 and 2013 sessions present a prime example where both organizations 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 that other groups 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 focuses on what unites the organizations involved rather than what divides them.

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 bill 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 simple and an area of agreement, moreover, it is has already been negotiated. 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. 

The language from C.S.S.B. 439 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: 

1. hasten the patient's death; 
2. seriously exacerbate other major medical problems not outweighed by the benefit of the provision of the treatment; 
3. result in substantial irremediable physical pain, suffering, or discomfort not outweighed by the benefit of the provision of the treatment; 
4. be medically ineffective; or 
5. 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 as the bill in 2007, and any reconciliation on the minor differences in language would therefore be minimal, but ultimately, everyone would gain a huge victory - the first victory in twelve 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, 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 we move forward with this most noble of causes?

Dr. Jacqueline C. Harvey (Ph.D.) is a former faculty member at the University of North Texas, as well as the University of Michigan-Dearborn. Harvey, in conjunction with the Euthanasia Prevention Coalition International, has authored definitive works on the Texas Advance Directive Act. 

For further information, visit: https://umd-umich.academia.edu/JacquelineCHarvey.