Ethical Perspective

Parallel to the development of the DNR order in the medical community was the emergence of a broad societal consensus on patient's rights. The conceptual foundation of this consensus was the recognition that the wishes and values of the patient should have priority over those of medical professionals in most healthcare decisions.

An influential President's Commission further advocated that patients in cardiac arrest are presumed to have given consent to CPR (that is, a resuscitation attempt is favored in nearly all instances). By extension the commission argued that the context in which the presumption favoring CPR may be overridden must be explicit, and must be justified by being in accord with a patient's competent choice or by serving the incompetent patient's well-being

(President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research). Since that time nearly all states have adopted specific statues on the DNR order. The bioethics community, however, has not embraced this view without dissent.

The assumption that CPR is generally beneficial and should be withheld only by exception has been seriously challenged. CPR, the argument goes, is often not beneficial and was never intended to be the standard of care for all situations of cardiac arrest (four of the five patients in the original Johns Hopkins report experienced an unanticipated cardiac arrest in the setting of anesthesia). From this perspective, CPR, like any treatment, should only be offered to those patients for whom it is medically indicated—physicians are not ethically bound to seek consent to refrain from a procedure that is not medically indicated.

Few issues have been more contentious than whether a physician may determine, without patient or surrogate consent, that CPR is not indicated. Some hospitals have adopted a "don't ask, don't tell" approach to this question by allowing unilateral or futility-based DNR orders without asking or informing the patient of the decision. Still other policies employ a "don't ask, do tell" approach, where unilateral DNR orders can be written at the discretion of the attending physician, who then informs the patient or patient's family of the decision.

Attempts have been made within the medical profession to define futile, nonbeneficial, inappropriate, or not indicated in specific terms, such as lack of physiological effect or low likelihood of survival. The assumption underlying this approach is that physicians are best qualified to determine whether and when a medical therapy is indicated. Others advocate procedural resolution pathways, in the belief that it is not possible to achieve consensus on an accepted definition of what constitutes futile medical treatment. This approach assumes that end-of-life decisions inherently involve value-laden choices that people will not always agree on.

Who ultimately decides when a treatment is indicated? The original foundation of the consent process in medicine is the principle that permission is needed "to touch," even when the intent of the person who seeks "to touch" is solely to promote health and treat illness. Because the DNR order is an order not to touch—when that touch may be both highly invasive and life-preserving—only a properly informed patient can decide whether touching is wanted or not. This determination is ultimately a value judgment made by the patient, utilizing information as to efficacy (or futility) provided by the physician.

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