Why new DNR order regulations don’t lay ethical concerns to rest

A little over a year ago, the Texas Legislature passed legislation regulating inpatient do-not-resuscitate orders (DNRs). It’s now gone into effect in hospitals across the state. While the intent is to protect patient autonomy, it also raises ethical concerns. Here are three key changes and why they matter.

Witnessing requirements

When a patient has the ability to make medical decisions and requests the completion of an inpatient DNR order, then two competent adults must act as witnesses to the patient’s consent. In addition to witnessing requirements, the new regulations also restrict who may act as a witness. One witness cannot be an employee of the patient’s attending physician or an employee of the healthcare facility where the patient is receiving medical treatment.

The witnessing requirements and restrictions present logistical challenges that make implementation of these new regulations difficult. Apart from the logistical hoops, there are latent privacy and confidentiality concerns.

Code-status conversations are value-laden (and often emotionally laden) discussions that are essential components to the therapeutic alliance established between the physician and patient. Requiring two witnesses may impede the patient’s willingness to consent to the DNR order.

Notification requirements

The new regulation permits a physician to issue a DNR order when the following criteria are met:

1. The DNR order is not contrary to the patient’s directions (if known)
2. The DNR order is medically appropriate
3. The patient is imminently dying. In this circumstance, a physician (or nurse providing direct care to the patient or physician extender) is required to make reasonably diligent efforts to notify the patient’s legal guardian, agent, or another appropriate surrogate of the issuance of the DNR order

There are also two notification requirements:

1. At the time that the physician issues the DNR order
2. At the time that the individual arrives at the healthcare facility where the patient is receiving treatment

At the risk of ignoring other relevant ethical considerations, patient autonomy is the dominant ethical consideration that impacts DNR and other related code-status discussions with a patient or surrogates.

Legally permitting a physician to issue a DNR order gives appropriate ethical balance to a physician’s professional integrity and medical expertise. While some may be concerned regarding a physician’s unchecked authority to issue the DNR order under this circumstance, notification requirements provide a safeguard against ethically inappropriate unilateral DNR orders.

Legal guardians and agents

When the patient loses the ability to make medical decisions, it’s a well-established practice that the medical team identifies an appropriate person to make medical decisions on the patient’s behalf. This individual would have full authority to make medical decisions, except in some limited circumstances (e.g., pregnancy termination).

Once the patient loses capacity, the new regulations permit a legal guardian (as appointed by the court) or an agent named in a medical power of attorney document to request the discontinuation of the patient’s DNR order.

While this requirement may not seem controversial at first glance, the language of the law authorizes the agent to revoke the order, even if it’s against the patient’s preferences, which undermines autonomy-based principles.

Given that new regulations limit the ability to revoke the DNR order to a legal guardian or an agent, it remains unclear when and if another appropriate surrogate (e.g., a spouse) would be able to revoke the DNR order.

The new regulations have caused some confusion for practicing clinicians and other allied healthcare professionals. Guidance for clinicians regarding the new requirements can be found on the Texas Medical Association website. More general information about the new inpatient DNR order law can be found on the Texas Hospital Association website.

The irony of these new regulations is that they raise several ethical (and legal) questions about the patients they are supposed to protect. Are patients better off? Only time will tell.

-By Adam M. Pena, M.A., instructor in the Center for Medical Ethics and Health Policy at Baylor College of Medicine and a clinical ethicist at Houston Methodist Hospital