Legal Implications of DNR Order

(Editor's note: In his May 1996 "EMS" column, contributing editor Rich Adams outlined "do not resuscitate" (DNR) protocols for EMS crews. The following column looks at DNR orders from a legal standpoint.)

Whether riding as a first responder on an engine company, as an emergency medical technician (EMT), as a paramedic or in another capacity, it can be one of the most frustrating and difficult situations that you confront.

You arrive on the scene to find the patient in cardiac arrest. But a family member (or someone else on the scene) insists that the patient does not want to be resuscitated, and shows a piece of paper that seems to document the patient's wishes.

Our training, instincts and understanding of the law make us want to begin cardiopulmonary resuscitation (CPR) and take whatever other measures are appropriate. Indeed, this is reinforced by the legal concept of implied consent. By this doctrine, the law presumes that when a person is unconscious and it appears that a life-threatening illness or injury exists, the patient would want to receive treatment. Further, there is a "duty to act" and provide care to our level of certification that arises because of our involvement in the fire and EMS services. A "failure to act" could create liability if treatment is not provided.

Through a variety of laws, many states have recognized that persons have a right to refuse treatment in almost every circumstance. In a life-threatening situation, however, it is crucial that care not be mistakenly withheld. So, it is crucial to make sure that the patient indeed does not want to be resuscitated.

Many states have recognized "living wills" or do not resuscitate (DNR) orders as the basis for not undertaking CPR. Initially, only persons with terminal conditions were permitted to execute these documents. Thus, they generally were found only in nursing homes, hospices or other medical facilities. However, now there are many cases in which individuals who were not necessarily previously suffering from serious medical problems have executed such documents. Therefore, living wills are being found more commonly in private residences and other settings.

Simply stated, a living will is a document that states how a person wishes to be treated when incapacitated. Generally, it must be witnessed and signed by at least one other person. Indeed, given the importance of the potential effect of the document, some states require that it be signed by a physician. Such requirements generally are imposed to assure that the person understands the document's consequences and has seriously considered the matter.

Utah is one state that provides clear legal guidance to EMS providers regarding living wills. It has a law and regulations that specifically provide for emergency medical services and a program for implementing the law. The Utah Bureau of Emergency Medical Services has developed an implementation protocol. There even is a DNR coordinator, who provides training to EMS personnel and other health care providers.

The Utah law recognizes that individuals have the right to make decisions about their own health care. This includes the right to instruct medical care providers in advance to withhold life-sustaining procedures. The law describes how the living will must be executed and even provides a model form. It also provides procedures to be followed when the decision to withhold treatment is made.

Unfortunately, according to Andy Ostler, the Utah DNR coordinator, the original law required two physicians to approve the decision to cease treatment. This made the law virtually useless for EMS personnel. In 1993, however, the Utah law was amended to provide specifically for emergency personnel. The result is a law and a program that could serve as a model for other states.

The law allows persons over the age of 18 to execute an advance directive instructing EMS providers who respond to a call to withhold all life-sustaining procedures. The Utah Department of Health was directed to establish a system to let EMS personnel readily identify persons who have made such a directive. The law also authorized the use of tamper-proof bracelets and necklaces as a means of identifying persons who have executed such directives.

The health department has issued regulations that clearly spell out how DNR orders are to be executed. By doing so, pre-hospital personnel have a simple and easy way to recognize a patient's right to make his or her own decision regarding CPR and other advanced care procedures. Thus, for example, the regulations state, "to be honored by EMS personnel, the EMS/DNR directive must be placed in an unobstructed view … or the declarant must be wearing the EMS/DNR bracelet or necklace." The bracelet or necklace can be issued only by the health department, and the regulations make clear that if it is not intact or is defaced, it is invalid.

The health department's DNR directive spells out the responsibilities of EMS providers. EMS personnel are first responsible for making a proper primary and secondary assessment, just as in any other situation. As part of that assessment, EMS personnel are to determine whether an EMS/DNR directive exists. The directive continues with guidance that is valuable for all EMS personnel:

The EMS personnel may need to begin resuscitation efforts while they determine the status of the patient. Begin treatment of the patient including CPR if the directive has been revoked. Avoid confrontation with family. If the family demands care, provide palliative care while contacting medical control and provide them with the information pertinent to the situation.

Remember, if an EMS/DNR directive is valid, the EMS personnel should honor the patient's request by withholding CPR. If the EMS personnel have personal feelings concerning the directive and are unwilling to honor the directive, they should allow someone else to assume responsibility for patient care. If the EMS personnel should have any questions, they should contact medical control.

Given the development of these legal instruments, both fire and EMS departments should develop policies for dealing with the situation. The questions they raise are too important to be answered on an ad hoc basis. These situations should be pre-planned, just as other potentially significant calls are pre-planned. Hopefully, there will be clear guidance from the state, such as provided in Utah.

This process should start with an understanding of the relevant state laws. We shouldn't be spending a lot of time on the scene analyzing paperwork that someone gives to us. But it is important to know, for example, whether such documents are required to be witnessed and signed by another person. Must there be more than one witness? Must it be signed by a physician? Does such a document have validity outside a medical facility? Is there any specific language that the state requires to be in such a document?

With a short checklist of such items, it is possible to quickly decide whether the document can be honored. If there is any doubt, resuscitation should be started. When in doubt, legal advisors always recommend that it is better to give too much aid. CPR should be started if any doubt exists regarding the validity of a DNR order.

Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.