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Inked: Should Doctors Honour a Patient's DNR Tattoo?

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About The Author

Ceylan Simsek (Regular Writer)

Ceylan Simsek is a law school graduate whose main area of interest is medical law and international law. Alongside her studies, she has obtained certifications from Stanford University School of Medicine on overprescription of antibiotics and unconscious bias in medicine. She works at Medical Protection Society, the world's leading medical defence organisation for medical, dental and healthcare professionals. Outside of law, she enjoys learning new languages and, in order to combat her fear of heights, rock climbing.

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Whenever a doctor cannot do good, he must be kept from doing harm.

Hippocrates

In December 2017, it was reported that an unidentified patient who had arrived at a hospital in Miami, Florida with health complications had been found to have the words ‘Do Not Resuscitate’ tattooed on his chest. The doctors at the Miami hospital – trying to decide how to proceed with treating him – were left to make a decision abound with ethical complexities.

The legacy of this patient – who passed away after doctors elected to honour the desires expressed in the tattoo, albeit after further documentation verifying its authenticity was found – has prompted discussion amongst medical lawyers about whether the course of action taken was ethically sound. In light of this, this article examines how – if this patient had been brought into an English hospital – English law would have required the doctors to act.

The Story from Florida

The unidentified patient in Miami – a 70-year old man with a history of chronic pulmonary disease, diabetes mellitus and atrial fibrillation – was admitted to the emergency department with an elevated alcohol level, and without identification or family accompanying him.

Healthcare professionals initially decided not to honor the tattoo, on the grounds that this would be choosing an irreversible path when faced with uncertainty. Instead, they chose to treat the patient with antibiotics and other life-saving measures. However, following consultation with the hospital ethics consultant, the decision was reached to honour the patients DNR tattoo because, as Gregory Holt et al. explain in The New England Journal of Medicine, it was decided that:

[I]t was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests.

Subsequently, support for ethics consultant's decision emerged when the hospital's social work department located a documented signed by the patient which evinced a similar desire as the tattoo.

The questions raised by this case are not whether, and indeed when, patients should be allowed to refuse treatment generally. This point is all but settled. Instead, the questions it raises are narrower: they concern the extent to which tattoos should be considered valid expressions of the patent’s desire to refuse consent, and whether healthcare professionals should be able to rely on them as such.

How Might English Law Have Handled the Case?

English Law’s Current Approach to DNR Orders

It has long been accepted (both under English law and across a multitude of other jurisdictions, including the USA) that an adult patient, of sound mind and full capacity, has the inalienable right to decide upon the treatment that they receive.

In the context of DNR orders, this has seen the courts impose duties upon health professionals to ensure that the patient’s wishes are upheld. As Helen Morse has examined for Keep Calm Talk Law, the Court of Appeal – after doctors at Addenbrooke’s hospital in Cambridge were found to have illegally applied DNR orders to a patient without consulting her or her family – confirmed in Tracey v Cambridge University Hospitals NHS Foundation Trust [2014] that healthcare professionals needed to show ‘convincing reasons’ not to consult with patients before attaching such orders to a patient’s records.

The rights of patients to decide upon the imposition of DNR orders works both ways. Indeed, current NHS guidelines state that such a patient can make a ‘living will’ – in effect, an advance decision – to refuse a certain treatment any type of medical treatment, test or examination if they have the capacity to do so. However, in order for the ‘living will’ to be binding on the health professionals, a plethora of conditions must be satisfied. Some are formal: for example, the treatments which the patient is deciding to refuse must be clearly stipulated and the ‘living will’ must be written down, and signed by both the patient and a witness.

Others relate to the patient’s capacity. For example, the patient must have sufficient capacity under the Mental Capacity Act 2005, such that no doubt persists as to the person’s ability to make their own choices and decisions by understanding, retaining and applying all the information relevant to the decision. Furthermore, the patient must be over the age of 16 and not considered to be Gillick-competent. The idea of a Gillick-competent child originates from the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1985], in which Lord Scarman held that a child has the power to consent, or withdraw consent, to medical treatment:

[I]f and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.

However, for children who appear to not have reached sufficient maturity to be capable of making decisions over treatment, the law requires the courts to make the children’s best interests the paramount consideration. In relation to refusing treatment, this approach has been well-demonstrated in a number of cases involving young Jehovah’s witnesses refusing – in line with their beliefs – live-saving blood transfusions. For example, in An NHS Trust v Child B [2014], Moylan J ordered a blood transfusion, on the grounds that it was not in the best interests of the child to be exposed to the risk of death if it could be avoided.

Application of English Law to a DNR Tattoo

Is the Tattoo Written Down?

It could be argued that, on a broad interpretation of these requirements, a DNR tattoo would satisfy the requirement of a ‘living will’ needing to be written down. Arguably, from a practical level, a DNR tattoo is safer than a document: there is certainly less scope for a DNR tattoo to be lost than paperwork.

However, notwithstanding the obvious scope for that particular point to be heavily debated, it is clear that a tattoo is likely to lack the required signatures from the patient and a witness. The existence of these conditions make sense, and they should be applied strictly. They are, in effect, formalities, and – as Jamil Mustafa has discussed for Keep Calm Talk Law in relation to testamentary wills – the need to comply with certain formalities:

[N]ot only safeguards the making of a will from the dangers of fraud and undue influence, but also prevents testamentary dispositions being made without adequate forethought. Formality requirements [help ensure] a testator’s true and considered intention is carried out. 

Did the Patient have Capacity or Intention?

Notwithstanding questions over the validity of the DNR tattoo, it remains ambiguous as to whether the DNR tattoo can be considered a true reflection of their intentions. Granted, it seems unlikely that a person would keep – and get – such a tattoo without meaning to. However, there are a number of possible permutations in a fact pattern that could contradict this argument.

For example, the tattoo could very well be the result of a mistaken (or drunken) judgement on the part of the patient. Questions as to whether the patient had the necessary mental capacity could therefore arise. Furthermore, tattoos, unlike documents, are harder to review and remove. A patient who has changed their mind must undergo a painful and expensive procedure to remove a DNR tattoo which they may be reluctant to complete.

Though unlikely, an example of such a case was reported in the Journal of General Medicine in 2012. A 59-year old man with a DNR tattoo against his chest admitted to the hospital for an amputation had to explain to doctors that he would want resuscitative efforts initiated in the event of a cardiac or respiratory arrest. When queries of his tattoo were raised, the patient explained that it was the result of a drunken game of poker and that he had made no efforts to seek tattoo removal because ‘he did not think anyone would take his tattoos seriously’.

Conclusion on the Application of English Law

Any case involving a DNR tattoo would certainly be novel – depending on the patient’s health, it may be that it would be up to the healthcare professionals and the hospital legal and ethics committee to arrive to the reasonable conclusion in the heat of the moment. However, where there is opportunity for proper legal analysis, it seems that healthcare professionals in the UK would – under English law and NHS guidelines – be obliged to refuse to honour a DNR tattoo.

Any other course of action could very well result in the doctors’ losing their licence to practice medicine and the patient – or more accurately, their family or estate – bringing a clinical negligence claim against them. Whether there is scope for the healthcare professionals to defend themselves is an interesting question: given that all acts are judged by reference to the actions of ‘a reasonable person in the shoes of the defendant’, there is scope for debate as to whether a reasonable doctor would have decided to honour the DNR tattoo.

An Alternative Approach – The USA?

Several jurisdictions (including Florida, where the unidentified patient was treated) in the US law allows for a patient to express their wishes concerning resuscitation treatment – similar to DNR orders – via a legally binding document called the Physician's Order for Life Sustaining Treatment (POLST). Where the circumstances of a case mean that the physical form is unavailable to emergency responders and clinicians, states like Oregon have created a registry that gives healthcare professionals 24-hour-a-day telephone access to POLST information.

This idea has its benefits: healthcare professionals can be certain that – when a patient expended time and effort to fill out a POLST form – they intended it to record their desires about treatment. Similarly, the process to withdraw the POLST form is simple in the event that a patient changes their mind. This means that the POLST system is effectively conclusive. As a result, it is clear that where a POLST form exists, it should be followed, while if no POLST form can be found, the patient should receive resuscitation measures.

It is therefore surprising that the ethics consultant in Miami appeared to make a decision about whether to honour the patient’s tattoo before a search for a POLST form had been undertaken. Given the extent to which the POLST system can be considered conclusive, such a course of action seems to unnecessarily risk not acting in line with a true statement of his wishes.

In fact, it is concerning that the doctors in Miami sought to justify their chosen course of action on the grounds that the law ‘is sometimes not nimble enough’. Undoubtedly, subject to the patients’ right to refuse consent to certain treatments, healthcare professionals should have the discretion to decide how to treat their patients: in that regard, they possess the expertise to do so and are under a duty to work in the best interests at all times. However, where the law has placed limits on that discretion – such as by requiring the patient’s consent before doctors can decide to bypass resuscitation measures – it is not the place of doctors (who lack the democratic imprint of politicians or the legal expertise of judges) to ignore those restrictions and make decisions about the contents of the law.

Conclusion 

If a case involving a DNR tattoo occurred in England and Wales, there appears to be sufficient guidelines – from recent case law and from guidance published by the NHS and other bodies – to allow healthcare professionals to make a legally (and ethically) sound decisions as to whether to honour it. Indeed, it appears the strict conditions that must be met for a living will to be valid suggest that it would take an exceptional set of circumstances for doctors in England to uphold a DNR tattoo.

This makes sense: after all, it must not be overlooked that these laws which require patients to enshrine their refusals of treatment in documents following certain formalities in both the US and the UK exist because they are the best way of ascertaining the patient’s wishes and ensuring they are upheld.

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Tagged: Medical Law & Ethics, Wills and Succession

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