Updated: Oct 8, 2021
Dear Mr. Premack: My father has been in the nursing home for a few years, and I recently (as his agent under his medical power of attorney) authorized an out-of-hospital DNR for him. He has been through so much, and would not have any quality of life if he was resuscitated. What I’d like to know is whether this out of hospital DNR also applies if he is transferred into a hospital, or if there is something more I must do upon hospitalization? – T.F.
The initials DNR stand for “do not resuscitate”. A person has the legal right to refuse medical intervention, in advance and in anticipation of cessation of that person’s respiration and/or heartbeat. If that person has made prior legal arrangements, the arrangements prevent medical resuscitation. If that person has not made prior legal arrangements, then any medical provider has the legal right to presume the patient desires emergency resuscitation.
The Texas Health and Safety Code instructed the Texas Department of State Health Services to create a standard DNR form to be used by a person who is outside of a hospital (called an out-of-hospital DNR, or OOH DNR). The OOH DNR is the proper way for you (or your agent) to give legal instructions that you do not want to be resuscitated while you are located outside of a hospital.
In contrast, when a person has already been admitted to a hospital a DNR must be ordered by the attending physician. There is no state-mandated form which the physician must use to issue the in-hospital DNR order. To enter such an order, the doctor must have informed consent from the patient or from the patient’s surrogate (an agent under a Medical Power of Attorney or a Guardian of the Person).
While the patient is in the hospital, the doctor’s order takes priority over all previous orders, including the OOH DNR. This can be a bit deceptive, because the phrase “in the hospital” applies only after the patient is admitted to the hospital and placed into a hospital bed. The hospital emergency room and any hospital outpatient facility is still considered to be “out of hospital” so the OOH DNR still applies in the ambulance, in the emergency room and in any outpatient setting.
However, an OOH DNR is suspended after admission to inpatient hospital treatment. The doctor must then issue a new inpatient DNR order that applies to the inpatient, if the doctor has proper legal consent to issue the new inpatient DNR.
Whether a person is ready for a DNR is a very personal choice which should be made by the person himself or herself. However, not everyone gets around to making that decision or to signing the legal paperwork. If the patient has not signed an OOH DNR, there are three circumstances under which it can still be issued for an incompetent patient:
(1) If the patient previously signed a Directive to Physicians, the doctor may rely on that Directive and issue an OOH DNR for the outpatient.
(2) If that Directive to Physicians appoints a proxy to make the choice for the patient, then that proxy may issue an OOH DRN for the outpatient.
(3) If the patient previously signed a Medical Power of Attorney, then the Agent may issue an OOH DNR for the outpatient or may authorize an inpatient DNR. Having an Agent (and successors) under a properly written Medical Power of Attorney is the preferred method, because the Agent can make decisions for the patient whether the patient is an inpatient or is an outpatient.
(Update: in 2017 the law was changed to a requirements for in-hospital DNRs. See this column: https://www.premack.com/post/sb-11-proposes-to-regulate-inpatient-do-not-resuscitate-orders)
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager practicing estate planning and probate law in San Antonio. Submit estate planning, probate and elder law questions by clicking “submit a question” at www.premack.com, or go there to view the archive of his past legal columns.
First published 3/24/2014