End-of-life care encompasses a range of legal and medical considerations that ensure a patient's wishes are respected and that they receive appropriate care.
Advance Directives
Advance directives are legal documents that allow individuals to outline their preferences for medical treatment in the event that they become incapacitated. There are two main types of advance directives: living wills and medical durable powers of attorney (POA) for healthcare. Living wills outline the medical treatment a person wishes to receive or avoid, while medical POAs designate a trusted individual (i.e., healthcare agent) to make healthcare decisions on their behalf.
The federal Patient Self-Determination Act, effective since 1991, requires any healthcare facility receiving federal funds (e.g., Medicare or Medicaid payments) to provide written information about advance directives. This is reflected in the Medicare Provider Agreement regulations, which require hospitals, including critical access hospitals and rural emergency hospitals, to maintain written policies and procedures concerning advance directives for all adult individuals receiving medical care.
Under the Medicare Provider Agreement regulations, the detailed requirements for advanced directives include:
- Provide written information to individuals about:
- Their rights under state law to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives;
- The written policies of the provider respecting the implementation of such rights, including a clear statement of limitation if the provider cannot implement an advance directive on the basis of conscience.
- Document in a prominent part of the individual's current medical record whether or not the individual has executed an advance directive;
- Not condition the provision of care based on whether or not the individual has executed an advance directive;
- Ensure compliance with requirements of state law regarding advance directives.
- Provide for education of staff concerning policies and procedures on advance directives; and
- Provide for community education regarding issues concerning advance directives either directly or in concert with other providers and organizations.
The information specified above must be furnished (in the case of a hospital), at the time of the individual's admission as an inpatient. Under federal Medicare regulations, facilities are not required to provide care that conflicts with an advance directive. They are also not required to implement an advance directive if, as a matter of conscience, the provider cannot implement it and state law allows a healthcare provider to conscientiously object.1
The Purpose of Advance Directives
A key reason for these laws, especially living wills, is that patients have the right to decide what medical care they want or do not want. This autonomy allows patients to reject healthcare that may result in death sooner than expected, be spared unwanted procedures, and die with dignity and minimal pain.
Do Not Resuscitate (DNR) Orders
DNR orders (or sometimes referred to as CPR directives) are medical directives that instruct healthcare providers not to perform cardiopulmonary resuscitation (CPR) if a patient's heart or breathing stops. These orders can be based on the attending physician's medical judgment or the patient's informed decision to decline CPR. DNR orders are important for patients with serious health conditions or terminal illnesses where the burdens of CPR outweigh the benefits.
State laws regarding DNR orders may vary on whether a provider or facility is mandated to follow a CPR directive or whether they are allowed discretion. Many states distinguish these CPR directives from an advance directive, which is typically created when a person has decision-making capacity but doesn’t become effective until the person loses that capacity. DNR orders are especially relevant in pre-hospital and ED settings when providers would typically provide full resuscitative efforts without such a directive.
MOST and POLST Forms
Many states have Medical Orders for Scope of Treatment (MOST) or Provider Orders for Life-Sustaining Treatment (POLST) forms that stay with the individual. These forms translate a patient's preferences into medical orders and are primarily intended for elderly, chronically, or seriously ill individuals who are in frequent contact with healthcare providers. The MOST form documents the patient's preferences for life-sustaining treatment, including CPR, scope of treatment, and artificial nutrition.
These preferences may be previously or more extensively documented in advance directives, such as a living will, CPR directive, or medical durable power of attorney. Completion of a MOST form does not revoke these instruments; all such other directives remain in effect. In general, the MOST overrules prior instructions only when they directly conflict. Usually, the most recent directive is the one that’s followed.
Informed Consent and Suspension of Perioperative DNR/CPR Directives
Executing a CPR directive or MOST form requires the patient to have decisional capacity to provide informed consent. Otherwise, they can only be executed by someone authorized to make medical decisions on the person’s behalf.
Facilities may have policies that automatically suspend a patient's DNR order during surgery or invasive procedures involving anesthesia. However, this can conflict with the patient's right to self-determination and informed consent. Ethical guidelines from the American Medical Association (AMA) and the American Society of Anesthesiologists (ASA) emphasize the importance of patient autonomy and informed consent. These guidelines recommend a case-by-case examination of DNR orders and encourage discussions with the patient or their surrogate.
After a review of directives, the status of these should be clarified or modified based on the preferences of the patient. One of the three following alternatives may provide for a satisfactory outcome in many cases:
- Full attempt at resuscitation
- Limited attempt at resuscitation defined with regard to specific procedures
- Limited attempt at resuscitation defined with regard to the patient’s goals and values
An example is where a patient states that he or she most fears survival with a severe cognitive deficit. The operative team would then recognize that the patient would accept resuscitative efforts requiring only a brief period to restore circulation, but not extensive efforts that would sustain life, but at the cost of an almost certain anoxic brain injury.
Additional Considerations
In addition, ethical guidelines (AMA and ASA) recommend the following:
- Any clarifications or modifications made to the patient’s directive should be documented in the medical record. Especially in cases where the patient or designated surrogate requests that the provider use clinical judgment in determining which resuscitation procedures are appropriate.
- Plans for postoperative/postprocedural care should indicate if or when the original, pre-existent directive to limit the use of resuscitation procedures will be reinstated.
- Concurrence on these issues by the primary physician, the surgeon/proceduralist and the anesthesiologist is desirable. If possible, these physicians should meet together with the patient (or the patient’s legal representative) when these issues are discussed.
- If there are conflicts and time permits, these issues can be presented to the appropriate institutional body (e.g., an ethics committee).2
Conclusion
End-of-life care involves complex legal and medical considerations that ensure a patient's wishes are respected and that they receive appropriate care. Advance directives and DNR orders are essential components of this care. By understanding and implementing these directives, healthcare providers can honor the patient's autonomy and provide compassionate care during the final stages of life.
1 42 CFR § 489.102.
2 “Strategies for Collaborative Consideration of Patients’ Resuscitation Preferences,” AMA Journal of Ethics, April 2020, Volume 22, Number 4: E325-332.
The information provided herein does not, and is not intended to constitute legal, medical, or other professional advice; instead, this information is for general informational purposes only. The specifics of each state’s laws and the specifics of each circumstance may impact its accuracy and applicability, therefore, the information should not be relied upon for medical, legal, or financial decisions and you should consult an appropriate professional for specific advice that pertains to your situation.
Article originally published in Copic's 2Q25 Facility Focus newsletter.
