Bioethics Forum Essay
Denying Ventilators to Covid-19 Patients with Prior DNR Orders is Unethical
When deciding which patients with Covid-19 should get scarce ventilators, should hospitals consider a person’s DNR status – the previously stated wish not to receive cardiopulmonary resuscitation (CPR) to restart the heart and breathing after cardiac arrest? This would seem irrelevant to ventilator allocation, and yet some existing and proposed guidelines for triage during a public health emergency put DNR status in the list of criteria for excluding patients from getting ventilators or other life-saving health care. This approach is in direct opposition to the generally agreed-upon goal of maximizing the number of survivors, and could result in confusion and public mistrust of the health care system.
States across the country are working furiously to respond to the Covid-19 pandemic, including developing protocols for allocation of ventilators. While these protocols vary in terms of the clinical considerations and ethical principles upon which they are based, they generally all agree that the goal is to save the most lives possible. Significantly, most state protocols emphasize reliance on only clinical factors to evaluate patients’ likelihood of survival.
Many of these plans agree on a three-step process for resource allocation: application of exclusion criteria, assessment of mortality risk, and periodic clinical assessments. While some proposed plans eliminate step 1, most apply exclusion criteria in order to identify patients with a high risk of mortality even with ventilator therapy, in order to prioritize patients most likely to survive.
For example, in 2015, the New York State Task Force on Life and the Law issued Ventilator Allocation Guidelines for health care institutions to use in an influenza pandemic if the demand for ventilators exceeded the supply. The guidelines were clear that the definition of survival “is based on the short-term likelihood of survival of an acute medical episode and is not focused on whether the patient may survive a given illness or disease in the long-term (e.g., years after the pandemic).” In drafting and releasing the guidelines, the Task Force, the clinical workgroups that developed the clinical protocol for adults, and the New York State Department of Health considered — and unanimously rejected — inclusion of known DNR status in the list of exclusion criteria.
In contrast, in consulting with policymakers who are crafting ventilator allocation protocols specific to the Covid-19 pandemic, we have learned that some proposals consider including a patient’s previously-stated DNR status as an exclusion criterion. Further, some regional plans for triage (for example, from the North Texas Mass Critical Care Task Force and the South Dakota Healthcare Community) include DNR status as criteria for excluding patients from hospital admission or transfer. But excluding patients based on their DNR status is in direct opposition to the generally agreed-upon goal of maximizing the number of survivors, and could result in confusion and public mistrust — both now and in the future.
In an institution facing a shortage of ventilators, a patient whose medical record has a DNR order would be denied access to ventilator therapy upon presentation to the acute care facility, even if her likelihood of survival is high. Consider the hypothetical example of a patient who requested a DNR order several years ago, before having emergency heart surgery, because she did not want to have CPR performed if something went wrong. She fully recovered from that surgery, but now is admitted to the hospital for Covid-19 symptoms. Because her medical record includes the DNR order (which she may not even remember), she would be ineligible for ventilator therapy, even if she had no comorbidities and her odds of surviving with ventilator therapy were high.
We do not object to patients’ choosing to refuse ventilator care and/or to be declared DNR upon admission for care for Covid-19. We do not even object, if clinically necessary, to universal DNR status for Covid-19 patients if it is consistently and transparently implemented. However, excluding patients with a known DNR from being considered to receive ventilator care is inherently problematic. Such an order is only a decision about CPR and does not relate to any other treatment. DNR orders are not an individual or medical professional’s assessment of a patient’s chance of survival; instead they reflect the patient’s medical treatment preferences in the particular context of a decision whether to accept CPR.
Thus, a patient’s decision about DNR status is not necessarily indicative of what he or she would choose about access to a ventilator or other potentially lifesaving care and so does not hold up as a reliable proxy for autonomous decision-making of a person with Covid-19. And DNR status certainly is not indicative of a patient’s immediate or near-immediate mortality with aggressive therapy.
Further, while the primary focus today is–rightfully–managing the Covid-19 pandemic, denying patients with the virus access to ventilator therapy based solely on a prior DNR order would have enormous ramifications for patient decision-making in the future, and could very well undermine the public’s trust in their physicians and the medical enterprise. Patients are often reluctant to consent to DNR because of the fear that they will not receive beneficial treatment. And there is already some justification for this fear. A study of physicians and residents found that many thought that DNR orders can or should be “broadly applied to a variety of other therapies”–thereby deterring patients and/or their proxy decision-makers from consenting to DNR orders when they are medically and/or personally indicated. If allocation plans for Covid-19 made previously-declared DNR status a reason for denying a ventilator to a patient, more people would likely refuse to sign a DNR order and demand full code under any circumstances–even when it is not medically indicated — due to fears that they would later be denied a ventilator (or any other life-saving intervention).
The 2015 New York Guidelines represent the culmination of more than nine years of analysis, research, and consensus-building on the ethical principles and clinical ventilator allocation guidelines. Flexibility must be built into scarce resource allocation plans to allow states, as well as institutions and health care providers, to adjust to changing clinical information. While we laud any initiative to provide clear, succinct guidance to health care providers and institutions who are being faced with near-impossible resource allocation decisions, the inclusion of previously-stated DNR status as an exclusion criterion in ventilator allocation plans will undermine trust in the very system that should be protecting the population’s health during this public health emergency.
Valerie Gutmann Koch, JD, was the senior attorney and special consultant to the New York State Task Force on Life and the Law and is currently the director of law and ethics at the MacLean Center for Clinical Medical Ethics at the University of Chicago and faculty fellow at DePaul University College of Law. Twitter: @vgkoch. Susie A. Han, MA, was the deputy director of the New York State Task Force on Life and the Law and the project chair of the Ventilator Allocation Guidelines and is currently a partner at Venture Catalyst.