Literature Review
A Do Not Resuscitate Order is “an order not to attempt cardiopulmonary
resuscitation (CPR), direct cardiac injection, intravenous medication, electrical
defibrillation, and open chest cardiac massage. Measures to improve ventilation and
cardiac functions in the absence of an arrest are specifically excluded. Thus, a patient
who is experiencing arrhythmia or respiratory distress can be given cardiac of respiratory
support, even if there is a DNR order. In addition, a DNR order is not an order to
withhold other necessary medical treatment or nutrition.” Furthermore, there is a
statutory presumption that a person who is admitted to a hospital consents to having
CPR if they suffer from cardiac or respiratory arrest, unless the patient consents to the
execution of a DNR order.[i]
Types of DNR Orders
There are two types of DNR orders. The first types is called a hospital DNR order
and this is an order that is entered into the patient’s medical charts while they are in the
hospital. The second type is called a Pre-hospital or nonhospital DNR order and this
type of DNR order is for a patient who are under home care or in a long-term care
facility. This nonhospital order tells emergency personal not to attempt CPR in the case
of cardiac or respiratory arrest.[ii]
History of DNR Law
Currently, Article 29-B of the Public Health Law controls the entry of DNR
orders for patients with or without the capacity to make their own health care decision.
Presently, this is the only legislation that has a mechanism for surrogate decisions making
on behalf of patients who cannot make their own health care decisions.
This DNR legislation was written by the Task Force in 1986 in reply to the
following two problems, “abuses associated with issuance of DNR orders which had
led to grand jury investigations and the excessive practice of ‘medically appropriate
resuscitation,’ that is, resuscitation that will probably fail or that will succeed only to the
extent that the patient is repeatedly resuscitated in a short time period before death.”
This legislation came into effect on April 1, 1988.
The original DNR law only pertained to patients who were in an institutional
setting, which included hospitals and nursing homes. However, in 1991, the law was
amended to include patients who were in community settings, such as a hospice and
home care patients. These “nonhospital” DNR orders tell emergency service personnel
and hospital emergency personnel not to attempt CPR if the patient has a cardiac or
respiratory arrest.[iii]
DNR Orders for Capable Patients
There is a presumption that every adult has the capacity to make their own
decisions about CPR unless there is a medical determination or a court order that states
otherwise. If it is found that the adult lacks capacity, but this adult has a health care agent
then this agent has the same power to make decisions regarding CPR that the patient
would have had if they had the capacity.
If the capable patient is in the hospital, then the patient’s oral consent to a DNR
order can be given to either the attending doctor or two adult witness-one of these
witnesses must be a physician who is connected to the hospital. The adult may also give
written consent before of while they are in the hospital. This consent needs to be signed
and dated in front of two witnesses, who must also sign the order. Here, it is not required
that one of these witnesses be a physician. The patient does not need to sign the order.
This order must then be recorded in the patient’s chart.
Before or during their admission to a health care facility, a capable adult can
chose to consent to a DNR order “under set conditions.” For example, a patient may
decide that he/she wants a DNR order entered if he/she becomes terminally ill and
incapable of making their own health care decisions. If the attending doctor “concluded
to a reasonable degree of medical certainty, that these conditions are satisfied and states
this conclusion in the patient’s chart, a DNR order may be entered.”[iv]
Physician Disagreement with a DNR Order
When the attending physician of a capable patient is given or becomes aware that
the patient has consented to a DNR order, the attending physican can either issue the
DNR order, or tell the patient of any objections to the issuance of the DNR order. If the
attending physician objects to the issuance of the DNR and the patient does not agree
with the physician’s objections, then the physician can either make arrangements for
another physician to assume responsibility for the patient’s care, or the attending
physician can “submit the matter to the dispute mediation system in the
facility.”[v]
Nonhospital DNR Orders and Patients with Capacity
Nonhospital DNR orders can be issued while the person is a patient in a hospital
and will take effect after the patients is released from the hospital, or they may be issued
when the person is a patient in a hospital. A nonhospital DNR order can be consented to
by giving oral consent to the attending physician. The person may also give their written
consent. The order must be signed by a minimum of 2 adult witnesses and these orders
MUST be issues on the Department of Health form that can be found in appendix 11A of
this chapter.[vi]
DNR Orders for Patients who Lack Capacity
If it is found that a patient lacks the mental capacity needed to consent to a DNR,
nd this patient does not have a health care agent, then a DNR order can still be issued
under limited circumstances. If these circumstances are met, a surrogate needs to be
chosen to make a decision for the incapable patient. The statute contains a priority list
and the surrogate must be chosen from this list, with the first person on the list having the
highest priority. The statutory list goes as follows:
a. A committee of the person or an Article 17-A guardian
b. The patient’s spouse
c. The patient’s son or daughter who is over the age of 18
d. The patient’s parent
e. The patient’s sibling who is over the age of 18
f. A close friend of the patient.
It is important to remember that the surrogate’s power is limited to decisions regarding
CPR.[vii]
Surrogate’s Authority
The surrogate’s authority to make decisions applies only to decisions involving
CPR and not to any other health care treatment issues. The surrogate’s decision must be
based on what the surrogate believes are the patient’s wishes regarding CPR. The
surrogate’s decision must take into account the patient’s religious and moral beliefs. If
the patient’s wishes are not know and cannot be determined, then the surrogate must
make the decision based on the patient’s best interest. In determining what is in the
patient’s best interest, the surrogate needs to weigh the benefits of CPR versus the risks
of CPR to the patient. Also, in order to make an informed decision, the surrogate is
allowed the same access to the patient’s medical information as the patient would have.
The surrogate can consent to a DNR order either orally or in writing. Oral consent
must be given in the same way that a capable patient would give consent. Therefore, the
surrogate’s oral consent must be given to two adults, one of which must be a doctor that
is connected to the health care facility that the patient is being treated in.
Written consent must be dated and signed in the presence of at least one witness who is
over the age of 18, and this witness must also sign the order.
The surrogate can revoke his/her consent to a DNR order by either giving a
written statement to a doctor or nurse at the health care facility, or by giving an oral
statement, in the presence of one adult witness, or if this is a situation where no surrogate
is available, then the attending doctor will decide of the DNR order should be entered.[viii]
An attending doctor can issue a DNR order if there is no surrogate that is
“reasonable available, willing to make a decision regarding the issuance of an order not
to resuscitate, and competent to make a decision,” and the adult patient does not have the
capacity to make the decision and has not previously expressed a decision. In these
circumstances, before issuing the order, the attending doctor needs to determine and place
in writing that “resuscitation would be ‘medically futile’ to a reasonable degree of
medical certainty.” This determination must then be reviewed and approved by another
physician who is authorized by the health care facility.[ix]
Physician’s Review of DNR Orders
Once a patient has a DNR order in place, the order must be reviewed from time to
time in order determine if it is still appropriate. How often the review must takes place is
determined by where the patient is located. If the patient is in the hospital, then the DNR
order must be reviewed by the attending doctor at least once every 7 days. If the person is
a resident of a nursing home then the order needs to be reviewed by the physician at
every visit, but at least every 60 days. For patients who have a nonhospital DNR order,
this order must be reviewed by the physician every time the patient is examined, but at
least every ninety days, “providing that the review need not occur more than once every
seven days.”[x]
Disputes Regarding DNR Orders
Every health care facility is required to have a mediation system for disputes
involving DNR orders in place. Mediation must be available for “disagreements among
patients, family members and other possible surrogates, and physicians.”[xi]
If a dispute arises regarding a hospital DNR order, then the parties are required to
[xii]
take their disagreement to the hospital’s dispute mediation system. The DNR order
cannot be issued or revoked until the dispute is resolved. The provisions governing
dispute mediation do NOT apply to nonhospital DNR orders.[xiii]
Any dispute concerning a DNR order is subject to judicial review, except that
there is no judicial review of a patient’s refusal to consent to a DNR order. The burden of
proof is on the party challenging the decision to issue a DNR order “to demonstrate by
clear and convincing evidence that the decision is contrary to the patient’s wishes or
alternatively that it is not in the patient’s best interest.”
Portability of DNR Orders
The legislation and regulations governing DNR orders attempt to make sure that a
DNR order that is issued is one health care facility will be recognized in another health
care facility if the patient is transferred. Therefore, when a patient is being transferred,
the ambulance personnel and the receiving health care facility must be notified, in
writing, of the patient’s DNR order and they must honor the order.
Advocacy Issues
A person or surrogate considering implementing a DNR order may have concerns
regarding the effect the order may have on the overall quality of the patient’s health care.
Therefore, it is important that the advocated make it clear that DNR orders only pertain to
CPR. Also, it may be helpful to have a discussion that involves the person’s health care
professionals to make it clear to the person or surrogate that a DNR order will NOT have
an affect on the medical treatment that the patient is/or will receive in the future. It is also
important to inform all the people involved in the decision process that a DNR order does
not mean that the person will be deprived of “comfort care or pain relief.”
The patient and surrogates should also be reminded that the DNR order is easily revoked
if they change their minds. Furthermore, if it is a capable person who is thinking about a
DNR order, they should be encouraged to also consider other advance directives that
cover a broader range of circumstances, such as a health care proxy or a living will.[xiv]
Revocation of a DNR Order
A patient or the patient’s health care agent can revoke a DNR order at anytime
they wish. The revocation can be a written or oral statement made to a doctor or nurse.
Also, a DNR order can be revoked by any other act that shows an intention to revoke the
DNR order.[xv]
Priority of a Health Care Decision made by a Health Care Agent
A decision regarding CPR made by a health care agent, who was properly
appointed by a health care proxy, has priority over a decision made by anyone other then
the patient, or as otherwise stated in the health care proxy.
Sources
1. New York Elder Law Handbook § 11.3.2 Public Health Law Article 29-B: Orders Not to Resuscitate. New York Elder Law Handbook § 11.3.2.
2. New York Guide to Tax, Estate and Financial Planning for the Elderly
Chapter 14 Health Care Decisions. 1-3 New York Guide to Planning for the Elderly § 14.04[4].
3. New York Elder Law Handbook § 11.3.2 Public Health Law Article 29-B: Orders Not to Resuscitate. New York Elder Law Handbook § 11.3.2.
4. New York Elder Law Handbook §11.3.2 [A] DNR Orders for Patients with Capacity. New York Elder Law Handbook § 11.3.2.