Can a New York physician enter a do-not-resuscitate order on a patient over the objection of the patient's health care agent or surrogate when the doctor believes CPR would be medically futile?

Plain-English summary

SUNY's University Counsel asked the AG to resolve a conflict between Public Health Law Article 29-B and a 1992 pamphlet jointly issued by the State Department of Health, the State Task Force on Life and the Law, the Medical Society, and the Hospital Association. The pamphlet (Do-Not-Resuscitate Orders: Questions and Answers for Health Care Professionals) had advised physicians that, where CPR would be "medically futile," a physician could enter a DNR order without the consent of a surrogate or health care agent, as long as a second physician concurred on futility. The AG concluded that this advice was inconsistent with the statute.

Public Health Law Article 29-B is the exclusive source of authority to enter a DNR order. § 2962(2) makes that explicit: "It shall be lawful for the attending physician to issue an order not to resuscitate a patient, provided that the order has been issued pursuant to the requirements of this article." The Legislature designed the statute around consent.

The hierarchy of decisionmakers. If the patient has capacity, the patient consents (§ 2964). A patient's pre-incapacity consent survives the loss of capacity (§ 2965(1)(b)). If the patient is incapacitated and has appointed a health care agent, the agent's consent is required (§ 2965(1)(a)). Agent decisions take priority over decisions by any other person except the patient (§ 2965(1)(c)). If there is no agent and the patient is incapacitated, a surrogate (committee, guardian, near relative, or close friend in the order specified by § 2965(2)) provides consent, but only after a determination by the attending physician with the concurrence of another physician that one of four medical conditions exists: terminal condition, permanent unconsciousness, medical futility of CPR, or extraordinary burden (§ 2965(3)).

Medical futility is one of the four predicates for a surrogate's consent, not an independent basis for unilateral physician action. § 2965(1)(a) says the agent's or surrogate's consent "must be obtained prior to issuing an order not to resuscitate." A physician's belief about futility doesn't unlock a unilateral exit from that consent requirement.

The narrow exception. § 2966 allows a physician to enter a DNR order without consent only where no agent was appointed and no surrogate is reasonably available. Even then, the physician needs either the concurrence of another physician on medical futility or a court order. § 2966 is the only futility-based unilateral path.

The regulatory framework is consistent. 10 N.Y.C.R.R. § 405.43(f) tracks the statute.

What if the physician disagrees with the agent or surrogate? § 2972 requires the dispute to go to the hospital's dispute mediation system. Mediators don't have power to decide whether a DNR order issues (§ 2972(5)). If mediation doesn't resolve the dispute, the physician must commence a court action under § 2973. Unilateral entry of an order over a refused agent or surrogate is not an option.

The legislative history. The 1986 report of the New York State Task Force on Life and the Law (which drafted the proposed legislation) explicitly considered the alternative view (in which physicians could override surrogates in cases of medical futility) and rejected it. The Task Force's report stated that "[i]f the attending physician believes that CPR is not medically appropriate for the patient, he must identify the proper surrogate to make a decision on the patient's behalf." The Task Force emphasized that the surrogate's independence "provides greater protection for the patient." The Legislature adopted the Task Force's framework. The Legislature thus considered the very argument the 1992 pamphlet advanced, and chose the opposite rule.

The AG's bottom line. The pamphlet's advice was inconsistent with the statute. Physicians who want to enter a DNR over the objection of a reasonably-available health care agent or surrogate must use mediation and, if needed, court action; they cannot unilaterally decide that medical futility overrides the consent requirement.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can a doctor enter a DNR order on an incapacitated patient without anyone's consent?
A: Only in narrow circumstances. Under § 2966, the physician can act unilaterally if (1) no health care agent was appointed, and (2) no surrogate is reasonably available and willing to decide. Even then, the physician needs the concurrence of a second physician on medical futility, or a court order.

Q: Is medical futility a stand-alone basis for a DNR order?
A: No. Medical futility is one of four medical conditions that justifies accepting a surrogate's consent (along with terminal condition, permanent unconsciousness, and extraordinary burden) under § 2965(3). It is not a basis for entering an order without consent.

Q: What does the doctor do if the health care agent refuses to consent and the doctor thinks CPR would be futile?
A: The dispute goes to the hospital's mediation system under § 2972. Mediators cannot decide whether a DNR issues. If mediation does not resolve the dispute and the doctor wants to persist, the doctor must commence a court action under § 2973.

Q: Did the 1992 NYS Department of Health pamphlet tell physicians something different?
A: Yes. The pamphlet advised that a physician could enter a DNR order on a finding of futility, with a second physician's concurrence, even without surrogate consent. The AG concluded that advice was inconsistent with the statute.

Q: Does this opinion apply to decisions made after a cardiac or respiratory arrest occurs?
A: No. The AG was careful to note that the opinion was about anticipatory DNR orders. Decisions made after an arrest to forego or terminate resuscitation are governed by "evolving standards of care, professional guidelines, and, when applicable, Health Department regulations," per the 1992 pamphlet. SUNY did not ask about that scenario.

Q: Who can be a surrogate?
A: § 2965(2) provides the priority order: a committee or guardian under Surrogate's Court Procedure Act Article 17-A, then a near relative or close friend. The surrogate must be reasonably available, willing to decide, and competent to decide.

Background and statutory framework

Public Health Law Article 29-B was enacted to clarify the rights of patients, families, and providers around CPR and DNR orders (§ 2960). The Article is exhaustive: § 2962(2) makes lawful only those DNR orders issued pursuant to its requirements. The DNR order itself is defined by § 2961(17) as an order instructing medical personnel "not to attempt cardiopulmonary resuscitation in the event a patient suffers cardiac or respiratory arrest." Orders must be written into the chart (§ 2962(2)) and reviewed periodically (§ 2970).

The consent hierarchy: patient (§ 2964), then health care agent (§ 2965(1)(a), § 2961(8), with priority under § 2965(1)(c) and stand-in authority under § 2962(5) and § 2982(1)), then surrogate (§ 2965(2), with medical predicates under § 2965(3)). The fallback for unrepresented incapacitated patients is § 2966 (no agent, no surrogate, two physicians or court order required, futility or court order as predicate).

The dispute resolution process: mediation under § 2972 (where mediators lack authority to decide the DNR question, § 2972(5)), then court action under § 2973.

The statute's enforceability is explicit. § 2973(3) and the cross-references in § 12 and § 12-b make Article 29-B's requirements binding standards, not aspirational guidelines or a safe harbor.

The Task Force report (1986) is the key legislative-history document. It expressly considered and rejected the view that physicians should be able to override the surrogate in cases of medical futility. The AG used the Court of Appeals' guidance in Insurance Co. of N. Am. v. ABB Power Generation that legislative purpose can refine the statute's reading, and concluded that the literal language and the purpose both pointed the same way.

Citations and references

Statutes:

• Public Health Law § 12, § 12-b (enforceability)
• Public Health Law § 2960 (legislative findings and purpose)
• Public Health Law § 2961 (definitions)
• Public Health Law § 2962 (general consent and chart requirements)
• Public Health Law § 2964 (capable patient's consent)
• Public Health Law § 2965 (consent of agent or surrogate)
• Public Health Law § 2966 (DNR without consent in narrow circumstances)
• Public Health Law § 2970 (periodic review)
• Public Health Law § 2972 (mediation)
• Public Health Law § 2973 (court action)
• Public Health Law § 2982(1) (health care agent stands in patient's shoes)

Regulations:

• 10 N.Y.C.R.R. § 405.43(f)

Cases:

• Insurance Co. of N. Am. v. ABB Power Generation, Inc., 91 N.Y.2d 180 (1997)

Other authorities:

• New York State Department of Health, et al., Do-Not-Resuscitate Orders: Questions and Answers for Health Care Professionals (2d ed. 1992)
• New York State Task Force on Life and the Law, Do-Not-Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law (1st ed. 1986)
• American Medical Association, Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders (1990)
• Rita T. Layson & Terrance McConnell, Must Consent Always Be Obtained for a Do-Not-Resuscitate Order?, 156 Archives Internal Med. 2617 (Dec. 9/23, 1996)
• Stuart J. Youngner, Who Defines Futility?, 260 JAMA 2094 (Oct. 14, 1988)
• Paul C. Sorum, Limiting Cardiopulmonary Resuscitation, 57 Alb. L. Rev. 617 (1994)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2003-F1_pw.pdf

Original opinion text

PUBLIC HEALTH LAW §§ 2960, 2961, 2962, 2964, 2965, 2966, 2970, 2972, 2973; 10 N.Y.C.R.R. 405.43(f).

Where a patient is incapacitated and did not consent to the entry of a do-not-resuscitate order prior to becoming incapacitated, a physician must obtain the consent of the patient's surrogate or health care agent before entering a do-not-resuscitate order, even if the physician concludes that administration of cardiopulmonary resuscitation would be "medically futile." Only where no health care agent was appointed and no competent surrogate is reasonably available and willing to make a decision may the physician enter a do-not-resuscitate order based on medical futility without obtaining consent, and then only with the concurrence of another physician that resuscitative efforts would be medically futile or by obtaining a court order. To dispute the decision of the health care agent or surrogate, the physician must proceed to mediation and, if the dispute remains unresolved, commence a court action.

April 3, 2003

D. Andrew Edwards, Jr.
University Counsel
The State University of New York
The Capitol
Albany, New York 12224-0341

Formal Opinion
No. 2003-F1

Dear Mr. Edwards:

You have asked whether a physician who is treating a legally incapacitated patient and who concludes that administration of cardiopulmonary resuscitation would be "medically futile" has the authority to enter a do-not-resuscitate order over the objection of the patient's surrogate or health care agent. We conclude that in these circumstances entry of a do-not-resuscitate order would violate Public Health Law § 2965 and is therefore not authorized.

Your question arises from an apparent conflict between the governing statutes and a pamphlet issued jointly in 1992 by the New York State Department of Health, the New York State Task Force on Life and the Law, the Medical Society of the State of New York, and the Hospital Association of New York State. See New York State Department of Health, et al., Do-Not-Resuscitate Orders: Questions and Answers for Health Care Professionals (2d ed. 1992) [hereinafter Questions and Answers]. The pamphlet says that where cardiopulmonary resuscitation would be "medically futile," the attending physician may enter a do-not-resuscitate order without the consent of the patient's surrogate or health care agent where the judgment of futility is confirmed by a second physician.

To the extent this advice indicates that a physician may enter a do-not-resuscitate order without obtaining the consent of a reasonably-available health care agent or surrogate, in our view, it is inconsistent with Public Health Law § 2965 and with regulations promulgated by the Department of Health. Though the views reflected in this aspect of the Questions and Answers publication have support within the medical community, they have been explicitly rejected by the Legislature.

Statutory Framework

In New York, do-not-resuscitate orders are governed by article 29-B of the Public Health Law, entitled "Orders Not to Resuscitate." As defined by that article, an "order not to resuscitate" is an order instructing medical personnel "not to attempt cardiopulmonary resuscitation in the event a patient suffers cardiac or respiratory arrest." Pub. Health Law § 2961(17). The order must be included in writing in the patient's chart, id. § 2962(2), and is subject to periodic review, id. § 2970. As the statutory definition suggests, an order not to resuscitate ordinarily is entered in anticipation of a future cardiac or respiratory arrest.

The Legislature enacted article 29-B "to clarify and establish the rights and obligations of patients, their families, and health care providers regarding cardiopulmonary resuscitation and the issuance of orders not to resuscitate." Id. § 2960. To this end, the article is exhaustive; that is, it identifies all the circumstances in which a physician is authorized to enter an order not to resuscitate a patient. See id. § 2962(2) ("It shall be lawful for the attending physician to issue an order not to resuscitate a patient, provided that the order has been issued pursuant to the requirements of this article.") (emphasis supplied).

Article 29-B makes the consent of the patient or the patient's agent or surrogate the principal source of the physician's power to enter an order not to resuscitate. Indeed, in its statement of "Legislative findings and purpose," the Legislature summarized its intent as follows: "The Legislature finds that . . . it is appropriate for an attending physician, in certain circumstances, to issue an order not to attempt cardiopulmonary resuscitation of a patient where appropriate consent has been obtained." Id. § 2960 (emphasis supplied); see also id. § 2962(1).

Where a patient has the capacity to consent to entry of a do-not-resuscitate order, it is, of course, the patient whose consent is required. Id. § 2964. The patient's consent is effective even if the patient later becomes incapacitated. Id. § 2965(1)(b).

If the patient has not consented, a do-not-resuscitate order can be entered based upon the consent of a "health care agent." See id. § 2961(8). A decision by a health care agent, duly appointed by the patient, takes "priority over decisions by any other person, except the patient or as otherwise provided in the health care proxy." Id. § 2965(1)(c). Where the patient is incapacitated but has previously appointed a health care agent to make medical decisions on his or her behalf, the health care agent stands in the patient's shoes. See id. §§ 2962(5), 2982(1). Accordingly, in this setting, the consent of the health care agent, if one is available, "must be obtained prior to issuing an order not to resuscitate the patient." Id. § 2965(1)(a).

Where a patient is incapacitated and has not appointed a health care agent, the decision whether to consent to the entry of a do-not-resuscitate order falls next to a "surrogate." Id. §§ 2961(21), 2965(2). The categories of persons permitted to act as a surrogate are identified in section 2965(2) of the Public Health Law. The person chosen to serve as the surrogate must be reasonably available, willing to make a decision about the issuance of an order not to resuscitate, and competent to make the decision. Id.

In keeping with the fact that the patient has not granted the surrogate the power to make decisions on his or her behalf, the surrogate plays a somewhat different role in the process than does the patient or the patient's health care agent. The patient or the patient's health care agent may consent to the entry of a do-not-resuscitate order without any particular medical finding by the physician. See id. §§ 2964, 2965(1). In contrast, a surrogate may only consent to the entry of a do-not-resuscitate order if there has been a determination by an attending physician, with the concurrence of another physician, that either: (1) the patient has a terminal condition; (2) the patient is permanently unconscious; (3) administration of cardiopulmonary resuscitation would be medically futile; or (4) resuscitation would impose an extraordinary burden on the patient given the patient's condition. Id. § 2965(3).

Although the statute makes the existence of one of these four circumstances a prerequisite to the entry of a do-not-resuscitate order where the order is based on the consent of a surrogate, none of these circumstances provides an independent basis for the entry of a do-not-resuscitate order over the objection of or without consent of the surrogate. If a surrogate is reasonably available and is willing and able to make a decision, the physician cannot dispense with the surrogate's consent, any more than the physician can dispense with the consent of a competent patient or health care agent; the surrogate's consent "must be obtained." Id. § 2965(1)(a).

Section 2966 does provide limited authority for the issuance of a do-not-resuscitate order for an incapacitated adult who did not consent to a do-not-resuscitate order prior to losing capacity, and for whom no health care agent or surrogate is reasonably available. In this, and only this, circumstance, section 2966 permits the attending physician to enter a do-not-resuscitate order without consent, either on the basis of a determination by two physicians that resuscitative efforts would be medically futile, or as directed by court order. Pub. Health Law § 2966(1). But if a health care agent has been appointed, or a surrogate is reasonably available, then the consent of the health care agent or surrogate "must be obtained prior to issuing an order not to resuscitate." Id. § 2965(1)(a).

It is clear from these statutes that article 29-B does not permit physicians who conclude that resuscitative efforts would be "medically futile" to independently override the refusal of the surrogate or the health care agent to give consent or to enter an order without consulting (and obtaining the consent of) a reasonably-available health care agent or surrogate. Public Health Law § 2965 specifically requires the consent of the agent or surrogate and makes "medical futility" one of four medical determinations that will justify giving effect to the consent of a surrogate; it does not make medical futility an independent basis for the entry of a do-not-resuscitate order. Public Health Law § 2966 makes medical futility the basis for entry of a do-not-resuscitate order only where no health care agent or surrogate is reasonably available. Regulations promulgated by the Department of Health are fully consistent with this statutory scheme. See 10 N.Y.C.R.R. 405.43(f).

Moreover, the statutory scheme contemplates frank discussion between the physician and health care agent or surrogate about the patient's diagnosis and prognosis and the foreseeable risks and benefits of cardiopulmonary resuscitation. See Pub. Health Law § 2962(3). In most cases, such open discussion should result in agreement regarding issuance of an order not to resuscitate. Where it does not, a physician seeking to enter a do-not-resuscitate order over the objection of a health care agent or surrogate has two options. The physician must first bring the dispute before the hospital's dispute mediation system, pursuant to Public Health Law § 2972. However, persons appointed to participate in the dispute mediation system do not have the authority to determine whether a do-not-resuscitate order shall be issued. Pub. Health Law § 2972(5). If mediation does not resolve the dispute and the physician wishes to persist in his or her efforts to enter a do-not-resuscitate order over the objection of a health care agent or surrogate, the physician must commence a court action. Id. § 2973.

Legislative History

With respect to the question you pose, the plain meaning of article 29-B is consistent with the policies and purposes underlying its enactment. Cf. Insurance Co. of N. Am. v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186 (1997).

There are divergent views in the medical community as to how best to accommodate these two interests. The view that physicians should be permitted to override the surrogate or health care agent in cases of medical futility has substantial support. See, e.g., American Medical Association, Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders (1990).

The Legislature was cognizant of the concerns underlying these competing views when it adopted Public Health Law § 2965. In a report issued in April 1986 containing the proposed legislation that eventually became article 29-B of the Public Health Law, the New York State Task Force on Life and the Law identified "medically inappropriate resuscitation" and the entry of do-not-resuscitate orders without consent as the two principal problems driving the need for legislation.

In spite of the Task Force's concerns about medically inappropriate resuscitation, the legislation proposed by the Task Force made the surrogate's consent a prerequisite to the entry of a do-not-resuscitate order. The Task Force's report explicitly stated: "If the attending physician believes that CPR is not medically appropriate for the patient, he must identify the proper surrogate to make a decision on the patient's behalf." The report emphasized, "[w]hile the physician's advice and guidance to the surrogate are critical, the surrogate must act as an independent decision maker," and explained that "[t]he independence of the surrogate and physician provides greater protection for the patient."

The Legislature subsequently adopted a statutory scheme that closely followed that recommended by the Task Force in its report. As the Task Force proposed, the surrogate's consent was made a prerequisite to the entry of a do-not-resuscitate order, even in cases of medical futility. Pub. Health Law § 2965(1)(a). Because the Legislature plainly considered the concerns that militate in favor of permitting physicians to override the surrogate in cases of medical futility, these concerns provide no grounds for overriding the careful compromise it reached in enacting article 29-B.

Conclusion

We conclude that where a patient is incapacitated and did not consent to the entry of a do-not-resuscitate order prior to becoming incapacitated, the Public Health Law requires the physician to obtain the consent of the patient's health care agent or surrogate before entering a do-not-resuscitate order, even if the physician concludes that administration of cardiopulmonary resuscitation would be "medically futile." Only where no health care agent was appointed by the patient and no competent surrogate is reasonably available and willing to make a decision may the physician enter a do-not-resuscitate order based upon medical futility without obtaining an agent's or surrogate's consent, and then only upon the concurrence of another physician that resuscitative efforts would be medically futile or after obtaining a court order. To dispute the decision of the health care agent or surrogate, the physician must proceed to mediation and, if the dispute remains unresolved, commence a court action.

Very truly yours,

ELIOT SPITZER
Attorney General