Today’s question isn’t really from today, it was received some time ago but unfortunately was diverted to my spam folder, so I apologise for the unusual delay in responding.  The scenario is:

In 2017 my older brother suffered a cardiac arrest. CPR was administered by family members and later N.S.W. Ambulance officers for a total of 48 minutes at which time a weak pulse was found.

Health professionals at the hospital came to the (almost foregone) conclusion that he would not survive without mechanical assistance due to the lack of brain activity likely due to hypoxia. The family in the meantime had discussed the situation and concluded it was best not to continue the use of mechanical life support aids dependent on medical opinion.

He passed away in under 3 minutes of discontinuation of mechanical respiration.

My following questions pertain to myself and my siblings, all relatively healthy adult ranging from 48-64 years of age:

1: Is it reasonable within current N.S.W. legislation for an otherwise healthy to ask for a DNR?

2: If so would it necessary to discuss this with a GP and draft/submit an ACD (and keep a copy on one’s person)?

3: Subject to the answers to the previous questions, would it also be prudent to wear some form of medic alert jewellery in addition?

My concern is none of us wishes to find themselves in the state my brother was in for an extended period, nor be faced with the decision to end a loved one’s life at a future point.

We will of course all be in that situation one day.  For every one of us, one day our hearts will stop beating and others must make decision whether to try resuscitation or not.  And someone has to make that decision even if the decision is a decision not to resuscitate and to ask health professionals to withhold resuscitation.   The decision is made easier if the person has clearly articulated their wishes and communicated those wishes to their loved ones.

In NSW there is no specific ‘do not resuscitate’ legislation.  You can take whatever steps you want to communicate your wishes and they should be honoured – and see NSW Health Making an Advanced Care Directive (2023).

It would certainly be prudent to speak with a doctor to make sure you are fully informed. Some would say the example you have given is not too bad.  An effort was made to resuscitate your brother but when it was determined there was no good long-term prognosis, treatment was withdrawn with immediate effect.  Many people are resuscitated and recover with no or limited long term deficits, but you cannot know whether that will be you (or the person you are resuscitating) so we have a go and let a final decision be made when a diagnosis and prognosis can be made.  What you don’t want, I suggest, is to be resuscitated and then be left in a vegetative state or worse, conscious of one’s long term, permanent and disabling brain damage.  But, in any case, you don’t know where you will fall on the spectrum.

Speaking to a doctor may help you consider the options, so it is a good idea.  It is also a good idea because if you do write an advanced care direction that says ‘do not resuscitate’ it is more likely to be taken seriously if it is also signed off by a doctor even if that is not legally necessary.

Clear communication will also have important legal issues.  If a person is subject to DNR paperwork and it is clear they are expected to die, when they die at home their treating doctor may write a death certificate.  An undertaker can be called and death is as dignified as it can be.

Where a person has a sudden cardiac arrest people are expected to call an ambulance and police will be notified.   If no-one has commenced CPR and worse, if no-one has called an ambulance, questions will be asked and it’s not inconceivable that there may be inquires as to whether it is appropriate to charge a person with manslaughter by criminal negligence. If the person’s wishes are documented and signed off by their regular doctor, then that would go a long way to showing that the decision not to resuscitate was consistent with the patient’s wishes and therefore not a breach of a legal duty of care (an essential element of negligent manslaughter).

It would be a good idea to wear something, or carry something, to bring a DNR directive to a treating practitioner’s attention. They cannot honour it if they don’t know it exists.  At a recent conference that I attended, medic-alert were promoting their latest jewellery as it carried a QR code that, when scanned, took practitioners to details about the patient including any DNR directives. 

It is worth considering that, regardless of the law, it is almost inevitable that an otherwise healthy person, with no relevant history, who suffers a cardiac arrest is going to be resuscitated. People are trained in CPR and Automatic defibrillators are promoted. Those bystanders who see a person collapse are going to do their best to start CPR without looking for DNR documentation and even if they find it, they will be so uncertain of its effect they will continue CPR until paramedics arrive.

Where the person is in a private home, surrounded by family who are all aware of their wishes then they can make the choice not to resuscitate so that by the time paramedics arrive the chance of survival is much reduced and when presented with a documented advance care directive it can be honoured.

For further information, including posts on medic-alert type jewellery and DNR tattoos, see all the posts that appear here https://australianemergencylaw.com/?s=DNR

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.