The do-not-resuscitate (DNR) status protects
an individual’s right-to-die. As with any
medical intervention, a DNR order must be
prescribed by a physician or their delegate,
but whose call should it be, and what process
should be followed to write and implement
them? To what degree should physicians,
surrogates and/or the law be able to deny
the expressed directives of a decisional
patient? There is little disagreement in the medical community
that, when possible, a code status should be determined through
shared decision making. Most would also agree that establishing
a strong doctor-patient relationship is central to this process
and is what makes this one of the more rewarding aspects of
neurocritical care. However, these discussions can also become a
source of conflict. Accordingly, growing emphasis is being placed
on the use of advanced directives. Unfortunately, these documents
often contain vague language and rarely address the complex
quality of life considerations for those with acute neurological
injury. Furthermore, in neurocritical care, it may not be possible,
initially, to determine if the DNR criteria outlined will be met.
In such cases, CPR might still be performed. Alternatively, in rare
circumstances, physicians may unilaterally prescribe a DNR status.
Against the backdrop of the ever-present pro-life versus pro-choice
debate, end-of-life decisions are under growing legal scrutiny.
Three recent publications attempt to provide guidance to the
medical community regarding the consequences of deciding
whether or not to follow advanced directives. The first article is a
legal brief in the Journal of Clinical Ethics regarding new penalties
for ignoring advanced directives and DNR orders. The second
article addresses new Texas legislation specifying how critical
care physicians should discuss and implement DNR orders. The
third article is a case report in the New England Journal of Medicine
(NEJM) of an unconscious patient with a DNR tattoo that
exemplifies the growing trend of individuals going to extremes to
protect their autonomy and specifically their “right-to-die.”
Pope TM. Legal Briefing: New Penalties for Ignoring Advance Directives
and Do-Not-Resuscitate Orders. Journal of Clinical Ethics. 2017.
28(1):74-81
This legal brief addresses the concern that patients are increasingly
being subject to unwanted medical treatment. Pope suggests the
central cause is a widely held misconception that it is “legally
safer” to err on the side of saving or prolonging life than to
implement a DNR order without certainty that it accurately
reflects the patients’ wishes and is applicable to the particular
presentation. This summary of current legal cases, addressing
perceived disregard of advance directives, provides insight into
the changing legal attitude. In the recent past, such cases were
unlikely to be accepted for judicial review. Now, many states
have initiated legislative efforts to protect patients’ autonomy. In
New York, two such bills were proposed in 2017 alone. The first
“would add punishment provisions by specifically allowing for
recovery of damages for disregard of valid directives.” The second
intends to ensure that objections from surrogates do not change
the course of care when the wishes of the patient have been clearly
expressed. Pope agrees in this larger role of the law as a solution.
He believes that the threat of punitive consequences to physicians
and healthcare systems will deter such practices and help protect
one’s right to die.
Bruce CR, et al. Legislating how critical care physicians discuss and
implement do-not-resuscitate orders. Journal of Critical Care (2017),
EPub ahead of print https://doi.org/10.1016/j.jcrc.2017.12.010
This article reviews the new Texas Senate Bill 11 (SB 11) and
its unprecedented step to require patient/surrogate consent for
writing DNR orders and specifically dictates how DNRs are to
be discussed, witnessed, ordered, implemented and revoked.
Efforts to write and pass SB 11 were led by the Texas Right to Life
organization. The initial intent was based on the misperception
that unilateral DNR orders are being written too frequently. As
nine other states consider similar legislative action, the authors
caution that SB 11 “uncharacteristically exceeds what is typically
within the scope and role of lawmakers.” The authors aim to guide
these states’ legislators and critical care physicians by summarizing
the ways in which SB 11 contradicts existing end-of-life laws
and violates key ethical principles. They offer the fact that some
components of SB 11 simply cannot be implemented, as written,
due to the lack of understanding of clinical practice by lawmakers.
This is an important argument against having the law dictate how
physicians practice. The authors conclude that while the intent of
the bill was to decrease unilateral DNR orders, it goes too far and
will make it difficult to honor even valid DNR requests, and also
specifically negatively impacts physician practice autonomy and
the doctor-patient relationship.
Holt GE, et al. An Unconscious Patient with a DNR Tattoo. NEJM.
2017. 377(22):2192-2193
This NEJM case describes a 70-year-old man with chronic
obstructive pulmonary disease, diabetes and atrial fibrillation who
presented intoxicated and unresponsive to the ED via paramedics.
He also had the words “Do Not Resuscitate” tattooed across
his chest followed by what was presumed to be his signature.
Fortunately, there was sufficient time for ethics consultation that
recommended the DNR, despite being in the form of a tattoo,
be ordered. Later, social work was able to locate next-of-kin
and additional paperwork to support the tattoo declaration. As
anticipated, he deteriorated into cardiac arrest and his right to die
was respected. In contrast, the authors reference a separate case,
in which the DNR tattoo was not followed, and the patient, once
revived, admitted that the tattoo was the result of a “drunken
dare.” DNR tattoos are a growing trend in America and expresses
the importance our society places on patient autonomy. Despite
increasing reports of such cases there is no consensus on how such
cases ought to be managed.
Whose Call
Is It?
By Deepa Malaiyandi, MD
ETHICS COLUMN
23
/j.jcrc.2017.12.010
