Do-Not-Resuscitate Orders: Public Policy and Patient Autonomy

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment, U.S. Government Printing Office, March 1983, (herinafter cited as “Deciding to Forego”), pp. 231–247.

While few court decisions have addressed resuscitation explicitly, cases involving other life-saving or life-sustaining measures have laid down clear principles that apply equally to resuscitation decisions. See, e.g., Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 997 N.E.2f 626 (1986); Matter of Conroy 98 N.J. 321, 486 A.2d 1209 (1985). In addition, many states now have living will laws which expressly cover advance decisions about resuscitation. See, Society for the Right-to Die, Handbook of Living Will Laws 1984–85, New York, N.Y. (1986).

Bedell S.E. Delbanco T.L. , “Choices about Cardiopulmonary Resuscitation in the Hospital: When Do Physicians Talk with Patients?” New England Journal of Medicine 1984, 3110:1098–93; Evans A. Brody B. , “The Do-Not-Resuscitate Order in Teaching Hospitals,” JAMA 1985, 253;2236–2239; Younger S.J. Lewandowski W. , “Do Not Resuscitate Orders: Incidence and Implications in a Medical Intensive Care Unit,” JAMA 1985; 253:5–47.

Wetle T. Levkoff S. , “Nursing Home Resident Participation in Medical Decisions: Perceptions and Preferences,” The Gerontologist 1988, 28:320–38.

See Deciding to Forego, p. 249; Office of Technology Assessment, Institutional Protocols for Decisions about Life-Sustaining Treatments, U.S. Government Printing Office, July 1988, p. 8.

Longo D.R. Warren M. , “Extent of ‘Do Not Resuscitate’ Policies Varies across Health Care Settings,” Health Progress 1988, 69:66–73.

New York State Task Force on Life and the Law, Do Not Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law, New York, N.Y., March 1986 (hereinafter cited as “Task Force Report”).

N.Y.A. 11669, 197th Session (1974).

State of New York, Exec. Order No. 56, Dec. 20, 1984.

Report of the special January third additional 1983 Grand Jury concerning “Do not resuscitate procedures at a certain hospital in Queens” (Sup. Ct., Queens Co. Feb. 8, 1984).

Id.: 13.

Id.: 13.

Task Force Report, supra note 7 at 6–8.

Testimony at Public Hearing before the New York State Senate and Assembly Health Committees, Feb. 12, 1987 (hereinafter “Public Hearing”).

52 N.Y.2d 363, 420 N.E.2d 63. cert. denied, 454 U.S. 858 (1981).

52 N.Y.2d at 379; 420 N.E.2d at 63.

Id. at 380, 420 N.E.2d at 73.

Compare, Matter of Guardianship of Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984); In re H.R., 253 Ga. 439, 321 S.E.2d 716, 722 (1984); Barber v. Superior Court, 163 Cal. App.3d 186, Cal.Rptr. 220 (Ct. App.1984) with Matter of Storar (referring to the applications for guardianship in both Storar and Eichner the Court noted that they do not present a justifiable controversy since they call for “innovations in the law, both substantive and procedural, which should be left to the Legislature…”) 52 N.Y.2d at 382, 420 N.E.2d at 73.

Id. at 370; 420 N.E.2d at 67.

Task Force Report, supra note 7 at 18.

The principles enunciated in Matter of Storar were broad enough to encompass all life-sustaining and life-saving treatments. 52 N.Y.2d at 363.

Task Force Report, supra note 7.

Public Hearing Tr. 83

See, e.g., In re Quinlan, 70 N.J. 10, 355 A.2d 647, 664; cert. denied, sub nom Granger v. New Jersey, 429 U.S. 922 (1976); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Matter of Spring, 380 Mass. 629, 905 N.E.2d 115 (1980).

For example, in a 1985 decision in Matter of Conroy, 98 N.J. 321,486 A.2d. 1209, the New Jersey Supreme Court all but retreated from the Quinlan standards by acknowledging that the patient's right to decide does not depend on the patient's treatment or prognosis. See also, Brophy v. New England Sinai Hospital, Inc. , 398 Mass 417, 497 N.E.2d 626 (1986); Bouvia V. Superior Court of the State of California for the County of Los Angeles, 179 Cal.App.3rd 1127, 255 Cal.Rptr. 297 (Ct. App. 1986).

Id; Matter of Cruzan , 760 S.W.2d 408 (Mo. 1988), petition for cert. filed, 57 U.S.L.W. 3636 (1989).

See, e.g., Iowa Code ch. 144A.1-144A.11 (1985). Like many states, Iowa excludes decisions about artificial nutrition and hydration from the definition of “life-sustaining procedures” thereby placing these measures outside the protection of the statute. Most states also set forth prognosis-related criteria that must be met before the living wills are given effect. See e.g., Natural Death Act, Ala. Code §§ 22-8A1-10 (1981); New Mexico Right to Die Act, N.MK. Stat.Ann. §§ 24-7-1-11 (1977). For a description and analysis of these provisions in living will laws see, Gelfand G. , “Living Will Statutes: The First Decade,” 1987 Wisconsin Law Review 737.

Legal Advisory Board, Concern for Dying, “Model Right to Refuse Treatment Act,” American Journal of Public Health 1983, 73:921. Interestingly, some state statutes that address patients' rights outside the context of living will legislation do convey an unqualified right to decide about treatment. See, e.g., N.Y. Public Health Law Section 2803-C(i) (e) granting every patient the right “to refuse medication and treatment after being fully informed of and understanding the consequences of such actions.”

Task Force Report , supra note 7 at 22.

The therapeutic exception is embodied in New York Public Health Law, § 2805-d(2) (a). See also, Swidler R. N. , “The Presumption of Consent in New York State's Do-Not-Resuscitate Law,” New York State Journal of Medicine 1989, 89:69–72.

Task Force Report, supra note 7 at 49–50.

E.g., In re Quinlan, supra note 25; Gray v. Romeo, No. 870573B, U.S. Dist.Ct. (Oct. 17, 1988). In New York, the Court of Appeals has explicitly recognized the constitutional status of the right in a 1986 decision, Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337 (1986). In that case, the Court upheld the right of involuntarily committed patients to refuse psychotropic medication, noting that the right to decide about treatment is guaranteed by the Due Process Clause of the State Constitution.

The therapeutic exception is embodied in New York Public Health Law, §§ 2805-d(4) (d).

For an excellent analysis of the alternative standards for the therapeutic exception, see Somerville M.A. , “Therapeutic Privilege: Variation on the Theme of Informed Consent,” Law, Medicine & Health Care 1984, 12:4–13. See also, Meisel A. , “The Exceptions to the Informed Consent Doctrine: Striking a Balance between Competing Values in Medical Decision-Making,” 1979 Wisconsin Law Review, 413.

Task Force Report, supra note 7 at 26–7. In Deciding to Forego, the President's Commission responded directly to the contention that consent was irrelevant for a DNR order since the order is a decision to withhold, rather than to provide, treatment: “The Commission finds it necessary for the patient or surrogate to have given valid consent to any plan of treatment whether involving omissions or actions, and rejects this claim.” Deciding to Forego, supra note 1 at 241, n. 39.

Id.: 66–71.

E.g., Deciding to forego, supra note 1 at 121–27.

Society for the Right-to-Die, Handbook of 1985 Living Will Laws, New York, N.Y.; Handbook of Living Will Laws 1984–85, New York, N.Y.

E.g., Arkansas Death With Dignity Act, Ark.Stat.Ann §§ 82-3801 et. seq. (Supp. 1985); Florida Life Prolonging Procedure Act, Fla.Stat. §§ 765.01 et.seq (1986).

See discussion, Task Force Report, supra note 7 at 34–36.

Id.: 32.

Id.: 34–45.

Id.: 33.

N.Y. Public Health Law, Art. 29-B (1988). As enacted, the law generally required more procedures to enter a DNR order.

Matter of O'Connor , 72 N.Y.2d 517 (1988).

Id. at 891, n.2.

Fader A. M. Gambert S. R. , “Implementing a Do-Not-Resuscitate Policy in a Nursing Home,” JAGS 1989, 37:544–548; See also, Uhlmann R. F. Pearlman R. A. Cain K. C. , “Physicans' and Spouses' Predictions of Elderly Patients' Resuscitation Preferences,” 1988 Journal of Gerontology, 43:115–121, showing that spouses consistently overestimated the patient's desire for CPR when making surrogate decisions for patients.

The Task Force mailed questionnaires to 243 hospitals and 554 long-term care facilities in New York State. Fifty-eight percent or 140 hospitals and 38% or 212 long-term care facilities responded to the survey. Both samples are representative of the actual population of facilities by geographic distribution and bed size.

Plowe C. V. , Letter to the Editor, New England Journal of Medicine 1988, 318:1758; “How CPR Can Threaten the Desperately Ill,” Wall Street Journal, March 9, 1989.

Blackhall L. , “Must We Always Use CPR?” New England Journal of Medicine 1987, 317:1281–85; Tomlinson T. Brody H. , “Ethics and Communication in Do Not-Resuscitate Orders,” New England Journal of Medicine 1988, 318:1754–59; Murphy D. , “Do Not Resuscitate Orders: Time for Reappraisal in Long-Term Care Institutions,” JAMA 1988, 260:2098–2101; Brennan T. , “Silent Decisions: Limits of Consent and the Terminally Ill Patient,” Law, Medicine & Health Care 1988, 16:204–209.

Rosner F. , “Must We Always Offer the Option of CPR: The Law in New York,” JAMA 1988, 260:3129; Murphy D. , supra note 53.

Rosner F. , supra note 54.

As expressed by one physician: “Critically ill patients often cannot cope with the stress of discussing the possibility of their imminent death and of rationally weighing the pros and cons of CPR.” “How CPR Can Threaten the Desperately Ill,” Wall Street Journal, March 9, 1989.

Plowe C. V. , supra note 52.

See Botkin J. , “Letter to the Editor,” New England Journal of Medicine 1988: 318:1757.

For an excellent discussion of the potential different meanings of futility, see Younger S.J. , “Who Defines Futility?” JAMA 1988, 260:2094–95. The DNR law in New York defines futility, not for the purpose of creating a therapeutic exception to informed consent, but as a standard for physician decisionmaking when no surrogates are available to decide on the patient's behalf. N. Y. Public Health Law § 2966. For this purpose, the law embraces a narrow definition.

For example, a recent article in the Journal of the American Medical Association proposed that physicians should consult with only a small percentage of nursing home residents, deciding for others by weighing not just the possible futility of treatment, but the patient's quality of life following CPR. D. Murphy, supra note 51.

Studies on patient preferences about CPR have shown a range of responses, e.g., Murphy D. , supra note 53 (23 out of 24 long-term care residents refused CPR); Fader A. M. , supra note 50 (30 of 48 long-term care residents chose to be resuscitated at facility connected to major medical center); Uhlmann R. F. , supra note 50 (describing patient preferences under hypothetical circumstances, i.e., chronic lung disease, stroke and current health status). The diversity of responses may reflect the personal nature of the decision about CPR, the different potential outcomes for patients and the attitudes of those who presented the options to paticipants in the studies conducted.

The Department of Health has provided specific guidance on this point to health care facilities. See Health Facilities Memorandum Series 88–24, March 18, 1988. For a thoughtful analysis of this question focusing on the do-not-resuscitate law in New York, see Swidler R. N. , supra note 32.

“New York State Resuscitation Law Questioned,” Buffalo News, June 6, 1988, C-l; “How CPR Can Threaten the Desperately Ill,” Wall Street Journal, March 9, 1988, A-24.

For one early reference to the presumption of consent see Taylor's Principles and Practice of Medical Jurisprudence, 10th Edit., (London, England, 1948) pp. 77–78.