Potential Universal Do-Not-Resuscitate Policy Is As Legally Unprecedented As It Is Horrifying

By Lyndsey Reeve
Lyndsey Reeve is a freshman in the College of Arts and Sciences at the University of Pennsylvania studying International Relations.

​The COVID-19 pandemic is an undeniable threat to the public, especially medically vulnerable individuals including elderly patients, the immune compromised, and individuals with preexisting respiratory conditions such as asthma. This disaster has sparked a host of shadow crises, from the economic burden on local businesses and individuals unable to perform their jobs remotely due to educational closures and travel restrictions that cripple global interaction. This pandemic is more than a mere inconvenience—it is an international health emergency that will take, at a minimum, months to recover from.

Consumed by the virus’ personal effects on health, careers, education, and finances, it is easy to forget the ongoing struggles of hospitals and medical staff actively combating the deadly virus head-on.

Essential protective equipment worn by medical providers is lacking, making healthcare teams extremely vulnerable to contracting the virus which they could then pass to their quarantined families. Heartbreakingly, hospitals must weigh their employee’s safety when determining whether to resuscitate dying patients who may expose staff to COVID-19 [1].

Consequently, a do-not resuscitate policy (that would hold even if the patient’s family members wanted resuscitation) is currently under consideration by Chicago’s Northwestern Memorial Hospital. While careful examination of Chicago state law is still underway to determine the legality of this potential policy, other hospitals continue to resuscitate patients with makeshift barriers and limited staff [1].

According to the U.S. National Library of Medicine, a do-not-resuscitate order (or DNR order) is a doctor’s order not to conduct CPR should a patient’s heart or breathing cease. Traditionally, these orders are only granted upon approval of either the patient, immediate family or guardians, or the patient’s proxy [2]. But in the current environment, a universal DNR order might be granted regardless of this approval.

DNR orders made by patients’ families have been frequently scrutinized to ensure that they align with patients’ wishes as closely as possible. Legal guardians have historically been able to opt for a DNR order on behalf of their child only if said child did not “provide specific information regarding his or her wishes with respect to CPR” or their “values and preferences” are unclear [3].

DNRs have also faced condemnation because even when a patient or their family wishes to proceed, the terms of these nuanced orders can be easily misunderstood by well-meaning healthcare providers. DNRs may prompt providers to withhold life support for an increasingly ill patient that is not yet clinically dead, but this is not within the directive of a DNR. This is, in fact, a separate directive called DNI (do not intubate), which is an order to not utilize a breathing machine if a patient’s level of oxygen is dropping. This bias in the understanding of a DNR can make doctors “less likely to pursue aggressive or invasive treatment options if the patient had a DNR order.” To eliminate such bias, some advocate the removal of the term “DNR” in its entirety, instead replacing it with a more transparent “no CPR” [4].

Evidently, the content and imposition of DNR orders have sparked debate even when approved by family members on behalf of the patient. A universal do-not resuscitate policy that may  directly oppose the wishes of a patient’s family would be uncharted legal territory, and would face intense scrutiny from  many bioethicists.

Penn Medicine professor and bioethicist Scott Halpern, however, recognizes that threatening medical employees’ safety for the sake of a single patient is “unfair” in that it can constrain their future ability to help other patients [5].

Alternatively, hospitals could continue to operate on a case-by case basis. This way, they might resuscitate individuals in accordance with the patient’s or the patient’s family’s wishes whenever permitted by the likelihood of survival and availability of protective medical equipment.

​In this unprecedented pandemic, the good of the many may outway the good of the few for maximum survival. Consequently, already hotly contested DNR orders will face all the more scrutiny should they become universal.

​​​​​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Cha, Ariana Eunjung. “Hospitals Consider Universal Do-Not-Resuscitate Orders for Coronavirus Patients.” The Washington Post. WP Company, March 25, 2020. https://www.washingtonpost.com/health/2020/03/25/coronavirus-patients-do-not-resucitate/.
[2] “Do-Not-Resuscitate Order: MedlinePlus Medical Encyclopedia.” MedlinePlus. U.S. National Library of Medicine. Accessed March 28, 2020. https://medlineplus.gov/ency/patientinstructions/000473.htm.
[3] Best, Robert J. “Legal Guardians' Authority to Consent to Do-Not- Resuscitate Orders.” Marquette Elder's Advisor Law Review1, no. 2 (1999). https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1344&context=elders.
[4] Barnato, Amber, and Maxwell Vergo. “The Term 'Do Not Resuscitate' Should Be Laid to Rest.” The Hill. Capitol Hill Publishing Corp, May 6, 2019. https://thehill.com/opinion/healthcare/442188-the-term-do-not-resuscitate-should-be-laid-to-rest.
[5] “Hospitals and Doctors Are Considering a Universal Do-Not-Resuscitate Orders for Coronavirus Patients.” Tech Times, March 26, 2020. https://www.techtimes.com/articles/248365/20200326/coronavirus-update-doctors-and-hospitals-consider-a-do-not-resuscitate-policy-for-covid-19-patients.htm.

Photo by Natanael Melchor on Unsplash