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DNRs and other critical lessons from the ER and Cardiac ICU

My 83-year-old mother underwent emergency heart surgery (twice!) in the past month. She’s home and doing great now, but I am sharing this personal news here because of an important health care consent legal lesson that arose during this experience. A lesson that could have been the difference between life and death for my mother, had things played out differently. 

I have learned this lesson on several different occasions throughout my legal career. Most times, it was from hearing Judith Wahl, former long-time Executive Director of The Advocacy Centre for the Elderly, teach this lesson passionately at any opportunity she had.

It was Judith’s voice in my head, from countless legal education programs she has presented at, that saved my Mom’s life one day last month. I am writing this blog to take the torch, Judith, and spread this lesson as far and wide as I can. And to thank you for being the voice in my head on this issue.

Mom went to the ER with extreme and prolonged dizziness, shortness of breath, chest pain, and a lot fear and worry over what was happening to her. In this state, and in a very busy urban ER, she, and commonly every other patient in the ER, was asked “Do you want a DNR?”. The patient’s answer gets put in their chart, and it must be adhered to by the medical team. 

Think about that question for a minute. Do you want a DNR?

Said in a different way, that is: Do you want to not be resuscitated? If you answer “No”, you are saying “No, I do not want a DNR”. Meaning “No, I do not want to not be resuscitated”. Meaning “Yes, I want to be resuscitated”. 

If you answer “Yes”, you are saying “Yes, I want a DNR”. Meaning “Yes, I want to not be resuscitated”. Meaning “Yes, I do not want to be resuscitated”. 

Is your head spinning yet? Imagine if your head was already spinning and that’s why you are at the ER in the first place!

Now add to this scenario another question that medical staff often ask patients in the ER or ICU, either as a separate question or conflated with the DNR question: “Do you want to give advance consent to no life-sustaining measures?” In Ontario, our health care consent laws do not permit us to give advance health care consent. You can say whether you want a DNR or not, because that is emergency care. And you can express your wishes regarding prolonged life-sustaining measures in the event that you are not capable of consenting to or refusing treatment down the road. You can even give consent to a “plan of treatment” that includes several different steps that may happen one after the other. But you cannot give advance consent to the provision or withdrawal of prolonged life-sustaining measures. Consent to the provision or withdrawal of life-sustaining measures can only be given at the time the life-sustaining measures need to be provided or withdrawn, and if the patient is not mentally capable of making that decision at that time, then their substitute decision maker will be asked to make the decision for them. 

After practicing elder law and consent and capacity law for many years, I know that hospitals and long-term care homes often ask patients/residents both of these questions, often in stressful situations, often not clearly (or correctly) explained, and often conflated with each other.

So, let’s go back to my Mom. We’ve got these two critical questions that often arise in the ER: “Do you want a DNR?” (a legally permitted, but often confusing, question) and “Do you want to give advance consent to no life-sustaining measures?” (a question that has no legal basis and is also confusing). 

When my dizzy, ailing, and scared mother was asked one or both of these questions at the hospital, she simply said “Yes.” But she knew these were important questions and she had a feeling she should check in with me about this. 

This is the text message I got from my husband at work that day: “So, your Mom called and said they asked her if she wants a DNR and she said “Yes”. She said that’s what your Dad answered before he died, so she gave the same answer.” What??!! 

Cue a series of frantic calls and text messages between me and Mom. As I suspected, she did not intend to say “Yes, I want a DNR.” she meant “Yes, I want to be resuscitated in the event of an emergency.” That is the opposite of what she said, and therefore the opposite of what would be in her chart. 

By this point, she had been moved from the ER to the Cardiac ICU to keep her stable while she waited for an emergency heart surgery. I called and texted her several times to make sure she knew how important it was to have her chart corrected. “You need to tell them to fix your chart, otherwise, if you have an emergency in the CICU or during surgery, they won’t save you because that’s what you said you wanted!” “That’s not what I want!” she exclaimed “Okay, I’ll try to fix the chart if a nurse comes around”.

Finally, when I couldn’t get Judith Wahl’s voice out of my head “Check the chart, check the chart!”,  I went to the hospital myself and asked a CICU nurse to check Mom’s chart to make sure her correct instructions were there. “Oh yes” the nurse said “Your Mom had us correct the chart! How great that she knew to do that! It’s a really important question and it’s great that she knew to check it and have it corrected!” I then gave a short and friendly lecture to the nurse about the fact that, actually, my Mom only had her chart corrected because I insisted that she do so because I work in an area of law related to health care consent. I explained to the nurse that this sort of thing happens in hospitals all over the province, every day, and patients and their family members don’t always know to check the chart and make sure their answers are recorded correctly. This nurse thanked me profusely for explaining this to her and promised to “tell the others on the team” so that this doesn’t happen again.

That day, Mom flat lined several times in the CICU. They saved her life each time. Because her chart said to do so. 

#DNR #checkthechart #healthcareconsent #elderlaw #advancecareplanning #consentandcapacitylaw