I. Introduction

Tinslee Lewis, born prematurely in 2019 with a congenital heart defect and many other severe health problems,[1] and was transferred to the Cook Children’s Medical Center Intensive Care Unit (CICU) in Fort Worth, Texas. She remained there on a ventilator, and constantly monitored for multiple medical issues.[2] Her body often experienced inflammatory cascades that put her at regular risk of “dying events” requiring “aggressive medical intervention.”[3] The dying events were triggered by minor actions like diaper changes, or happened spontaneously.[4]

After months of conversations with Tinslee’s family, the CICU team and Trinity—Tinslee’s mother and surrogate decision maker—reached an impasse.[5] The CICU team believed that additional medical interventions were futile, no longer “medically, ethically, or morally appropriate,” and caused Tinslee harm.[6] Trinity disagreed.[7] So the CICU team invoked the dispute resolution procedure of the Texas Advance Directives Act (TADA; codified at Section 166.046 of the Texas Health & Safety Code).[8] The statutorily mandated procedure set forth in TADA required several steps, including the attending physician referring the dispute to a review committee and the hospital providing the surrogate decision maker with at least forty-eight-hour notice of committee review.[9] The review committee would then hold an open meeting and make a decision with a written explanation.[10] If the committee agreed with the physician, the provider was required to continue providing life-sustaining medical treatment (LSMT) for at least ten days, during which time the hospital and surrogate decision maker would try to find a facility to accept the patient for transfer in accordance with the patient’s or decision maker’s desires.[11] After that period, the hospital could withdraw LSMT unless otherwise ordered by a court.[12] A physician who followed the statute had safe harbor immunity from civil or criminal liability.[13]

The hospital gave Trinity the required notice prior to the committee meeting.[14] The review committee then held an open meeting and made a decision with a written explanation.[15] The committee sided with the attending physician, prompting Trinity to file for a temporary injunction in the 48th Judicial District Court of Tarrant County.[16] The district court denied Trinity’s request for a temporary injunction, and she appealed to the Second Court of Appeals.[17] The appellate court reversed the trial court’s denial of Trinity’s request and remanded the case, finding Trinity was not afforded sufficient procedural due process through the dispute resolution procedure.[18] The Supreme Court of Texas denied review and the Supreme Court of the United States denied petition for writ of certiorari on January 11, 2021.[19] From her birth in 2019 to April 2022, Tinslee remained in the CICU where, against all odds, her health took a turn for the better.[20] In April 2022, Tinslee’s health improved to the extent that she could be discharged home with a portable ventilator.[21]

Tinslee’s case exemplifies the many factors and considerations that should be given weight in a medical futility dispute. In the context of LSMT, while the treating hospital team might believe that continuing treatment is no longer medically and ethically appropriate, the patient/surrogate may still seek to prolong life at all costs, even if the treatment is aggressive.[22] Compounding that complexity, a surrogate may assume the decision-making if the patient lacks capacity to understand their prognosis and the varying concerns regarding continuing LSMT.[23] The number of such disputes has increased as medicine’s ability to sustain vital organ function has improved not only for infants but in older populations as well.[24] In discussing futility of treatment, hospitals initiate conversations between patients’ families and “ethics consultants, social workers, chaplains, palliative care physicians . . . , and other experts.”[25] In most cases, these conversations allow the hospital and decision makers to reach a consensus, and no further action is needed.[26] However, in the remaining cases, physicians may feel pressured into continuing LSMT that they believe is inappropriate or cruel out of concern for malpractice liability and/or due to the lack of a clear definition of “futile care.”[27] Similarly, surrogate decision makers may feel overwhelmed by the system and the rapidity with which these decisions are made. An effective dispute resolution process is needed to reach a balance between the hospitals’ and medical providers’ divergent concerns while ensuring patients’ due process rights remain intact and hopefully avoid the need for litigation.[28] This process may include considering a patient’s dignity and imminent death, the futility of recovery, the existence of a “Do Not Resuscitate” (DNR), and the patient’s and surrogate’s wishes and whether those wishes conflict. Additional factors may include whether the interventions requested by the family harm rather than help the patient, and any moral and conscience objections and Hippocratic ideals held by the treating doctors and nurses.

Tinslee’s case left many questions unanswered as to the constitutionality of the dispute resolution procedure outlined in TADA. The resulting lack of clarity had implications outside Texas, as TADA’s dispute resolution model was viewed as a potential guide for other states hoping to enact similar provisions.[29] In May 2023, the Texas legislature passed House Bill 3162 to begin addressing these concerns.[30] Its key provisions include (1) increasing the number of days-notice required before an ethics committee meeting; (2) increasing the number of days post-meeting; (3) providing additional information to patients and their representatives; (4) better defining of the role and composition of ethics committees; and (5) clarifying the process of attempted transfers.[31] Governor Abbott signed House Bill 3162 into law on June 17, 2023, and it became effective on September 1, 2023.[32] While the bill and its drafters should be lauded for their significant steps forward in legislation after extensive discussion and compromise, it remains to be seen whether the procedural changes will withstand future constitutional challenges.

This Article will first outline the history and purpose of TADA, analyzing the special concerns attendant to withdrawal of LSMT for minors. The Article then provides a survey of other states’ laws governing end-of-life care, examines the “best interests of the child” approach taken by the United Kingdom using the 2022 case study of Archie Battersbee, and explores the guidance of the Texas Family Code for cases involving minors. The Article concludes with a proposal for state adoption of a two-stage dispute resolution model to effectively balance the due process rights of patients and their surrogate decision makers with the duties and concerns of hospitals and medical providers.

II. Background

A. The History of the Texas Advance Directives Act

Prior to the enactment of TADA, care teams and families of patients on LSMT found themselves in a difficult and sometimes confrontational setting. As Dr. Robert Fine, Director of the Office of Clinical Ethics and Palliative Care at Baylor Scott & White, articulated, families would threaten: “If you don’t allow my mother to die, I’m going to sue you. If you don’t keep my mother alive, I’m going to sue you. We got slammed on both sides. We also saw family relationships frayed and often frankly destroyed.”[33]

In 1977, Texas enacted the Natural Death Act,[34] which provided immunity from civil and criminal liability for physicians and healthcare facilities that followed the Act’s procedure for withholding or withdrawing LSMT in the absence of negligence.[35] 1991 marked the enactment of the federal Patient Self-Determination Act, with the goal of increasing patient involvement in decision making regarding life-sustaining treatment.[36] However, the federal act was silent as to what the dispute resolution process should look like if disputes arose—leaving this squarely within individual state discretion to implement.[37]

In 1993, a group of Houston-area hospital representatives formed the Houston Citywide Task Force on Medical Futility, seeking to create a universally implementable procedure for hospitals to follow that would be more “ethically and legally defensible” than individual procedures.[38] Senate Bill 414 largely incorporated the task force’s procedures into an early resolution procedure for medical futility disputes.[39] However, in 1997, then Texas Governor George W. Bush vetoed Senate Bill 414 because he believed it did not adequately address liability issues.[40] Finally, in 1999, Governor Bush signed TADA into law[41] thanks to the collaboration of members of the Texas Advance Directives Act Coalition. The coalition brought together more than twenty-four interested organizations, including Texas Alliance for Life, Texas Right to Life, National Right to Life, the Texas Medical Association, the Texas Hospital Association, Texas Catholic Conference of Bishops, and the Catholic Healthcare Association.[42] With the passage of TADA, Texas became the first state to provide a statutory extrajudicial due process procedure for resolving medical futility disputes.[43]

TADA has been amended three times since its initial passage: first in 2003, next in 2015, and most recently in 2023.[44] The 2003 amendment added language requiring hospitals to provide information to surrogate decision makers regarding a patient’s right to transfer.[45] The notice language also discloses the ten-day waiting period and costs of patient transfer, and advises the patient that they may seek relief in the “appropriate district or county court” for an extension of the ten-day period of transfer.[46] In 2015, the legislature added additional requirements to the notice provisions of the Act.[47] Starting in 2022, stakeholders from Texas medical organizations worked together to attempt to reach another compromise between disparate positions following multiple failed legislative attempts.[48] In 2023, working group members collaborated to draft House Bill 3162, which was signed into law and became effective on September 1, 2023.[49] The amendment increases the number of days-notice required before an ethics committee meeting to seven days; increases the number of days post-meeting from ten to twenty-five; provides additional information to patients and their representatives; clarifies the role and composition of ethics committees; and further articulates the process of attempted patient transfers.[50]

Since TADA’s enactment, few disputes have reached the formal resolution procedure; even when it is employed, the parties often do not reach the decision stage of the ethics committee.[51] A 2004 study of 200 Texas hospitals reviewed 256 medical futility cases from 1999–2004.[52] The survey found “the families of 71 patients agreed to discontinue treatment,” the hospitals transferred thirty patients to another facility, “78 patients died before the 10-day waiting period expired,” “hospitals discontinued treatment for 33 [patients,] [a]nd despite [ethics] committee decisions, the hospital continued treatment for 45 [patients].”[53] A 2007 study found that out of 409 hospitals surveyed in Texas, thirty-three patients had been denied requested LSMT using the dispute resolution procedure.[54] A 2020 study found out of ninety-four Texas hospitals surveyed, the dispute resolution procedure was only engaged four times in two years.[55] These declining numbers suggest that the increasing number of due process challenges to the statute likely has had a chilling effect on Texas hospitals’ employment of the due process procedure.

B. The Framework for Due Process Challenges to TADA

TADA’s dispute resolution procedure has faced criticism for failing to satisfy families’ and patients’ procedural and substantive due process rights.[56] Both the emotional impact of the potential futility of continued medical care and a process weighted in favor of the care team and ethics committee can leave families feeling powerless. Not only does the care team generally have superior medical knowledge, but the ethics committee is typically staffed by employees or physicians of the hospital.[57] The short timeframe, likewise, pressures the families to make a difficult decision rapidly. The due process challenges to TADA’s dispute resolution procedure have primarily advanced two arguments: (1) private hospitals are “state actors” subject to the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983; and (2) TADA’s dispute resolution procedure violates patients’ procedural and substantive due process rights.[58] This Article primarily focuses on the latter argument, which arises when a court has already determined the private hospital and physicians are state actors. However, this Section briefly summarizes both components of the framework as it applies to private hospitals and physicians specifically, as the “state actor” determination is often a critical first step in determining the scope of any constitutional challenge.

1. Are Private Hospitals “State Actors”?

In T.L. v. Cook Children’s Medical Center, the Second Circuit Court of Appeals opined that private physicians and hospitals deciding whether to withdraw LSMT are performing “state actions,” subjecting them to the Fourteenth Amendment’s prohibition against states depriving individuals of their due process rights.[59] Whether this opinion is legally accurate is beyond the scope of this Article and should be addressed in further legal scholarship. However, generally, § 1983 liability does not extend to “merely private conduct, however discriminatory or wrongful.”[60] Private conduct is typically only considered state action in limited circumstances: (1) “when a private [actor] performs a traditional, exclusive public function”; (2) when a state coerces the private actor to take a particular action; or (3) “when [a state] acts jointly with the private entity.”[61] Courts have extensively litigated these three areas to draw the lines between private and state action.[62]

a. The Public Function Test: Performance of Traditional, Exclusive Public Functions. A private entity is a “state actor” under the public function test if it “exercises powers . . . traditionally exclusively reserved to the state.”[63] In Tinslee Lewis’ case, the majority opinion primarily focused on finding the Medical Center was a state actor after finding it engaged in a public function.[64] Specifically, the court came to this conclusion because the state traditionally acts under the doctrine of parens patriae to supervise parental medical treatment decisions and because the state regulates the dying process using its police power.[65]

Justice Gabriel disagreed with the majority’s analysis that life-or-death medical decisions are the “exclusive province of the state such that a private actor making such a decision is effectively acting as the state.”[66] While Justice Gabriel recognized that a state is certainly interested in end-of-life decision making, this interest does not equate to the state’s exclusive responsibility for making the decision.[67] Instead, Justice Gabriel paralleled the hospital’s treatment decisions regarding Tinslee as analogous to the private nursing home decisions that were not considered “state actions” in the seminal Supreme Court case, Blum v. Yaretsky.[68]

In Blum, a group of Medicaid patients sued the private nursing homes where they lived after the nursing homes made decisions to discharge or transfer them “without notice or an opportunity for a hearing.”[69] Federal law mandated private nursing homes to create utilization review committees to “periodically assess[] whether each patient is receiving the appropriate level of care, and thus whether the patient’s continued stay in the facility is justified.”[70] The private nursing homes determined the patients did not require a higher level of care and authorized transfer to other institutions pursuant to federal procedure, resulting in a reduction in Medicaid benefits.[71] The Supreme Court held that the transfer of patients pursuant to federal Medicaid utilization requirements was not state action.[72] The Supreme Court opined that the nursing homes, not the State, began the review, and that the private nursing homes’ staff determined the patients’ need for care based on the internal committee members’ discretion and professional standards, not on state guidelines.[73] This case further found a private hospital is not a state actor merely because it receives public funding.[74]

b. The State Compulsion Test: State Coercion of Private Hospitals to Undertake Particular Actions. Courts hold private entities are state actors when a state “significantly encourage[s] or somehow coerce[s] the private [entity], either overtly or covertly, to take a particular action so that the choice is really that of the state.”[75] While not dispositive, the Supreme Court has considered whether the procedure followed by a private hospital or physician is mandatory or discretionary as part of its coercion analysis.[76]

In Tulsa Professional Collection Services., Inc. v. Pope, the Supreme Court found that the appellant, a collection agency for a hospital, was a state actor when it used a discretionary state-created probate procedure requiring the probate court’s involvement in appointing an executor to activate a statutory time bar.[77] Instead of adopting a self-executing statute of limitations, the underlying statute required the probate court’s intimate involvement to appoint an executor or executrix to trigger the time bar for claims.[78] Without the probate court’s involvement, the time bar would never activate.[79] Because the collection agency made use of the probate procedure that required assistance from state officials, the court considered the agency a “state actor.”[80]

Similarly, in West v. Atkins, the Supreme Court found that a “private physician” who “provided orthopedic services to inmates” in state custody, as mandated by a contract with the State, was a state actor.[81] The prisoner patient was “not free to employ or elect to see a different physician.”[82] Rather, the patient was only able to receive care from the doctors the State selected and the State had an “affirmative obligation to provide [the patient] adequate medical care.”[83] The Court reasoned that the State used the physician to “fulfill [its] obligation” to the prisoner.[84] Therefore, the prisoner was limited in his choice of physician due to the “State’s exercise of its right to punish [the prisoner] by incarceration and to deny him a venue independent of the State to obtain needed medical care.”[85]

There are two primary arguments previously advanced under the state compulsion test against finding that private hospitals are state actors when following the TADA dispute resolution procedure.[86] First, like in Blum, the State created the procedure, but the statute does not dictate any guidelines for the actual decision-making process of factors to consider when determining whether the withdrawal of LSMT is appropriate.[87] That discretion squarely lies with the hospital ethics committee members.[88] The passage of House Bill 3162 seemingly undermines this argument because part of the amended bill now outlines five factors all hospital ethics committees are required to consider when determining appropriateness of continuing LSMT.[89] Second, unlike the patients in West v. Atkins who were required to see a specific physician, the surrogate decision makers may seek alternate healthcare facilities for patients on life-sustaining treatment. The physicians are under no contractual obligation from the State to provide medical treatment to patients.[90]

Similarly, the fact that the TADA dispute resolution procedure provides safe harbor immunity does not automatically make private hospitals state actors.[91] In Flagg Brothers, Inc. v. Brooks, the Court considered a state law that provided warehouses with a procedure for making a sale and granted them immunity if they followed that procedure.[92] The Supreme Court held that a warehouse was not a state actor just because it followed a state-provided remedy that granted it safe harbor immunity.[93] The Court reasoned that “mere denial of judicial relief” did not make the State responsible for the private warehouse’s actions.[94]

As it relates to private hospitals, the Fifth Circuit Court of Appeals case, Goss v. Memorial Hospital System, applied the Flagg Brothers precedent to analyze a statute providing for immunity of hospital medical-peer-review committees.[95] The Fifth Circuit analyzed a statutory provision in the Texas Medical Practice Act that provided immunity for hospitals’ medical peer review committees who reported physician incompetency to the Board of Medical Examiners.[96] The Fifth Circuit rejected plaintiff’s argument that the immunity granted by the State made the hospital’s committee the State’s “investigatory arm” and found that the hospital was not a state actor.[97]

c. The Nexus Test: State Acts Jointly with a Private Hospital. This final test considers whether there is a “sufficiently close nexus” between the State and the private entity’s challenged action such that the action may be considered one of the State.[98] In Klavan v. Crozer-Chester Medical Center, the Eastern District of Pennsylvania found private doctors and a private hospital were not state actors when the doctors acted against the desires expressed by a patient’s advance directive.[99] Specifically, the patient’s advance directive prohibited doctors from taking aggressive life-saving care or keeping him in a vegetative state.[100] Appellants argued that the private medical center was a state actor and violated the patient’s rights under 42 U.S.C. § 1983.[101] The court dismissed the claim, finding that the doctors and medical center were not state actors despite the relevant Pennsylvania statute requiring the hospital to either comply with the patient’s advance directive or attempt to transfer him.[102] In the context of the TADA dispute resolution procedure, proponents argue that the identical circumstances between TADA dispute resolution procedure cases and Klavan suggest the holding in Klavan should control.[103] Namely, because both cases address situations where private hospitals, regulated by state law, are sued for acting contrary to the orders of a patient’s surrogate, the hospital’s actions should not be attributable to the State.[104]

2. Does the TADA Dispute Resolution Procedure Violate Procedural and Substantive Due Process Rights?

This Article proceeds arguendo that private physicians and hospitals are “state actors” subject to constitutional challenge and focuses on the next step: whether the TADA dispute resolution procedure violates patients’ procedural and substantive due process rights.[105] When analyzing TADA due process concerns related to the Section 166.046 dispute resolution procedure and Section 166.045 immunity, one must distinguish between procedural and substantive due process. U.S. Supreme Court jurisprudence establishes that the Fourteenth Amendment right to due process comprises both procedural and substantive components.[106] Both analyses require a finding that a plaintiff was deprived of a protected interest.[107]

As due process applies to end-of-life disputes, the constitutional inquiry rests on whether the statute violates a patient’s right to life.[108] TADA critics argue that withdrawal of LSMT is equivalent to taking away a patient’s right to life.[109] TADA supporters argue that this assertion is not supported by Supreme Court authority.[110] For example, in Vacco v. Quill, the Court found that when LSMT is removed from a terminally ill patient, the patient dies from their underlying fatal disease or pathology rather than from the withdrawal of treatment.[111] The Court distinguished between “letting a patient die” and “making [a] patient die,” finding that withdrawing LSMT merely allowed the plaintiff’s underlying disease to run its course naturally.[112] Rather than framing the issues as a plaintiff’s “right to life,” the Court opined that the correct inquiry was whether the plaintiff had a constitutional right to medical treatment[113] and found such a right did not exist.[114]

Thus, in the context of withdrawing LSMT, procedural due process requires the government give notice and hold a hearing before a fair tribunal prior to withdrawing LSMT.[115] Should the courts recognize a “right to life” in the context of withdrawal of treatment, procedural due process, as the name suggests, protects individuals from deprivation of life, liberty, and property, without “constitutionally adequate procedures.”[116]

Substantive due process, in contrast, means the state must demonstrate a compelling reason to justify authorizing a hospital to withdraw LSMT against a patient’s or surrogate’s wishes.[117] Substantive due process considers whether there is “sufficient substantive justification” for deprivation of liberty, property, or, in this case, life.[118] Courts have found that the government violates substantive due process rights when individuals are deprived of “constitutionally protected rights by an arbitrary use of its power.”[119] In the context of end-of-life care disputes, patients may argue the dispute resolution procedure arbitrarily infringes on their right to life because it precludes them from enjoying the lifespan that might have existed had they continued to receive LSMT.[120] Without further limitations on how it is applied, the statute could deprive the patient of a few days of life, or potentially decades.[121]

While this analysis has been the long-standing method of analyzing substantive due process claims, the future of substantive due process rights as a whole has been called into question by Justice Clarence Thomas’ concurrence in Dobbs v. Jackson Women’s Health Organization.[122] Justice Thomas called for the Court’s reconsideration and overruling of all of the Court’s previous substantive due process decisions.[123] If the Supreme Court follows Justice Thomas’ directive, patients will have to fall back on primarily challenging procedures permitting withdrawal of LSMT on procedural due process grounds alone or seeking alternative constitutional protection.[124]

C. History of Due Process Challenges in Courts to the Texas Advance Directives Act

Although other cases have raised constitutionality concerns, the first direct constitutional challenge to the TADA dispute resolution procedure arose in the case of David Christopher Dunn.[125] In October 2015, Houston Methodist Hospital admitted Dunn for treatment of a mass on his pancreas.[126] The mass caused other organ dysfunction, ultimately requiring that he be intubated and placed on a ventilator.[127] In November, the hospital notified Dunn’s mother, Evelyn Kelly, that it was invoking the TADA dispute resolution procedure.[128] Ms. Kelly attended the ethics committee meeting, and the committee agreed with the recommendation to terminate LSMT.[129] The Texas Right to Life organization retained attorneys to obtain a restraining order preventing the hospital from terminating treatment.[130] Dunn passed away a month after the hospital would have otherwise terminated his treatment.[131]

Despite Dunn’s death, Ms. Kelly filed a motion for summary judgment asking the court to find Section 166.046 violated Dunn’s procedural and substantive due process rights.[132] Ms. Kelly argued Dunn’s procedural due process rights were violated because there was no adequate forum in which to be heard, insufficient evidentiary safeguards against hospitals and doctors, and no reasonable time or process for Dunn to be transferred.[133] Ms. Kelly argued that there was a lack of substantive due process because “there [was] no evidentiary standard imposed by Section 166.046,” meaning the ethics committee had “complete autonomy in rendering a decision that further medical treatment [was] ‘inappropriate’ for a person.”[134] Ms. Kelly claimed the issue was not moot because the application of TADA was “capable of repetition yet evades review.”[135] Texas Attorney General Ken Paxton filed an amicus brief on Ms. Kelly’s behalf.[136] Harris County District Judge Bill Burke denied Ms. Kelly’s motion, opining that the case was moot and that the legislature was the more appropriate venue to address constitutionality concerns.[137]

In 2019, the appellate court affirmed the trial court’s dismissal of the case for lack of subject matter jurisdiction, also finding no exception to the mootness doctrine applied.[138] The court reasoned that, because the hospital continued LSMT until Dunn died from his terminal condition, the hospital did not deprive any constitutionally protected present or future right to life. As such, there was no remaining controversy between the parties.[139] The court also rejected the “capable of repetition yet evading review” argument because Ms. Kelly could not demonstrate a “reasonable expectation” or “demonstrated probability” that the same controversy would recur involving her again.[140] Ms. Kelly’s case highlights a common barrier to adjudication and resolution of futile care cases, as oftentimes there is a mootness issue given the length of judicial proceedings and severity of the health conditions at issue.[141]

The hospital ethics committee decided Tinslee’s case a mere seven months after the appellate court ruled in Ms. Kelly’s case, starting the next due process challenge to Section 166.046.[142]

D. Procedural Due Process Protections and Concerns in the Texas Advance Directives Act

Even prior to the passage of House Bill 3162, TADA was lauded as providing unique due process protections in its dispute resolution procedure compared to other states.[143] House Bill 3162 amended TADA with the goal of increasing procedural due process protections with a focus on the patient’s “well-being.”[144] However, some of the prior criticisms remain.[145] This Section will highlight the primary changes to the Act that increase procedural due process for patients and healthcare providers, as well as outstanding due process concerns.

1. Requisite Notice and Time to Effectuate Patient Transfer

Adequate notice ensures parties have a meaningful opportunity to be heard prior to the deprivation of a fundamental right.[146] Critics of the prior dispute resolution procedure argued that forty-eight-hour notice of the initial ethics committee meeting was insufficient to afford patients and their surrogates adequate notice.[147] While prior efforts to expand the statutory notice period were unsuccessful, in practice, hospitals addressed the notice issue voluntarily by giving more than the minimum two-day notice. In fact, one study found the average notice given to a surrogate decision maker was 7.9 days.[148] House Bill 3162 amended TADA to require a minimum seven days-notice of an ethics committee meeting.[149]

Not only was the notice period arguably too short, TADA’s transfer procedure was also unrealistically short. TADA previously gave patients or their decision makers only ten days to seek and effectuate transfer to a different facility.[150] By contrast, hospitals are given fifteen days to comply with a patient’s request for medical records, a significantly more ministerial task.[151] House Bill 3162 amended TADA to require that hospitals make a reasonable attempt to transfer a patient to a willing provider in the next twenty-five days before LSMT may be withdrawn.[152] The Act mandates that hospitals continue treatment—along with palliative care—and artificially administer nutrition and hydration at all points during a transfer and after a search.[153] Physicians must also provide a list of available alternative medical care facilities, a statement explaining the patient’s right to transfer facilities, and the patient’s relevant medical records.[154] Finally, patients, through a surrogate decision maker or guardian, may seek relief through the courts to extend time to find another treatment provider.[155]

2. Ethics Committee Composition

Apart from specifying that the attending physician should not be a part of the review process, TADA does not specify a required composition of the ethics committee, which can lead to perceived bias in favor of the hospital.[156] Although organizations like the Joint Commission on Accreditation of Healthcare Organizations and the American Hospital Association provide some external parameters for composition of hospital ethics committees, these are recommendations rather than mandates.[157]

Without more stringent requirements regarding the composition of the committee, patients are unable to rely upon a “fair tribunal,” which is a basic requirement of due process.[158] Two primary concerns arise in committee composition: lack of diversity and insular and/or biased membership. Committees are often composed of individuals with similar “backgrounds, beliefs, and values” that fail “to bring the diversity of the community into the deliberative process.”[159] The committees may not reflect the community which the hospital serves or the race, gender, religious beliefs, or other identifiers of the patient, leaving voices unheard. Moreover, the committees often comprise hospital clinicians, administrators, and other “insiders” inclined to rule in favor of the hospital.[160] In Tinslee’s case, for example, the ethics committee was composed of twenty-two members, nineteen of whom were Cook Children’s Medical Center employees.[161] Some of the members had no prior involvement or familiarity with Tinslee’s care, and the non-medical members included a former Cook Children’s patient.[162] This process of committee formation creates the appearance that the deck is stacked in favor of the hospital.

Even though the Act now requires disclosure of the ethics committee members, TADA still lacks any procedure for the affected persons to object, request different committee members, or impact the composition.[163] Arguably, merely adding transparency to the committee selection process only partially addresses due process concerns.

3. Ethics Committee Procedure

As it relates to the committee procedure itself, prior to September 2023, the Act provided limited guidance for the ethics committee process.[164] House Bill 3162 introduced a list of five factors that ethics committees are required to consider when determining whether continuation of LSMT would be medically inappropriate, namely:

[W]hether provision of [LSMT]:
(1) [W]ill prolong the natural process of dying or hasten the patient’s death;
(2) [W]ill result in substantial, irremediable, and objectively measurable physical pain that is not outweighed by the benefit of providing the treatment;
(3) [I]s medically contraindicated such that the provision of the treatment seriously exacerbated life-threatening medical problems not outweighed by the benefit of providing the treatment;
(4) [I]s consistent with the prevailing standard of care; or
(5) [I]s contrary to the patient’s clearly documented desires.[165]

The Supreme Court has ruled due process requires that litigants receive a “written statement by the factfinders as to the evidence relied on and [the] reasons.”[166] Following the committee meeting, TADA, as amended, now requires that the committee issue a written decision articulating why it finds continuing LSMT is inappropriate if applicable, the patient’s major medical conditions identified by the committee, a statement of compliance with the Act’s requirements, and a list of healthcare facilities contacted to facilitate transfer of the patient.[167] Adding this requirement will assist patients in their ability to understand the decision and to seek judicial review.

4. The Surrogate Decision Maker’s Rights at Hearing

Under TADA, the patient or surrogate decision maker have a right to attend and participate in the ethics committee hearing.[168] The committee must review the patient’s medical circumstances and consider the patient’s “well-being,” then determine whether continuing life-sustaining interventions are inappropriate.[169] House Bill 3162 clarified that beyond attending the committee meeting, the patient or surrogate decision maker is entitled to receive a list of every committee member and to be accompanied by no more than four other individuals, including legal counsel or a patient advocate.[170] Further, the surrogate decision maker shall have the opportunity to articulate why they are requesting continued medical treatment, respond to any statements made about the patient, and state concerns regarding the patient’s current healthcare provider.[171] Notably absent from the decision maker’s articulated rights is the ability to ask questions of the attending physician during the meeting.[172] This leaves intact prior criticism that the language infringes on the patient and surrogate decision maker’s ability to confront and cross-examine the committee members, which, although not constitutionally guaranteed, is considered an “essential” element of due process.[173]

Moreover, although the Act now references a surrogate decision maker’s ability to attend the hearing with a patient advocate, the Act does not explicitly give the surrogate decision maker and patient the right, or a process through which, to appoint a patient advocate who could speak on their behalf.[174] This may be detrimental when the patient or decision maker is unfamiliar with medical terminology or when they do not fully understand the concepts and options being discussed.[175]

5. Ability and Direction to Appeal the Ethics Committee Decision

The U.S. Supreme Court has held that procedural due process requires “meaningful appellate review.”[176] The statute as amended is silent as to what procedures should be used to appeal the decision of an ethics committee. First, there is no internal review or appeals process within the hospital, which leaves judicial review as the only avenue for challenging a decision.[177] As discussed below, there is also no mechanism for getting findings of fact to facilitate a meaningful understanding of the decision or provide a basis for review.[178] For those who seek judicial review, the statute does not confer jurisdiction on any given court or type of court (i.e., probate, civil, district, etc.) or provide any deadlines or procedural steps for filing or resolving the dispute.[179] Should this be treated like a temporary restraining order or an expedited review? The statute does not identify what judicial review would entail or the applicable standard of review.[180]

This issue was addressed in Nikolouzos v. St. Luke’s Episcopal Hospital.[181] Spiro, a retired engineer, entered a persistent vegetative state and was “unable to think, communicate, move or eat” following a motor vehicle accident.[182] The St. Luke’s Episcopal Hospital ethics committee determined continued care would be inappropriate, and the ethics committee authorized discontinuation of care.[183] During the ten-day notice period after the decision, Spiro’s attorney sought injunctive relief from a Harris County district court.[184] St. Luke’s moved to dismiss, claiming that the probate court of Harris County had exclusive jurisdiction.[185] The appellate court dismissed the appeal for lack of jurisdiction.[186] Justice Fowler, in her concurring appellate opinion, noted that if the statutory language clearly specified which court had jurisdiction, there would be no need to prolong the case with jurisdictional disputes over the parties and subject matter.[187]

Similarly, Justice Fowler noted the lack of guidance within Section 166.046 to direct families regarding what steps they “must take to have [their] complaint heard, and . . . timetables within which the parties and the court must act.”[188] Justice Fowler observed that Spiro’s counsel opted to file an original and amended petition requesting a temporary restraining order and injunctive relief to utilize existing procedures for judges to quickly resolve disputes.[189] Justice Fowler criticized Section 166.046 for failing to provide a specific process through which litigants could notify the court of the nature of the claim and initiate unique accelerated procedures.[190]

E. Substantive Due Process Concerns with the Texas Advance Directives Act

The statute governing the TADA dispute resolution procedure still does not provide an applicable evidentiary standard at the hospital level or in the judicial setting, does not explain the process the committee should use or follow, and does not require that the committee specify the basis for its opinion.[191] In addition to the procedural due process concerns outlined above, this creates potential substantive due process concerns.[192] Without a well-defined evidentiary or other legal standard for the ethics committee and courts to follow when determining whether to terminate LSMT, a patient’s substantive due process rights may be minimized.[193] Scholars have argued that committees should apply a clear and convincing standard to afford adequate due process to patients and their decision makers.[194] The call for a heightened evidentiary standard is supported in other areas of healthcare decision-making jurisprudence, citing to the process used for involuntary mental health commitments or holds.[195] Alternatively, the Texas Health and Safety Code currently provides that a court must find by a preponderance of the evidence that there is a reasonable expectation the family or surrogate will be able to find another healthcare facility that will honor the patient’s directive if the extension is granted when considering whether to extend the ten-day grace period for continuing LSMT.[196] Arguably, this evidentiary standard should extend to other decisions under this section of the Code as well. Irrespective of which standard is ultimately chosen, the key is for the statute to define the standard and take the guesswork out of the process.

F. Conflicting Rights and Concerns of Patients and Healthcare Providers

In disputed cases involving end-of-life care, the parties may have divergent interests and beliefs that make compromise difficult.[197] Due process seeks to balance the rights of those seeking to continue LSMT with the moral and ethical concerns and Hippocratic ideals of those seeking to terminate the treatment.[198] Oftentimes a patient’s surrogate decision maker is a family member.[199] The patient and/or family may believe—and believe correctly as Tinslee Lewis’s case shows—that care is not futile.[200] While this position is understandable, there is another, equally persuasive view to those who believe withdrawing treatment is appropriate. Healthcare advocates argue TADA codifies a “right[] of conscience of all healthcare providers to withdraw from providing treatment they deem futile and injurious to the patient.”[201] This right encompasses a right to refuse medical treatment that violates their ethics or conscience.[202] Becket Gremmels, System Director of Ethics for CHRISTUS Health, explained that doctors and nurses feel “they violate human dignity by forcing extraordinary treatment on patients . . . [which are not] life-prolonging medical interventions but death-prolonging interventions.”[203] Nurse Ellen Martin testified before the legislature to her belief that end-of-life situations cause nurses and physicians “[t]he highest moral distress” sufficient to cause nurses to leave the profession.[204]

Moreover, hospitals have economic and legal interests to protect.[205] A 2013 study of five intensive care units (ICUs) found that over a three month period, 232 of 1,136 patients (20.6%) received care that was either probably futile (8.6%), futile (11%) or futile on the day the patient transitioned to palliative care (1%).[206] The study found that these ICUs spent approximately $2.6 million on futile care over the course of a study.[207] For Tinslee Lewis alone, the cost of her LSMT totaled $24 million, although she did ultimately survive her congenital issues.[208] These costs place a burden not only on the hospital but also on the federal government and the state, where Medicare and Medicaid pay for patient care.[209] A study conducted by the Centers for Medicare and Medicaid Services (CMS) found approximately $107 billion of the $446 billion Medicare and Medicaid budget—nearly 25%—is spent on aggressive life-sustaining procedures that prove to be futile.[210] Expediting and streamlining the TADA dispute resolution procedure could assist in reducing these costs and reallocating the funds to effectively assist a greater number of patients.[211] This highlights the tension between the valid questions related to cost of care and the value of individual life.

Hospitals and physicians have a more specific interest in ensuring the TADA due process procedure is upheld as constitutional so they can enjoy safe harbor immunity from future lawsuits. This safe harbor protects against unnecessary or futile treatment ordered by providers solely to avoid a lawsuit because myriad forces drive litigation: protecting rights, mistrust in the medical system,[212] and because patients lack a personal connection with the treating physician.[213]

To add one more wrinkle, additional interests arise when the patient requiring LSMT is a minor. Termination of LSMT in the case of minors warrants special attention because in addition to the minor’s constitutionally protected right to life, the court must consider parental rights stemming from the parent-child relationship.[214] It is well established that parents have a fundamental right to make decisions concerning the care, custody, and control of their children, and it is presumed that fit parents act in the best interests of their children.[215] This medical decision-making includes the right to consent to medical treatment on behalf of a child in the event of an emergency or immediate danger, as is the case with end-of-life disputes.[216] Decisions regarding withdrawal of LSMT necessarily require an inquiry as to whether, and to what extent, the withdrawal violates a parent’s rights and interests as to their child.

III. Survey of Application of Existing End-of-Life Dispute Procedures and Statutory Provisions

A. The Medical Futility Dispute Approaches in the United States and D.C.

Texas has the most detailed dispute resolution procedure for medical futility disputes compared to any other state in the United States or the District of Columbia.[217] The survey analysis below provides an overview of the obligations of physicians under other state statutes and obligations to notify and inform any surrogate decision makers of a healthcare provider or facility’s decision to withhold or withdraw LSMT.

1. The Statutory Requirements for Patient Transfers in Medical Futility Disputes

While all states provide for an option for transfer of a patient if a hospital refuses to comply with instructions from a surrogate decision maker or patient regarding end-of-life care, states differ as to whether it is the healthcare provider’s obligation to arrange and pay for the transfer and what statutory obligations are imposed upon the providers when a transfer becomes necessary.[218]

Sixteen states and the District of Columbia provide that hospitals shall transfer or take all “reasonable steps” to effectuate the transfer of a patient when they are unwilling or unable to comply with a patient or surrogate decision maker’s directive for LSMT.[219] The remaining thirty-four states place more specific affirmative statutory obligations on healthcare providers under these circumstances.[220] The three most common statutory obligations include: (1) informing or notifying the patient or surrogate decision maker of the provider’s refusal to comply with further treatment; (2) documenting the conflict and making a determination regarding further treatment in the patient’s medical record; and (3) providing continuing care for the patient until the transfer can be effectuated.[221] These obligations provide additional due process for patients and surrogate decision makers seeking to challenge the decision to withdraw treatment and ensure a healthcare provider cannot withhold treatment pending transfer.

Among the states that require notification of the surrogate decision maker prior to transfer, a minority of states place the burden on the surrogate decision maker to arrange for the patient’s transfer prior to involving the healthcare provider.[222] In New York, the statute puts the initial responsibility on the surrogate decision maker to effectuate the transfer.[223] However, if the surrogate decision maker fails to do so, the statute then permits the hospital to “intervene” and facilitate the transfer.[224] If the transfer is not effectuated, then the statute places the burden on the healthcare provider to seek judicial relief or, alternatively, continue administering the LSMT.[225] Overall, although these statutory requirements address patients’ due process concerns, they place substantially less burden on healthcare providers than TADA, while still providing for immunity from civil or criminal liability and guilt of unprofessional conduct.[226]

2. “Reasons of Conscience” Exemptions for Physicians and Providers

Twenty-two states have passed statutes providing that an individual healthcare practitioner shall not be compelled to comply with a surrogate decision maker’s instruction or decision regarding LSMT for “reasons of conscience” or on other moral or ethical grounds.[227] Two states, Massachusetts and West Virginia, add that a physician is not required to honor a healthcare decision regarding end-of-life care if they object based on religious beliefs.[228]

On an institutional level, multiple states also provide that healthcare facilities may decline to comply with an individual’s healthcare decision based on a written policy of the facility.[229] In these states, the statutes generally require that the policy is timely communicated to the patient or surrogate decision maker.[230] Regardless of whether the state provides an “out” for hospitals that have an explicit written policy, hospitals across the United States have increasingly adopted written policies surrounding “futile care.”[231] Further, scholars, medical ethics committees, and hospitals across the country have recommended adoption of guidelines regarding medical futility by medical institutions.[232] To try to mitigate against any disputes over the definitions of “futility,” hospitals and ethics committees explicitly set forth when medical intervention would be considered “futile.”[233] The guidelines explicitly state a “physician is under no obligation to initiate, or to continue such treatment, even though it may have been requested by the patient, or the patient’s family or representative(s).”[234] Such policies and guidelines help both healthcare providers and patients understand as early as the time they are admitted to the hospital that the hospital will not provide futile care in the event of a dispute. Interestingly, the American Medical Association (AMA) cautions hospitals against adopting a blanket policy for “futile” care.[235] According to the AMA, the definition of “futile” depends on the individual patient’s values and goals.[236] Rather, the AMA recommends that if a healthcare team determines a course of treatment is not “medically appropriate,” physicians should attempt to consult with the surrogate decision maker to try to agree on a mutual plan.[237] If still unable to reach an agreement, the AMA then directs physicians to consult with their institution’s ethics committee.[238] If the decision of the ethics committee is inconsistent with either the patient/surrogate or the physician’s wishes, then arrangements may be made to transfer the patient.[239]

3. Judicial Review of Healthcare Provider Decisions

To add another layer of procedural due process, several states have statutes explicitly providing steps for a judicial review process when disputes arise regarding withholding of LSMT.[240] In Oregon, the statute specifically delineates individuals who can file a suit and directs them to file the suit “in the circuit court in the county in which the [patient] resides.”[241] The statute further advises that the petition may seek appointment of a guardian on behalf of the patient as part of a protective proceeding.[242]

The Ohio judicial review statute delineates the timeline for both the physician and the hospital, and sets forth detailed requirements for the initial complaint, requested orders, and affidavits, along with which court a surrogate decision maker shall file a complaint.[243] Specifically, the Ohio statute gives a surrogate decision maker forty-eight hours upon receiving notice to object.[244] If the decision maker objects, they shall file a complaint in the probate court of the county where the patient is located.[245] Further, the statute provides that the probate court should expedite proceedings filed under the act, effectuating service, within three days after filing of the complaint if possible and scheduling a hearing “no later than the third business day after the service has been completed.”[246] The court is then required to enter its determination on whether an order will issue immediately after the hearing.[247]

B. The United Kingdom’s “Best Interests” Test

On April 7, 2022, paramedics rushed twelve-year-old Archie Battersbee to Southend Hospital after he was found unresponsive in his home.[248] Archie passed out after participating in the “blackout challenge,” popular on social media platforms, when participants held their breath until they lost consciousness from lack of oxygen.[249] Archie was transferred to two other hospitals, ultimately ending up at Royal London Hospital. Both hospitals agreed surgical intervention would not help him recover from his severe irreversible brain injury.[250] Archie’s case was litigated and appealed to the High Court of Justice in London, the Court of Appeal, and Supreme Court, which decided the case by considering Archie’s “best interests.”[251]

Two aspects of the United Kingdom courts’ analyses are illustrative for U.S. courts. First, the United Kingdom decisions expressly considered Archie’s “best interests” in the final ruling with a presumption of continuing treatment that prolonged his life.[252] Following precedent,[253] the High Court articulated several factors it considered in determining Archie’s best interests: (1) the views of Archie’s family as to what Archie’s attitudes would be towards the treatment; (2) whether it was in Archie’s best interest to receive LSMT;[254] (3) Archie’s social, psychological, and medical welfare; (4) the nature of the medical treatment in question; (5) what the treatment involved and the prospects of success; (6) what the outcome of the treatment would likely be; (7) putting the court in place of Archie as to what his attitude toward treatment would likely be; (8) the view of Archie’s doctors; and (9) Archie’s views (including moral, ethical, and religious views), with the appropriate weight given based on Archie’s age and understanding.[255] Ultimately in weighing these factors, the court found “the burdens of treatment and his condition along with the total lack of a prospect of recovery outweigh Archie’s Christian beliefs and the benefits to him of a continuing life on mechanical ventilation for a few more weeks or months with all the other procedures that that entails.”[256] The court’s analysis in Archie’s case follows the well-established analysis undertaken by British courts in looking at the patient’s “welfare in the widest sense” to determine their best interests.[257] This goes beyond just medical welfare, by looking at the patient’s social and psychological welfare as well, when a court tries to put itself in the shoes of the patient to determine whether withdrawal of LSMT is proper.[258]

The other salient takeaway was the quick duration of the legal process from initial filing to final order. It took less than four months from the time the case was initiated in the High Court to the time the Court of Appeal issued a final order refusing permission to appeal.[259] During this time, there were two separate High Court of Justice proceedings initiated: one by the National Barts Health National Health Services (NHS) Trust and another by Archie’s parents.[260] The initial application by the hospital sought an order compelling brain stem testing, which the High Court granted.[261] When no brain activity was detected, High Court Justice Arbuthnot ruled that doctors could withdraw LSMT.[262] The Court of Appeal then ruled that the case should be decided by a different High Court Justice. Justice Hayden, a mere month later, also ruled in favor of the NHS Trust, finding there was no hope of recovery.[263] The Court of Appeal affirmed the High Court Justice’s ruling, and the U.K. Supreme Court declined to intervene.[264] Archie’s parents attempted to appeal to the United Nations Commission for the Rights of Persons with Disabilities (UNCRPD), which requested the Court of Appeal postpone the termination of Archie’s treatment until they could review the case.[265] The Court of Appeal rejected the request, and the U.K. Supreme Court refused permission to appeal the following day.[266]

The second action, filed by Archie’s parents, asked that Archie be moved to hospice.[267] A day after the filing, the High Court ruled it was not in Archie’s best interest to be transferred to hospice, and the Court of Appeal refused permission to appeal later that day.[268] One day after the final decision, the hospital removed LSMT.[269] While doubtless a painful process for all involved, the courts in the United Kingdom acted quickly and decisively such that the process was not unnecessarily protracted.

The expedited nature of Archie’s case does not appear to be anomalous.[270] In a case decided around the same time, the underlying court ruled it was in the best interest of a nine-week-old baby to withdraw LSMT.[271] The Trust first applied to the High Court on June 27, 2022, and even with an intervening amendment of the underlying complaint, an appeal, and the retention of an expert witness for the final hearing, the court issued its final ruling three months later on September 28, 2022.[272]

By contrast, In re T.L. took nearly fifteen months to resolve. The Tarrant County District Court issued a temporary restraining order on November 10, 2019, but denied the request for injunctive relief on January 2, 2020.[273] The court of appeals reversed on July 24, 2020,[274] and the Supreme Court of Texas declined review on October 16, 2020.[275] The U.S. Supreme Court ultimately denied certiorari on January 11, 2021.[276] In addition to the considerable time lost, this delay also came at extraordinary cost to the hospital.[277] According to Cook Children’s motion for expedited scheduling order, the hospital had “incurred [over] $24,000,000 in billable charges through 2020.”[278] Whether in emotional cost or actual dollars, Archie’s case exemplifies the difference an expedited judicial process could make on this type of decision-making.[279]

C. Guidance from Family Courts and Underlying Statutes

When considering mechanisms for making end-of-life decisions regarding minor children specifically, it is helpful to look at other areas of law where there is frequent litigation of decisions relating to the rights of children. Examining other states’ family law statutes provides a pre-existing framework that may be adopted in the context of medical decision-making through the “best interests of the child” standard, clear and convincing evidence standard, and procedural requirements for other medical procedures.

1. Determining Best Interests of the Child

All fifty states have adopted the “best interests of the child” standard for custody determinations.[280] As in the United Kingdom approach articulated above, family courts widely consider a list of factors that is either delineated within the state’s statute or through judicial precedent.[281] Several states further require specific findings of fact as to each factor to assist parents in understanding the reasoning for a court’s decision.[282]

As it applies to medical futility cases, although “best interests” is not the standard delineated in state health and safety codes, it appears healthcare facilities already consider evidence relating to the “best interests of the child” to support their initial ethics committee determinations.[283] This emphasis on a patient’s best interests aligns closely with the new directive under TADA for ethics committees to consider the patient’s “well-being” as opposed to their “quality of life.” Adopting best interest factors beyond the limited guidance provided by House Bill 3162 on the committee level may assist both healthcare providers and courts in determining the relevant factors to analyze when making these determinations.[284]

2. Termination of Parental Rights

The question remains unanswered as to what legal standard courts should employ when making decisions regarding end-of-life treatment. In the context of minor children in particular, it is helpful to consider the legal standard for terminating a parent’s decision-making rights.[285] In Santosky v. Kramer, the Court struck down New York’s provision that only required a “fair preponderance of the evidence” to terminate a parent’s rights. [286] The Court found a preponderance of the evidence standard is insufficient because it does not protect the private interests in question, has a high risk of error, and does not counter the risk of erroneous termination of rights.[287] To terminate a parent’s rights, courts must find by clear and convincing evidence that an enumerated ground for termination has been satisfied and that the termination is in the best interests of the child.[288]

The applicability of the clear and convincing evidence standard to the inquiry at hand is illustrated in the 2014 Maine case study of Aleah Peaslee.[289] In this case, Aleah’s father violently shook her to stop her from crying when she was only six months old.[290] As a result, she suffered catastrophic brain injuries, and the parents initially consented to a DNR order.[291] However, rather than dying within ten minutes of being taken off the ventilator as predicted by the doctors, Aleah emerged from her coma and started breathing without support.[292] Accordingly, her parents rescinded the DNR.[293] Aleah’s doctors urged Aleah’s mother to reinstate the DNR so they could administer medications that would ease her pain but “would inevitably lead to her death.”[294]

When the parents and the hospital reached an impasse, because there is no equivalent dispute resolution procedure in Maine, the State Department of Health and Human Services filed for and obtained a protective order against Aleah’s parents.[295] “District Court Judge Valerie Stanfill authorized [the department] to consent to a DNR over a parental objection” and found there was “clear and convincing evidence that neither parent [wa]s in a position to make medical decisions in [Aleah]'s best interest” but did not terminate either parent’s rights.[296] Though the case was ultimately dismissed by the Maine Supreme Judicial Court,[297] this case illustrates the competing interests between the state and patient as well as parent and child that require a heightened legal standard. Courts have found that in the context of terminating a parent’s medical decision-making rights, the clear and convincing evidence standard strikes the appropriate balance between these two sets of interests.[298]

3. The Parental Notification Bill: Texas Family Code § 33.003

Section 33.003 of the Texas Family Code (the “Parental Notification” bill) is particularly illustrative of existing processes that may be available options outside of family court. The statute outlines the process through which pregnant minors in Texas can seek an application for an abortion without the notification or consent of a parent.[299] While the viability and enforceability of this bill appears to be largely moot following the U.S. Supreme Court’s decision of Dobbs v. Jackson Women’s Health Organization and the passage of Texas Senate Bill 8,[300] the language of the provision and its application in Texas jurisprudence is still illustrative of how courts have addressed other areas of medical decision-making for minors.[301]

First, Section 33.003 clearly defines the court where actions should be brought. It instructs pregnant minors that the application must be filed in a “county court at law, court having probate jurisdiction, or district court, including a family district court, in the minor’s county of residence.”[302] Second, the statute delineates the required allegations that are necessary for an application submitted under the section, and imposes a deadline for courts to issue a ruling.[303] The court under Section 33.003 is required to rule on an application and submit “written findings of fact and conclusions of law not later than 5 p.m. on the fifth business day after the date the application is filed with the court.”[304]

Additionally, the statute mandates the court appoint a Guardian Ad Litem (GAL) in these cases to “represent the best interest of the minor.”[305] The statute first outlines specific individuals who are eligible to serve as GAL for the child.[306]

Then, in helping to guide courts and GALs, the statute delineates factors for a court to consider, including (1) “the experience, perspective, and judgment of the minor;” and (2) “the minor’s reasons for not wanting to notify and obtain consent from a parent, managing conservator, or guardian.”[307] Further, Texas case law has adopted the relevant best interest factors from Holley v. Adams as applicable to the issue of parental notification, namely:

(1) the minor’s emotional or physical needs; (2) the possibility of emotional or physical danger to the minor; (3) the stability of the minor’s home and whether notification would cause serious and lasting harm to the family structure; and (4) the relationship between the parent and the minor and the effect of notification on that relationship.[308]

Finally, the statute addresses substantive due process concerns by imposing a legal standard, requiring the court to determine by clear and convincing evidence whether “(1) the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of a parent, managing conservator, or guardian; or (2) the notification and attempt to obtain consent would not be in the best interest of the minor.”[309]

IV. Recommendations for Increasing Due Process in End-of-Life Dispute Resolution Procedures

The legislative history of House Bill 3162 exemplifies the challenges of reaching a compromise between all relevant stakeholders when addressing end-of-life care disputes.[310] Markedly, a similar iteration of the bill was previously introduced in Texas’ 2021 legislative session as Senate Bill 1944,[311] and companion bill, House Bill 3099.[312] Among the proposed amendments were: (1) requiring the ethics committee to appoint a liaison to assist the patient or patient’s surrogate throughout the committee process; (2) requiring seven-day advance notice rather than the current forty-eight hours; (3) prohibiting the patient’s attending physician from participating in case review as part of the committee; and (4) extending the time to find an alternate facility to transfer the patient to fourteen days instead of ten.[313] The bills were ultimately left pending in committee.[314] Although these legislative efforts did not make it through the senate or house, the provisions in the draft bills were admirable and worth further expanding upon for future legislation. Texas legislators continued working on the legislation to reach House Bill 3162.[315] House Bill 3162 takes a large step in the right direction to increase due process protections for future patients, but still leaves some open questions, particularly how to challenge ethics committee decisions in the court system.

Giving due consideration to the prior legislative proposals and recent passage of House Bill 3162, this Section advances a two-tier approach to build upon the progress made with House Bill 3162. This approach not only addresses criticisms of the Texas procedure, but also lays out a roadmap for other states to adopt and implement their own dispute resolution procedures.

A. Tier One: The Hospital Procedure

1. Appointment of Patient Representative

As mentioned above, the Act as amended references that a patient advocate may attend the hearing with a patient’s surrogate decision maker, but does not give guidance as to how a decision maker would find or seek appointment of said advocate.[316] At the committee level, the patient, through their surrogate decision maker, should have access to a patient advocate who would be available to assist them and appear before the hospital ethics committee. The patient representative would assist the surrogate decision maker in communicating with the healthcare providers and help them find legal counsel if necessary. To ensure consistency across the state, the state should maintain a specific list of representatives, who ideally are also trained to serve as attorneys or GALs in the event the case is filed in court. These patient representatives can be members of local medical or hospital organizations, or even hospital staff themselves, and should be required to undergo a mandatory training program specific to their role in hospital ethics committee procedures.[317]

2. Additional Requirements for Hospital Ethics Committees

House Bill 3162 added due process protection for patients and their decision makers by introducing factors committees should consider when determining whether continued LSMT is medically inappropriate, extending requisite notice of the hearing and committee member list to seven days in advance, and requiring written reasoning of the ethics committee.[318] However, it left open two major questions regarding membership of the committee and whether committee members must answer questions posed by surrogate decision makers.

As set forth above, under the current version of Section 166.046, there are no requirements for the ethics committee to have a certain makeup of membership or provide transparency of committee decisions.[319] To address the due process concerns surrounding ethics committee bias, the Texas legislature should mandate a certain composition of committee members. In looking at committee membership, TADA should consider following the model of the Consent and Capacity Board (CCB)—the dispute resolution tribunal in Ontario, Canada.[320] In Ontario, if a physician finds a surrogate is not acting in a patient’s best interests, they can appeal to the CCB to resolve the dispute.[321] The board is composed of a psychiatrist, lawyer, and layperson, and they determine whether “the surrogate is acting upon either (1) a known expressed wish regarding [the underlying] situation, or, in the absence of such knowledge, (2) the incapable person’s best interests.”[322] A 2013 study examining CCB decisions underscored that the board both served to hold physicians accountable for failing to meet their ethical and legal obligations to parents, while also uncovering divergence of a patient’s best interests and their surrogate decision maker’s own values and beliefs.[323] While the CCB’s rulings do not set a formal precedent, they are publicly available and help guide future CCB determinations.[324] In addition to these members, a patient representative, if applicable, must be present at the ethics committee meeting to present findings of their investigation.

3. Clarification on Right to Question Committee Members

Although there is no constitutional right to confrontation or cross-examination at the hospital level or when adjudicating civil liability of a physician, the ability to ask and receive answers to questions is an important component of due process that would not overly burden committee review. In reading the plain language of the amended text, it appears the surrogate decision maker is entitled to give statements and responses regarding the patient but may not have the right to meaningfully interact and question the committee members.[325] Clarification on the decision maker’s ability to participate would assist both the hospital’s and decision maker’s understanding of their obligations and rights under the Act.

B. Tier Two: The Court Process

1. Specifying Court to File Action

As set forth above, Ohio Health and Safety Code Section 2133.05 and Texas Family Code Section 33.003 serve as examples of statutes that assist patients seeking to challenge a decision in court by establishing the procedure for filing an application for a court order.[326] This addresses Justice Fowler’s first recommendation from the Nikolouzos case to help expedite the process for patients and their surrogate decision makers where they likely do not know the appropriate court in which to file, depending on where they reside.[327] This can avoid unnecessary clogging up of courts where the action is not properly brought.

2. Creating Expedited Judicial Process for Ethics Committee Review Hearings

Justice Fowler’s second recommendation from the Nikolouzos case provided that the statute should be amended to “direct a family what to call their action, specify the steps a family must take to have its complaint heard, and include timetables within which the parties and the court must act.”[328] First, courts should adopt an expedited judicial process specifically for end-of-life dispute proceedings. This should be similar to the courts’ existing procedures for other expedited proceedings, including temporary restraining orders[329] and protective orders.[330] Using the Ohio model as a guide, a court should expedite proceedings filed under the Act, effectuating service, within three days after filing of the complaint if possible, and schedule a hearing “no later than the third business day after the service has been completed.”[331] The court should then be required to enter its determination on whether an order will issue immediately after the hearing.[332] This three-day period should be within, not added to, the grace period wherein a hospital is required to continue LSMT for a patient.

The statute should also follow Ohio’s model in providing required elements of an initial complaint and affidavit, including, but not limited to:

(1) The name of any healthcare facility where the patient is currently being treated;
(2) The name of the patient’s attending physician and any consulting physicians/staff;
(3) A written objection to the withdrawal of LSMT and basis for the objection, addressing the written findings made by the ethics committee where relevant; and
(4) The requested relief (i.e., an order for re-evaluation by the hospital ethics committee, an order invalidating the ethics committee decision/enjoining the healthcare provider from withdrawing LSMT).[333]

Large states like California have already adopted a similar expedited process for obtaining temporary restraining orders under these circumstances, suggesting that it would not place an undue burden on the judiciaries of states of similar size or smaller to follow suit.[334] Providing clear guidance will help courts and their clerks flag end-of-life dispute cases for expedited review and ensure complaints, when filed, contain the information needed for courts to issue an immediate ruling.

3. Appointment of a Guardian Ad Litem

In cases involving minors, courts should require the appointment of a GAL to assist in its decision-making process.[335] GALs are used in other areas of law, including family and probate law, to help courts determine what is in the “best interests of the child.”[336] In the family law context, GALs are charged with “conduct[ing] an investigation to the extent . . . necessary to determine the best interests of the child.”[337] Further, as it pertains to providing medical treatment, GALs are tasked with “review[ing] the medical care provided to the child” and “in a developmentally appropriate manner, seek[ing] to elicit the child’s opinion on the medical care provided.”[338]

Similar to GAL training around the country for divorce and probate cases, there should be GAL training specifically for GALs investigating the best interests of a child receiving LSMT and continuing education requirements. Ideally, states should also codify requisite qualifications for GALs along with a list of duties, including but not limited to:

(1) Interviewing the medical treatment team at the hospital where the child is hospitalized;
(2) Reviewing medical records from the child’s hospitalization including but not limited to, significant event notes, records of CT exams and x-rays, EEG reports, and Medstar records;
(3) Interviewing the child’s parents and relevant family members;
(4) Reviewing list of facilities that declined to accept child for patient transfer, if any;
(5) Reviewing all relevant court proceedings; and
(6) Investigating what is in the best interests of the child.

A GAL investigating the case and the best interests of the child should weigh a list of factors similar to those considered by the United Kingdom High Courts of Justice in cases like Archie Battersbee’s,[339] including but not limited to:

(1) The views of the patient child’s family as to what patient child’s attitudes would be towards the treatment;
(2) Whether it was in the patient child’s best interest to give LSMT;[340]
(3) The patient child’s social, psychological, and medical welfare;
(4) The nature of the medical treatment in question;
(5) What the treatment involves and the prospects of success (prognosis);
(6) What the outcome of the treatment for the patient child is likely to be;
(7) What the patient child’s attitude toward treatment would likely be;
(8) The views of the patient child’s doctors;
(9) The patient child’s views (including moral, ethical, and religious views), with the appropriate weight given based on the patient’s age and understanding;
(10) The possibility of emotional or physical danger to the minor; and
(11) The relationship between the parents and the minor.[341]

A registry of available GALs with the requisite training should be maintained by hospitals and provided to surrogate decision makers in tandem with the list of the state-maintained registry of healthcare providers and referral groups.[342] GALs should have fourteen days to complete their investigation. Thereafter, they should be permitted to sit as members of the ethics committee when making a final determination regarding withdrawal or continuance of LSMT. Ideally, the GAL would complete a written summary of their recommendations, outlining at a minimum, the following:

(1) Actions taken by the GAL (documents reviewed, people interviewed, etc.);
(2) Desires of the child’s family;
(3) Position of the hospital;
(4) Efforts to locate alternative care;
(5) Procedural history;
(6) Recommendations.[343]

4. Adoption of the Clear and Convincing Evidence Standard

Following the guidance of cases involving termination of parental rights, specifically rights to make medical decisions for minor children, courts should apply a clear and convincing evidence standard when deciding end-of-life treatment cases for minor children. A clear and convincing evidence standard balances the procedural due process considerations of private interests affected by the proceedings, risk of error created by the state’s chosen procedure, and the countervailing governmental interests supporting the use of the challenged procedure.[344]

V. Conclusion

The TADA dispute resolution procedure reflects a compromise between all interested stakeholders in Texas. With its recent amendment, the Act takes a large step in the right direction towards resolving intractable differences while ensuring due process protection to future patients and their surrogate decision makers while acknowledging the state’s concerns. The process encourages consideration of myriad relevant factors including the patient’s imminent death; the futility of recovery; the existence of a DNR; the patient’s and surrogate’s wishes and whether those wishes conflict; whether the interventions requested by the family harm rather than help the patient; recognizing the dignity of the patient; and the moral and conscience objections held by the treating doctors and nurses.

Rather than resorting to court as a first step, states should follow Texas and adopt a dispute resolution procedure modeled on TADA to help balance the complexity of considerations raised by the State, the patient, and their surrogates. By adopting a two-tier approach with additional requirements for healthcare providers and courts, states can ensure patients and their surrogate decision makers are afforded due process while granting peace of mind of civil and criminal immunity to providers.

Appendix A[345]

 
State Statutory Transfer Procedure[346] Allows for Individual Healthcare Provider’s Refusal to Comply with Patient’s Decision re: Life-Sustaining Treatment Based on “Reasons of Conscience,” Moral or Ethical Considerations Allows for Healthcare Institution’s Refusal to Comply with Patient’s Decision re: Life-Sustaining Treatment Based on Written Policy Timely Communicated to Patient
Alabama[347]
Alaska[348] X X X
Arizona[349] X
Arkansas[350] X X X
California[351] X
Colorado[352] X X
Connecticut[353] X
Delaware[354] X X X
D.C.[355]
Florida[356] X X[357] X
Georgia[358] X
Hawaii[359] X X X
Idaho[360] X X
Illinois[361]
Indiana[362]
Iowa[363]
Kansas[364]
Kentucky[365] X
Louisiana[366]
Maine[367] X X X
Maryland[368] X
Massachusetts[369] X X
Michigan[370]
Minnesota[371] X
Mississippi[372] X X X
Missouri[373]
Montana[374] X
Nebraska[375] X
Nevada[376] X
New Hampshire[377] X X
New Jersey[378] X X X
New Mexico[379] X X
New York[380] X X
North Carolina[381] X X
North Dakota[382] X X
Ohio[383] X
Oklahoma[384]
Oregon[385] X
Pennsylvania[386] X X X
Rhode Island[387]
South Carolina[388]
South Dakota[389]
Tennessee[390] X X
Texas[391] X
Utah[392] X X X
Vermont[393] X X
Virginia[394] X
Washington[395] X X
West Virginia[396] X X
Wisconsin[397] X
Wyoming[398] X X X

  1. See Petition for Writ of Certiorari at 8, Cook Child.'s Med. Ctr. v. T.L. ex rel. T.L., 141 S. Ct. 1069 (2021) (No. 20-651). Tinslee was diagnosed with “a severe form of Ebstein’s anomaly, a congenital defect in which the right atrium of the heart is enlarged and misshapen.” T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 26 (Tex. App.—Fort Worth 2020, pet. denied).

  2. Petition for Writ of Certiorari, supra note 1.

  3. Id.

  4. Id.

  5. Id. at 12. See Fort Worth Toddler Returns Home After Years-Long Battle Over Life Support, NBC News (Apr. 13, 2022, 6:47 PM), https://www.nbcdfw.com/news/local/fort-worthtoddler-returns-home-after-years-long-legal-battle-over-life-support/2939311/ [https://perma.cc/JF86-TLGT].

  6. Petition for Writ of Certiorari, supra note 1, at 12 (quoting 2 Court of Appeals Record at 149, Cook Child.'s Med. Ctr. v. T.L. ex rel. T.L., 141 S. Ct. 1069 (2021) (No. 20-651)).

  7. Id.

  8. See id.; T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 28 (Tex. App.—Fort Worth 2020, pet. denied).

  9. See Thaddeus Pope, Texas Advance Directives Act: Nearly a Model Dispute Resolution Mechanism for Intractable Medical Futility Conflicts, 16 QUT L. Rev., Mar. 2016, at 34–35.

  10. See id.

  11. Id. at 38–39. A court within its discretion may extend the ten-day period if the court finds there is a “reasonable expectation that a physician or healthcare facility that will honor the patient’s directive will be found if the time extension is granted.” Tex. Health & Safety Code Ann. § 166.046(g). This Article adopts the definition of “life-sustaining treatment” promulgated by the American Medical Association: “[l]ife-sustaining treatment is any treatment that serves to prolong life without reversing the underlying medical condition. Life-sustaining treatment may include, but is not limited to, mechanical ventilation, renal dialysis, chemotherapy, antibiotics, and artificial nutrition and hydration.” AMA Council on Ethical & Jud. Affs., AMA Code of Medical Ethics’ Opinions on Care at the End of Life, AMA J. Ethics (2013), https://journalofethics.ama-assn.org/article/ama-code-medical-ethics-opinions-care-end-life/2013-12 [https://perma.cc/7QAD-987R].

  12. See Pope, supra note 9, at 39–40.

  13. Health & Safety § 166.045(d).

  14. T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 29 (Tex. App.—Fort Worth 2020, pet. denied). See Health & Safety § 166.046(b) (further requiring that in addition to notice of the committee review, the hospital provides the surrogate decision maker with (1) a statutorily mandated written “statement” of rights; and (2) a state-maintained life of healthcare providers and referral groups; the Act further recommends that hospitals provide a third document describing the hospital’s review process).

  15. T.L., 607 S.W.3d. at 30.

  16. Id. at 30, 34–35.

  17. See id. at 34, 40, 76 (opining that private physicians and hospitals deciding whether to withdraw LSMT were performing “state action[s],” necessarily meaning they must follow the Fourteenth Amendment prohibiting states from depriving individuals of their due process rights). This Article will focus on the due process concerns addressed in the case and through precedent. This case will generally be referred to throughout the Article as “In re T.L.”

  18. Id. at 94.

  19. See Certiorari—Summary Dispositions at 7, Cook Child.'s Med. Ctr. v. T.L. ex rel. T.L., 141 S. Ct. 1069 (2021) (No. 20-651); Joey Berlin, Wrong Directive: Legal Shifts on End-of-Life Care Concern Physicians, Tex. Med. Ass’n (Mar. 2021), https://www.texmed.org/Template.aspx?id=55869 [https://perma.cc/7TW9-BQSZ].

  20. See Fort Worth Toddler Returns Home After Years-Long Battle Over Life Support, supra note 5.

  21. Id.

  22. See Pope, supra note 9, at 24–25 (explaining that healthcare providers focus on comfort measures for the patient); Tex. Health & Safety Code Ann. § 166.002(10) (defining “LSMT” as “treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.”).

  23. Pope, supra note 9, at 25.

  24. See id. at 27.

  25. See id. at 28.

  26. See id. (finding a “consensus is reached in over 95 per cent [sic] of medical futility cases,” typically where the physician and decision maker find common ground, the decision maker can find a new treatment provider, or the physician is able to replace the decision maker); Sharon Douglas, Conflict Resolution at End-of-Life Relative to Life Support, 23 Oh. St. J. Disp. Resol. 89, 94 (2007).

  27. See Pope, supra note 9, at 29; Ken Hillman & Jack Chen, Conflict Resolution in End of Life Treatment Decisions: A Rapid Review, Sax Inst. 17 (2008) (“Clinicians are usually conservative in withdrawing and withholding treatment.”).

  28. See Pope, supra note 9, at 22–23, 29 (pointing to the high cost, public nature, and time commitment of litigation as detriments compared to dispute resolution procedures).

  29. See id. at 30–32; Mary Johnston, Futile Care: Why Illinois Law Should Mirror the Texas Advanced Directives Act, 23 Annals of Health L. 27, 35–36 (2014).

  30. Texas Legislature Working to Fix Deadly 10-Day Rule That Puts Every Texan’s Life at Risk, Tex. Right To Life (May 5, 2023), https://texasrighttolife.com/texas-legislature-working-to-fix-deadly-10-day-rule-that-puts-every-texans-life-at-risk/ [https://perma.cc/L5LK-WG4W]; see H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/BH5W-SH79].

  31. See Tex. Right to Life, supra note 30; see also Cameron Abrams, 10-Day Rule for Withholding Treatment from Hospital Patients Reformed in Texas House Bill, Texan (May 9, 2023), https://thetexan.news/10-day-rule-for-withholding-treatment-from-hospital-patients-reformed-in-texas-house-bill/ [https://perma.cc/8E94-KQAC].

  32. Tex. H.B. 3162.

  33. Hearing on S.B. 2089 and S.B. 2129 before the Senate Comm. Health & Human Servs., 86th Leg., Reg. Sess. (Apr. 10, 2019) (testimony of Dr. Robert Fine); Palliative Care: Providing Compassion in the Face of Life-Limiting Illness, Baylor Scott & White Health: The Torch, https://dallasfoundation.bswhealth.com/news-stories/the-torch/palliative-care [https://perma.cc/DSS4-QRRC] (last visited Sept. 6, 2023); see Arrant Aff. 3–4, Dec. 18, 2019, https://www.texasallianceforlife.org/wp-content/uploads/Amy-Arrant-MD-signed-affidavit12182019.pdf [https://perma.cc/U5LJ-8QET] (describing her experience as an internist specializing in hospital-based medicine and meeting with a former brain-dead patient’s ten family members who “accused the entire [medical] team over and over, of trying to kill her” and recalling that the patient’s ultimate passing “was not peaceful and dignified. It was marred forever with anger and mistrust.”); see also Farrell Aff. 3, Dec. 17, 2019, https://www.texasallianceforlife.org/wp-content/uploads/Tommy-Farrell-affidavit.pdf [https://perma.cc/4SSV-E9R6] (detailing her experience as a family physician with board certification in Hospice and Palliative Care and receiving threats from rights to life groups accusing her of “euthaniz[ing] patients”).

  34. Tex. Health & Safety Code Ann. § 672.015 (redesignated as Tex. Health & Safety Code Ann. §§ 166.045–166.051, eff. Sept. 1, 1999); Rachel E. Solnick & Austin G. Meyer, Politicians Play Doctor, Tex. Med., Nov. 2014, at 11.

  35. House Res. Org., Final Choices: Legislating End-of-Life Decisions, 3 (June 17, 1998), https://hro.house.texas.gov/focus/death.pdf [https://perma.cc/X34D-HBPF].

  36. See Peter J. Greco et al., The Patient Self-Determination Act and the Future of Advance Directives, 115 Annals Internal Med. 639, 639, 642 (1991).

  37. See id. at 641–42.

  38. See Pope, supra note 9, at 33.

  39. Id.

  40. See id. at 33–34.

  41. See Pam Belluck, Even as Doctors Say Enough, Families Fight to Prolong Life, N.Y. Times (Mar. 27, 2005), https://www.nytimes.com/2005/03/27/us/even-as-doctors-say-enough-families-fight-to-prolong-life.html [https://perma.cc/L5DJ-3HMZ].

  42. Senate Comm. Health & Human Servs., supra note 33, at 3:54:35–3:58:33; Pope, supra note 9, at 33.

  43. See Douglas, supra note 26, at 96.

  44. See Brief for Texas Alliance for Life & Texas Catholic Conference of Bishops et al. as Amici Curiae Supporting Petitioners at 6, T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9 (Tex. App.—Fort Worth 2020, pet. denied) (No. 02-20-00002-CV).

  45. See S.B. 1320, 78th Leg., Reg. Sess. (Tex. 2003), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=78R&Bill=SB1320 [https://perma.cc/KRE7-6895] (adding Tex. Health & Safety Code Ann. §§ 166.046(b)(1), (b)(3), and notice provisions of Health & Safety § 166.052).

  46. See Health & Safety § 166.052.

  47. H.B. 3074, 84th Leg., Reg. Sess. (Tex. 2015), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=84R&Bill=HB3074 [https://perma.cc/B5J7-LE62] (adding Health & Safety § 166.046(b)(4)(C)—(D) and amending the post-committee process pursuant to Health & Safety § 166.046(e)).

  48. Carrie Williams, As Bill Filing Deadline Looms, Hearings Take Off, Tex. Hosp. Assoc. (Mar. 6, 2023), https://www.tha.org/blog/march-6-2023/ [https://perma.cc/T6VP-GQJG]. See generally S.B. 917, 87th Leg., Reg. Sess. (Tex. 2021), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SB917 [https://perma.cc/9B76-QAEY] (died in chamber); S.B. 1944, 87th Leg., Reg. Sess. (Tex. 2021) https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SB1944 [https://perma.cc/8WKM-L5G4] (died in committee).

  49. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/K5DR-6NXW].

  50. Id.

  51. See Pope, supra note 9, at 42.

  52. Id.

  53. Id.

  54. Nora O’Callaghan, When Atlas Shrugs: May the State Wash Its Hands of Those in Need of Life-Sustaining Medical Treatment?, 18 Health Matrix: J. L.-Med. 291, 299 (2008).

  55. Key Findings from THA’s Texas Advance Directives Survey, Tex. Health Ass’n (July 2020), https://www.tha.org/Portals/0/files/Issues/AdvanceDirectives/Key_Findings_From_THA_046_Survey_Final.pdf?ver=2020-11-10-205504-063 [https://perma.cc/SGE2-VSZ9].

  56. See T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 22 (Tex. App.—Fort Worth 2020, pet. denied).

  57. Kimberly Gordy, The Room Where It Happens: The Autonomy of the Hospital Ethics Committees Post-Dobbs, BakerHostetler (July 14, 2022), https://www.bakerdatacounsel.com/blogs/the-room-where-it-happens-the-autonomy-of-the-hospital-ethics-committees-post-dobbs/# [https://perma.cc/HS83-6VMF]; see, e.g., Ethics Consultation, Univ. Rochester Med. Ctr., https://www.urmc.rochester.edu/highland/patients-visitors/hospital-services/ethics-consultation.aspx [https://perma.cc/P78T-V3N2] (last visited Jan. 27, 2023).

  58. See T.L., 607 S.W.3d at 36.

  59. Id. at 76.

  60. See Shelly v. Kraemer, 334 U.S. 1, 13 (1948); Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 50 (1999) (drawing on Shelly’s language to illustrate how § 1983 and the Fourteenth Amendment “exclude from its reach ‘merely private conduct, no matter how discriminatory or wrongful’”).

  61. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019); Sullivan, 526 U.S. at 52; Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982).

  62. See, e.g., Halleck, 139 S. Ct. at 1928; Sullivan, 526 U.S. at 52; Blum, 457 U.S. at 1004–05. See generally Dale Conder, Jr., A “Fact-Bound Inquiry”: Was Almira Gulch a State Actor Under 42 U.S.C. § 1983?, For Def., July 2016.

  63. See Conder, supra note 62, at 64 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

  64. See T.L., 607 S.W.3d at 54.

  65. Id. at 23.

  66. Id. at 94–95 (Gabriel, J., dissenting).

  67. Id. at 95.

  68. Id. at 95–96; Blum v. Yaretsky, 457 U.S. 991, 1012 (1982).

  69. Blum, 457 U.S. at 993.

  70. Id. at 994–95.

  71. Id. at 995.

  72. Id. at 1012.

  73. See id. at 1008 & n.19.

  74. See id. at 1011.

  75. See Conder, supra note 62, at 65 (quoting Ellison v. Gabarino, 48 F.3d 192, 195 (6th Cir. 1995)).

  76. Compare Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485–86 (1988) with Blum, 457 U.S. at 1006–07 and West v. Atkins, 487 U.S. 42, 54–55 (1988).

  77. Pope, 485 U.S. at 482, 487.

  78. Id. at 486–87 (“The court must appoint the executor or executrix before notice, which triggers the time bar, can be given.”).

  79. Id. at 487.

  80. Id.

  81. West, 487 U.S. at 44, 55.

  82. Id. at 44.

  83. Id. at 55–56.

  84. Id. at 55.

  85. See id.

  86. See Petition for Writ of Certiorari, supra note 1, at 22.

  87. See id. at 17, 22.

  88. See id. at 21–22.

  89. See Tex. Health & Safety Code Ann. § 166.046(a-2).

  90. See Petition for Writ of Certiorari, supra note 1, at 4; West, 487 U.S. at 44.

  91. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 151 n.1, 165 (1978).

  92. See id. at 151–54, 165.

  93. See id. at 165.

  94. Id.

  95. Goss v. Mem’l Hosp. Sys., 789 F.2d 353, 356 (5th Cir. 1986).

  96. Id.

  97. Id.

  98. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).

  99. See Klavan v. Crozer-Chester Med. Ctr., 60 F. Supp. 2d 436, 439 (E.D. Pa. 1999).

  100. See id. at 439–40.

  101. Id. at 440–41.

  102. See id. at 442–43.

  103. See Brief of Appellee at 43–44, T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9 (Tex. App.—Fort Worth 2020, pet. denied) (No. 02-20-00002-CV).

  104. See id.

  105. For purposes of this Article, the Author deliberately does not advance a position either way as to whether private hospitals are “state actors,” as this argument is outside the scope of the Article and should be analyzed in separate scholarship.

  106. See Daniels v. Williams, 474 U.S. 327, 331 (1986).

  107. Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59 (1999).

  108. See Vacco v. Quill, 521 U.S. 793, 799–800 (1997).

  109. Id. at 800.

  110. See id. at 800–01.

  111. Id. at 801.

  112. Id. at 801, 807.

  113. See id. at 800.

  114. See generally Bowen v. Am. Hosp. Ass’n, 476 U.S. 610 (1986); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).

  115. Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501, 1502 (1999) (using the example of termination of parents’ custody rights: “Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody.”).

  116. See Bexar Cnty. Sheriff’s Civ. Serv. Comm’n v. Davis, 802 S.W.2d 659, 661 (Tex. 1990).

  117. See O’Callaghan, supra note 54, at 331; Chemerinsky, supra note 115 (using the example of termination of parents’ custody rights: “Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.”).

  118. Chemerinsky, supra note 115, at 1501.

  119. See Byers v. Patterson, 219 S.W.3d 514, 525 (Tex. App.—Tyler 2007, no pet.).

  120. O’Callaghan, supra note 54, at 331.

  121. See id.

  122. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring).

  123. Id.

  124. See id. at 2300–02.

  125. See Rachael Thompson, Comment, Searching for Fairness: Examining the Texas Advance Directives Act in Light of the Clear and Convincing Evidence Standard, 56 Hous. L. Rev. 667, 677, 680 (2019); Kelly v. Hous. Methodist Hosp., No. 01-17-00866-CV, 2019 WL 1339505, at *2 (Tex. App.—Houston [1st Dist.] Mar. 26, 2019, pet. denied) (mem. op.).

  126. Thompson, supra note 125, at 677.

  127. Id.

  128. Dunn’s mother had medical power of attorney for Dunn. Id.

  129. Id.

  130. Id.

  131. Id.

  132. See Kelly v. Hous. Methodist Hosp., No. 01-17-00866-CV, 2019 WL 1339505, at *2 (Tex. App.—Houston [1st Dist.] Mar. 26, 2019, pet. denied) (mem. op.).

  133. Id.

  134. Id. (alterations in original).

  135. See Thompson, supra note 125, at 679.

  136. See id. at 680.

  137. See id.

  138. See Kelly, 2019 WL 1339505, at *5.

  139. See id. at *3.

  140. See id. at *4.

  141. Brief of the Amici Curiae Texas Alliance for Life, Texas Catholic Conference of Bishops et al. T.L., ex rel T.L., on her Behalf v. Cook Children’s Medical Center, 607 S.W.3d 9, 13–14 (Tex. App.—Fort Worth 2020, pet. denied) No. 20-0644 [hereinafter “Brief of Amici Curiae- Supreme Court of Texas”].

  142. See T.L., 607 S.W.3d at 30–31.

  143. See generally Johnston, supra note 29.

  144. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/BH5W-SH79]. See generally Stephanie Klick, Texas House Bill 3162 Bill Analysis, https://capitol.texas.gov/tlodocs/88R/analysis/html/HB03162H.htm [https://perma.cc/YGY5-Q364] (last visited Aug. 5, 2023).

  145. See infra Section II.C.

  146. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).

  147. See generally Karina Sanchez, Note, The Texas Advance Directives Act: A (Currently) Useless but Much Needed Tool for Withdrawing Life-Sustaining Treatment, 60 Hous. L. Rev. 1213 (2023).

  148. See, e.g., S.B. 439, 80th Leg., Reg. Sess. (Tex. 1999) (passed by the Senate unanimously, did not pass House), https://capitol.texas.gov/tlodocs/80R/billtext/html/SB00439H.htm [https://perma.cc/Z3D7-9ENA]; S.B. 303, 83rd Leg., Reg. Sess. (Tex. 2013) (passed Senate, never voted out of the House Public Health Committee) https://capitol.texas.gov/tlodocs/83R/analysis/html/SB00303S.htm [https://perma.cc/5YRV-35Y5]; S.B. 1944, 87th Leg., Reg. Sess. (Tex. 2022) (passed Senate, never voted out of the House), https://capitol.texas.gov/tlodocs/87R/billtext/html/SB01944I.htm [https://perma.cc/V9WJ-F8K9]; Pope, supra note 9, at 49–50.

  149. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023) https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/BH5W-SH79] (amended Tex. Health & Safety Code Ann. ch. 166).

  150. See Mary Alice Robbins, Proposed Bills Give Families Final Say on Life-Sustaining Treatments for Patients, Tex. Law., https://www.law.com/texaslawyer/almID/1172829796788/ [https://perma.cc/LCK8-3FNB] (last updated Mar. 2, 2007, 12:00 AM).

  151. See Health & Safety § 241.154(a).

  152. See id. § 166.046(d).

  153. Id. § 166.046(e).

  154. See id. §§ 166.046(b), 166.052.

  155. Id. § 166.046(g).

  156. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/QC9V-BWH6].

  157. See George Annas & Micheal Grodin, Hospital Ethics Committees, Consultants, and Courts, 18 AMA J. Ethics 554, 556 (2016).

  158. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (“[A] fair trial in a fair tribunal is a basic requirement of due process.”); Ward v. Vill. of Monroeville, 409 U.S. 57, 61–62 (1972) (finding a “Petitioner is entitled to a neutral and detached judge” and “fair trial”); Pope, supra note 9, at 45.

  159. See Gabriel T. Bosslet et al., Reason-Giving and Medical Futility: Contrasting Legal and Social Discourse in the United States with the United Kingdom and Ontario, Canada, Rsch. Gate, June 2016, at 6, https://www.researchgate.net/publication/303978110_Reason-Giving_and_Medical_Futility_Contrasting_Legal_and_Social_Discourse_in_the_United_States_With_the_United_Kingdom_and_Ontario_Canada/link/5b4faa6845851507a7ad60dc/download [https://perma.cc/VY7K-JXW6].

  160. See Pope, supra note 9, at 45; Robert D. Truog, Medical Futility, 25 Ga. St. U. L. Rev. 985, 1000 (2009).

  161. See Transcript of Temporary Injunction Hearing at 326, T.L. v. Cook Child.'s Med. Ctr., No. 048-112330-19 (48th Dist. Ct., Tarrant Cty., Tex. Dec. 12, 2019), https://www.texasallianceforlife.org/wp-content/uploads/TarrantCounty-048-112330-19-RR-Vol002-1.pdf [https://perma.cc/W3KP-3PZX].

  162. See id. at 71–74.

  163. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB3162 [https://perma.cc/9UFB-VZB4].

  164. See Tex. Health & Safety Code Ann. § 166.046.

  165. See id. § 166.046(a-2).

  166. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

  167. Compare Health & Safety § 166.046(b)(3)(D), with Petitioner’s Original Petition for Declaratory Judgment, Temporary Restraining Order, and Motion to Extend Time, Tex. Right to Life v. Mem’l Herman Healthcare Sys., No. 365099-401 (Harris Cty. Prob. Ct. Tex. July 6, 2006) (finding that prior to the imposition of this requirement, hospitals at times would provide their written explanation on a pre-printed one-page form titled without additional explanation as to the basis for the committee’s decision).

  168. See Health & Safety § 166.046(b)(4)(A).

  169. See id. § 166.046(a).

  170. See id. § 166.046(b)(3).

  171. See id.

  172. See Pope, supra note 9, at 53.

  173. See Lee v. Illinois, 476 U.S. 530, 540 (1986).

  174. See Health & Safety § 166.046.

  175. See Erin S. DeMartino et al., Who Decides When a Patient Can’t? Statutes on Alternate Decision Makers, 376 New Eng. J. Med. 1478, 1479 (2017).

  176. See Parker v. Duggar, 498 U.S. 308, 321 (1991).

  177. See Pope, supra note 9, at 47.

  178. See id. at 47–48.

  179. See Health & Safety § 166.046.

  180. See id.

  181. See Nikolouzos v. St. Luke’s Episcopal Hosp., 162 S.W.3d 678, 684 (Tex. App.—Houston [14th Dist.] 2005) (Fowler, J., concurring).

  182. See Todd Ackerman, Second Hospital Says No to Patient’s Life Support, Hous. Chron. (Apr. 28, 2005), https://www.chron.com/news/houston-texas/article/Second-hospital-says-no-to-patient-s-life-support-1668693.php [https://perma.cc/TF8H-7NQG].

  183. See Nikolouzos, 162 S.W.3d at 683 (Fowler, J., concurring).

  184. See id. at 683–84.

  185. See id. at 684.

  186. Id. at 681–82 (majority opinion).

  187. See id. at 684 (Fowler, J., concurring).

  188. Id.

  189. Id.

  190. See id.

  191. See Tex. Health & Safety Code Ann. § 166.046.

  192. See Thompson, supra note 125, at 681.

  193. See Kelly v. Hous. Methodist Hosp., No. 01-17-00866-CV, *2 (Tex. App.—Houston [1st Dist.] 2019, pet. denied); Thompson, supra note 125, at 681.

  194. See Thompson, supra note 125, at 681.

  195. See State v. Addington, 588 S.W.3d 569, 570 (Tex. 1979) (finding a clear and convincing evidentiary standard was necessary in civil proceedings determining whether people should be admitted to a mental hospital); Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391, 405 (1996) (explaining Texas courts also apply the clear and convincing evidence standard when adjudicating termination of the parent-child relationship, intent to make a gift, paternity under the Wrongful Death Act, and defamation).

  196. See Health & Safety § 166.046(e), (g).

  197. See generally Alison E. Turnbull et al., Competing and Conflicting Interests in the Care of Critically Ill Patients, 44 Intensive Care Med. 1628 (2018).

  198. See generally id.

  199. See Karen Choong et al., A Framework for Resolving Disagreement During End of Life Care in the Critical Care Unit, 33 Clin. Invest. Med. E240, E245 (2010).

  200. See Fort Worth Toddler Returns Home After Years-Long Battle Over Life Support, supra note 5.

  201. [T.L](file:///C:\Users\Owner\Downloads\T.L). ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 36 (Tex. App.—Fort Worth 2020, pet. denied) (directing the court’s attention to the Texas state right of doctors to conscientiously object to abortion “unless a physician determines that the life of the mother is immediately endangered,” and Sections 166.045(c), 166.045(e), and 166.051 right to withdraw as supporting a physician’s individual right of conscience).

  202. Brief for Texas Alliance for Life et al. as Amici Curiae Supporting Petitioners at 8, 10–11, T.L. ex rel. T.L. v. Cook Child’s Med. Ctr., 607 S.W.3d 9 (Tex. App.—Fort Worth 2020, pet. denied) (No. 02-20-00002-CV).

  203. Hearing on S.B. 2089 and S.B. 2129 Before the Senate Comm. on Health & Human Servs., 86th Leg., Reg. Sess. (Apr. 10, 2019) (testimony of Becket Gremmels), https://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14201 [https://perma.cc/RB63-422U]; see also Kook-Willis Aff. ¶ 7 (citing to the Hippocratic oath of all doctors “to do . . . no harm,” including relieving patients of needless suffering and allowing them a dignified, peaceful death).

  204. Brief for Texas Alliance for Life, supra note 202, at 9–10.

  205. See Turnbull, supra note 197, at 1631–33; see also In re Dubreuil, 629 So.2d 819, 822–23 (Fla. 1993) (detailing the potential conflict of the hospital’s private interests with the state’s best interests and obligations in following the patient’s refusal of LSMT).

  206. Thanh N. Huynh, et al., The Frequency and Cost of Treatment Perceived to Be Futile in Critical Care, 173 JAMA Internal Med. 1887, 1889 (2013).

  207. Id. at 1892.

  208. See Cook Children’s Medical Center’s Motion for Expedited Scheduling Order, T.L. v. Cook Child.'s Med. Ctr., No. 048–112330–19, at 4; Tinslee Lewis, Child Given 10 Days to Live, Defeats Odds and Is Released from Hospital, Tex. Right to Life (Apr. 12. 2022), https://texasrighttolife.com/tinslee-lewis-child-given-10-days-to-live-defeats-odds-and-isreleased-from-hospital/ [https://perma.cc/TY2H-QCMG].

  209. See Johnston, supra note 29, at 33–34.

  210. Id. at 34.

  211. For purposes of this paper, the Author is not delving into a significant cost analysis of the allocation of state funds for end-of-life disputes but recommends further scholarship on this issue.

  212. See Belluck, supra note 41 (giving an example where a doctor tells a patient’s family the patient will not make it, but he has survived two or three times before).

  213. See id. (suggesting that due to increases in patient volumes and reduced rates of reimbursement, there is less incentive for physicians to provide patient contact, leading patients to view their physician as a stranger).

  214. See Tex. Fam. Code Ann. § 153.073.

  215. See Troxel v. Granville, 530 U.S. 57, 65, 68 (2000).

  216. See, e.g., Fam. § 153.073(a)(8).

  217. See infra Appendix A.

  218. See infra Appendix A.

  219. See infra Appendix A (Alabama, Arizona, Colorado, D.C., Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, and South Dakota).

  220. See infra Appendix A (Alaska, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming).

  221. See, e.g., Cal. Prob. Code § 4736 (West 2000); Haw. Rev. Stat. § 327E-7(g)(1)–(2) (1999); Me. Rev. Stat. Ann. tit. 18-C M.R.S., § 5-808(7) (West 2019); Md. Code Ann., Health–Gen. § 5-613 (West 1993); N.M. Stat. Ann. § 24-7A-7(G) (2015); Vt. Stat. Ann. tit. 18, § 9707 (West 2018); Va. Code. Ann. § 54.1-2990(B) (West 2018).

  222. See, e.g., Ga. Code Ann. § 31-32-10 (2022) (Georgia); Minn. Stat. § 145C.11 (2022) (Minnesota); N.H. Rev. Stat. Ann. § 137–J:7 (2022) (New Hampshire); N.Y. Pub. Health § 2984(b) (McKinney 2010) (New York); W. Va. Code Ann. § 16-30-12 (West 2000) (West Virginia).

  223. See N.Y. Pub. Health § 2984(b) (McKinney 2010).

  224. See id.

  225. See id.

  226. See, e.g., Minn. Stat. § 145C.11 (2022); 20 Pa. Cons. Stat. § 5424 (2007); Tenn. Code Ann. § 32-11-110 (2007).

  227. See infra Appendix A (Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Idaho, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, Tennessee, Utah, Vermont, West Virginia, and Wyoming).

  228. See, e.g., Mass. Gen. Laws ch. 201D, § 14 (2022); W. Va. Code Ann. § 16-30-12 (West 2000).

  229. See infra Appendix A (Alaska, Arkansas, Colorado, Delaware, Florida, Hawaii, Maine, Massachusetts, Mississippi, New Jersey, New York, North Carolina, Pennsylvania, Utah, Washington, and Wyoming).

  230. See, e.g., Ark. Code Ann. § 20-6-109(c)(2) (2013); N.Y. Pub. Health Law § 2984(3)(a) (McKinney 2010) (hospitals are not required to honor an agent’s healthcare decision provided that “the hospital has informed the patient or the healthcare agent of such policy prior to or upon admission, if reasonably possible.”); Wyo. Stat. Ann. § 35-22-408 (2007) (“The institution shall deliver the written policy upon receipt of the patient’s advance directive that may conflict with the policy or upon notice from the primary healthcare provider that the patient’s instruction or decision may be in conflict with the healthcare institution’s policy.”).

  231. See, e.g., Univ. of Mich. Med. Ethics Comm., Guidelines for Terminating Treatment, https://www.med.umich.edu/adultethics/Revised.Guidelines.Witholding.Withdrawal.pdf [https://perma.cc/KXJ7-5D8Z] (last visited Aug. 6, 2023).

  232. See Douglas, supra note 26, at 103; Kans. City Area Ethics Comm. Consortium Ctr. for Prac. Bioethics, Recommended Policy Guidelines Regarding Medical Futility, https://www.practicalbioethics.org/wp-content/uploads/2021/10/guidelines-regarding-medical-futility-2008.pdf (last visited Aug. 6, 2023) [https://perma.cc/CLW6-C4NU] ; Nancy S. Jecker, Futility, UW Med. https://depts.washington.edu/bhdept/ethics-medicine/bioethics-topics/detail/65 [https://perma.cc/3SRC-B3TV] (last visited Aug. 6, 2023); Jonathan Wiesen et al., When a Surrogate Decision-Maker Wants Medically Futile Treatment, Consult QD (Dec. 28, 2021), https://consultqd.clevelandclinic.org/when-a-surrogate-decision-maker-wants-medically-futile-treatment/ [https://perma.cc/SN66-WN37].

  233. See, e.g., Univ. of Mich. Med. Ethics Comm., supra note 231 (“[A]n intervention may be considered futile when it satisfies all of the following conditions: a) the attending physician has determined that the patient’s condition is terminal and incurable; and b) the attending physician has determined that the intervention in question is not required for relieving the patient’s discomfort; and c) the attending physician has determined that the intervention in question offers no reasonable medical benefit to the patient, and that such intervention could serve only to postpone the moment of death.”).

  234. See id.

  235. Medically Ineffective Interventions, AMA, https://www.ama-assn.org/delivering-care/ethics/medically-ineffective-interventions [https://perma.cc/9XH5-3NQY] (last visited Oct. 14, 2022).

  236. Id.; see also Wiesen, supra note 232.232

  237. See Medically Ineffective Interventions, supra note 235.

  238. Mary S. McCabe & Courtney Storm, When Doctors and Patients Disagree About Medical Futility, 4 J. Oncol. Prac. 207, 208 (2008).

  239. See Douglas, supra note 26, at 97–98.

  240. See, e.g., Ohio Rev. Code Ann. § 2133.05 (West 2017); Or. Rev. Stat. § 127.550 (2022).

  241. Or. Rev. Stat. § 127.550 (2022).

  242. See id.

  243. See Ohio Rev. Code Ann. § 2133.05 (West 2017).

  244. Id.

  245. See id.

  246. Id.

  247. Id. (The statute further directs the decision maker to request that the probate court enter an order directing the attending physician to “reevaluate . . . the determination that the declarant is in a terminal condition . . . the determination that the declarant no longer is able to make informed decisions regarding the administration of life-sustaining treatment . . . .”).

  248. Jack Wright, Archie Battersbee Died of a Brain Injury, Coroner Rules After Life Support Was Withdrawn from Tragic 12-Year-Old After Court Battle, Daily Mail, https://www.dailymail.co.uk/news/article-11106115/Archie-Battersbee-died-brain-injury-following-strangulation-coroner-says.html [https://perma.cc/9QBR-W4EC] (last updated Aug. 12, 2022, 2:01 PM).

  249. See id.

  250. Id.

  251. See id.

  252. See id.; Barts Health NHS Tr. v. Hollie Dance, Paul Battersbee, and Archie Battersbee (through his 16.4 Guardian), [2022] EWHC (Fam) 1435 [138], [147], [165v], [179]–[180], [183] (Eng.) available at https://www.judiciary.uk/wp-content/uploads/2022/06/Archie-Batteresbee-judgment-2-1.pdf [https://perma.cc/DMR4-L8YY]. The High Court in its ruling found that courts are required first to determine whether the patient is “dead” and if so, they would not need to consider their best interests. However, even though the court determined Archie was “dead” (using the definition of a conclusively established “irreversible cessation of brain stem function”) the judge still moved forward with considering Archie’s best interests. See Aintree Univ. Hosp. NHS Found. Tr. v. James, [2013] UKSC 67 [35], [2014] AC 591 (“[There] is a strong presumption that it is in a person’s best interests to stay alive . . . [but] [t]here are cases where it will not be in a patient’s best interests to receive life-sustaining treatment.”).

  253. Barts Health NHS Tr. v. Hollie Dance, Paul Battersbee, and Archie Battersbee (through his 16.4 Guardian), 2022 EWHC 1435 (Fam) (2022), [162] (citing Aintree Univ. Hosp. NHS Found. Tr. v. James, [2013] UKSC 67, [2014] AC 591).

  254. As opposed to withholding or withdrawing it. Id. [182]–[187].

  255. Id. [163], [165], [187]–[195].

  256. Id. [190]–[191], [195] (articulating in making this decision that although Archie was twelve and told his mother his preference was to remain on a life support machine than die, he likely did not contemplate the realities of the circumstances that he would not be able to consume the food or drink he previously enjoyed, was supported by a tube and line, and was suffering from regular diarrhea). The judge went on to articulate that even if he had not found Archie had already “died,” he would have found it was not in Archie’s best interests for him to continue medical treatment on mechanical ventilation. Id. [180]–[197]. In cases decided since Archie’s, the United Kingdom courts regularly considered the child’s culture and faith as part of their best interests analysis, but still ruled in favor of terminating LSMT. Birmingham Women’s & Child.‘s NHS Found. Tr. v. J [2022] EWHC (Fam) 2229 (Eng.), https://www.thaddeuspope.com/images/Birmingham_Women_s_and_Children_s_NHS_Foundation_Trust_v_J_August_14_2022.pdf [https://perma.cc/8XMC-YMYC]; see, e.g., Guy’s St. Thomas’ NHS Found. Tr. v. Baby A [2022] EWHC (Fam) 2422 (Eng.), https://www.thaddeuspope.com/images/Guys_St_Thomas_NHS_Trust_v_Baby_A_UK_Fam_09-28-22_.pdf [https://perma.cc/K3Q7-2C9T].

  257. See Guy’s and St. Thomas’ NHS Found. Tr. v. Baby A, Case No. FD22P04067 (2022), at [48].

  258. See id. Courts have found there is a “strong presumption” favoring the preservation of life, that could be overcome by evidence that the “pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great.” Id. [49].

  259. Wright, supra note 248 (providing the following timeline of relevant events: (1) April 26, 2022: the Barts Health NHS trust, responsible for Archie’s care at the Royal London Hospital where he was transferred, initiated High Court proceedings; (2) May 13, 2022: the High Court Justice, Justice Arbuthnot, ruled a brain stem function test would be in Archie’s best interest and a nerve stimulation test conducted on Archie three days later detects no response; (3) June 13, 2022: Justice Arbuthnot issued a ruling that Archie is “dead” and doctors could lawfully stop treating him; (4) July 25, 2022: the Court of Appeal justices rule in favor of the doctors, finding they can lawfully stop providing LSMT to Archie; (5) July 28, 2022: The U.K. Supreme Court denies intervening in the case; (6) July 29, 2022: Archie’s family makes application before the United Nations’ Commission for the Rights of Persons with Disabilities (UNCRPD), who, on July 30, 2022, write to the U.K. government ask for a delay in withdrawing treatment while they consider the case; (7) August 1, 2022: The Court of Appeal refuse to postpone withdrawal of treatment pending UN hearing; (8) The U.K. Supreme Court refuses the family’s application to appeal the Court of Appeal ruling, the same day the family submits their appeal to the court; (9) August 3, 2022: The European Court of Human Rights refuses appeal of Archie’s family; (10) August 4, 2022: After exhausting all other avenues, Archie’s family makes one final attempt to ask that Archie be moved to hospice; (11) August 5, 2022: High Court Justice, Justice Theis, rules it is not in Archie’s best interests to be moved to a hospice. The Court of Appeal refuses permission to appeal; (12) August 6, 2022: Archie is taken off LSMT at 10 a.m.); UN Disability to Examine Archer Basttersbee Case, BBC News (Apr. 5, 2023), https://www.bbc.com/news/uk-england-essex-65192705 [https://perma.cc/ES4U-8MZ5].

  260. See Wright, supra note 248.

  261. Id.

  262. See id.

  263. Id.

  264. Id.

  265. See UN Disability Committee to Examine Archer Basttersbee Case, supra note 259.

  266. Wright, supra note 248.

  267. See id.

  268. Id.

  269. Id.

  270. See Guy’s & St. Thomas’ NHS Found. Tr. v. Baby A [2022] EWHC (Fam) 2422 [3] (Eng.).

  271. See id.

  272. See id. [1]–[3]. The Trust in this case applied to the High Court asking for a determination that Baby A. (the patient in controversy) was dead, but after Baby A. attempted to breathe, the Trust amended its request to seek withdrawal of LSMT. Id. at 3.

  273. See Order, T.L. v. Cook Child.'s Med. Ctr., Cause No. 048-112-330-19, Jan. 2, 2020, https://thaddeuspope.com/images/Order_01-02-20.pdf [https://perma.cc/4T3L-DY4Z]; see also T.L. ex rel. T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 32 (Tex. App.—Fort Worth 2020, pet. denied), cert. denied, 141 S. Ct. 1069 (2021) (No. 02-20-00002).

  274. See T.L., 607 S.W.3d at 94.

  275. See Petition for Review Denied for Case: 20-0644, T.L. v. Cook Child.'s Med. Ctr., https://search.txcourts.gov/Case.aspx?cn=20-0644&coa=cossup [https://perma.cc/ZMA6-DYYW] (last visited Sept. 2, 2023).

  276. See Order List: 592 U.S. (Jan. 11, 2021), https://www.supremecourt.gov/orders/courtorders/011121zor_5he6.pdf [https://perma.cc/Q4LF-GCVX].

  277. See Cook Children’s Medical Center’s Motion for Expedited Scheduling Order, T.L. v. Cook Child.'s Med. Ctr., Case No. 048-112330-19 at 4, https://thaddeuspope.com/images/PTF_motion_expedite_04-16-2021.pdf [https://perma.cc/W5XS-A9PJ].

  278. Id.

  279. See supra Section III.A.3.

  280. See Janet L. Dolgin, Why Has the Best-Interest Standard Survived?: The Historic and Social Context, 16 Child. Legal Rts. J. 2, 2 n.8 (1996).

  281. See, e.g., Del. Code Ann. tit. 13, § 722 (2023); Fla. Stat. § 61.13(3) (2022); 750 Ill. Comp. Stat. 5/602.7(b) (2016). See generally Stephanie L. Tang, Best Interests of the Child and the Expanding Family, 14 U.C. Irvine L. Rev. (forthcoming 2024) (on file with the Author).

  282. See, e.g., Ariz. Rev. Stat. Ann. § 25-403 (2023); Minn. Stat. § 518.17 (2022). See generally Tang, supra note 281.

  283. See, e.g., Cook Children’s Medical Center Letter to Trinity Lewis, Oct. 31, 2019, available at page 22 of https://www.texasallianceforlife.org/wp-content/uploads/TarrantCounty-048-112330-19-RRVol003-Reduced-File-Size.pdf [https://perma.cc/3MA3-69FP].

  284. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB03162F.pdf#navpanes=0 [https://perma.cc/T6JJ-JNCS].

  285. See generally Santosky v. Kramer, 455 U.S. 745 (1982).

  286. See id. at 753–54, 758 (“If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”).

  287. See id. at 758, 761, 764–66.

  288. See id. at 747–48.

  289. See Robin Fretwell Wilson, Non-Offending Parents’ Right to Make Medical Decisions for Their Kids, Inst. Fam. Stud. (Oct. 21, 2014), https://ifstudies.org/blog/non-offending-parents-prerogatives-to-make-medical-decisions-for-their-children [https://perma.cc/CJD4-2KXV].

  290. Id.

  291. Id.

  292. Id.

  293. Id.

  294. Id.

  295. See id.

  296. Id.

  297. See Joe Lawlor, State High Court Dismisses Trask Infant DNR Case, CentralMaine (Sept. 19, 2014), https://www.centralmaine.com/2014/09/19/state-high-court-dismisses-trask-infant-dnr-case/ [https://perma.cc/UP7X-6F3B].

  298. See In re Gianelli, 834 N.Y.S.2d 623, 627–28 (N.Y. App. Div. 2007); In re K.I., 735 A.2d 448, 456 (D.C. 1999); Hunt v. Div. of Fam. Servs., 146 A.3d 1051, 1065 (Del. 2015).

  299. See Tex. Fam. Code Ann. § 33.003.

  300. See S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf [https://perma.cc/7K79-4P3W]; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242–43 (2022).

  301. See Tex. Occ. Code Ann. § 164.052 (providing that a physician performs an unauthorized practice if they “perform[] an abortion on an unemancipated minor without the written consent of the child’s parent, managing conservator, or legal guardian or without a court order, as provided by Section 33.003 or 33.004, Family Code, unless the abortion is necessary due to a medical emergency . . . .”).

  302. See Fam. § 33.003.

  303. See id. (requiring that the application be made under oath and include the following statements: (A) that the minor is pregnant; (B) “that the minor is unmarried, under 18 years of age, and has not had her disabilities removed; (C) that the minor wishes to have an abortion without the notification to and consent of a parent, managing conservator or guardian;” (D) whether the minor has retained an attorney; and (E) the minor’s current physical and mailing addresses and telephone number).

  304. Id.

  305. Id.

  306. Listing: (1) a grandparent of the child; (2) an adult brother or sister of the child; (3) an adult aunt or uncle of the child; (4) “a psychiatrist or an individual licensed or certified as a psychologist . . . ; [(5)] an appropriate employee of the Department of Family and Protective Services; [(6)] a member of the clergy; or [(7)] another appropriate person selected by the court.” Id. §§ 32.001, 33.003.

  307. Id. § 33.003.

  308. In re Jane Doe 2, 19 S.W.3d 278, 282 (Tex. 2000) (“To determine whether notification would not be in the minor’s best interests, the trial court should weigh the advantages and disadvantages of parental notification in the minor’s specific situation.”).

  309. Fam. § 33.003.

  310. See THA Testified on HB 3162 in House Committee on Public Health, Soundcloud (Apr. 17, 2023), https://soundcloud.com/texas-hospitals/tha-testified-on-hb-3162-in-house-committee-on-public-health-41723 [https://perma.cc/Q5NV-ZLHL]; Texas Catholic Voice, Tex. Cath. Conf. of Bishops (May 8, 2023), https://txcatholic.org/texas-catholic-voice-may-8-2023/ [https://perma.cc/KYW2-72H7].

  311. Compare S.B. 1944, 87th Leg., Reg. Sess. (Tex. 2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/HB01944I.pdf# [https://perma.cc/T5PT-WMG5], with H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB03162F.pdf# [https://perma.cc/BH5W-SH79].

  312. Compare H.B. 3099, 87th Leg., Reg. Sess. (Tex. 2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/HB03099I.pdf# [https://perma.cc/K5FT-5T4N], with H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB03162F.pdf# [https://perma.cc/BH5W-SH79].

  313. Tex. H.B. 3099.

  314. Health Care and the 87th Texas Legislature: Outcomes for Texas Hospitals, Tex. Hosp. Ass’n, 14 (2021), https://www.tha.org/Portals/0/files/PublicPolicy/State/2021_End-of-Session-Report_FINAL.pdf [https://perma.cc/9QCQ-M4X5].

  315. Klick, supra note 144.

  316. Tex. H.B. 3162.

  317. The allocation and source of funds for patient advocates is beyond the scope of this Article. However, patients and healthcare providers should consider any available programs or non-profit organizations that may be able to assist with funding for a patient advocate. See generally Frequently Asked Questions, Patient Advoc. Found., https://www.patientadvocate.org/connect-with-services/faq/# [https://perma.cc/L94J-RVBY] (last visited Jan. 27, 2023).

  318. Klick, supra note 144.

  319. See Tex. H.B. 3162.

  320. See Bosslet, supra note 159, at 3 (“[T]he CCB [was] created and governed by Ontario’s 1996 Health Care Consent Act.”).

  321. Paula Chidwick et al., Best Interests at End of Life: An Updated Review of Decisions Made by the Consent and Capacity Board of Ontario, 28 J. Critical Care 22, 23 (2013).

  322. Bosslet, supra note 159, at 3.

  323. See Chidwic, supra note 321, at 25; Laura Hawryluck et al., The Standard of Care and Conflicts at the End of Life in Critical Care: Lessons From Medical-Legal Crossroads and the Role of a Quasi-Judicial Tribunal in Decision-Making, 28 J. Critical Care 1055, 1058–59 (2013).

  324. See Bosslet, supra note 159, at 3 (noting from 2003 to 2012, the CCB considered twenty-nine cases regarding end-of-life disputes, wherein the tribunal sided with the physician in nineteen cases, appointed a decision maker who ultimately agreed with the physician in four cases, and sided with the decision maker in six cases).

  325. H.B. 3162, 88th Leg., Reg. Sess. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB03162F.pdf# [https://perma.cc/BH5W-SH79].

  326. See Ohio Rev. Code Ann. § 2133.05 (West 2017); Tex. Fam. Code Ann. § 33.003.

  327. Nikolouzos v. St. Luke’s Episcopal Hosp., 162 S.W.3d 678, 684 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (Fowler, J., concurring).

  328. Id.

  329. See, e.g., Tex. R. Civ. P. 680 (providing that a temporary restraining order shall expire after no longer than fourteen days from entry).

  330. See, e.g., Fam. § 84.001.

  331. Ohio Rev. Code Ann. § 2133.05.

  332. Id.

  333. Id.

  334. See Ex Parte Application of Plaintiff for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction; Memorandum of Points and Authorities, Carey v. Regents of the Univ. of Cal., No. 22STCV36750 (Nov. 21, 2022), https://www.thaddeuspope.com/images/Carey_v_Regents_UC_LASC_Nov._28,_2022_App_TRO.pdf [https://perma.cc/UHR3-92DE].

  335. Ideally, this GAL should be a licensed attorney. In some jurisdictions, this is distinguished as an “attorney ad litem.” See, e.g., Fam. § 107.001.

  336. Id. § 170.001(5) defines a “Guardian ad litem” as a “person appointed to represent the best interests of a child,” including, “(B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests; (C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child.” See Tex. Est. Code Ann. § 1054.051.

  337. Fam. § 170.002(a)(1).

  338. Id. § 170.002(b-1).

  339. Barts Health NHS Tr. v. Dance [2022] EWHC (Fam) 1435 [165] (Eng.).

  340. As opposed to withholding or withdrawing it. Id.

  341. See id.; Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976).

  342. See Tex. Health & Safety Code Ann. § 166.052.

  343. See, e.g., Final Report of David L. Cook, Attorney ad Litem for Payton Summons, Cause No. 017-303367-18 (filed Nov. 29, 2018).

  344. See Matthews v. Eldridge, 424 U.S. 319, 334–35 (1976).

  345. This Appendix is current as of December 31, 2022.

  346. For purposes of this Appendix, “Statutory Transfer Procedure” is marked in states where the statute imposes an affirmative obligation aside from merely providing the physician or healthcare facility to “transfer” or “take reasonable steps” to transfer. (The “Inform, Transfer, Continued Care” Procedure).

  347. Ala. Code §§ 22-8A-7 to -8 (1975); see ex parte R.H., 311 So. 3d 761, 772 (Ala. Civ. App. 2020).

  348. Alaska Stat. §§ 13.52.060, .080 (2022).

  349. Ariz. Rev. Stat. Ann. §§ 36-3204 to -3205 (2014).

  350. Ark. Code Ann. §§ 20-17-207, to -209 (1987).

  351. Cal. Prob. Code §§ 4736, 40 (West 2000).

  352. Colo. Rev. Stat. § 15-18.7-105 (2010).

  353. Conn. Gen. Stat. §§ 19a-571 to 580a (2016).

  354. Del. Code Ann. tit. 16, § 2508 (West 1996).

  355. D.C. Code Ann. § 7-627 (West 1981).

  356. Fla. Stat. Ann. § 765.1105 (West 2015).

  357. Id. (providing that a healthcare provider is not required to commit any act which is “contrary to the provider’s moral or ethical beliefs” as long as the patient “[i]s not in an emergency condition; and (b) [h]as received written information upon admission informing the patient of the policies of the healthcare provider or facility regarding such moral or ethical beliefs”).

  358. Ga. Code Ann. §§ 31-32-8 (2008), -10 (2010).

  359. Haw. Rev. Stat. Ann. § 327E-7 (West 2020).

  360. Idaho Code Ann. §§ 39-4513 (West 2022), -4514 (West 2020).

  361. 755 Ill. Comp. Stat. 35/3 (West 2007), /7 (West 2022).

  362. Ind. Code § 16-36-4-13 (2022).

  363. Iowa Code §§ 144A.8–.10 (2023).

  364. Kan. Stat. Ann. §§ 65-28, 106 (West 2007) –107 (West 2022).

  365. Ky. Rev. Stat. Ann. §§ 311.633 (West 2015), .635 (West 2022).

  366. La. Stat. Ann. §§ 40:1151.6–.8 (2015).

  367. Me. Rev. Stat. Ann. tit. 18, § 5-808 (2019).

  368. Md. Code Ann., Health–Gen §§ 5-609 (West 2011), -613 (West 1993).

  369. Mass. Gen. Laws Ann. ch. 201D §§ 8, 14–15 (West 2022).

  370. Mich. Comp. Laws § 700.5511 (2022).

  371. Minn. Stat. §§ 145B.06, 145C.11 (2022).

  372. Miss. Code Ann. §§ 41-41-215, -219 (2020), -221 (2023).

  373. Mo. Rev. Stat. §§ 459.030, .040 (2020), .045 (2023).

  374. Mont. Code. Ann. §§ 50-9-203 to -204, -206 (2021).

  375. Neb. Rev. Stat. §§ 20-409 (2022), -411 (2023).

  376. Nev. Rev. Stat. Ann. §§ 449A.457, .460 (West 2021).

  377. N.H. Rev. Stat. Ann. §§ 137-J:7, :12 (2022).

  378. N.J. Stat. Ann. §§ 26:2H-62, -65 (West 2019).

  379. N.M. Stat. Ann. §§ 24-7A-7 (West 2022), -9 (West 2019).

  380. N.Y. Pub. Health Law §§ 2970, 72 (McKinney 2022), 74, 84 (McKinney 2019).

  381. N.C. Gen. Stat. Ann. § 90-321 (West 2022).

  382. N.D. Cent. Code Ann. § 23-06.5-09 (West 2021); N.D. Cent. Code Ann. § 23-06.5-12 (West 2019).

  383. Ohio Rev. Code Ann. §§ 2133.05 (West 2022), .10–.11, .22 (West 2019).

  384. Okla. Stat. tit. 63, § 3101.10 (1992).

  385. Or. Rev. Stat. §§ 127.550, .625 (2021).

  386. 20 Pa. Stat. and Cons. Stat. § 5424 (West 2022); 20 Pa. Cons. Stat. § 5431 (2019).

  387. 23 R.I. Gen. Laws §§ 23-4.11-7 (2023), -8 (2019).

  388. S.C. Code Ann. §§ 44-77-90 to -100 (2019).

  389. S.D. Codified Laws §§ 34-12D-11, -13 (2019).

  390. Tenn. Code Ann. §§ 32-11-108, -110 (West 2022).

  391. Tex. Health & Safety Code Ann. §§ 166.044–.046.

  392. Utah Code Ann. §§ 75-2a-115, -118 (West 2019).

  393. Vt. Stat. Ann. tit. 18, §§ 9707, 13 (2023).

  394. Va. Code Ann. § 54.1-2990 (2023).

  395. Wash. Rev. Code Ann. §§ 70.41.115, 70.122.051–.060 (West 2023).

  396. W. Va. Code Ann. §§ 16-30-12 to -13 (West 2023).

  397. Wis. Stat. §§ 154.07, .15 (2023).

  398. Wyo. Stat. Ann. §§ 35-22-408, -410 (2023).