- 2005 Volume 2 Number 3 July- September
- Legal Implications and Ethical Considerations of “Do Not Resuscitate”
Legal Implications and Ethical Considerations of “Do Not Resuscitate”
Vincent Ober, MD Cynthia L. Cambron, Esq.
A DNR order is a physician order that instructs health care professionals that a patient is not to receive any, or only limited, resuscitative efforts in the event the patient’s heart stops beating or the patient stops breathing. A DNR can be ordered by a physician when it is expressly requested by the patient or, if a patient is unable to express his or her wishes, by the patient’s surrogate or proxy. Florida law provides that a DNR order is only to be entered 1) when the patient is capacitated and specifically requests an order during a particular hospitalization or 2) when the patient is incapacitated without the possibility of recovering capacity, i.e., in a terminal condition, an end-stage condition, or a persistent vegetative state.
Whether a DNR order should be entered also has ethical considerations. The primary principles of medical ethics are autonomy, non-maleficence, beneficence, and justice. Autonomy is the basis for informed consent and means that the patient has the capacity to act voluntarily and with an understanding of the consequences of his or her actions.
Non-maleficence means that patients should not be put in a position where they could experience unnecessary harm or injury.
Beneficence, on the other hand, means that the care given to patients should be care that will benefit the patient. Justice requires that patients be treated equally and fairly.
DNR orders, ethics, and the law will be discussed in the following cases.
A 39-year-old man with chronic lung disease is admitted to the hospital with shortness of breath. He is treated but does not improve. His physicians recommend treatment with a ventilator to help him breathe temporarily. Recovery from this problem is very likely.
The patient, however, refuses to be treated with a ventilator. His physician and other members of the health care team discussed this treatment with the patient upon his admission to the hospital, as well as several times throughout the hospitalization. The patient has discussed this decision with his wife many times, and she agrees that he has thoughtfully considered and rejected this treatment option. The patient does not have a living will and does not have a “pre-hospital DNR” but does request that a DNR order be entered by his physician.
In this case, ethical principles should be considered. The patient would greatly benefit from treatment on a ventilator and would very likely recover and leave the hospital. Without ventilator treatment he will probably die. Short-term ventilator treatment is frequently used to help patients overcome temporary breathing problems, and the treatment is usually well tolerated and has few major complications.
Understanding all of the risks and benefits of ventilator treatment, however, the patient decided not to be treated with a ventilator and requested a DNR.
Florida courts have stated that “One has the inherent right to make choices about medical treatment…this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition.” In Re Guardianship of Browning, 568 So. 2d 4, Fla. (1990).
The benefits of treatment in this case (i.e., life versus probable death) clearly outweigh the disadvantages and risks of treatment (i.e., patient discomfort, ventilator complications). However, the patient has full capacity to understand the risks, benefits, and consequences of his choices. Therefore, the physician should not force ventilator treatment for the patient and should enter a DNR order as requested.
A 70-year-old female has breast cancer that has spread throughout her body. Her disease has been treated over the last year but has not responded to treatment and no additional treatment for the cancer is considered helpful. She is now incapacitated and unable to make any decisions about her health care. She has completed a living will that stipulates that she does not want any resuscitative efforts performed on her. She did not designate a healthcare surrogate.
The patient has clearly expressed her treatment decisions. Resuscitation may restore breathing and cardiac functioning but would not change the long-term outcome for this patient. Resuscitation might be well tolerated but could be needed for a long period. The treatments can be very uncomfortable for the patient and interfere with the patient’s ability to interact with others.
Florida law provides that “if a person has made a living will expressing his or her desires concerning life-prolonging procedures, but has not designated a surrogate to execute his or her wishes concerning life-prolonging procedures, the attending physician may proceed as directed by the [patient].” However, “before proceeding in accordance with the [patient’s] living will, it must be determined that the [patient] does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the [patient]; the [patient] has a terminal condition, has an end-stage condition, or is in a persistent vegetative state; and any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.” §765.304, F.S.
In this case, the patient made an advance directive in the form of a living will to indicate the types of treatment she would want in the event she was not able to speak for herself. Although she has not designated a surrogate to make her decisions, Florida law allows her physician to follow her living will and enter a DNR order as long as the criteria regarding her condition have been met.
An 80-year-old patient has several chronic medical problems (hypertension, arthritis, and asthma). She expressed to her physician that she wants and would always want full medical care and treatment. A recent heart attack and stroke has left her severely impaired and unable to make her healthcare decisions. Her chance of recovery is very low. Her current treatments are painful and poorly tolerated. Pain medications only cause her condition to worsen. She has no living will and no one is available to act as her proxy. The patient’s health care team feels that a DNR order would be appropriate.
This case presents an ethical dilemma. Although the patient always wanted to continue all treatments, she never discussed the care she would want in the event she was in this type of condition. Aggressive treatment, including resuscitation, will prolong the life of the patient, but she will probably die despite the treatments.
Furthermore, the burden of treatment in this case is high. The patient is in pain and effective medication makes her medical problem worse.
Florida law provides that “if an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive…health care decisions may be made for the patient by any of the following individuals, in the following order of priority…(a) judicially appointed guardian…; (b) the patient’s spouse; (c) an adult child of the patient…; (d) a parent of the patient; (e) the adult sibling of the patient…; (f) an adult relative of the patient…; (g) a close friend of the patient; or (h) a [licensed] clinical social worker…selected by the provider’s bioethics committee…” who is not employed by the provider. This statute further provides that when the proxy is a licensed clinical social worker appointed by the bioethics committee, “decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee.” §765.401(1), F.S.
In this case, until and unless a social worker proxy is appointed or another proxy is located to make healthcare decisions for this patient, a DNR order should not be entered and the patient should continue to receive effective treatments. In the event a social worker proxy is appointed and determines it to be in the best interest of the patient to request a DNR order be entered, it will first require approval of the hospital’s bioethics committee.
A woman who is 22 weeks pregnant has a severe automobile accident. She is incapacitated with no probability of regaining capacity and she is being treated on a ventilator. She is not expected to recover. In the past, she told her family many times that she would not want to be kept alive on a breathing machine if something happened to her and there was no hope of recovery. Other than this verbal directive of her wishes, she has no other advance directive. Her family would like her ventilator withdrawn, but her husband does not want to discontinue the ventilator.
This case presents an ethical dilemma. Not only do the spouse and family disagree on treatment, but there is also a fetus involved. The patient has clearly stated that she does not want to be continued on a ventilator if she is not expected to recover. However, she may not have considered that she would be in this condition while pregnant. Clearly, the patient will continue to live if kept on a ventilator and will die if removed from the ventilator. The burden of treatment for the patient includes the ventilator, medication to keep her sedated, and complications of the ventilator treatment. The patient will not be in pain.
Florida law provides that “unless the [patient] expressly delegates such authority to the surrogate in writing, or a surrogate or proxy has sought and received court approval…a surrogate or proxy may not provide consent for…withholding or withdrawing life-prolonging procedures from a pregnant patient prior to viability….”
§765.113, F.S. Therefore, the patient cannot be withdrawn from the ventilator unless and until the fetus is able to live outside the mother’s womb or unless and until a court order is obtained.
Furthermore, as discussed in Case 3, a spouse is higher in priority than other family members for acting as proxy for the patient. According to Florida law, the proxy is to make health care decisions based on the decision the proxy reasonably believes the patient would have made under the circumstances. The patient’s husband, therefore, is the proper person to act as proxy for his wife. Notwithstanding the viability of the fetus, the husband should make his wife’s decisions based on what he believes she would have wanted considering the circumstances. The health care team should honor the decision of the husband proxy.
It is also important to note that Florida law provides that “…a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.” §765.401(3),
F.S. Therefore, even if withdrawal of the ventilator was an option, a determination should be made that this is what the patient would have wanted.
Florida law does provide that the patient’s family may seek expedited judicial intervention if they believe the husband’s proxy decision is not in accord with the patient’s known desires or is contrary to the law. §765.105, F.S. Unless and until that intervention and subsequent order of the court, the health care team should continue to follow the husband’s proxy decisions.
A newborn patient has severe medical problems and is not expected to live. The infant was resuscitated when she was in cardiac/respiratory distress. The parents would like a DNR order to limit resuscitation if the child arrests again.
This is the situation of a patient who has never had the capacity to understand and choose different treatments. Resuscitation is likely to be effective to revive this severely ill patient but will probably not be effective in correcting the patient’s problems. In addition, resuscitative treatments are painful, very technical, and limit the patient’s ability to interact with other people.
Florida law states that a natural or adoptive parent, legal guardian, or legal custodian has the power to consent for medical treatment of a minor. This includes the power to refuse care or treatment based upon the best interest of the patient.
However, if a health care provider has reason to believe that the parent’s decision to withhold care is medical neglect, it should be reported to the Florida Department of Children and Family Services. “’Neglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment….”
§39.01(45), F.S. In this case, because of the patient’s condition, the decision of the parents to request a DNR order probably does not equate to neglect and should be honored.
The cases discussed above are samples of cases health care teams could face on a daily basis. The facts of each case must be considered using ethical, as well as legal, principles. Shands HealthCare Core Policy regarding DNR orders describes the procedures to be taken in accordance with the law and ethical considerations. The most important lesson to be learned from this article is the legal principle of autonomy that was recognized in 1914 and provides that “every person of adult years and sound mind has the right to determine what shall be done with his own body.” Every patient has autonomy and, although a patient may make decisions based on end-of-life care that others think are incorrect, it is every patient’s choice to make those decisions for themselves. It is the duty of the health care providers to honor and respect those decisions.