14-191-3 Me. Code R. § III
CPR, as a standing order, is based an the presumption of potential medical benefit to the patient, outweighing the potential for causing physical and mental injury. The presumption of benefit to the patient no longer applies when the physician determines and documents that the application of CPR is not justified because the patient is either in a terminal condition or because CPR is medically contraindicated.
COMMENT
The prognosis of terminality may arise when an underlying condition, such as end stage cancer, or end stage Alzheimer's disease is considered to be medically incurable or untreatable in terms of currently available technology and where death as a result of the natural history of the disease process or medical problem will likely occur within one year. CPR may be medically contraindicated when resuscitation is likely to not only be ineffective in restoring normal functioning but might also induce a state of prolonged pain and suffering.
Because of its grave nature and consequences, a DNR decision should be made under conditions that permit consultation and reasoned decision making by all parties involved. Prior to and after the entry of a DNR order, it is the responsibility of the attending physician to ensure that the order and its meaning are discussed with appropriate members of the hospital staff, especially the nursing staff, so that all involved professionals understand the order and its implications. Each institution shall develop a procedure to resolve staff disagreement concerning the entry of a DNR order for a particular patient.
When a physician believes that a patient is either in a terminal condition or that the patient's condition Is such that CPR is medically contraindicated, he shall request a separate evaluation of the patient's medical condition from another physician. If the second evaluation confirms the first, the physician shall then attempt to discuss the issue of CPR with the patient to determine the patient's wishes.
A physician shall obtain authorization from an appropriate party or from an advance directive of the patient prior to the entry of a DNR order.
A patient who is determined by his attending physician to have the capacity to make a decision with respect to resuscitation and who is in a terminal condition or whose condition is such that CPR is medically contraindicated, shall be fully informed of the risks, benefits and alternatives of a DNR order by his attending physician. The consent of such patient shall be obtained in writing prior to the entry of a DNR order in the record by the attending physician.
If a patient with a guardian is determined to have the capacity to make a decision with respect to CPR, the guardian shall be notified and his consent also obtained prior to the entry of a DNR order in the medical record. If such a patient expresses a wish to be resuscitated, his wishes are controlling.
If the patient has no objection, family members who are reasonably available should be informed of a DNR order by the attending physician or a staff member acting on his behalf and every effort shall be made to involve such members. However, the wishes of the patient are controlling. If the patient does not wish family members contacted the patient's privacy shall be respected and the patient's wishes shall be documented in the record.
If a patient with capacity later becomes incapacitated, an advance directive (prior written consent, a living will or a durable power of attorney) of the patient with respect to CPR shall be honored by the attending physician.
If the attending physician has attempted to discuss the issue of resuscitation with the patient and has concluded that the patient is incapacitated, he shall obtain a second opinion on the issue of capacity from a physician or licensed clinical psychologist who is not involved in the treatment of the patient. If the second opinion fails to find incapacity, the procedure outlined in Section III(C)(1) above shall be followed. If the second opinion affirms the physician's finding of incapacity, the attending physician shall discuss the issue of resuscitation with an appropriate surrogate.
One person from the following, to be chosen by the attending physician or designee in order of priority stated, when a person in the prior class is not reasonably available, willing or competent to act, shall have the authority to act as surrogate for decision making on behalf of an incapacitated patient:
an agent appointed by the patient under it durable power of attorney for health care decision making;
a legal guardian or legally responsible parent of the patient.
COMMENT
Power of Attorney
A properly executed durable power of attorney may be used in Maine to make health care decisions on behalf of an Incapacitated person. A document purporting to grant this type of authority to another must 1) specifically state that the power outlasts the disability of the principal (the person on whose behalf the agent acts), 2) specifically grant to the agent the power to sake health care decisions and 3) must be notarized. The agent continues to have this authority even if a guardian is subsequently appointed. (A court would have to formally terminate this type of power of attorney.)
Guardian
The extent of the guardian's power should be carefully determined. Some guardians have limited power over the ward's personal affairs. Note also that a conservator does not have the power to make personal health care decisions on behalf of his/her ward.
Minors
An emancipated minor is legally competent to make medical treatment decisions. An unemancipated minor is legally incompetent to make most treatment decisions -- that right rests with his legal guardians) which in most cases is his parent(s). Nevertheless, the attending physician should in every case attempt to discuss the issue of CPR with a minor patient as well as with his guardian. If a minor patient is unable to understand or communicate his/her wishes, his guardian may make the decision as the appropriate surrogate. However, if a minor patient is able to express an opinion with respect to this decision, his wishes shall be given great weight. If a minor patient wishes not to be resuscitated, the legal guardian of the minor must also consent prior to the entry of a DNR order. If the minor patient expresses a desire to be resuscitated but the legal guardian consents to a DNR order, no DNR order may be written without court order.
The attending physician shall inform the surrogate of the patient's diagnosis, prognosis, the risks, benefits and alternatives to CPR and shall provide any other information necessary so that the surrogate can make an informed decision regarding the use of resuscitation for the patient. The surrogate's decision regarding CPR should be based on an understanding of the patient's previous or current known wishes or, if the patient's wishes are unknown and cannot be ascertained, on the basis of the patient's best interests. The physician shall inform the surrogate of any explicit verbal or written directives of the patient on the issue known to the physician. The surrogate should make a good faith effort to involve all concerned family members In a CPR decision. The physician shall obtain the written informed consent of the surrogate prior to the entry of a DNR order in the patient's medical record. In an emergency, when the surrogate is unable to be physically present, verbal consent immediately followed by consent in writing shall serve as authorization for a DNR order. -
14-191 C.M.R. ch. 3, § III