May 5, 2005
LIVING WILL AND A DO NOT RESUSCITATE (DNR) ORDER
By: George Coppolo, Chief Attorney
You asked what are a living will and a DNR order under Connecticut law.
Connecticut defines a living will as a written statement containing a person's wishes concerning any aspect of his health care, including the withholding or withdrawal of life support systems. Its purpose is to speak for a patient who (1) can no longer communicate with health care providers, and (2) is either in a terminal condition or permanently unconscious.
A person executing a living will must be at least18 years old, and of sound mind, and able to understand the nature and consequences of health care decisions at the time the document is signed. He must sign and date it with at least two witnesses and it may be substantially in the form established in the statutes. The statutes include an example of an acceptable form (see attached). The form contains a provision to specify the life support systems that the person does not want administered.
In determining a patient's wishes, the attending physcian must consider his living will. A health care provider who is unwilling to comply with a patient's wishes must promptly take all reasonable steps to transfer his care to a health care provider who is willing to comply.
The law provides immunity from civil and criminal liability for health care providers who follow properly executed living wills for incapacitated patients who have a terminal condition or are permanently unconscious.
Whether or not a person has a living will, comfort care and pain alleviation must be provided.
Connecticut law also allows a person to designate a health care agent to convey his wishes about withholding or removing life support systems in the event of incapacity. The person making the designation must be of sound mind and able to understand the nature and consequences of health care decisions when signs the document. This designation is done through a written document signed by the person in the presence of two witnesses.
Connecticut regulations define a "Do Not Resuscitate order" or "DNR order" as an order written by a Connecticut licensed physician to withhold cardiopulmonary resuscitation, including chest compressions, defibrillation, or breathing or ventilation by any assistive or mechanical means including, but not limited to, mouth-to-mouth, mouth-to-mask, bag-valve mask, endotracheal tube, or ventilator.
LIVING WILL LAW
Any licensed physician or medical facility that withholds, removes, or causes the removal of a life support system of an incapacitated patient is not liable for damages in any civil action or subject to prosecution in any criminal proceeding if:
1. the decision to withhold or remove such life support system is based on the best medical judgment of the attending physician in accordance with the usual and customary standards of medical practice;
2. the attending physician deems the patient to be in a terminal condition or, in consultation with a physician qualified to make a neurological diagnosis who has examined the patient, deems the patient to be permanently unconscious ("Terminal condition" means the final stage of an incurable or irreversible medical condition which, without the administration of a life support system, will result in death within a relatively short time, in the opinion of the attending physician.); and
3. the attending physician has considered the patient's wishes concerning the withholding or withdrawal of life support systems (CGS § 19a-571).
Under the law, a “life support system" means any medical procedure or intervention which, when applied to an individual, would serve only to postpone the moment of death or maintain him in a state of permanent unconsciousness. These procedures include, but are not limited to, mechanical or electronic devices including artificial means of providing nutrition or hydration. "Permanently unconscious" includes permanent coma and persistent vegetative state and means an irreversible condition in which the individual is at no time aware of himself or the environment and shows no behavioral response to the environment (CGS § 19a-579(1)).
The law defines “incapacitated" as being unable to understand and appreciate the nature and consequences of health care decisions, including the benefits and disadvantages of such treatment, and to reach and communicate an informed decision regarding the treatment (CGS § 19a –570(6)).
In determining the patient's wishes, the attending physician must consider the patient's wishes as expressed in a living will executed in accordance with law, if any such document is presented to him, or in his possession when the decision to withhold or terminate a life support system is made. If the patient's wishes have not been expressed in a living will, the attending physician must determine his wishes by consulting any statement he made directly to the attending physician and, if available, the patient's health care agent, the patient's next of kin, the patient's legal guardian or conservator, any person designated by the patient under a separate statute (CGS § 1-56r), and any other person to whom the patient has communicated his wishes, if the attending physician knows about such person. Under CGS § 1-56r, anyone 18 years of age or older to execute a document that designates another person at least 18 years old to make certain decisions or have rights and certain obligations. It must be signed, dated, and acknowledged by the maker before a notary public or other person authorized to take acknowledgments, and be witnessed by at least two people.
Everyone acting on the patient's behalf must act in good faith. If the attending physician does not deem the incapacitated patient to be in a terminal condition or permanently unconscious, beneficial medical
treatment including nutrition and hydration must be provided. "Beneficial medical treatment" includes the use of medically appropriate treatment including surgery, medication, and the utilization of artificial technology to sustain life.
PATIENT'S MEDICAL RECORD
A physician or other health care provider who is furnished with a copy of a written living will or appointment of a health care agent must make it part of the patient's medical record (CGS § 19a –578). A physician or other health care provider must also record in the patient's medical record any oral communication concerning any aspect of his health care, including the withholding or withdrawal of life support systems, the patient makes directly to the physician or other health care provider or to the patient's health care agent, legal guardian, conservator, next-of-kin or person designated according to law.
REVOCATION OF LIVING WILL
A person may revoke a living will or appointment of health care agent at any time and in any manner, without regard to his mental or physical condition. The attending physician or other health care provider must make the revocation a part of the patient's medical record (CGS § 19a –579a). The appointment of the principal's spouse as health care agent is automatically revoked upon the divorce or legal separation of the principal and spouse or upon the annulment or dissolution of their marriage, unless the principal specifies otherwise (CGS § 19a-579b).
Within a reasonable time before withholding or causing the removal of any life support system, the attending physician must make reasonable efforts to notify the individual's health care agent, next-of-kin, legal guardian, conservator, or person designated in accordance with law, if available (CGS § 19a –580).
MANDATORY TRANSFER OF PATIENT
An attending physician or health care provider who is unwilling to comply with a patient's wishes must, as promptly as practicable, take all reasonable steps to transfer care of the patient to a physician or health care provider who is willing to comply with his wishes (CGS § 19a-580a).
PROBATE COURT RESOLVES DISPUTES
The probate court for the district in which the person is domiciled (principal residence) or is located has jurisdiction over any dispute concerning the meaning or application of any provision of the living will and health care agent laws. With respect to any communication of a patient's wishes other than by means of a living will executed in accordance with law, the court must consider whether there is clear and convincing evidence of such communication (CGS § 19a-580c).
HEALTH CARE AGENT APPOINTMENTS
A separate statute (CGS § 19a-575a) authorizes a person at least 18 years old to execute a document containing health care instructions, the appointment of a health care agent, the appointment of an attorney-in-fact for health care decisions, the designation of a conservator of the person for future incapacity and a document of anatomical gift. The maker must sign the document in the presence of at least two witnesses whose signatures also must be included. The statute provides a sample document. (See Attached).
Another statute (CGS § 19a-576) authorizes a person at least 18 years old to execute a document appointing a health care agent under the preceding statute or under (CGS § 19a-577). This latter statute states that the document may, but need not, be in substantially the same form contained in the statute. The sample document explicitly authorizes the health care agent to convey to the person's physician his wishes concerning the withholding or removal of life support systems, and to take whatever actions are necessary to ensure his wishes are given effect. This document must be signed and dated by the person in the presence of two adult witnesses who must also sign it. The person appointed as the agent cannot act as witness to the execution of the document or sign it.
A living will or appointment of a health care agent becomes operative when the document is furnished to the attending physician and he determines that the patient is incapacitated (CGS § 19a-579).
DO NOT RESUSCITATE ORDERS
The law (CGS § 19a-580d) requires the Department of Public Health (DPH) to adopt regulations to provide for a system governing the recognition and transfer of "do not resuscitate" orders between licensed health care institutions and upon intervention by emergency medical services providers. The regulations must include procedures concerning the use of "do not resuscitate" bracelets. The regulations must specify that, upon request of the patient or his authorized representative, the physician who issued the "do not resuscitate" order must assist the patient or his authorized representative in using the system. The regulations may not limit the authority of the Commissioner of Mental Retardation's authority concerning orders applied to persons receiving services under the direction of the Commissioner of Mental Retardation.
DNR Transfer Form (Conn. Agencies Regs. § 19a-580d-2)
To transmit a DNR order between healthcare institutions or during transport by an emergency medical services (EMS) provider between healthcare institutions, the DNR order must be documented on the DNR transfer form. (An"EMS provider" is a person, association, or organization that provides immediate or life saving transportation and medical care away from a hospital to a victim of sudden illness or injury, and that may also provide invalid coach services.) The DNR transfer form signed by a licensed physician or a registered nurse must be recognized as such and followed by healthcare institutions and EMS providers.
Transfer and Recognition of DNR Orders When Patients are Transported (19a –580d-3)
When a patient who is to be transferred between health care institutions has a DNR order, which is to remain in effect during and after the transfer, that order must be documented on a DNR transfer form signed by the physician who entered the order or by a registered nurse who attests to the order's existence. The DNR transfer form or a legible copy must be sent with the patient when the patient is transferred to another healthcare institution. The DNR transfer form or a legible copy must be retained with the patient's medical record.
The health care facility staff person who transfers care of the patient to EMS providers must show them the DNR transfer form or a legible copy or a DNR bracelet. The EMS provider must show the DNR transfer form or a legible copy or a DNR bracelet to a nurse or physician at the receiving healthcare institution or, in the absence of a nurse or physician, the person in charge of patient care.
Any healthcare institution receiving a patient with a DNR transfer form, a legible copy, or DNR bracelet must honor the DNR order until admitting orders are written in accordance with the healthcare institution's policies.
When a patient has a DNR order, which is to remain in effect after discharge from a healthcare institution to home, that patient must be offered a DNR bracelet by the healthcare institution before discharge.
Any EMS provider receiving a patient with a DNR transfer form or a legible copy or a DNR bracelet must honor the order.
DNR Bracelets (19a-580d-4)
A DNR bracelet is the only valid indication EMS providers recognize that a DNR order exists for patients outside a healthcare institution, other than those patients an EMS provider receives directly from a healthcare institution. A valid DNR bracelet must:
1. be of a design approved by the department,
2. be affixed to the patient's wrist or ankle,
3. display the patient's name and attending physician's name, and
4. not have been cut or broken at any time.
Healthcare institutions and EMS providers must honor a DNR bracelet. A patient or the patient's authorized representative may obtain a DNR bracelet from any designated agency based on a written order from the patient's attending physician. The designated agency must maintain a permanent record including a copy of the written DNR order.
A designated agency may obtain DNR bracelets and DNR transfer forms from the organization DPH selects to maintain a central supply of such items.
EMS Providers (19a-580d-5)
DNR patients under the care of EMS providers must be given medical care as determined by consultation with medical direction, recognizing the limitations of the DNR order.
Assistance by Attending Physicians (19a-580d-6)
When requested by a patient or his authorized representative the attending physician who issued the DNR order must provide the patient with information on how to contact a designated agency. If a patient is unable to obtain a DNR bracelet from any other source, the attending physician must obtain and provide one.
A DNR order may be revoked by the patient or authorized representative by removing the bracelet from the patient, or telling an individual licensed healthcare provider or certified emergency medical technician. Such healthcare provider or emergency medical technician must enter the statement in the patient's permanent medical record and notify the attending physician and the physician who issued the DNR order.
Ethical, Philosophical, Religious Objections (19a-580d-9)
Health care providers who have an ethical, philosophical, or religious objection to implementing a DNR order must turn over care of the patient without delay to another provider who will implement the DNR order. Pending the assumption of care by another provider, the DNR order must be followed.