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Ethics Corner: Whose Call Is It?

By Currents Editor posted 03-29-2018 23:00

Deepa_Malaiyandi__MD.bmpBy Deepa Malaiyandi, MD

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]
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. #NCSRoundup
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