Law Talks Episode: Do Not Resuscitate (DNR)

Robyn: Good morning and welcome to another edition of 4CRB’s Law Talks. Healthcare decisions are among the most important choices we will ever make for ourselves and one of the most controversial of these is the Do Not Resuscitate Order, DNR. Deciding whether to complete a DNR is deeply personal as it directly impacts the care you receive or do not receive in critical situations.

With several ways to document your healthcare decisions, it’s easy to become confused about which document is the right one and whether it will be upheld in a healthcare setting.

Today we’re joined by Attwood Marshall Lawyers Wills and Estates Senior Associate and accredited aged care professional, Larisa Kapur, who will help us navigate this sensitive topic and provide insights on how to ensure your healthcare wishes are respected.

Thanks for being here, Larisa.

Larisa: Thanks for having me, Robyn.

Robyn: So, Larisa, to begin our segment today, can you please explain to our listeners who may not be familiar with the DNR, what type of order this is?

Larisa: Certainly, Robyn. So, Do Not Resuscitate order, which is the DNR, also known as a Not for Resuscitation order, which is NFR, is a medical directive that indicates a person’s wish not to receive certain lifesaving interventions, such as CPR.

Now, a DNR is typically put in place when an individual, often in consultation with their healthcare provider, has decided that they do not want to undergo resuscitation attempts due to factors such as poor prognosis, terminal illness, or personal beliefs about what their quality of life may be.

Some people want to ease the emotional burden on their loved ones and will make that decision also.

So, whatever the reason is, the primary purpose of a DNR order is to prevent unnecessary and unwanted medical intervention as at the end of life.

Robyn: So, how can someone document their wishes and ensure they are upheld if they do not wish to receive life sustaining treatment in a medical emergency?

Larisa: Well, in Australia, the right to decline resuscitation is primarily governed by state and territory laws, and there are strict legal frameworks in place to ensure that a person’s preferences are honoured. So, the key documents that can outline an individual’s wishes regarding resuscitation include Advanced Care Directive, also referred to as an Advanced Healthcare Directive.

So, this is a legally binding document where a person can express their wishes about medical treatment including, do not resuscitate order in there. An Advanced Healthcare Directive is recognized across all Australian states and territories, but the form and legal requirements may vary depending on the jurisdiction that you’re in.

Robyn: Okay.

Larisa: So, the other one is an Enduring Power of Attorney or Appointment of Enduring Guardian document. So, these documents allow an individual to appoint someone, a substitute decision maker, to make decisions on their behalf if they become unable to do so, for themselves. So, in the context of resuscitation, the appointed person can enforce the wishes expressed in the Enduring Power of Attorney or, Appointment of Enduring Guardian document.

Or an Advanced Health Care Directive or other directives, if these have been documented by an individual before losing capacity. The third one is let’s say medical orders. So, some states use specific medical orders like not for resuscitation or no CPR orders, which are written by a doctor and included in a patient’s medical record.

So, these orders are typically based on the patient’s Advanced Care direction, if they have one, or alternatively discussions with the patient and or their substitute decision maker, such as their power of attorney.

Robyn: So, we’ve just looked at three documents there. Which document supersedes all others?

Larisa: Well, if you look at the Advanced Care Directive, so in most cases an Advanced Healthcare Directive will supersede the other documents and verbal instructions if it’s clear, valid and applicable to the situation at hand.

It provides a direct instruction or direct instructions on the person’s wishes regarding resuscitation and other medical treatments, which have been discussed and signed off by a medical professional and a suitable witness.

The medical orders, so while an advanced care directive is the primary document, medical orders like the NFR or No CPR can be critical, particularly in emergency situations where health care providers need clear, immediate guidance.

So, these orders should align with the Advanced Care Directive, but are important in ensuring the instructions are followed at the time of medical intervention, because not all health care providers may have access to or a copy of the patient’s Advanced Health Care Directive at the time of that medical emergency, when decision needs to be made.

Now the substitute decision maker. So, if there is no Advanced Health Care Directive, the appointed substitute decision maker through the Enduring Power of Attorney or Appointment of Enduring Guardian in New South Wales will have the authority to make decisions, including those about resuscitation.

However, their decisions should reflect what the patients would have wanted or communicated to them previously. 

Robyn: So, I imagine there may be circumstances where an individual has put their wishes in an Advanced Health Directive or DNR order, but their family do not agree with these instructions. Can family members or medical professionals override this decision come the time life sustaining treatment is needed?

Larisa: Well, in general, an Advanced Healthcare Directive or a Do Not Resuscitate Order is a legally binding document that outlines an individual’s wishes regarding their medical treatment, including life sustaining measures. So, if you look at it, these directives are intended to guide healthcare professionals and family members in making these decisions that align with the individual’s preferences when they are unable to communicate their wishes.

So, however, there are certain circumstances under which these directives might be overridden. So, one, we have to look at the validity and clarity. So, if the Advanced Healthcare Directive or the DNR Order is not clear, specific, or valid under the relevant jurisdiction’s laws, It may be subjected to challenge.

For example, if there are ambiguities in the document or if it does not meet the legal requirements for execution, it might not be enforceable. Number two, medical judgment. So, in some cases, medical professionals may override an Advanced Healthcare Directive or the DNR order if they believe that the situation falls outside the scope of what the directive intended.

For instance, if a new treatment is, or interventions have become available that were not considered when the directives, you know, were created, or if the medical condition is different from what was anticipated. Three, let’s look at family disputes. So, while family members generally do not have the legal authority to override an Advanced Healthcare Directive or a DNR order, disputes can arise.

And in such cases, the matter may be taken to court, where a judge will consider the validity of the directive and the best interests of the patient. So that’s something that can, you know, change the course of this order.

Or number four, emergency situations. So, like in emergency situations where healthcare providers may not have immediate access to the Advanced Healthcare Directive or the DNR orders and life sustaining treatment may be administered until the directive can be reviewed.

So, it’s important to ensure that, you know, having this document in place, whether it’s the Advanced Healthcare Directive or the DNR Order, that if you have it in place, it’s clear, specific, and legally valid to minimize the risk of it being overridden.

Additionally, discussing one’s wishes with family members and healthcare providers can help really ensure that everyone is aware and respects the individual’s preferences.

Robyn: Yeah, sure. So, can you tell us about a case where a hospital did not act in accordance with the DNR and what the consequences were?

Larisa: Oh yeah. One story that comes to mind or case that comes to mind is where a 68 year old man in Tasmania died in November, 2023 at an aged care facility after suffering a heart attack.

So, staff at the aged care facility did not perform CPR on the man as they believed he had an active do not resuscitate order in place. Unfortunately, this wasn’t the case. So it was later found that in fact the man had documented his expressed wishes to be resuscitated should the need come.

So, although the outcome may not have been any different, ultimately the man’s wishes were not upheld.

As a result of this incident, a coroner’s investigation took place. And an internal investigation was also conducted and the aged care facility made changes to their processes and documentation to improve the clarity of information and remove the possibility of confusion.

Robyn: Yeah. So, it all comes down to policy and process and procedure as well.

Larisa: Absolutely.  Another case that pops into mind is a 59-year-old woman. She was admitted to a Victorian hospital in September in 2021 with confusion and delirium caused by sepsis relating to a urinary tract infection. So the procedure required to treat the 59 year old woman should have been a very uncomplicated procedure.

The woman was expected to be released from hospital you know, following her recovery, so the morning she was meant to be released, a nurse assisted her in her bed so that she could have breakfast. Now, the woman vomited shortly after, so the same nurse witnessed the woman eat morning tea sometime later.

However, 30 minutes from having morning tea, the woman was found nonresponsive after choking on vomit. So, the health facility had a goals of care policy, which meant that staff did not attempt to resuscitate the woman when she was found unconscious.  So, following her death, the woman’s family raised the alarm about the decisions that were made.

The coroner found, again, a coroner investigation was done, and it found that the woman, after being admitted to hospital, had a goals of care document completed by a doctor, which indicated that the woman should not be resuscitated or intubated. However, there was no evidence that showed the woman should not have been resuscitated or intubated or any evidence in medical records that her family was contacted before the document was signed off and that this was, you know, their wishes.

So, the family indicated that they would have supported the woman being resuscitated or intubated in, if necessary. The document was completed without the family’s consultation at a time the patient could not have made an informed choice due to her temporary cognitive impairment.

So, sadly in this case, neither the patient or her family were given the autonomy to make informed decisions and the medical facility made the decision for them.

So, as a result, the healthcare facility reviewed the internal processes and thoroughly reviewed the findings by the coroner’s court in order to avoid repeating another unfortunate incident like this one. So, these are just, you know, these examples really do underline just how important it is to have the right documents in place and to communicate your wishes with your family and even your healthcare providers before you ever really need to rely on such decisions to be made.

Robyn: Yeah, so Larisa, what legal protections are in place in Australia for people to ensure their wishes about their health care they receive or do not receive are upheld?

Larisa: Well, Australian law generally supports an individual’s right to refuse treatment, so including resuscitation.

Health care providers are legally obliged to respect valid Advanced Care Directives and follow relevant medical orders. So, if a healthcare provider disregards a DNR order or an Advanced Healthcare Directive, they could face legal consequences including, you know, some sort of civil liability for battery or breach of duty.

Robyn: Larisa, what are the key takeaways you would like to leave our listeners with today? 

Larisa: Well, Robyn, so the key takeaways would be explore how these documents work in practice, including potential conflicts and the importance of clear communication between, patients, family members, and healthcare providers.

Discuss the variations in state laws with someone qualified to be able to offer you advice on this, and mentioned that by completing an Advanced Healthcare Directive as part of your estate plan, you can ensure that all your wishes are well documented and before you ever need to really rely on such decisions to be made for you.

So, an experienced estate planning lawyer can certainly help you understand these documents and the types of instructions you can leave, ensuring that they’re completed properly and are valid.

Robyn: Yeah, I think these types of discussions are never easy, or pleasant to have, however I think you’ve helped our listeners today understand the importance of having these documents in place to ensure your wishes are received and, also to alleviate loved ones the stress of having to make those choices on your behalf.

Larisa: Exactly.

Robyn: Thanks for joining us today, Larisa.

Larisa: Thank you, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from nine o’clock.