Wisconsin's Do Not Resuscitate
Bracelet Law Raises
Legal and Medical Issues

By Jane Barclay Mandel

Growing public support for patient autonomy in medical care has taken a new legal form in Wisconsin. A bill to provide terminally ill patients with the option of wearing a permanent do not resuscitate (DNR) bracelet became law in April 1996.¹ A new subchapter III of Wisconsin Statutes Chapter 154

This article reviews the legal and medical issues raised by the new law, and considers how and to what extent the law will be used.

Legislative history

Rep. Greg Huber, Wausau, sponsored the bill in response to constituents' needs: Elderly Wisconsinites who had decided to forgo emergency CPR wanted a way to ensure that their decisions would be honored in all settings, not just while in a hospital; Wisconsin Emergency Medical Technicians (EMTs) were concerned about the lack of uniformity among protocols for emergency 911 calls from county to county. According to Choice in Dying, a citizen's group, 29 states already have statutes authorizing nonhospital DNR orders. At least 12 other states have DNR bracelet laws. Elderly constituents' concerns about not being able to refuse CPR in a medical emergency have increased with the advent of medical treatments that allow many seriously ill patients to be cared for at home.

In late 1994 Rep. Huber and Bill Bazan, who consults to Catholic hospital ethics committees, built a coalition consisting of the Catholic Hospital Association of Wisconsin, the Wisconsin Coalition on Aging Groups and professional associations for nursing homes, emergency medical technicians and hospices, to support the passage of a Wisconsin law.

The bracelet bill was designed to fill a gap in patients' control over their medical treatment not addressed in the existing state laws providing a Health Care Power of Attorney and Living Will. ² The Living Will allows a person to specify that their death should not be prolonged by certain medical treatments, such as feeding tubes. It becomes effective when two physicians (or a physician and a psychologist) certify that a patient no longer is competent to make his or her own decisions about medical treatment. The Power of Attorney for Health Care (HCPA) is a written directive in which a person designates a health-care agent who has authority to make decisions on the person's behalf when he or she no longer is able to do so. Two physicians (or a physician and a psychologist) must certify the patient's incompetence before the health-care agency becomes effective. Many law firms combine these two documents into one that appoints a health-care agent and includes directives about what kinds of treatment the person wishes to forgo.

Federal law now requires that hospitals, nursing homes and home health-care agencies ask all patients about advanced directives when they are admitted and document their choices about life-prolonging treatment. A patient may request a DNR order or "no code" status and this request is documented in the patient's chart. The directives are effective only during the patient's inpatient stay.

By contrast, the DNR bracelet addresses the necessity for quick decision-making in an out-of-hospital emergency. An EMT or other first responder does not have time to investigate whether a patient has a living will or HCPA, nor upon learning that such a directive exists, has time to contact two physicians to have them certify that a patient is incompetent and to authorize treatment according to the directive. Most importantly, written advanced directives are not binding upon givers of emergency medical care, such as EMTs, paramedics responding to a 911 call, first responders in the workplace and emergency room staff, all of whom are legally required to render emergency assistance, including CPR. The DNR bracelet gives first responders immediate notice of the patient's previously made decision to forgo CPR and gives a clear signal that they should not resuscitate the patient. They may, however, administer non-CPR emergency care.

The bracelet gives effective notice that a person does not wish to be resuscitated even when he or she is outside a hospital, nursing home or hospice. The bracelet thus provides portability of a person's no code decision into public places and at home. The law allows for patient autonomy in medical decision-making regardless of where they may be. The increase in terminally ill patients who are ambulatory and able to avoid institutional care has made the need for this autonomy and consistency in patient decision-making a necessity.

Qualifying for a DNR bracelet

The law is very narrow in its definition of who can qualify for a bracelet. To qualify for a bracelet, a person must be over 18, and have:

1. a terminal condition; or
   
   
2. a medical condition for which CPR would be unsuccessful in restoring cardiopulmonary functioning or a medical condition in which the person would experience repeated cardiopulmonary failure within a short time prior to death; or
   
   
3. a medical condition such that resuscitation would cause significant pain or harm that outweighs the possibility that resuscitation would be successful for a significant time. ³

These criteria provide for patient autonomy in out-of-hospital situations, but limit who may qualify to patients with serious life-threatening or terminal illnesses.

Interpretation and use of the new law

As the qualifications for a bracelet are very narrowly tailored, the law may "do no harm, but do very little good," as Betsy Abrahamson of the Wisconsin Coalition of Aging Groups commented. Further, a bracelet's availability is limited to the final months of life. This time frame also is when patients are most likely to be cared for in an institution where inpatient DNR orders rather than the bracelet control. Indeed, the vast majority of deaths still occur in hospitals or nursing homes rather than at home. ⁴

Further, terminally ill patients are among those most likely to already have made advance directives in the form of a living will or health-care power of attorney. Because of the seriousness of their illnesses, these patients may be more ready to confront the end of life and make an appropriate plan. Also, noninstitutionalized patients already may be aware of informal methods to ensure that they are not resuscitated unwillingly. According to Dr. Glenn Ragalie, chief of staff at St. Mary's Hospital, Milwaukee, and a specialist in pulmonary medicine, patients with chronic end stage pulmonary or cardiac disease usually are well-educated about how to avoid unwanted emergency resuscitation. For instance, if they experience distress, they are advised to call their home health agency or attending physician rather than 911. As a result, use of the bracelet law may be minimal.

The new law, however, may provide assurance that a patient's wishes will be respected. The bracelet also sends a clear message to family members who otherwise might demand aggressive emergency treatment. Family members know the patient's decision and can honor it without uncertainty or guilt.

Use of the bracelet may increase if the health-care system continues to shift patients out of institutional settings for care at home. The bracelet may be especially useful for home care situations that involve multiple caregivers, to ensure that all are informed about the patient's decision. Further, seriously ill people who have no family to represent their wishes may find the use of the bracelet reassuring if they are living independently. They or their caregiver can call 911 for emergency oxygen, comfort care, pain relief or emergency transport to the hospital, and yet have their decision to refuse resuscitation honored. As patients with chronic debilitating illnesses live longer, and continue to be ambulatory in spite of their life-threatening conditions, the utility of a bracelet in the scenario of "shopping mall collapse" may increase.

Finally, the continued growth of managed-care organizations may result in fewer patients having a personal relationship with a primary care physician whom they know and trust to honor the patients' wishes without a written advanced directive. This trend toward depersonalization may also mean that physicians who have honored patients' wishes in the past without a written directive to guide them, may be less willing to withhold CPR without a written document. Both sides of a system that worked well informally may in future require written documentation. The written advanced directive may be the only way a physician or other medical caregiver will support patient's wishes when the physician does not know the patient well. The advanced directive also protects the caregiver who may be unwilling to follow a patient's orally expressed wishes in the face of disagreement from family members.

The new law will reduce confusion when a patient is transferred between home, hospital, hospice, nursing home and emergency room. Each institution has its own responsibility to determine a patient's wishes as to resuscitation, but during transport records may be unavailable or special orders may be required. The bracelet communicates the patient's wishes during transport by ambulance from one location to another.

Will the bracelet's visibility discourage some patients from using it? The bracelet may be interpreted as a badge that one has given up on life; its visibility and recognizability may expose patients to imprecations from persons who disagree with their decision. The bracelet makes public a private, personal choice. It may be seen as a stigma. The bracelet may not be accepted aesthetically by some patients; others may experience an allergic reaction to the plastic band. The statute authorizes no alternate material. The plastic band, while not as sturdy as metal medic-alert bracelets, can easily be replaced by the patient's physician if damaged by bathing or other activities. A damaged bracelet should be replaced so damage is not interpreted as revocation.

Unresolved issues

If a competent patient has requested a bracelet and then becomes incompetent, when, if ever, may a health-care agent decide to revoke the bracelet? According to Wisconsin Statutes section 155.20(5), "the agent's decisions must in good faith conform with any valid declaration executed by the principal." The law provides that "in the absence of a specific directive by the principal or if the principal's desires are unknown, the health care agent shall, in good faith, act in the best interests of the principal." This language would seem to permit an agent to order a DNR bracelet if it was in the patient's best interest, but would not permit an agent to contravene the stated wishes of a now incompetent patient by ordering revocation of a bracelet that had been validly executed while competent. Although the bracelet law is silent on the issue, the Wisconsin Hospital Association and Catholic Hospital Association of Wisconsin have interpreted the provision of the HCPA statute and the new bracelet law to allow a health-care agent to request a bracelet if the patient is incompetent to make his or her own decisions.

If a patient wearing a bracelet is admitted to a hospital or nursing home, will the bracelet be honored? The DNR bracelet law does not address all do-not-resuscitate orders. Hospitals and other institutions may still set their own policies and procedures for inpatient DNR orders; however, institutions may need to review their policies and procedures to integrate their current practices with the new DNR bracelet law. Outpatient treatment facilities and physician's offices also should consider their treatment response to a patient wearing a valid bracelet.

Questions remain about whether a Wisconsin DNR bracelet will be honored by medical personnel in other states, and whether an out-of-state bracelet will be honored in Wisconsin. A physician or attorney may advise a person leaving Wisconsin to have his or her physician transfer medical records to a physician in the new location and inquire about the availability of a DNR bracelet or similar provision of applicable local law.

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