Ever since our medical technology has advanced to the state of keeping persons alive even though they are in a “vegetative” state with no apparent consciousness or awareness, we have been grappling with the complex moral, religious, medical, emotional, and legal questions presented by such a situation.
A living will declaration is a written document expressing a person’s intentions concerning the use of life-sustaining treatments when they are in a permanently unconscious state or terminal condition.
The following are legal definitions of those terms:
“Life-sustaining treatment” means any medical procedure, treatment, intervention, or other measure that, when administered to a patient, will serve principally to prolong the process of dying.
“Permanently unconscious state” means a state of permanent unconsciousness in a declarant or other patient that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant’s or other patient’s attending physician and one other physician who has examined the declarant or other patient, is characterized by both of the following:
- The declarant or other patient is irreversibly unaware of himself and his environment.
- There is a total loss of cerebral cortical functioning, resulting in the declarant or other patient having no capacity to experience pain or suffering.
“Terminal condition” means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant’s or other patient’s attending physician and one other physician who has examined the declarant or other patient, both of the following apply:
- There can be no recovery.
- Death is likely to occur within a relatively short time if life-sustaining treatment is not administered.
The living will document only applies if you are in a terminal condition or permanently unconscious. Furthermore, the living will applies only when the patient has lost the capacity to make decisions, i.e., is unconscious or otherwise not mentally competent. As long as the patient is able to make their own decision, no part of this law applies.
After it is determined that the living will is operative, then the attending physician must enter this in the medical record along with a copy of the living will. Furthermore, the attending physician must give notice of said determinations to (a) persons designated in a declaration to receive notice, OR (b) if (a) is not applicable then to the following groups in order of priority: 1) guardian, 2) spouse, 3) adult children who are available within a reasonable time, 4) parents, 5) majority of adult brothers/sisters who are available within a reasonable time.
Persons must notify the attending physician whether they object within 48 hours of receipt. Then such person must file a complaint in Probate Court within two business days.
If there is no living will, the attending physician may withdraw life-sustaining treatments (except nutrition/hydration) if:
- Written consent is given by the following groups in order of priority: (a) guardian, (b) spouse, (c) majority of adult children who are available within a reasonable time, (d) parents, (e) majority of adult brothers/sisters who are available within a reasonable time, and
- The attending physician and consulting physician determine the patient is in a terminal condition or has been permanently unconscious for the last 12 months.
The attending physician may withdraw nutrition/hydration (i.e., feeding tubes) if:
- Patient has been in a permanently unconscious state for the preceding twelve months, and
- Probate Court issues an order to withdraw nutrition/hydration
Copyright 2008 Michael J. Millonig
- In General
A person may also have a “Do Not Resuscitate” order in appropriate circumstances. This is an order issued by a physician after obtaining the informed consent of the patient (or person appointed under health care power of attorney). It is not a legal document drafted by an attorney.
DO-NOT-RESUSCITATE ORDER means CPR is not administered. A DNR order must be issued by a physician and is not self-executing by means of any patient document.
DNR identification is a card, form, necklace or bracelet and signifies either: 1) the person has an operative Living Will authorizing withholding of CPR; 2) or, a physician has issued a DNR order.
DNR Protocol is the procedure to be followed upon the issuance of a DNR order.
First you must be eligible to receive a DNR identification by 1) having a Living Will that has become operative and that authorized withholding of CPR; 2) or, a physician has issued a DNR order. Next you must obtain a DNR identification. The DNR regulations specify the manner in which you obtain the DNR identification and the approved forms of DNR identification. The DNR Protocol is then activated.
- Implications for Estate Planning
The Living Will should include authorization for the withholding of CPR. Note that this authorization is not effective until the Living Will is operative under the requirements of the Ohio Living Will law. In other words, the patient must be determined to be permanently unconscious or in a terminal condition.
The form should include a reference to DNR Orders or authorize the attorney-in-fact to request such an order. The person in their Power of Attorney for health care should include authority to request a DNR order or DNR identification.
The Ohio DNR law requires that the physician’s order be in accordance with the protocol. What is the standard for the physician for the issuance of this order? The statute implies that the protocol will specify standards for the physician’s order. The protocol states only that the physician “has documented the grounds for the order.” It states no standard for determination of this decision. Existing health care law usually requires the patient’s consent or consent of attorney-in-fact under a health care POA.
A “DNR Comfort Care-Arrest patient” is one for whom the DNR protocol is activated only in the circumstance of a cardiac arrest or respiratory arrest. The distinction between this and a regular DNR Comfort Care patient is that the protocol activation is only upon these two events (cardiac arrest or respiratory arrest).
Why would a person want to be a “DNR Comfort Care-Arrest patient”? There are items in the DNR protocol that are not part of standard CPR. A patient may wish to have some of the prohibited items in the protocol but, if they have a heart attack, do not wish full CPR. For example, a patient may want cardiac monitoring or some resuscitative drugs only.
© 2015 Michael Millonig, LLC