by Raymond L. Parri, Esq.

I. INTRODUCTION

A. Both the Living Will and the pre-hospital Do Not Resuscitate Order (DNRO) are defined as advance directives under F.S. § 765.101(1).

B. According to F.S. § 765.101(1) an advance directive is defined as:

1. A witnessed written document or an oral statement;

2. Contains instructions for the principal or the principal's desires are expressed;

3. Concerned with health care of the principal; and

4. Includes the following documents:

a) A designation of a health care surrogate;

b) A living will, and

c) A DNRO.

C. This paper will be confined to a discussion of comparing the Living Will and DNRO.

1. It will not discuss policy, philosophical, or religious issues and conflicts, and

2. This paper will deal with the practical use of these advance directives and try to clarify when and when not to use them.

II. THE CONTROLLING LAW

A. Living Will

1. F.S. Chapter 765 Generally, and

2. F.S. § 765.302-310 - Life Prolonging Procedure Act.

B. DNRO

1. F.S. § 401.45(3),

2. F.S. §765.302,

3. F.A.C. 10D-66.0485, and

4. F.A.C. 10D-66.325.

III. DEFINITIONS

A. Living Will - A declaration directing the providing, withholding or withdrawal of life prolonging procedures in the event an individual suffers from a terminal condition.

B. Pre-hospital Do Not Resuscitate Order (DNRO):

1. A Florida Department of Health, Rehabilitative Services (HRS) document, HRS Form 1896, authorizing the withholding or withdrawing of life prolonging techniques by emergency medical service (EMS) personnel - medical technicians, and paramedics (Exhibit A).

2. A special bracelet is available to alert EMS personnel of the existence of the DNRO. Under prior law, the bracelet was treated as a DNRO itself (Exhibit B).

C. Life prolonging procedure - any procedure, treatment, or intervention which:

1. Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function;

2. when applied to a patient in a terminal condition, serves only to prolong the process of dying; and

3. it does not include the administration of medication or performance of medical procedures when the medication or procedure is necessary to provide comfort care or to alleviate pain.

D. Terminal Condition - a condition caused by injury, disease, or illness from which there is no reasonable probability of recovery and treatment:

-1. treatment can be expected to cause death, or

2. has resulted in a persistent vegetative state characterized by a permanent and irreversible condition of unconsciousness in which there is:

a) The absence of voluntary action or cognitive behavior of any kind, and

b) an inability to communicate or interact purposefully with the environment.

IV. PROCEDURES TO MAKE A LIVING WILL OR DNRO

A. Living Will

1. Any competent adult can make a living will;

2. A written document must be signed by the principal in the presence of two (2) subscribing witnesses (no notary required);

3. A witness cannot be the principal's spouse or a blood relative; and

4. If the principal is unable to sign, one of the subscribing witnesses may subscribe the principal's signature in the principal's presence and at the principal's direction.

B. THE DNRO

1. Must be on HRS Form 1896, either the Oct 93 or the Oct 94 version (Exhibit A);

2. Must include a statement that the patient has a terminal condition determined by the attending physician in consultation with a second physician both of whom are licensed in Florida;

3. Must be signed by the patient;

4. If the patient is not competent, it must be signed by the patient's surrogate of a health care designation, the court appointed guardian of the person, or by a proxy; and

5. Must be signed by the individual's attending physician.

V. HOW THE DOCUMENTS ARE USED:

A. The Living Will

1. Geared to the health care provider and facility (not EMS personnel):

a) A health care provider is a licensed individual who administers health care.

b) A health care facility is a hospital, nursing home, home health agency;

2. The attending physician can act if no surrogate is named as long as a court review is not requested within seven days;

3. The health care providers and facilities are not required to comply with directions in living wills, if the patient:

a) is not in an emergency condition, and

b) has received written information in preadmission informing the patient of the policies of the health care provider regarding such moral or ethical beliefs;

4. If a health care provider is unwilling to carry out the wishes of the patient because of moral or ethical beliefs must within seven days either:

a) transfer the patient to another health care provider and pay transfer costs; or

b) if the patient is not transferred, carry out the wishes of the patient or surrogate unless otherwise prohibited; and

5. Health care providers and facilities must under federal and state law provide information to patients about the use of advance directives and their policy, but cannot require a patient to execute them.

B. THE DNRO

1. F.S. '401.45 is permissive. The statute provides that if a HRS Form 1896 DNRO is presented wherein resuscitation and life-prolonging procedures may be withheld or withdrawn by EMS personnel.

2. However, F.A.C. Rule 10D-66.375(4) makes it mandatory for EMS personnel and volunteers to honor a DNRO when responding to a call for assistance if:

a) Presented with a properly executed original HRS Form 1896; or

b) If presented with a copy of the HRS Form 1896 document from a licensed hospital, nursing home, home health agency or a hospice facility which provides home health patient care, if the facility's DNRO:

1) States it is a DNRO and provides that the patient is not to be resuscitated;

2) Has an effective date predating the request for assistance;

3) Includes the patient's full legal name;

4) Is signed by the patient's attending physician with his medical license number, telephone number and date the application is completed;

5) Signed and dated by the patient, health care surrogate or legal guardian of the person (if they have the authority);

6) Signed by at least two witnesses;

7) Must determine the patient's identity by a driver's license, other photo identification or from a witness in the presence of the patient (must be fully documented);

8) If a patient wears an identification bracelet, which indicates the execution of an HRS Form 1896, the EMS personnel are required to request review of the DNRO document; and

9) After responding to a call for assistance, the EMS provider shall:

a) make a written record;

b) not initiate CPR, but provide comforting, pain relievers, and other medically indicated care, short of resuscitation measures;

c) Ensure that the original or a copy of the pre-hospital DNRO accompanies the live patient; and

d) If the EMS personnel receives an invalid pre-hospital DNRO or if there is none, they must initiate CPR and other standard life saving procedures.

VI. LOCATION OF DOCUMENTS

A. The Living Will:

1) Copies should be given to health care providers and facilities where the principal expects to need health care as well as his or her minister, priest, or rabbi;

2) A copy should accompany the principal if taken to any health care facility; and

3) Copies should be given to the health care surrogates designated in the living will document.

B. The DNRO

1) In the residence, the original DNRO should be located at:

a) The patient's bedside table,

b) on the back of the patient's bedroom door,

c) taped to the patient's headboard, or

d) taped to the refrigerator door.

2) Out of the residence:

a) A copy should be made available for the EMS personnel to use when transporting the patient from home to a health care facility;

3) A copy should be given to the attending physician;

4) However, copies can only be made under the informed consent of the patient or health care decision maker; and

5) The DNRO bracelet can be worn on the wrist or a lower extremity.

VII. PROCEDURE FOR REVOCATION OF BOTH DOCUMENTS:

A. Both the living will and the DNRO are revocable at any time by the principal or patient as follows:

1) By a signed, dated writing;

2) By the physical cancellation or destruction by or at the principal's direction in the principal's presence;

3) By oral expression of intention to revoke; and

4) By a subsequently executed document that is materially different from the previous one.

B. Unless otherwise provided in the document in an order of dissolution or annulment of marriage, a dissolution or annulment of marriage of the principal revokes the designation of the principal's former spouse as a surrogate.

VIII. SUMMARY

A. The living will and pre-hospital DNRO serve different functions and are not interchangeable.

B. An individual can get two different DNROs:

1) The pre-hospital DNRO - HRS Form 1896 and bracelet is for use at the patient's home or while out of the home, and

2) The facility DNRO for use in an ACLF, a nursing home to transfer to a hospital, for example, and for transfer from one hospital to another one;

C. The living will can be oral, but if in writing, signed by only the principal, and

D. The DNRO must be in writing and signed by both the patient and the attending physician; and these should be obtained in advance of a terminal condition situation.