The DNR order is founded on the ethical principle of respect for individual autonomy and the legal doctrine of informed consent. Autonomy to make one’s own decisions regarding medical therapy is not a modern day concept. Indeed, John Stuart Mill proposed this idea in his 1869 treatise On Liberty in which he stated, “Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.”¹

The doctrine of informed consent was defined by Justice Benjamin Cardozo in the case of Schloendorff v Society of N.Y. Hospital.² In this case a young woman, who consented only to a gynecological examination under ether anesthesia, was instead furtively subjected to uterine surgery. Justice Cardozo of the New York Court of Appeals described the wrong committed as a “trespass,” emphatically stating “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” A competent patient’s refusal of treatment, including the request to refuse potentially life-sustaining therapy, must be honored. However, individual autonomy is not a legal or moral absolute and can be superceded by the state’s rights to protect innocent third parties (e.g., minors), prevent suicide, and maintain the integrity of the medical profession. Concerns about maintaining the integrity of the medical profession and the individual integrity of physicians are often invoked in discussions of futility as it applies to a patient’s DNR order.

The theory of medical futility originated in the ancient philosophical teachings of Plato and was later espoused by Hippocrates, who stated that, in general, the role of medicine “is to do away with the sufferings of the sick, to lessen the violence of the diseases, and to refuse to treat those who are over-mastered by their diseases, realizing that in such cases medicine is powerless.”³

The Council on Ethical and Judicial Affairs of the American Medical Association simply affirms Hippocratic dogma in stating: “When efforts to resuscitate a patient are judged by the treating physician to be futile, even if previously requested by the patient, CPR may be withheld.”⁴Although the predominance of medical opinion continues to be that physicians are not and should not be required to provide futile treatment, defining futility may be a more difficult and critical task. It has been implied that medical futility should apply when there is an absence of at least a modicum of medical benefit or, in the setting of cardiac arrest, when the patient predictably has near 0% survival after CPR. For patients with diseases such as metastatic cancer, acute stroke, sepsis, or multilobar pneumonia, CPR should probably not be offered in the event of a cardiac arrest. Schneiderman et al. suggested that, in terms of probability, futile therapy be defined as a chance of success being less than 1 in 100.⁵ Although isolated cases of long-term survival in these instances may exist, if these occurrences are so rare as to be unexplainable and therefore have little predictive value, then this definition of futility would still apply.

In discussing futility, it is imperative to differentiate “physiologic” or “quantitative” definitions of futility – based on scientific data that suggest that CPR will not be effective – from more value-laden or “qualitative” definitions of futility, in which physicians may impart their own beliefs on what they perceive as the patient’s preference, and suggest in this context that CPR is not worth attempting.

Within the framework of “physiologic” futility, a DNR order should be written and CPR should be withheld when an arrest occurs. Patients and/or their families should be informed of this decision, although to suggest that a choice exists could imply that there may be a potential benefit from CPR, inadvertently sending a mixed message. Respect for patient autonomy does not mean that patients have a right to demand nonbeneficial and potentially harmful treatment. Physicians who agree to such demands act purely on behalf of the patient’s psychological welfare rather than on the patient’s rights. Brody reiterates “that there are some questions of professional ethics that physicians are entitled to decide among themselves unilaterally. Regarding those matters, the society is entitled to decree that the profession of medicine will not be practiced in that way … But the society is not entitled to dictate to the profession the contents of professional integrity.”⁶ In protecting the integrity of the medical profession, however, public trust must not be compromised. DNR policies founded on the premise of cost containment tend to be value laden and, if implemented, are likely to foster a paternalistic approach to patient care, as well as to erode patient confidence that physicians are acting with their best interests in mind.

Guidelines for establishing standards of medical futility have been suggested in an effort to create an open dialogue with society, in general, and the medical community. These guidelines include (1) acknowledging that the word futility is widely used and (2) defining futility as a treatment that fails to achieve the goals of medicine. Social and medical acceptance of futility as it pertains to CPR can then hopefully be attained by using this definition in formal outcome studies.

DNR orders may be written based on physician assessment of futility, or based on patient request. The majority of patients who request DNR orders do so not because they wish to die, but rather as a reflection of how they perceive their quality of life before or after the resuscitation. Diminished quality of life has been defined as diminished capacity to resume work and/or impaired cognitive function specifically as it applies to awareness of one’s environment. It has been shown that, in patients who survive critical illnesses, quality of life is worse if the patient requires CPR. Physical or mental impairment, chronic disability, or persistent vegetative states are additional reasons patients or their surrogates may request a DNR order. Patients also express desires for DNR orders when they believe that CPR will merely prolong the dying process. Irrespective of the reasons behind the decision, the individual patient’s values are more relevant than those of the physician in determining resuscitation status when quality of life is the issue in question.

Physician insecurity in applying a DNR order has sometimes led to the ethically and medically inappropriate practice of the “slow-code” or “show code.” Additionally, a DNR order should not be misinterpreted as an order to withhold or withdraw other vital therapies. Indeed, the misconception of this order to mean “do-not-round” has led to the suggestion that the order be renamed no-CPR, or do-not-attempt resuscitation, to convey the idea that even if CPR were to be initiated, the likelihood of success would be extremely low. A DNR order does not preclude the use of other life support therapies including, in selected instances, surgery or intensive care. Most recently a call for renaming these orders to “allow natural death” (AND) has been suggested in order to eschew the negative connotation of do-not-resuscitate.⁷ The problem with this term is that it may inappropriately lead to the withholding of all other forms of therapy exclusive of CPR.

Our patient is justified in requesting a DNR order in advance of ECT as he perceives his life to be insufferable should he require prolonged mechanical ventilatory support. An argument for a physician-initiated DNR or AND order based on medical futility does not apply because of a lack of scientific evidence citing survivability if this type of patient suffers a respiratory or cardiac arrest.