by Craig Klugman, Ph.D.
The Texas government has passed SB 11 an act “relating to general procedures and requirements for certain do-not-resuscitate orders; creating a criminal offense.” As of April 1, 2018, one can be jailed for offenses involving DNR orders. When new laws are passed they often require new regulations to interpret them as well as statements from the state attorney general on how they are to be enforced and viewed. While those steps have not yet been taken, the threat to physician practice and patient autonomy in this law necessitates taking a further look at it now.
A do-not-resuscitate (DNR) order is a physician’s order, entered into the medical chart, instructing that in the event of cardiac arrest, no attempts should be made to resuscitate the patient. In most places, a patient or—if the patient is incompetent or incapacitated—a medical power of attorney or legal surrogate can make a request for an order to be entered into the chart. A patient can indicate a desire regarding DNR orders in an advance directive, a POLST form, or a conversation with a health care provider that is documented in the chart.
The law is part of an attempt to by the right-to-life movement in Texas to roll back the advance directives act, especially the futility provision. This bill is described as “restoring the rights of hospitalized patient.” The reality is that the bill creates undue burdens for health care providers and hospitals while undermining patient’s abilities to make advance decisions for their end of life care. These efforts are all about eliminating patient choice.
A 2016 UK report found that 20% of families at the Royal College of Physicians were not aware of a DNR order. What is not reported was whether any of those people were legal guardians or surrogates of patients, whether patients wanted to family members to know, or even how the questions were phrased. At least in the U.S., families do not have a right to medical information or decision-making. Only the patient, the medical power of attorney/legal surrogate, guardian, or individuals designated by the patient have a right to have that information. That families did not know probably says more about family dynamics than something insidious.
Another study found Massachusetts General Hospital had a unilateral DNR policy where, a DNR was placed even if there were disagreements with patients and surrogates. The policy seems to require ethics committee review before such a DNR is written. If they function like the ethics committees on which I have served, including in Texas, then the patient, family members, and perhaps friends were contacted to learn about who the patient was and what they would have desired. Just because specific consent was not legally required for a DNR to be written does not mean that doctors imposed DNRs on patients in secret. The only demographic found in common with people who had unilateral DNRs was that they were dying and were more likely to die. DNRs are not about shortening life, they are about avoiding prolonged dying in suffering. The need to restore patient rights in regards to DNR is most likely a smoke screen.
The bill was part of a special legislative session focused on conservative concerns such as abortion, who uses which bathroom, and DNRs. Many professional organizations in the state opposed the bill: Catholic Health Association, Texas & New Mexico Hospice, Texas Hospital Association, Texas Association for Home Care & Hospice to name a few. The Texas Medical Association expressed concern about physician liability when “writing or effectuating a DNR order” in “good faith.”
With the new Texas law, unless a patient has requested comfort care measures only in an advance directive (Directive to Physician in Texas-speak) before a hospitalization, then a DNR order must be agreed to or requested by the patient in front of two witnesses. In addition, one of those witnesses cannot be a hospital employee involved in patient care. If the patient is incapacitated, then the witnessed request or agreement can only be made by the medical power of attorney or legal surrogate.
Step 2 of writing a DNR order in Texas will now require that the patient, surrogate, and perhaps family be notified about the intent to write an order before it is written. And oddly, the same notification must be made after the order is entered into the record.
Sometimes there are disagreements about DNR orders. The hospital may think such an order is in the patient’s best interest and the patient or surrogate may disagree. Or the patient or surrogate may want a DNR order and the health care team may be against that choice. Under the new legislation, if there is a disagreement then the patient is supposed to be transferred to another facility. According to the Texas Hospital Association, it is unclear at this time whether the transfer takes place before or after a dispute resolution process outlined in the already existing portions of the same legal code.
Part of the new law actually reduces patient autonomy and seems to deem that incapacitated patients have less autonomy even if their wishes are in writing. If a patient is incapacitated, the medical power of attorney or legal surrogate now has the power to revoke a DNR order requested by the patient in word and/or writing. While surrogates have always been able to change consent based on new information, the patient’s pre-stated wishes are often taken as guidance in making those choices. In the new DNR rules, patient’s wishes do not matter if the surrogate makes different choices.
Perhaps the most unique part of this new law is that it criminalizes if a person “intentionally conceals, cancels, effectuates, or falsifies another person’s DNR order if the person intentionally conceals or withholds personal knowledge of another person’s revocation of a DNR order.” Person includes a health care provider. In addition, disciplinary action with the appropriate licensing board may take place if a DNR order is issued that violates some aspect of the new law. That might include, for example, writing a DNR order without notifying the proper persons before writing it (even if no one was available at that time, the patient was incapacitated, or the patient expressly requests no resuscitation in an advance directive) and after entering it into the record. There is nothing to prevent the long last family member showing up at last minute and saying that “everything should be done” and claiming a DNR is invalid because he or she was never notified. The crime is a Class A Misdemeanor which in Texas is punishable by up to 1 year in jail and/or a fine.
Given the history of conservative legislation in other issues (right to try, regulating outpatient clinics that provide abortions by hospital requirements) the success of this bill in Texas will lead to similar proposals being introduced into more state legislatures next year. In a few years, there will likely even be an attempt to create this limit on DNRs in federal legislation or any new Trump/Ryancare proposals. Although you may not live in Texas and might not think this bill changes things, we should all be concerned about efforts to undermine the patient-physician relationship.