Vol. 70, No. 12, December
1997
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
Physicians now can provide a do not resuscitate (DNR)
order in the form of a bracelet for their terminally ill adult patients
who request it. But questions remain, such as: Who is bound to honor the
patient's DNR bracelet and if they don't, does liability attach? Do courts
recognize a "wrongful living" cause of action in tort? And what
about damages? Debate rages on this highly sensitive patient rights issue. |
allows physicians to provide a DNR order in the form of a bracelet for adults
with terminal illnesses who choose not to receive cardiopulmonary resuscitation
(CPR), including cardiac compression, endotracheal intubation, artificial
ventilation and defibrillation should they have a medical emergency while
not hospitalized. Emergency treatment other than CPR may be given; that
is, treatment for a blocked airway (Heimlich maneuver), oxygen for an asthmatic
attack and comfort care. A person retains the right to revoke the order
at any time by removing or defacing the bracelet, or by giving oral instructions
to a medical care provider that he or she wants resuscitation.
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:
- a terminal condition; or
- 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
- 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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