3.2 Patient Autonomy, Informed Consent & Advance Directives

Patient Autonomy, Informed Consent & Advance Directives

Texas Statutory Foundation: The right of self-determination is codified in Texas law through common law doctrine and the Texas Advance Directives Act (TADA), found in Texas Health & Safety Code Chapter 166. Under 22 TAC §217.11(1)(A), (B), and (M), nurses must respect and advocate for patient autonomy, comply with statutory advance directives, and ensure that informed consent protocols are rigorously upheld.

Every competent adult possesses the fundamental legal and moral right to make decisions regarding their own medical care, including the right to accept or refuse diagnostic procedures, surgical interventions, medications, and life-sustaining treatments.

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The Division of Responsibility in Informed Consent

One of the most frequently tested areas on the Texas Nursing Jurisprudence Examination is the precise legal distinction between the physician's/provider's duty and the nurse's role in informed consent.

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|                   INFORMED CONSENT RESPONSIBILITIES                     |
|                                                                         |
|   PERFORMING PROVIDER (MD/DO/APRN):         STAFF NURSE:                |
|   - Explains diagnosis & prognosis          - Witnesses patient sign    |
|   - Explains proposed procedure & purpose   - Confirms patient identity |
|   - Explains material risks & complications - Assesses voluntariness    |
|   - Explains expected benefits & outcomes   - Verifies mental capacity  |
|   - Details all reasonable alternatives     - Advocates & escalates if  |
|   - Details risks of refusing treatment       patient is confused or    |
|   - Obtains the patient's consent             refuses consent           |
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What the Nurse's Signature Signifies

When a nurse signs an informed consent form as a witness, the nurse is legally certifying only three facts:

1. The signature belongs to the patient (or legal surrogate).
2. The patient appeared competent and alert at the moment of signing.
3. The patient signed voluntarily, free from obvious duress or coercion.

[!CAUTION] Critical NJE Rule: The nurse's signature does NOT mean the nurse explained the surgical procedure, detailed the risks, or obtained the consent. The nurse must never explain the surgical risks or attempt to secure consent on behalf of the surgeon. Doing so exceeds the nurse's scope of practice and exposes the nurse and facility to battery/negligence claims.

What to Do When a Patient Expresses Uncertainty or Refuses

If a patient states that they do not understand why the surgery is needed, asks about alternative treatments, expresses anxiety about unforeseen complications, or states they have changed their mind:

1. Stop the process immediately: Do not allow the patient to sign the consent form.
2. Withhold pre-operative sedatives: Administering sedating medications (e.g., midazolam, opioids) impairs decision-making capacity and invalidates subsequent consent.
3. Advocate and notify: Immediately contact the performing provider and request that they return to the patient's bedside to provide further explanation and answer all questions.
4. Document: Record the patient's statements, the notification to the physician, and the physician's response in the medical record.

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Texas Advance Directives Act (Health & Safety Code Chapter 166)

The Texas Advance Directives Act (TADA) establishes three distinct legal instruments that allow individuals to convey their healthcare preferences:

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Directive to Physicians (Living Will)

A Directive to Physicians allows a competent adult to specify whether they desire life-sustaining treatment (e.g., mechanical ventilation, cardiopulmonary resuscitation, dialysis, artificial nutrition and hydration) if diagnosed with a terminal or irreversible condition.

Execution & Witnessing Requirements

To be legally valid in Texas, a Directive to Physicians must be signed by the declarant in the presence of two qualified witnesses (or acknowledged before a notary public). Texas law enforces strict disqualification criteria for witnesses:

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|                    WITNESS DISQUALIFICATION RULES                       |
|                                                                         |
|  At least ONE of the two witnesses MUST NOT be:                         |
|  1. A person designated by the declarant to make treatment decisions    |
|  2. Related to the declarant by blood or marriage                       |
|  3. An heir or beneficiary entitled to any part of the declarant's      |
|     estate under a will or operation of law                             |
|  4. The attending physician or an employee of the attending physician   |
|  5. An employee of the healthcare facility providing direct care to the |
|     declarant (e.g., the staff nurse providing bedside care)            |
|  6. An officer, director, or business employee of the healthcare        |
|     facility or its parent organization                                 |
+-------------------------------------------------------------------------+

[!NOTE] A staff nurse providing direct bedside care to the patient should never act as a witness to the execution of a Directive to Physicians or MPOA due to statutory conflicts of interest under Chapter 166.

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Medical Power of Attorney (MPOA)

The Medical Power of Attorney appoints an agent (and alternate agents) to make healthcare decisions consistent with the principal's wishes.

Critical Operating Rules for Nurses:

• Trigger Mechanism: The MPOA agent has zero decision-making authority while the patient remains competent. The MPOA becomes effective only after the attending physician certifies in writing that the patient lacks decision-making capacity and files the certification in the medical record.
• Revocation: A competent patient may revoke an MPOA at any time, orally or in writing, regardless of their physical condition.
• Statutory Exclusions: Under Texas Health & Safety Code § 166.152, an MPOA agent CANNOT consent to:
  1. Voluntary inpatient mental health services (psychiatric commitment)
  2. Convulsive treatment (Electroconvulsive Therapy / ECT)
  3. Psychosurgery
  4. Abortion
  5. Neglect of comfort care or pain management

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Out-of-Hospital Do Not Resuscitate (OOH-DNR) Orders

An Out-of-Hospital DNR (OOH-DNR) applies outside inpatient acute care settings—including emergency departments, urgent care centers, outpatient surgical centers, transport vehicles, nursing homes, and private residences.

Valid Identification Devices

In emergency situations, healthcare providers and first responders may not have immediate access to paper charts. Texas law recognizes specific standardized identification devices:

• An intact Texas OOH-DNR plastic identification bracelet (orange or white with the state seal).
• A stainless steel bracelet or necklace embossed with the Texas state seal and the words: "Texas Out-of-Hospital Do Not Resuscitate - Order".

Mandatory Actions Under an OOH-DNR

When a valid OOH-DNR or identification device is present:

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Dispute Resolution & The Ethics Review Process (§ 166.046)

When an attending physician determines that life-sustaining treatment requested by a patient's surrogate or directive is medically inappropriate (futile), or when a family disputes a physician's decision, Texas Health & Safety Code § 166.046 sets forth a rigorous statutory process:

1. Ethics Committee Review: The case is submitted to the institutional ethics or medical committee.
2. 48-Hour Advance Notice: The patient or surrogate must be given written notice at least 48 hours prior to the committee meeting and has the right to attend and participate.
3. Written Report: The committee issues a written report detailing its findings.
4. Transfer Window: If the committee agrees that life-sustaining treatment is medically inappropriate, the facility and physician must assist the family in attempting to locate another willing physician or facility to accept transfer. Treatment must be maintained during this statutory review period.
5. Immunity: If no willing facility is found after exhaustive efforts and full compliance with Chapter 166 due process, the physician and health care facility are protected from civil liability, criminal prosecution, and administrative licensure discipline for withdrawing the non-beneficial intervention.