My regular correspondent, Dodge has again raised with the issue of DNR (Do Not Resuscitate) orders in light of an article that appears on a page dedicated to paramedic practice – see Medical tattoos offer important health information.
The gist of the story is that people are using tattoos to record important medical information such as their allergy status, as well as their desire to refuse CPR or to be an organ donor.
Commentators on the web site, largely US emergency medical technicians and paramedics seem divided over the usefulness of this practice. Most indicate that they would not honour a ‘no CPR’ tattoo on a patient’s chest as they would want to see the necessary legal paperwork. There is also a concern that they may not find a tattoo about an allergy or the like particularly if the person has many tattoos.
The situation may vary from US state to state. In Australia even states that have formal advance directive legislation, the common law remains in place. The common law says that a competent adult has the right to refuse treatment even if that means they will die. The critical questions are:
- Was the patient competent?
- Was their refusal informed?
- Does it cover the situation that now arises?
If the answer to those three questions is ‘yes’ then the refusal is binding, and must be honoured (see In Re T [1992] EWCA Civ 18).
In Malette v Shulman [1990] 67 D.L.R. (4th) 321, a Canadian case, the treating doctor was notified that his patient was carrying a card identifying her as a member of the Jehovah’s Witness religion and in accordance with the doctrine of that religion she did not want a blood transfusion at any price. Notwithstanding that he treated her, with a blood transfusion, and saved her life but was still liable for assault. He argued that he could not determine whether or not there was a valid refusal as he could not communicate with the patient. The court said that she had done all that she could do to convey her wishes by signing and carrying the relevant card, and her daughter also confirmed that these were still her wishes. In the circumstances her wishes should have been honoured.
If carrying a card was sufficient to convey one’s wishes, then going the extra step and getting a tattoo would be even stronger indication. As one commentator said ‘ if I go through the trouble of having my wishes TATTOOED on my body… what more can I do?’ (Another commentator said with a ‘tattoo you can’t change your mind about last min.. a bracelet you can cut or slip off….’ Mrs Shulman could have changed her mind and removed the card from her wallet but had not done so, in effect confirming her desire. That is not so easy with a tattoo but not impossible, you could get a line drawn through it and date it, not very pretty I’ll grant you but possible.)
In In Re T the court said there was no easy answer for doctors faced with an apparent refusal of treatment. Lord Staughton said (In Re T [1992] EWCA Civ 18, [60]):
The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon [or paramedic] will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient.
Faced with a tattoo says ‘No CPR’ doctors and paramedics could be reasonably confident the patient meant it, that is that they are expressing their wishes in the best way they can. In In Re T, Ward J at first instance said:
… the presumption that a state of affairs continues [in that case, the state of affairs was a refusal of a blood transfusion] until the evidence suggests that it no longer pertains is more to the point than the submission of [counsel] that the sanctity of life is so vital an interest to protect that if I am in any doubt that should take precedence. (In Re T [1992] EWCA Civ 18, [19])
(The Court of Appeal, although not using those words, gave effect to that point of view, upholding the right of a person to refuse treatment but finding, in that case, the purported refusal did not apply to the circumstances that had arisen.)
In the circumstances if an adult has gone to the effort to have ‘No CPR’ tattooed on their chest would have to face the consequences of that being honoured. As in Malette’s case they would have done all that they could do to communicate their wishes, and the law recognising each person’s right to make decisions about their own body would become token at best, if such wishes are not honoured at the most important moments of life, and death.
Another commentator wrote ‘as we all know from training, my safety as an EMT comes first, legally and ethically, not just physically.’ That’s not necessarily true. A professional, for example a doctor or lawyer, is often expected to put their patient’s interests first. Acting ethically is in part to advance your patients interests which are defined by their choices, not yours. No-one is required to break the law but taking a defensive position to protect yourself at the expense of your patient cannot be justified either (see Breen v Williams (1996) 186 CLR 71 for a discussion of a doctor’s duty to their patient and whether that may mean putting their patient’s interests ahead of their own legal interests).
In the absence of any indication that the tattoo was not voluntary obtained, I would think an Australian paramedic would face little legal risk in honouring the tattoo. Given legislative provisions governing emergency medical care and ambulance services they will also face little legal risk in ignoring it. Some may say the risk in refusing to honour it is less than the risk in honouring it, if they honour it and the patient dies, the family may sue, but if they don’t and the patient dies or is saved, no-one can complain. That is of course not true. If they refuse to honour the directive and save the patient, the patient may still sue (see Malette v Shulman). Equally if they refuse to honour it the family members that shared the patient’s view may still complain and sue or try to bring the matter to the attention of the police.
There is a move to have paramedics registered like other health professionals (doctors, nurses etc). If they are going to be registered they need to engage in ethical professional practice. Ethical professional practice requires them to consider their patient’s best interests, not which course of action poses the lowest legal risk to them. This should mean that they would honour a ‘No CPR’ tattoo even if there are family members asking them not to. At the end of the day the relevant duty is to the patient and he or she is entitled to refuse treatment, even lifesaving treatment, that they do not want.
As for organ donation, in Australia the consent of the next of kin is not required if the deceased has indicated that they want to be an organ donor, eg by completing the declaration on their driver’s licence or registering on the Australian Organ Donors Register. Notwithstanding this consent is sought as it is the living who have to accept and understand the decision. Having a tattoo that one intends to be an organ donor may well make the discussion with the deceased’s family easier as it will be possible for organ teams to say with some confidence that this is what the patient wanted.
As a doctor quoted in the original article says ‘A tattoo alerts “any medical professional to stop and think a moment”’.
Michael Eburn
3 March 2012
Australian Emergency Law 
Jehovah’s Witnesses blood transfusion confusion.
Jehovahs Witnesses take blood products now in 2012.
They take all fractions of blood. This includes hemoglobin, albumin, clotting factors, cryosupernatant and cryopoor too, and many, many, others.
If one adds up all the blood fractions the JWs takes, it equals a whole unit of blood. Any, many of these fractions are made from thousands upon thousands of units of donated blood.
Jehovah’s Witnesses can take Bovine *cows blood* as long as it is euphemistically called synthetic Hemopure.
Jehovah’s Witnesses now accept every fraction of blood except the membrane of the red blood cell. JWs now accept blood transfusions.
Thanks Daniel for that update, I was not aware that there had been any development or change in their practice. It remains the case, of course, that in both Malette v Shulman and In Re T the issue was whether or not the patient’s had effectively refused a blood transfusion and the legal principles from those cases, that one can refuse treatment, even if means death, remain in place. It’s a good example of the problems with tattoos though, if someone had a tattoo that said ‘JW – No blood’ it’s a bit hard to remove it (unlike a medic alert bracelet) but as I noted above, difficult, but not impossible.
Thanks again for the update.
ME
Where does DNR stand with First Aid?
Craig, it depends both on what you mean by ‘first aid’ and ‘DNR’. If a do not resuscitate order has been made with the knowledge and consent of the patient then, as noted in this post, a person can refuse treatment even if it means they will die. It should be honoured but then the issue is what do you mean by first aid? If you’re just a bystander how will you know that a person has indicated they don’t want resuscitation (hence the tattoo’s a pretty clear way to show that). If they are at the end stage of a terminal illness they are unlikely to be collapsing, alone on the street or in a first aid post.
There are in infinite number of possibilities but in short if a person has refused treatment in a way that was informed and which covers the situation, that should be honoured.
Hi Michael, thanks for the excellent article. Its great to see you still supporting us ambos after all these years with legal info.
I never even thought about a tattoo as an indicator of the medical wishes of the patient and will be on the look out for it in future.
It is a concern though to follow through with the directive when tattooed on skin rather than a formal legal document stating a DNR. It will certainly cause me to “stop and think for a moment”
The problem with a formal DNR order is it’s ok if the patient’s in a medical centre and everyone knows about it; but formal DNR orders may be may at the end stage of a terminal illness, but people are allowed to refuse treatment even when they’re not at that stage and for any reason they see fit, and even if it means they are going to die. In Stuart v Kirkland-Veenstra [2009] HCA 15, Victoria police were (unsuccessfully) sued for failing to stop a suicide, in the High Court French CJ said (at [89])
All the medical treatment/advance directive legislation provide a formal way to refuse treatment but they also preserve people’s common law rights (see Powers of Attorney Act 1998 (Qld) s 39; Guardianship and Administration Act 1995 (Tas) s 48A; Medical Treatment Act 1994 (Vic) s 4; Guardianship and Administration Act 1990 (WA) s 110ZB; Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Natural Death Act 1988 (NT) s 5; The Consent to Medical Treatment and Palliative Care Act 1995 (SA) does not have an express saving provision but neither does it say that a directive under s 7. Further the South Australian Act only applies to decisions that may be relevant if the patient is “in the terminal phase of a terminal illness, or in a persistent vegetative state” and a person may want to refuse treatment in other circumstances, in which case the Act is not relevant). At common law a person has a right to refuse treatment for whatever reason they want.
To refuse treatment a person needs to be informed and perhaps a person gets NO CPR tattooed on their chest because of some unfounded fear eg that it necessarily leads to life in a persistent vegetative state, and if they were better informed they may not make their decision, but a paramedic or a doctor cannot know that and there’s no more reason to think they were uninformed than they were fully informed. In Malette v Shulman the court rejected that argument by a doctor who gave a blood transfusion despite knowing that the patient carried a ‘no blood’ card. The court said what other way could she communicate her wishes? With a tattoo the person has made it pretty clear what they want, or don’t want. If they need CPR they are not in a good way in any event and how could one prove that administering treatment against their wishes would have worked; and if it does work and leaves them in the state they didn’t want to be in, that’s pretty good evidence it should have been honoured.
The ultimate issue is why does one do CPR? Is it to protect the first aider/paramedics backside? Because you have to save everyone? or to act in the best interests of the patient? The first is not a good enough reason, the second is not true and the third would surely mean you honour their wishes.
Michael Eburn.
Where can I get a bracelet to wear indicating No CPR. Will this be honoured by emergency staff?
No doubt there are plenty of people that can provide a bracelet – see for example https://www.medicalert.org.au/.
Would it be honoured by emergency staff? Probably not. The law says that if you have refused treatment and indicated that it should be honoured but there is plenty of ambiguity around what you may mean. It would be helpful to add your doctors or appointed substitute decision maker’s phone number so the emergency staff could make a call to verify your wishes etc. If ’emergency staff’ are reluctant to honour a tattoo they may be more reluctant to honour a bracelet, but it’s a start if that is indeed your wishes.