I have previously written on this subject – see:
- Withholding resuscitation in first aid (November 21, 2017) and
- ‘Medical tattoos offer important health information’ (March 3, 2012).
The subject has now been considered in an interesting discussion on the ABC’s Health Report – (‘Do-not-resuscitate tattoos: What’s a doctor to do?’, Radio National, Monday 29 January 2018).
There is an interesting discussion there about the role of these tattoos and whether medical practitioners’ can, or should, or will honour them. One of the commentators, Professor Ian Olver, Oncologist and bioethicist at the University of South Australia, says:
Under, say, common law, the doctor would be expected to satisfy themselves about three things. One is was the patient competent when they issued whatever instruction about treatment, but a DNR? Was it an informed choice, that they weren’t coerced and they had all the information necessary? And particularly, and perhaps the most difficult one, did it apply to the situation that the patient is now in? Was that what they meant by it?
I agree that these three elements are essential for a valid refusal. A doctor who was assisting a patient to execute an advanced care directive would need to be satisfied those criteria were met, but I don’t agree that a doctor, faced with a refusal, has to satisfy him or herself that the criteria were met when the decision was made. In Malette v Shulman (1990) 67 DLR (4th) 321, Dr Shulman was faced with a critically ill patient who carried a card saying she did not want a blood transfusion under any circumstances, based on her religious faith. Counsel for the doctor argued that
… it could properly be doubted whether the card constituted a valid statement of Mrs. Malette’s wishes in this emergency because it was unknown, for instance, whether she knew the card was still in her purse; whether she was still a Jehovah’s Witness or how devout a Jehovah’s Witness she was; what information she had about the risks associated with the refusal of blood transfusion when she signed the card; or whether, if she were conscious, she would refuse blood transfusions after the doctor had an opportunity to advise her of the risks associated with the refusal.
Robins JA said:
With deference to Mr. Royce’s exceedingly able argument on behalf of the appellant, I am unable to accept the conclusions advocated by him. I do not agree, as his argument would have it, that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.
Just as the card was not a meaningless piece of paper, neither would a tattoo be meaningless, though as discussed below, the meaning may not be clear.
To return to Mrs. Malette and her card, Robins JA found that she had:
… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…
Further, in respecting those wishes, and withholding the treatment that had been refused:
The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependants when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah’s Witness faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for those consequences is entirely theirs and not the doctor’s.
In the absence of any reason to suggest that the wishes, however expressed, do not represent the patient’s wishes, there is I suggest no need for the treating doctor to consider whether or not, at the time that the decision was made, whether the patient was informed or competent.
For the patient who has DNR tattooed on their chest as ‘a joke, [because] he’d lost a bet with his medical buddies and because he lost it while drunk he had to have DNR tattooed across his chest and he just did it’ then it is that person who carries the risk that their tattoo will be honoured with inevitable consequences.
As the Health Report demonstrates, the meaning of a particular tattoo may not be clear. Does ‘DNR’ mean ‘do not resuscitate’ or is it the person’s initials? If it does mean ‘do not resuscitate’ does that mean ‘do not perform Cardio-pulmonary resuscitation’ or does it mean do not:
… put him on intravenous fluid … [give] medication to increase his blood pressure, …[give] antibiotics, and … put him on a bi-level positive airway pressure. It’s a pretty tight mask on the face that helps to ventilate for the patient. It’s one procedure short of putting the tube down the throat, which a lot of people consider full resuscitative effort. So you might call it resuscitation-light while we start to figure out what to do[?]
A tattoo that says ‘Do not perform Cardio-pulmonary resuscitation under any circumstances’ is much less ambiguous than ‘DNR’.
There is legislation in some, but not all, Australian jurisdictions that create a more formal means for making advance care directives but these Acts apply along side, and not instead of the common law rules. They are an alternative means but they do not deny pre-existing common law rights to refuse treatment. A DNR tattoo may be useful in drawing the health care team’s attention to the idea that there may be a more formal declaration. A person may not carry their Advanced Care Directive in their pocket but the DNR tattoo would alert the team that it may exist. As Dr Greg Holt, Assistant Professor of Pulmonary Critical Care Medicine at the University of Miami says about his care of a patient with a DNR tattoo:
Part of me says what it really did is cause more confusion than clarity. Because our first initial impression was, whoa, is this real, is this not real, and made us really contemplate the veracity of it and really push to find this person’s documentation at home. But then you have to think this is what the man really wanted, so in fact it actually really did work because I don’t know if someone would have gone through his house trying to find the ‘do not resuscitate’ document if he didn’t have such a tattoo. And so I think it was both good and bad at the same time. It caused a bunch of confusion, but in the end we abided by the man’s wishes.
It should be noted that in that case the team had decided to abide by the tattoo even before the formal documentation was found. As he says:
… our ethics consultation came down, they evaluated the case, goes through everything we have on the patient. And he comes to the conclusion that it is most likely that this is his true wishes to withhold life-sustaining therapy. And so using all the available evidence that we have on this patient at that point, we’re going to honour his DNR tattoo, and the man died probably about I’d say 24 hours after he presented to the emergency room.
… Probably about four to six hours after the ethics consult has told us that we should probably abide by the DNR tattoo, our social worker tracks down who this person is, I think through their fingerprints. They track him down to his home, they find that he has this legal form in Florida that states that he wanted to be ‘do not resuscitate’. It corroborated perfectly our ethics consult and we all felt better from that.
In other words finding the formal documentation made them feel better about the decision that they had already made, it did not determine what the decision was.
Possible legal consequences
The Health Report does not detail possible legal consequences but I’m going to suggest there are four.
- Resuscitation is applied, and the patient dies anyway. If it’s found that the tattoo did not reflect the patient’s wishes there’s no problem. There was no valid refusal so emergency care was applied as permitted by the doctrine of necessity – see The doctrine of necessity – Explained (January 31, 2017). If the tattoo does represent the patient’s wishes then the treatment was a battery. Battery is ‘actionable per se’ that means you can sue for battery, and win, without having to prove actual damage. The unlawful interference is damage enough. But without actual damages any award of damages, ie any award of money, is likely to be small. And where the patient has died there is no ability to compensate him or her so any award is a windfall to the beneficiaries of the estate. Whilst an action in battery may be possible (ignoring a myriad of defences that could be raised) it is unlikely and the damages (if any) would be minimal.
- Resuscitation is not applied and the patient dies. As noted in Malette v Shulman ‘The onus is clearly on the patient … they must accept the consequences of their decision. Neither they nor their dependants can later be heard to say that the [tattoo] did not reflect their true wishes.’
- Resuscitation is applied, and the patient makes a full recovery. Again there could, at least in theory, be an action for battery but it seems unlikely. In Malette v Shulman, Mr Malette did receive Canadian $20 000 in damages for the battery but in that case the violation of her religious beliefs and the doctrine of her church had consequences that extended beyond the treatment. If a person does not want to be resuscitated because of the fear of the outcome, rather than a religious conviction (and I don’t know of any church that objects to resuscitation per se) then the fact that they survive would again make any damages award nominal, at best.
- Resuscitation is applied, and the patient survives but with significant disability. This may be the very outcome that they didn’t want. And now they (or their family) face a life that they don’t chose with costs both financial and otherwise. As Jill Elliot says:
They’ve got no right to tell me, when I’m unconscious, whether I should live or die. I’m a lonely old lady now, why the hell would I want anybody dictating my life.
But if you refuse to honour the person’s decision that is what you are doing – dictating their life. In this blog and in the absence of specific facts one can’t canvass the various defences that would be available, but if we accept that the tattoo did reflect the patient’s wishes then the battery (ie treatment contrary to their wishes) has led to a significant and on-going loss and the damages awarded could be very high.
There is no doubt these decisions would be very complex and difficult, and also rare. As Dr Holt says of his reaction to seeing a DNR tattoo on his patient:
My first reaction to this was, wow. I thought this was an urban legend. We have always joked around about it in medicine. After somebody has a cardiac arrest, somebody will always say, ‘Boy, I never want this to happen to me, I’m going to tattoo DNR on my chest.’ But you never thought you’d see one, and now I’m looking at one.
As noted in In Re F  2 AC 1, treatment of the unconscious cannot ‘be justified when it is contrary to the known wishes of the assisted person’. The critical issue is ‘known’ wishes. As noted the tattoo certainly gives evidence that the person has expressed wishes but, as also noted above, tattoos (and other directions) may be ambiguous. In that case the actions demonstrated by Dr Holt – ‘buy some time’ – would appear appropriate, or at least it was in that case.
A DNR tattoo cannot be ignored. A person has a right to refuse treatment, even lifesaving treatment, and to communicate that wish in any way that is capable of communicating that wish. A formal advanced care directive is one way, but so is a card or I would suggest, a tattoo.
Whether a tattoo has to be honoured on its face will depend on all the circumstances including the terms of the tattoo. Where it is unambiguous – ‘Do not peform Cardio-pulmonary resuscitation under any circumstances’ – it would seem appropriate to honour it. Where it is ambiguous – ‘DNR’ – then it may be appropriate to take action to ‘buy time’ but the team is put on notice that further inquiries are required.
In a blog discussing general principles I can’t give advice on what is to be done in a particular case, other than to say, in any case, one cannot infer that the tattoo is the equivalent to ‘meaningless piece of paper’, meaningless ink. It has some meaning and it would be incumbent on the medical team to enquire as to what that meaning, if it is not clear, is.
Where does that leave a First Aider in terms of their responsibility/decision making/liability??
A first aider has a number of options. First you don’t actually have to remove clothing to do CPR so if they don’t see the tattoo it simply won’t be an issue. A first aider (and I don’t mean a person ‘on duty’ to provide first aid, but a person who has a first aid certificate and sees someone collapsed) doesn’t have the luxury of taking steps to ‘buy time’, so they’ve got to make a call. Under good Samaritan legislation in all jurisdictions (other than Queensland) a person is not liable for acts done in good faith to render medical assistance. For a first aider that is faced with this event and which will be unusual and time critical, I don’t think anyone would doubt that a decision to do CPR is ‘in good faith’. But equally a decision not to do CPR could be in good faith. And there’s no duty to rescue so one could not be sued for not doing CPR. If you’re going to sue someone for ‘not doing’ something that’s everyone in the community. For more discussion see https://emergencylaw.wordpress.com/2017/11/21/withholding-resuscitation-in-first-aid/