Until April 1, 2018, when the 2017 Legislature added §166.012 to the Texas Health and Safety Code, Texas hospitals and doctors could unilaterally place Do Not Resuscitate Orders (DNRs) on a patient. In an article in the Houston Chronicle, published September 17, 2017, Todd Ackerman called it “medicine’s little-known secret” that some hospitals and doctors have considered it their right to issue DNRs without consent. Ackerman stated in his article that under the new law “the right of doctors and hospitals to right unilateral DNR’s will be dramatically curtailed.” But will it? A close look at the law reveals gaps in which physicians may unilaterally write a DNR.

 A “DNR order” is defined by §166.012(a) as “an order instructing a health care professional not to attempt cardiopulmonary resuscitation or other life-sustaining treatment on a patient when the patient’s circulatory or respiratory function has ceased.”

The new law applies to hospitals, assisted living facilities and hospice settings, including those provided by a home community support services agency.

A DNR is valid if in compliance with written directions of a patient who was competent when the instructions were written, or the oral instructions of a competent patient delivered to or observed by two competent adult witnesses. At least one of these witness must be a person outside these categories: (1) designated by the patient to make a health care decision; (2) related by blood or marriage to the patient; (3) entitled to any part of the patient’s estate; (4) the attending physician or employee of same; (4) an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care to the declarant; (5) an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; and (6) a person who at the time of the directive has a claim against the patient’s estate.   

A DNR is valid if it is in compliance with a valid advance directive enforceable and executed under §§ 166.005, 166.032, 166.034 or 166.035 of the Health and Safety Code.

A DNR is valid if under direction of the patient’s legal guardian or agent under a medical power of attorney.

DNRs under these circumstances seem to reasonably protect a patient from decisions being made by persons who might put their own interests above those of the patient. However, if the patient is incompetent and has not previously executed a medical power of attorney or medical directive, §166.012(c) (1) (E) provides little protection for the patient. Under these circumstances, the physician’s unilateral DNR is valid if certain conditions are met. This occurs if: (1) no spouse, child, parent or nearest relative with knowledge of the patient’s wishes is present; (2) the DNR is not contrary to the patient’s directions when competent, (3) the treating physician in his or her reasonable judgment determines that the patient’s death is imminent, regardless of the resuscitation; and (4) the DNR is medically appropriate.   

The caveat here is that when an incompetent patient has no medical power of attorney and medical directive, the new law adds minimal protections against having a DNR order written at the behest of a doctor or hospital. It provides no protection against having a spouse, child, parent or relative who might stand to gain from the patient’s death consenting to a DNR the doctor or hospital proposes.  Persons should take heed and while they are competent to do so, execute a medical power of attorney and a medical directive clearly establishing their wishes whether or not and/or when they want a DNR order placed.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.