Allow-Natural-Death (AND) Orders: Legal, Ethical, and Practical Considerations
Conversations with patients and families about the allow-natural-death (AND) order, along with the standard do-not-resuscitate (DNR) order during end-of-life (EOL) decision-making, may create engagement and understanding while promoting care that can be defended using enduring notions of autonomy, beneficence, and professional duty. Ethical, legal, and pragmatic issues surrounding EOL care decision-making seem to suggest discussion of AND orders as one strategy clinicians could consider at the individual practice level and at institutional levels. A discussion of AND orders, along with traditional DNR orders is presented. This is followed by argument and counter-argument focused on ethical, legal, and practical issues germane to EOL care decision-making associated with use of AND orders.
KeywordsAllow-natural-deathDo-not-resuscitateEnd-of-life careAdvance directives
Regardless of moral and legislative endorsement of patients’ right to choose a course of treatment at life’s end (Koch 2008), advances in modern medicine continue to cloud the boundaries between living and dying and create problems during end-of-life (EOL) care decision-making (Seymour 2000). Physician orders such as do-not-resuscitate (DNR) or allow-natural-death (AND) are at times used to initiate EOL care discussions and to inform care expectations (Koch 2008). Such orders may also be used to formally articulate patient preferences for EOL care planning and to document decision-making (Salladay 2002). Clinical implications of DNR and AND policies are described by some as similar (Stecher 2008); yet, whether the differences reflect more than semantics and how AND orders have been embraced by clinicians and healthcare institutions remain matters of some discussion.
A discussion of AND orders, along with traditional DNR orders is presented. This is followed by argument and counter-argument focused on ethical, legal, and practical issues germane to EOL care decision-making associated with use of AND orders. The comparative virtue of discussion of the AND order, as distinct from the more narrow DNR order, is that it may help develop justification and moral authorization for the forgoing of medical technology at life’s end by creating space for engagement and conversation, allowing for delivery of EOL care that can be defended using well-recognized legal, ethical, and professional principles. Enduring notions of autonomy, beneficence, and professional duty in EOL caregiving are used to explore this thesis.
AND orders reflect an EOL care philosophy focused on patient comfort (Stecher 2008) and pain management (Salladay 2002). Reverend Chuck Meyer initiated the use of AND orders in 2000 and believed the language better reflected care for patients at life’s end, while making clear to family members that comfort measures were provided. AND denotes non-interference with a natural process (Cohen 2004a) but interventions to be implemented and/or withheld with AND orders must still be clearly articulated and documented, thus AND orders can promote a plan of care. AND orders encourage early conversations and participation in EOL care decision-making (Stecher 2008) while promoting use of a shared decision-making process (Wittmann-Price and Celia 2010). The use of AND orders influences the care environment to promote meaningful interactions among clinicians, patient, and family and provides a comfortable context needed for patient/family EOL care decision-making (Wittmann-Price and Celia 2010).
Meyer (2010) noted that AND means the patient chooses not to undergo heroic treatment that may cause suffering and be unsuccessful at the EOL. Meyers (2010) elaborated on the definition of AND, suggesting two categories of orders: intermediate support-AND or comfort support-AND. For intermediate support-AND, although cardiopulmonary resuscitation (CPR) would not be performed, other interventions could be continued to treat the patient’s condition. This category of AND order is conceptually akin to the current interpretation of a DNR order. In comfort support-AND, CPR would not be performed, palliative care would continue, and all other treatments/interventions would be withdrawn (Jones et al. 2008). AND orders necessitate conversations about the dying process and how the team can care for the patient in response to needs at life’s end, rather than conversations focusing on medical interventions. AND orders are documented in the healthcare record, signed by a physician, and must be individualized for each patient such that specific interventions to be initiated, withdrawn, or withheld as a plan of care are clearly articulated (Wittmann-Price and Celia 2010). Currently, 100 healthcare facilities across the U.S. and New Zealand have adopted AND orders (Jones et al. 2008).
Attitudes and intentions associated with AND orders differ dramatically from those associated with DNR orders (Cohen 2004b). Some suggest a difference in interpretation, with AND to be understood as endorsement of a healthcare service, and DNR implying a healthcare service to be withheld (Wittmann-Price and Celia 2010). Thus, DNR may be viewed as an order with a narrow scope (Patient Safety Authority 2008). Meisel and Cerminara (2005) describe two mechanisms fashioned by legislation that address CPR: (1) DNR orders, written by physicians and (2) DNR directives which may be issued by patients.
Although the meaning of DNR orders may differ across practice settings, DNR is a technical term that conveys to clinicians that CPR will not be performed (Jones et al. 2008; Truog et al. 1999). Koch (2008) states the goal of DNR orders is to limit aggressive treatment at life’s end and in discussions with families, clinicians typically use DNR language to suggest limitation of life-sustaining treatment (Jones et al. 2008). Yet, when a DNR order is implemented, other interventions could be allowed that might prolong the dying process (Baumrucker 2001; Chessa 2004; Meyers 2010). DNR orders have been described as “a negative or passive order set” (Koch 2008, p. 14). DNR is not a plan of care (Pike 1991), it is crisis response—a decision offered when death is in the offing and the patient is unable to participate in EOL conversations and decision-making (Stecher 2008). Negative emotional reactions to DNR orders among patients, families, and clinicians in the clinical setting have been described (Cohen 2004b).
Arguments Supporting AND Orders
Autonomy and Self-Determination
The U.S. Constitution protects the rights of patients, along with those patients in the EOL phase, to refuse medical care. Although privacy is not explicitly mentioned, certain areas of privacy are guaranteed under the Constitution and this right is viewed as broad enough to encompass decisions to decline life-sustaining treatments (Meisel and Cerminara 2005), such as resuscitation or CPR. Of note, the first “right to die” decision litigated was in re Quinlan (1976) when the New Jersey Supreme Court upheld the right of Quinlan’s parents to order her removal from a ventilator. Also from a Constitutional basis, as in the historic Cruzan v. Director (1990) case of withdrawal of hydration and nutrition, the U.S. Supreme Court found the Fourteenth Amendment includes a liberty interest in refusing unwanted medical treatment.
From a common law basis, the right to refuse life-sustaining treatment is grounded in the common law right to control one’s own body. This is protected through legal requirements of informed consent to treatment (Meisel and Cerminara 2005). The doctrine of informed consent governs the right to self-determination, and supports the ability to refuse life-sustaining treatment such as CPR.
Patients require information on a range of EOL care choices for rational decision-making and the Patient Self-Determination Act of 1990 mandates patients are informed of their rights (PSDA 1994). Indeed, the PSDA requires institutions provide patients with information about advance directives, state laws governing advance directives, and the right to refuse measures such as CPR. Clinicians must ensure that state law is followed and supply appropriate education for professionals and lay-persons related to advance directives (PSDA 1994).
Advance directives are the legal documents which allow people to convey their decisions about EOL care in advance. Federal law encourages patients to exercise their rights of self-determination by completing these directives (PSDA 1994). Advance directives allow individuals to request, as well as to refuse, specific forms of medical care (President’s Council on Bioethics 2005), and thus can be used not only to direct the forgoing of treatment, as in selecting the DNR designation, but to direct the administration of treatment (Meisel and Cerminara 2005), as in the AND designation. Today all states have a form of advance directive in place (Meisel and Cerminara 2004).
DNR statutes are often drafted either as freestanding state statutes or as provisions of advance directive statutes. For example, at the state level in Georgia, the Georgia Advance Directives for Health Care Act (2007) replaced the Georgia Living Will Act (1984) as the Official Code. The Georgia General Assembly, to address existing statutes that contained conflicting concepts and inconsistent terminology, adopted the new advance directive statutes containing AND language (House Bill 24, 2007).
From a moral perspective, the principle of autonomy is the primary ethical consideration sustaining informed consent (Selinger 2009) and patients’ moral right to self-determination is dependent upon adequate disclosure. Yet, from a practical perspective, language used in healthcare at the EOL is not often understood by the majority of Americans (American Health Decisions 1997). Thus, to promote autonomy in EOL care decision-making, healthcare professionals must be certain to supply clear information about all care options, not just information necessary to choose between accepting or rejecting a single procedure like resuscitation (Battin 1983).
Beneficence and Nonmaleficence
The ethical principles of beneficence and nonmaleficence apply in caregiving as clinicians consider patients’ diagnoses, prognosis, and identify medically appropriate actions to benefit the patient and avoid harms. Beneficence and nonmaleficence come to the fore as clinicians guide patients/family in the difficult process of identifying goals for EOL care. Discussing AND orders, clinicians can help patients gain an understanding of a natural death by guiding discussions about selective refusal of treatments to potentially produce a more comfortable EOL phase (Battin 1983).
From a practical standpoint, the first step for patients/family is learning to differentiate care goals from a complex array of available healthcare technologies. Discussions of AND orders can be useful to clinicians during this step. For example, while DNR orders fail to instigate consideration of important EOL issues and discussion of care options among stakeholders (Koch 2008), discussions of AND orders can help patients/family identify care options that may provide benefit while avoiding those that are likely to create harms.
DNR orders may lead to conflict, unnecessary suffering, and inappropriate care (Venneman et al. 2008) at the EOL. Conversely, AND orders and associated actions have been described as reducing the stress and guilt families experience with DNR orders and withholding resuscitation (Chessa 2004).
Legal myths about EOL care can derail caregiving at life’s end (Meisel et al. 2000). For example, the literature describes strategies that are sometimes selected as EOL resuscitation options (i.e., slow DNR or partial DNR). Indeed, the literature is clear in viewing the slow DNR as unethical (Berger 2003). Moreover, partial DNRs are described as medically inappropriate (Berger 2003) and traumatic to the point of violating the principle of nonmaleficence (Berger 2003; Dumot et al. 2001). It can be argued that the AND order is an ethical care choice when viewed against such resuscitation options (i.e., slow DNR or partial DNR).
Jonsen et al. (2010) posit healthcare providers have a moral responsibility to initiate DNR discussions with seriously ill patients/families. This commitment, translated to contemporary professional practice as a duty, is reflected in the provider’s overarching roles of client advocacy and sensitivity to the needs of the patient’s loved ones. For example, professional duty in EOL care includes a clinician–patient exchange of ideas that can create an opportunity for developing a shared understanding of “good death and nature taking its course” (Seymour 2000, p. 1245). Moreover, Seymour (2000) describes helping patients/family construct an understanding of natural death that, “allows for a diffusion of responsibility for death to the body of the ill person, with the body defined as no longer able to take advantage of medical technology” (p. 1245). It has been suggested that the use of the AND orders allows healthcare professionals to work as choice architects in reframing the context for EOL decision making (Thaler and Sunstein 2008).
The language used to explain choices and goals for care at the EOL may indeed influence the expectations and roles of all those participating at the bedside. Presidential Commissions have noted healthcare professionals’ duty in enhancing patient understanding of available treatment options (President’s Commission for the Study of Ethical Problems in Medicine 1982) and national data suggest Americans want information so that they can take responsibility for making informed decisions about EOL health care (American Health Decisions 1997). From a practical stance, the literature notes DNR orders can be misunderstood by lay persons to mean terminating or ending a loved one’s life (Venneman et al. 2008), giving up (Chessa 2004), or a form of abandonment (Skol 2009).
Some research suggests DNR patients are provided less medical care than those without DNR orders (Beach and Morrison 2002; Burns et al. 2003; Chen et al. 2008). Does this signify emotional or medical abandonment (Chen and Youngner 2008) or raise legal and ethical concerns? An ethical distinction can be drawn between acts and omissions in healthcare. Clinicians must be proactive in deciding what represents acts and omissions in medical treatment and what it is these concepts mean in relation to moral responsibility to seriously ill patients. For example, omission of specific care, a risk when using DNR orders as recognized by the Nursing and Midwifery Council (2004), may limit clinicians’ ability to deliver holistic, ethical care at life’s end.
Counter-Arguments to AND Orders
Autonomy and Self-Determination
Viewing the AND designation as a specific advance directive, detractors note several practical issues of concern. Directives are viewed as limited in usefulness—few Americans have completed these documents. And in cases where directives exist, they tend to be too general or too specific to aid in EOL decision-making (Hastings Center 2008). Yet, these counter-arguments to discussing AND orders along with traditional DNR orders fail in that all states now have a form of advance directive in place (Meisel and Cerminara 2004) and these statutes continue to evolve. Additionally, best practice dictates clinicians work with patient surrogates to interpret a variety of advance directives, be these AND or DNR directives, to clarify goals for care and select appropriate interventions.
Over-interpretation of state code, along with clinical misperceptions of DNR order-associated requirements suggest clinicians’ misunderstanding of DNR orders (Baker 1995; Kamer and McClung 1995). Despite the frequency with which DNR or other resuscitation status issues arise in the clinical setting, there has been relatively little litigation associated with forgoing of CPR (Meisel and Cerminara 2005). Yet, in Payne v. Marion General Hospital (1990), a case of first impression, a doctor was found liable for issuing a DNR order for a patient who lacked advance directives in response to family members’ request, despite evidence provided by a nurse that the patient could communicate up to the moment of his death. Conversely, the Court held injury did not occur from implementation of the stated DNR policy in Kranson v. Valley Crest Nursing Home (1985). In that decision, a municipally owned nursing home with an institutional policy to withhold CPR was not found to be liable for negligence of an employee who failed to prevent a resident from choking to death while eating.
In relation to these types of situations, commenter’s note that in practice, statutory immunity is frequently conferred when healthcare professionals act in good faith and pursuant to reasonable medical standards (Meisel and Cerminara 2005). Potential legal liabilities specifically associated with application and use of the AND designation have not been identified (R. W. Cohen, personal communication, November 8, 2011), such that this legal counter-argument to discussing AND orders along with traditional DNR orders fails at present.
With passage of the PSDA of 1990, hospitals are required to provide information about patients’ right to accept or refuse care and prepare advance directives; yet, several studies have shown systematic attempts to improve the exchange of information for EOL care planning have met with only limited success and healthcare providers remain reluctant to initiate EOL discussions (Jonsen et al. 2010). A legal challenge of note, where the right to be provided with information under the PSDA was litigated, was Asselin v. Shawnee Mission Medical Center (1995). In this case, the plaintiff was unsuccessful in arguing that the healthcare team failed to provide information sufficient for purposes of informed consent. Nonetheless, in regard to specific information patients need for resuscitation-related decisions, the physician remains legally responsible to initiate a conversation about CPR if the patient’s medical condition suggests a cardiopulmonary arrest is a reasonable prospect (Meisel and Cerminara 2005) and the PSDA provides no viable counter-argument to discussing use of AND orders.
In consideration of other objections to the use of the AND order, counter-arguments could be made using moral principles. Related to the principle of patient autonomy and self-determination, AND orders have been described in the literature as vague, unclear (Chessa 2004; Chen and Youngner 2008; Ells 2010; Skol 2009), and ambiguous (Jones et al. 2008). Others describe AND as a short-hand expression (Chen and Youngner 2008; Ells 2010) that fails to provide specific information or additional clarification to promote EOL decision-making. Indeed, data suggest completed advance directives frequently fail to clearly convey treatment preferences (President’s Council on Bioethics 2005). Yet, this counter-argument to discussing AND orders along with traditional DNR orders fails because providing patients/family with information describing additional options impacting EOL care, such as the AND directive, helps develop the context necessary for informed, autonomous decision-making and self-determination.
Beneficence and Nonmaleficence
Although it is important to help patients/family differentiate available medical treatments from appropriate goals for EOL care, there is no evidence that use of AND orders is associated with this outcome. Nonetheless, AND orders can promote discussions of EOL care issues that may fail to occur when the DNR order is presented as the only option. From a practical stance, these discussions allow clinicians to inform patients/families based on their areas of expertise—likelihood of potential treatments achieving physiologic goals. AND discussions also provide opportunities for patients/families to reflect on their areas of expertise—quality of life issues.
Yet, AND designation might be open to bias against patients at risk of discrimination. For example, bedside decisions, such as AND orders, might be based on a clinician’s discriminatory judgments (Jonsen et al. 2010). Data suggest disparities do exist in use of DNR order in relation to gender, age, race, and geography (Wenger et al. 1995). However, it could be argued that the ability to provide AND orders as an EOL care option could function instead to provide legal and ethical support for vulnerable groups. The option for AND orders might reduce the recognized practice of withholding or withdrawing of intervention, as in futility cases, without consent and/or knowledge of patients or surrogates (Asch et al. 1999).
In dealing with complex EOL care issues, is there a danger that AND orders oversimplify EOL decisions (Chen and Youngner 2008)? As clinicians, an ethic of care should drive the collective push for substantive improvements in EOL care and this cannot be accomplished simply through adoption of new terminology. Chessa (2004) notes that merely changing terminology will not change EOL care attitudes. This moral counter-argument to discussions of AND orders also fails. Although we recognize the patient as the expert in relation to his/her individual values and goals, healthcare providers are recognized experts in the purview of treatments and orders, such as the DNR, AND, and other appropriate interventions for EOL caregiving situations. Communicating with and educating patients is a priority professional duty of those in the healing arts. Clinicians seek to use language necessary to promote understanding and discussion about AND orders as an option in care at life’s end.
From a practical standpoint, individuals in anxiety-producing situations more often take on threatening and emotional interpretations of ambiguous information (Blanchette and Richards 2003; Byrne and Eysenck 1993; Venneman et al. 2008). Jones et al. (2008) found providers believed the term AND was ambiguous. Others note that AND orders include the term natural which is commonly interpreted in a positive light, although a variety of definitions are recognized (Chessa 2004; Jones et al. 2008). As such, discussion associated with natural death could erroneously allow the family to adopt an overly positive view of reality and form expectations of some inherent benefit associated with the order (Chen and Youngner 2008). From an ethical perspective, objectors might thusly claim the use of the word natural in an AND order is misleading and could result in patient/families failure to confront impending death. Yet, this moral counter-argument to discussions of AND orders also fails. Professional duty can be fulfilled and compassionate care can be served by discussions concerning AND orders in that families may come to understand the natural course of disease that ends in death, in contrast to a DNR scenario in which they may feel responsible for a loved one’s death (Slomka 1992).
Communicating information about EOL care options has ethical, legal, and practical ramifications for clinicians across disciplines. Clinicians have a legal responsibility and professional duty to be knowledgeable of current law pertaining to the delivery of healthcare and to practice in accordance with such law. An understanding of the AND designation, where it has already been codified into advance directives law, should compel discussions of AND orders along with traditional DNR orders. In this way, legal and moral obligations to patients/family engaged in EOL care decision-making can be fulfilled. And in the absence of such state code, awareness and understanding of AND advance directive statutes, and recognition of enduring notions of autonomy, beneficence, and professional duty must serve as impetus to consider the integration of AND orders in caring for those in the EOL phase.
At life’s end, patients and families need healthcare providers to use terminology that is helpful to them in understanding clinical reality and forming realistic expectations and goals for care (Kleinman et al. 2006). DNR orders were products of a particular time in U.S. medical history and Bishop et al. (2010) call clinicians to rethink cultural practices related to the use of DNR orders. AND orders may afford such an opportunity in creating a therapeutic decisional environment and in reframing the EOL milieu to promote decision-making that recognizes goals for care and limitations of treatment at life’s end. Ethical, legal, and pragmatic issues surrounding EOL care decision-making seem to suggest discussion of AND orders as one strategy clinicians should consider at the individual practice level and at institutional levels.
Discussion of AND orders along with the standard DNR order during decision-making creates space for engagement and conversation, allowing for delivery of EOL care that can be defended using well-recognized legal, ethical, and professional principles. Some suggest procedural solutions, like physician orders, will never release us from the essential, underlying ethical and philosophical questions inherent in life. Yet, the comparative virtue of discussion of the AND order, as distinct from the contextually narrow DNR order, is that it may help develop justification and moral authorization for the forgoing of medical technology needed to safely navigate life’s end. If linguistic efforts allow us to speak to patients and families in ways that, “create room among the living for the one who is dying” (Zoloth and Charon 2002, p. 29), then we must work to use the language that allows this practice. Enduring notions of autonomy, beneficence, and professional duty in EOL caregiving support this thesis.