A. In the Matter of Dinnerstein

In the Matter of Dinnerstein (6 Mass App 466, 380 N.E. 2d 134) is one of the leading cases in this area. The case is instructive. The case involved a 67 year old widow suffering from Alzheimer's Disease. The disease leads to a vegetative condition and then death. The patient also suffered from a massive stroke that left her paralyzed. She was confined to bed. Her condition was considered hopeless, and her life expectancy was less than one year.

Her physician recommended that in the event of cardiac or respiratory arrest, resuscitation should not be attempted. The patient's family agreed with the recommendation and, with the physician and the hospital, petitioned the probate court for a declaration that the physician could enter such an order without specific advance judicial approval.

The court observed that the patient's condition was hopeless and that death would come soon, in the form of cardiac or respiratory arrest. The court stated: "Attempts to apply resuscitation, if successful, will do nothing to cure or relieve the illnesses which have brought the patient to the threshold of death." The court ruled that the question of whether to issue a Do Not Resuscitate order is peculiarly within the competence of the medical professional in light of the patient's medical condition and history as well as the express desires of the family.

The court cited the National Conference on Standards for Cardiopulmonary Resuscitation and Emergency Cardiac Care, and ruled that the issuance of a DNR order is not a question for judicial decision, but one for the attending physician to address in keeping with the highest standards of the medical professions.

B. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research.

Following Dinnerstein and the lead of several legal and ethical experts, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research issued recommendations regarding DNR orders in its 1983 report. The Commission strongly recommended that hospitals develop policies to implement DNR orders to protect the interests of patient and their families.

C. American Medical Association, Council on Ethical and Judicial Affairs.

The council issued guidelines to assist hospital medical staffs in formulating resuscitation policies in December of 1987. The Council's position was recently updated. (JAMA, April 10, 1991 - Vol 265, NO. 14 pp. 1868 - 1871).

The Guidelines:

1. Efforts should be made to resuscitate patients who suffer cardiac or respiratory arrest except when circumstances indicate that administration of CPR would be futile or not in accord with the desires or best interests of the patient.
   
   
2. Physicians should discuss with appropriate patients the possibility of cardiopulmonary risk. Patients who are at risk of cardiac or respiratory failure should be encouraged to express, in advance, their preferences regarding the use of CPR. These discussions should include a description of the procedures encompassed by CPR and, when possible, should occur in an outpatient setting when general treatment preferences are discussed, or as early as possible during hospitalization, when the patient is likely to be mentally alert. Early discussions that occur on the nonemergency basis help to insure the patient's active participation in the decision making process. In addition, subsequent discussions are desirable, on a periodic basis, to allow for changes in the patient's circumstances or in available treatment alternatives that may alter the patient's preferences.
   
   
3. If a patient is incapable of rendering a decision regarding the use of CPR, a decision may be made by a surrogate decision maker, based on the previously expressed preferences of the patient or, if such preferences are unknown in accord with the patient's best interests.
   
   
4. The physician has an ethical obligation to honor the resuscitation preferences expressed by the patient or the patient's surrogate. Physicians should not permit their personal value judgments about quality of life to obstruct the implementation of a patient's or surrogate's preferences regarding the use of CPR. However, if, in the judgment of the treating physician, CPR would be futile, the treating physician may enter a DNR order into the patient's record. When there's adequate time to do so, the physician must first inform the patient, or the incompetent patient's surrogate, of the content of the DNR order, as well as the basis for a its implementation. The physician also should be prepared to discuss appropriate alternatives, such as obtaining a second opinion or arranging for transfer of care to another physician.
   
   
5. Resuscitative efforts should be considered futile if they cannot be expected either to restore cardiac or respiratory function to the patient or to achieve the expressed goals of the informed patient.
   
   
6. DNR orders, as well as the basis for their implementation, should be entered by the attending physician in the patient's medical record.
   
   
7. DNR orders only preclude resuscitative efforts in the event of cardiopulmonary arrest and should not influence other therapeutic interventions that may be appropriate for the patient.
   
   
8. Hospital medical staff should periodically review their experience with DNR orders, revise their DNR policies as appropriate, and educate physicians regarding their proper role in a decision making process for DNR orders.
   
   
   

D. State Medical Societies and State Legislatures.

Consistent with these recommendations state Medical Societies and several state legislatures have promulgated guidelines for writing and implementing DNR orders. These provisions allow for health care workers, including pre-hospital providers to recognize and implement DNR orders. They also provide a format and time frame within which the orders will be effective.

E. Hospital Guidelines.

Most hospitals today have guidelines for do not resuscitate. These guidelines emphasize that competent patients are entitled to make independent decisions regarding medical treatment in the context of terminal illness. Thus, when a physician has informed a competent patient about the nature of a terminal illness and the consequences of refusing CPR, a DNR order may be issued upon the patient's request and without the requirement of obtaining prior judicial approval. The medical record should reflect the nature of the discussion that has taken place, the patient's decision, and an indication of the patient's medical and mental condition. Should the competent patient later become incompetent, the prior consent will remain valid absent any change in clinical condition that would justify revoking the order. Note that patients are presumed to be competent absent a judicial declaration to the contrary.

Should the patient indicate a desire to have the DNR order revoked, the request must be accommodated immediately.