Texas In-Hospital Do-Not-Resuscitate Orders: New Law, New Changes

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In-hospital do-not-resuscitate (DNR) orders in the State of Texas have faced much tighter regulation since April 2018. With Senate Bill 11, both the meaning of a DNR order and the circumstances in which it can be entered are now more tightly defined.

In-hospital do-not-resuscitate (DNR) orders in the State of Texas have faced much tighter regulation since April 2018. With Texas Governor Greg Abbott signing into law Senate Bill 11, both the meaning of a DNR order and the circumstances in which it can be entered are now more tightly defined. Before the introduction of SB 11, it was technically possible for a physician to enter a DNR order without a patient’s or surrogate’s consent. But now physicians must be careful to ensure that their patients meet certain criteria to avoid being at legal risk for criminal misdemeanor. 

Important aspects of this law include who can enter the order and how the documentation of this emotion-laden decision must be carried out. Of particular impact to teaching hospitals across the state is the mandate that DNR orders be entered by attending physicians only. Most orders have been written for patients by trainees of various levels or advanced practice providers; attending physicians now must be the ones to write the orders, although the repercussions of others entering the order are vague. 

One of the more serious changes, one that will impact both physicians and families, is the new requirement for a written and dated directive from either the competent patient him-/herself or a surrogate decision-maker on the patient’s behalf. Patients or their family members are expected to sign the document affirming their decision for DNR status, which may elicit even more emotion at a time when an already difficult decision is being made. There is no requirement for a written directive from pediatric patients. 

SB 11 dictates that, for a DNR order to be valid, it must be in compliance with certain criteria, some of which are: 

• Written and dated directions from a competent patient or patient who was competent at the time the directive was completed 
• Verbal communication from a competent patient made in the presence of two competent adult witnesses, at least one of whom is not employed by the attending physician of record, an employee of the hospital providing direct care to the patient, or an employee of the organization writ large 
• A previously properly executed advance directive or a written directive employing qualified witnesses or a notary public 
• A decision made on behalf of an adult patient when that patient is otherwise unable to communicate, which is agreed on by the attending physician and a guardian, agent, relative, or a second physician who is not involved in the patient’s care or is a representative of the ethics committee 

A provision remains in the law such that, if a patient’s death is “imminent” (no definition is given), regardless of whether cardiopulmonary resuscitation (CPR) was provided, and the DNR order is “medically appropriate,” a physician’s “reasonable medical judgement” can be used to enter a DNR order as long as that patient has not conveyed directions against a DNR order at any time when the patient was still competent. 

In contrast to the stringent requirements set forth to enact a DNR order for a patient, it will remain relatively easy to rescind the DNR order. Verbal revocation by the patient, guardian, or surrogate decision-maker to any care provider is all that is necessary to undo a DNR order, which is in stark contrast to the requirements for witnesses and signed documentation to enact the order. 

The implications of SB 11 are still continuing to be understood. The language used in the bill, while clarifying that only CPR is being addressed and defining CPR as “any medical intervention used to restore circulatory or respiratory function that has ceased,” also uses terms that are left open to interpretation and that may prove to be problematic in the future. Words such as “imminent” may prove challenging when trying to find consistency, and the expression “medically appropriate” is even more fraught with potential for different interpretations. These terms leave open the possibility of legal action against a well-intentioned physician trying to honor a patient’s wishes. In a September 17, 2017, Houston Chronicle article, Courtenay Bruce, a professor in the Center for Medical Ethics and Health Policy at Baylor College of Medicine, described SB 11 as an “anti-DNR bill” because of the disparities in the procedures for enacting and revoking DNR orders. In that same article, Thaddeus Pope, a bioethicist and director of the Health Law Institute at Mitchell Hamline School of Law in St. Paul, Minnesota, said that the law is “more symbolic than practical,” putting it in the category of “a solution in search of a problem.”  

Only time will tell. 

Suggested resources to help navigate the law include Your Pocket Guide to Texas’ New DNR Law from the Texas Medical Association.

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Posted: 10/7/2019 | 0 comments