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When DNR orders are effective outside the hospital setting

March 1, 2010
by Russell A. Fracassa
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Changes in laws over past decade are confusing

There has been much confusion related to Do Not Resuscitate orders, or DNRs, within the medical community and when they are effective outside a hospital. Protocols regarding the application of resuscitative efforts vary widely among states and emergency medical jurisdictions within states. Some medical professionals have been unclear regarding changes in the DNR laws over the past decade. There is a lack of conformity of the color-coding on wristbands among states, jurisdictions, and facilities. There is also lack of conformity regarding who has the authority to sign a DNR on behalf of an incapacitated patient.

This article will hopefully clarify the confusion of “if and when” a DNR order is effective outside a hospital.

Personal desire

“Advanced directive” is a general term referring to written expressions of a person's desire regarding medical treatment used when a person becomes incapacitated and is no longer capable of clearly expressing themselves at the time a decision is required. Examples of advance directives include living wills, durable power of attorney, and Do Not Resuscitate orders.

Cardiopulmonary resuscitation (CPR) is the standard of care when one stops breathing or the heart stops beating. CPR will be performed on the individual unless there is a written order to the contrary. More precisely, a DNR lets medical personnel know one does not want to have CPR performed if found without a heartbeat or are not breathing. Healthcare providers are not to attempt to revive the person and should take no steps to restart the heart or breathing of a person with a DNR.

At a glance…

This article will clarify the confusion of “if and when” a Do Not Resuscitate order is effective outside a hospital.

Common law right

DNRs first began to appear in the medical literature in the mid-1970s. Legally, DNRs fell under a person's common law right to refuse healthcare treatment. That is, there were no statutes, state or federal, directly authorizing the predetermination of withholding CPR.

However, many courts consistently recognized that a citizen's right to live his or her life in dignity and peace outweighed a state's interest in preserving life. In 1991, Congress passed the Patient Self-Determination Act. This law clarified an individual's right to make decisions regarding his or her medical care. This right includes accepting or refusing treatment and the right to make an advance directive. The Act requires healthcare facilities to discuss advance healthcare directives with patients. However, there was no provision or legal basis for DNR use outside the hospital.

According to the article by Charles Sabatino, “Survey of State EMS-DNR Laws and Protocols,” published in the Journal of Law, Medicine & Ethics, as of 2002, 42 states had statewide out-of-hospital DNR protocols; 34 states specifically authorize such by statute and eight states had implemented protocols solely through regulations or guidelines without a change in their legal code. Variances among the states include requirements of physician signature, patient endorsement, and witnesses.

OHDNR

Missouri has since been added to the list of the states authorizing use of a DNR order outside the hospital. Previously, Missouri law did not provide such authorization, but because of confusion within the medical field, and especially by emergency responders, there were many instances the existing law was erroneously being applied outside the hospital. To clear up any confusion and to provide a standardized protocol, in 2007 the Missouri legislature passed the Outside the Hospital Do-Not-Resuscitate Act, or OHDNR.

The law in Missouri provides that a competent person who is 18 years of age or older may give informed consent to an OHDNR. Furthermore, the law specifically authorizes a representative acting under an incapacitated patient's durable power of attorney or as a court-appointed guardian to be allowed to make the same decisions regarding an OHDNR. It is recommended that a copy of the durable power of attorney documentation authorizing the representative to make the OHDNR decision be made available for review. Also, if the representative is acting as the guardian, a copy of the Letters of Guardianship issued by a probate court should be readily available for review as well.

However, many courts consistently recognized a citizen's right to live his or her life in dignity and peace outweighed a state's interest in preserving life.

A properly executed OHDNR shall be completed on the form provided by the state's regulations. This form, with instructions, is available at the Emergency Medical Services Bureau office (http://www.dhss.mo.gov/EMS) or at the Department of Health and Senior Services in Jefferson City, Missouri. Also, the OHDNR must be signed and dated by the patient (or his representative) and the patient's physician, must be printed on purple card stock that is 8.5" x 11", and may be copied. All medical personnel should receive training regarding OHDNR protocol as the law provides specific rules to be followed.

Should no representative be available to execute an OHDNR, many counties have emergency guardianship procedures available for a guardian to be appointed quickly to make thesedecisions. There may be some logistical difficulties, however, in the less-populated counties. Families or medical personnel should contact the county's public administrator.

Russell A. Fracassa is an elder law attorney with McCormick & Fracassa, Liberty, Missouri. He can be reached at

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