By Wesley J. Smith
Back in February, I complained about Texas SB. 303, which would allow doctors to impose a Do Not Attempt Resuscitation (DNAR) Order on a patient’s file without consent. Since then, I have been to Austin testifying against the bill, and some salutory changes were made, although the bill still seems unacceptable to me.
In the prior version of the bill, the DNAR stayed in place–even if the patient/surrogate complained and an ethics committee adjudicatory process was started. Now, once the process formally starts, the DNAR comes off the patient’s chart.
That’s better, but still not good enough. The revised S. 303–which has now passed the Texas Senate–continues to allow doctors to impose a DNAR on the chart without consent, and moreover, requires the patient/surrogate to complain in writing, even though the notice of imposition of DNAR can be oral. From the passed version of S 303:
Sec. 166.012. STATEMENT RELATING TO DO-NOT-ATTEMPT-RESUSCITATION ORDERS.
(c) Before placing a do-not-attempt-resuscitation (DNAR) order in a patient’s medical record, the physician or the facility’s personnel shall inform the patient or, if the patient is incompetent, make a reasonably diligent effort to contact or cause to be contacted the surrogate. The facility shall establish a policy regarding the notification required under this section. The policy must authorize the notification to be given verbally by a physician or facility personnel.
(d) The DNAR order takes effect at the time it is written in the patient’s chart or otherwise placed in the patient’s medical record.
I reemphasize, despite the notice being oral, no consent is required. If a patient or surrogate objects, it must be in writing
(e) If the patient or surrogate disagrees with the DNAR order being placed in or removed from the medical record, the patient or surrogate may request in writing and is entitled to a consultation or a review of the disagreement by the ethics or medical committee in the manner described by Section 166.046, with the patient or surrogate afforded all rights provided to the surrogate under that section, and with the physician afforded all protections from liability provided under Section 166.045(d)
Thus, the burden of objecting is placed on the sick patient, who is probably weak and may be unable to get out of bed–or the family. Many will be hesitant, given that the doctor and hospital hold the patient’s life in their hands. Not only that some will be uneducated and feel incapable of standing against people who may be more educated and part of the institutional culture.
Also note that the letter requests that an ethics committee meeting be convened. Most members of that ethics committee will be employees of the hospital and others will be volunteers from the community with a close connection to the hospital. They will know the physician, who will probably be a hospitalist, also an employee or a contract doctor paid by the hospital. It is also worth mentioning that the ultimate deciders will be strangers to the patient empowered to veto the patient’s advance directive.
Not only that but a doctor who imposes a DNAR order is completely free from liability, as are the facility and other personnel. But if a doctor does not impose a DNAR, he or she remains potentially liable for mistakes or negligence. In other words, in close cases, the incentive is to impose the DNAR.
Once the written request is made and the ethics committee process started, the DNAR comes off the chart. But the ethics committee can still force it back on without consent in a secret decision making process afer all parties have been heard. At that point, the only option for the patient is to find a different hospital. Good luck with that.