The Out-of-Hospital Do Not Resuscitate Order: Yearning for the Urn

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As shown above, this witty woman minces no words on her thoughts on being resuscitated at the end of her life. For those of you who may not have seen the now-viral video originally posted to TikTok, we’ll set the scene for you. Imagine a wise, sprightly elderly woman enjoying a morning seated on her walker at her kitchen table.

The faceless voice behind the camera inquires of this woman “What is this?” while panning the camera from the woman to her refrigerator. On the woman’s refrigerator is a long piece of painter’s tape stuck across the refrigerator door. Scrawled in sharpie across the piece of painter’s tape are the letters “D.N.R.” The woman replies that this is her DNR, or her Do Not Resuscitate request.

The woman cheekily continues by declaring “I yearn for my urn.” The woman explains to the faceless voice behind the camera that first responders know to look for an Out-of-Hospital Do Not Resuscitate Order, if that document has been filled out and signed, in the refrigerator, which is why the DNR is in that location.

Is this video accurate? Yes, in Texas, a piece of tape on the fridge might not be enough, but a patient can execute an Out-of-Hospital Do Not Resuscitate Order!

What Exactly Is an Out-of-Hospital Do Not Resuscitate Order?

An Out-of-Hospital Do Not Resuscitate Order, or “Out-of-Hospital DNR Order,” is a legally binding written document containing the strict instructions of a patient, or the patient’s legally authorized representative, that directs health care professionals not to start or continue life-sustaining treatment.

What kinds of life-sustaining treatment is prohibited?

  • cardiopulmonary resuscitation;
  • advanced airway management;
  • artificial ventilation;
  • defibrillation;
  • transcutaneous cardiac pacing; and
  • other life-sustaining treatment.

An Out-of-Hospital DNR Order is effective upon the document being signed and remains effective until the Out-of-Hospital DNR Order is revoked. A competent person who is eighteen (18) years of age or older signing an Out-of-Hospital DNR Order, called “the declarant,” may fill out and sign, or “execute,” an Out-of-Hospital DNR Order at any time. For the purposes of this discussion, we’ll refer to the declarant as “the patient.”

– See Definitions – Tex. Health & Safety Code § 166.081(6)(A)

An Out-of-Hospital DNR Order does not allow a patient, or the patient’s legally authorized representative, to request that actions considered necessary to provide comfort care or to alleviate pain be withheld.  An Out-of-Hospital DNR Order also does not allow a patient, or the patient’s legally authorized representative, to request that water or nutrition be withheld.

– See Definitions – Tex. Health & Safety Code § 166.081(6)(B)

Just because you’ve chosen not to be resuscitated, doesn’t mean you must pass away in pain. You’ll still be kept comfortable in your last hours.

Where do Out-of-Hospital Do Not Resuscitate Orders apply in Texas?

An Out-of-Hospital DNR applies in Out-of-Hospital settings. An “Out-of-Hospital setting” under Texas law means a location in which health care professionals are called for assistance, including long-term care facilities, in-patient hospice facilities, private homes, hospital outpatient or emergency departments, physician’s offices, and vehicles during transport.

– See Definitions – Tex. Health & Safety Code § 166.081(7)

Who can execute an Out-of-Hospital Do Not Resuscitate Order in Texas?

A minor child patient’s parents, the minor child patient’s legal guardian, or the minor child patient’s managing conservator can execute an Out-of-Hospital DNR Order on behalf a minor child patient, but only if the minor child patient has been diagnosed as suffering from a terminal or irreversible condition.

– See Execution of Out-of-Hospital DNR Order on Behalf of a Minor – Tex. Health & Safety Code § 166.085

A competent person who is eighteen (18) years of age or older, called “the declarant,” may fill out and sign, or “execute,” an Out-of-Hospital DNR Order at any time.

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082

If an incompetent adult patient has not executed an Out-of-Hospital DNR Order, the attending physician and the patient’s legal guardian, proxy, or agent having a medical power of attorney may execute an Out-of-Hospital DNR Order on behalf of the patient.

– See Procedure When Person Has Not Executed or Issued Out-of-Hospital DNR Order and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.088

If an adult patient who is otherwise physically or mentally unable to communicate has not executed an Out-of-Hospital DNR Order, the attending physician and the patient’s legal guardian, proxy, or agent having a medical power of attorney may execute an Out-of-Hospital DNR Order on behalf of the patient.

– See Procedure When Person Has Not Executed or Issued Out-of-Hospital DNR Order and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.088

If the incompetent adult patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one of the following people in the following order of priority, may execute an Out-of-Hospital DNR Order: (1) the patient’s spouse; (2) the patient’s reasonably available children who are eighteen (18) years of age or older; (3) the patient’s parents; or (4) the patient’s nearest living relative.

– See Procedure When Person Has Not Executed or Issued Out-of-Hospital DNR Order and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.088; See also Procedure When Person Has Not Executed or Issued a Directive and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.039

Are there any legal requirements for a competent patient to execute an Out-of-Hospital Do Not Resuscitate Order in Texas?

Yes, there are specific requirements for a competent adult patient to execute a valid Out-of-Hospital DNR Order. Our legislators have set out exactly what an Out-of-Hospital DNR Order must include, and the form is maintained on the Texas Health and Human Services website for individuals to download here. It is critical that the proper parties fill out and sign the Out-of-Hospital DNR Order. The proper parties who are to fill out and sign an Out-of-Hospital DNR Order varies depending on if the patient is competent at the time that Out-of-Hospital DNR Order is executed.

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082

A competent adult patient must sign the Out-of-Hospital DNR Order in the presence of two (2) witnesses. The patient’s attending physician must also sign the Do Not Resuscitate order, but the physician can sign the document separately from the patient. The witnesses must sign the document.

The witnesses should be “competent,” meaning that each witness is at least fourteen (14) years of age and cannot be employed by the patient’s attending physician or any facility where the patient is receiving care. A competent witness cannot be related to the patient by blood or marriage. The witness cannot be the individual that is designated to make health care decisions for the patient. The witnesses also cannot stand to inherit anything from the patient upon the patient’s death for the witnesses to be considered “competent.”

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082; See also Witnesses – Tex. Health & Safety Code § 166.003

Alternatively, the patient may sign the Out-of-Hospital DNR Order and have the signature acknowledged before a notary public instead of signing in the presence of two (2) competent witnesses. Still, the patient’s attending physician must also sign the order, but the physician can sign the document separately from the patient. The patient’s attending physician shall make the fact of the existence of the order and the reasons for execution of the order a part of the patient’s medical record. 

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082

What are the legal requirements for an incompetent patient to execute an Out-of-Hospital Do Not Resuscitate Order in Texas?

There are specific requirements to execute a valid Out-of-Hospital DNR Order on behalf of an incompetent adult patient or a minor child patient.

If an incompetent adult patient has previously named an agent pursuant to a valid medical power of attorney, the agent may make any decisions required of the patient as to an Out-of-Hospital Do Not Resuscitate Order and the agent shall sign the order on behalf of the now-incompetent patient. In this instance, both the patient’s agent and the patient’s attending physician must sign the Out-of-Hospital DNR Order in the presence of two (2) competent witnesses.

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082

If incompetent adult patient has previously executed a valid directive to physicians designating a proxy, the proxy may make any decisions required of the patient as to an Out-of-Hospital DNR Order and the proxy shall sign the order on behalf of the now-incompetent patient.

– See Out-of-Hospital DNR Order; Directive to Physicians – Tex. Health & Safety Code § 166.082

If the patient who is unable to communicate and does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one of the following people in the following order of priority, may sign an Out-of-Hospital Do Not Resuscitate Order:

  • the patient’s spouse;
  • the patient’s reasonably available children who are eighteen (18) years of age or older;
  • the patient’s parents; or
  • the patient’s nearest living relative.

In this instance, both the patient’s relative and the patient’s attending physician must sign the Out-of-Hospital DNR Order in the presence of two (2) competent witnesses. Anyone who wishes to challenge an Out-of-Hospital DNR Order executed by the above-described relatives must apply for temporary guardianship of the patient’s person in the court of proper jurisdiction.

– See Procedure When Person Has Not Executed or Issued Out-of-Hospital DNR Order and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.088

If the patient who is incompetent does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one of the following people in the following order of priority:

  • the patient’s spouse;
  • the patient’s reasonably available children who are eighteen (18) years of age or older;
  • the patient’s parents; or
  • the patient’s nearest living relative.

In this instance, both the relative and the patient’s attending physician must sign the Out-of-Hospital DNR Order in the presence of two (2) competent witnesses. Anyone who wishes to challenge an Out-of-Hospital DNR Order executed by the above-described relative must apply for temporary guardianship of the patient’s person in the court of proper jurisdiction.

– See Procedure When Person Has Not Executed or Issued Out-of-Hospital DNR Order and Is Incompetent or Incapable of Communication – Tex. Health & Safety Code § 166.088

Who has to follow a validly executed Out-of-Hospital Do Not Resuscitate Order?

Health care professionals are the ones who must yield to a signed Out-of-Hospital Do Not Resuscitate Order. Texas considers the following people as health care professionals: physicians, physician assistants, nurses, and emergency medical services personnel and, unless the context requires otherwise, includes hospital emergency personnel.

A licensed nurse or person providing health care services in an Out-of-Hospital setting may, but is not required to, honor a signed Out-of-Hospital DNR Order, unless a licensed nurse responds to a call for assistance in an Out-of-Hospital setting.

– See Definitions – Tex. Health & Safety Code § 166.081(5); See also Physician’s DNR Order May Be Honored by Health Care Professionals Other Than Emergency Medical Services Personnel – Tex. Health & Safety Code § 166.102

When responding to a call for assistance, Texas law requires that, if the responding health care professionals discover a properly filled out Out-of-Hospital DNR Order form on their arrival at the scene, then they must determine that the Out-of-Hospital DNR Order form appears to be valid.

If the Out-of-Hospital DNR appears to be valid, the responding health care professionals then should establish the identity of the patient as the declarant. Responding health care professionals are required to honor only a properly executed Out-of-Hospital Do Not Resuscitate Order.

– See Compliance with Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.089; See also Physician’s DNR Order May Be Honored by Health Care Professionals Other Than Emergency Medical Services Personnel – Tex. Health & Safety Code § 166.102

Can responding health care professionals decline to honor a valid Out-of-Hospital Do Not Resuscitate Order?

Yes, in certain circumstances. If the responding health care professionals at the scene determine that the Out-of-Hospital Do Not Resuscitate Order appears improperly filled out, the Out-of-Hospital DNR Order may not be honored. Health care professionals acting in Out-of-Hospital settings are not required to accept or interpret an Out-of-Hospital DNR Order that does not meet the requirements of Texas. If it is decided that the Out-of-Hospital is improperly filled out, then life-sustaining procedures shall be started or continued.

 – See Compliance with Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.089

If, while responding to a call for assistance, the patient found at the scene identifies themselves as the declarant who executed the Out-of-Hospital DNR Order and the patient requests that life-sustaining treatment be started or continued, then health care professionals are not required to honor the Out-of-Hospital DNR Order.

The desire of a competent person, including a competent minor, overrides the effect of an Out-of-Hospital Do Not Resuscitate Order when the desire is communicated to responding health care professionals.

– See Compliance with Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.089; See also Desire of Person Supersedes Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.086

If, while responding to a call for assistance, a person at the scene identifies themselves as the patient’s court-appointed legal guardian and the patient’s legal guardian requests that life-sustaining treatment be started or continued, then health care professionals are not required to honor the Out-of-Hospital Do Not Resuscitate Order.

Additionally, if a person on the scene identifies themselves as the patient’s medical power of attorney and the patient’s medical power of attorney requests that life-sustaining treatment be started or continued, then health care professionals are not required to honor the Out-of-Hospital DNR Order.

– See Compliance with Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.089

If, while responding to a call for assistance, a person at the scene identifies themselves as a qualified relative who executed the Out-of-Hospital DNR Order on behalf of the patient and the qualified relative asks that life-sustaining treatment be started or continued, then health care professionals are not required to honor the Out-of-Hospital Do Not Resuscitate Order.

A qualified relative could be the patient’s spouse, the patient’s reasonably available children who are eighteen (18) years of age or older, the patient’s parents, or the patient’s nearest living relative.

– See Compliance with Out-of-Hospital DNR Order – Tex. Health & Safety Code § 166.089

Because there are numerous situations that permit dishonor of an Out-of-Hospital DNR Order, it highlights how essential it is that the patient discuss their specific wishes on resuscitation and life-sustaining treatment with their agents, doctors, and proxies before signing this document.

Having this conversation in advance of need can help ensure that individuals who have decision-making power over the patient have the necessary resolve to withhold life-sustaining treatment in the emotional, and often chaotic, moment of physical death.

Where should I start?

Always start by speaking to your Estate Planning attorney. After discussing the details of the variety of resuscitation methods available that best meet your needs with your physician, let your Estate Planning attorney know what kinds of life-sustaining treatment you do want or do not want so that the Out-of-Hospital Do Not Resuscitate Order can be tailored to your needs and treatment goals.

Reviewing this form with your physician will help you prepare to communicate your exact wishes ahead of meeting with your attorney.

–Authored by Amanda E. Carter, Esq.

Matthew Harris Law, PLLC – Estate Management Division

1101 Broadway, Lubbock, Texas, 79401

Tel: (806) 702-4852 | Fax: (800) 985-9479

[email protected]