Aug 2009

Deciding for Others: Limitations of Advance Directives, Substituted Judgment, and Best Interest, Commentary 2

Daniel J. Brauner, MD
Virtual Mentor. 2009;11(8):576-581. doi: 10.1001/virtualmentor.2009.11.8.ccas1-0908.


Mr. Abbot was taken to the local hospital from the nursing home where he had lived since his dementia became too severe for him to be unsupervised for any length of time. At 70, his health had been good, enabling him to enjoy the amenities of the nursing facility, stroll on the grounds, participate in art and music therapy, and visit with family and pets on a weekly basis. He was admitted to the hospital with a diagnosis of pneumonia and was in respiratory distress, which was likely to require intubation.

Years prior, before losing decision-making capacity, Mr. Abbot had documented in his advance directive that if he ever became demented and was unable to recognize his family or friends, he would prefer that no attempts be made to resuscitate him, should it ever be necessary. Mr. Abbot’s family, which included three children, made no effort to hide this directive, which was in his medical record, but insisted that it should not be acted upon. The children explained to the doctor that, despite his compromised cognition, their father was currently enjoying his day-to-day life in the nursing home, and should be intubated.

Commentary 2

In the preceding case commentary, Ryan E. Lawrence presents a spot-on portrayal of the principle-based paradigm in 21st century North America for making end-of-life medical decisions for those who are unable to speak directly for themselves. He then sets the paradigm aside, in favor of allowing the family to make decisions with input from the physician because of the ethical ambiguity inherent in applying principles of autonomy articulated in advance directives to an actual medical situation. This phenomenon is repeated countless times in similar situations and closely reflects the reality of modern medical decision making.

Many aspects of  Mr. Abbot’s case deserve mention, including the assumption of his lack of decision-making capacity due to the extent of his cognitive impairment—an assumption that needs to be grounded in some attempt to include him in discussion of his medical care [1]. Even finding that Mr. Abbot lacks decision-making capacity does not necessarily mean that his voice should not be part of the decision-making discourse along with those of his family and doctors [2].

Some time ago, Stephen Post and others raised the question that this case asks: should we honor the wishes of the “then” (precedent autonomous) self or the “present” self in persons who are transformed by their dementia [3]. In this regard, it is important to consider why recognition of family members stands as such a watershed moment for Mr. Abbot and so many other patients with dementia. Failures of recognition usually make a greater difference for family caregivers, who understandably become distressed when the person with whom they shared so much no longer recognizes them. National and local context also plays a role. If Mr. Abbot lived in Holland, for example, a country rated highly in its care to the elderly, and was a nursing-home resident, he would most likely not be transferred to the hospital, regardless of his family’s preferences, and intubation and CPR would not be options [4]. This forces us to ask whether a person with dementia who resides in a nursing home should have his or her care options limited compared to a person with the same degree of problems who is able to continue living at home because of better resources.

Exploration of the Language of Advance Directives

To better understand the case of Mr. Abbot and others like him, it is helpful to explore the history and evolution of advance directives, recognize why they fail to help us to make decisions, and encourage a rethinking of current practice. Although it is not explicitly stated in the scenario, the advance directive that Mr. Abbot signed was in all probability a DNR order to take effect in the future when his dementia had progressed to the point that he did not recognize family members. It is the question of whether to order a DNR that often frames discussion about the future and is stated here as Mr. Abbot’s desire that “no attempts be made to resuscitate him.” As Lawrence points out in his commentary, the meaning of resuscitation is not entirely clear. The DNR order was the first codified limitation of therapy, and it ushered in a revolution in end-of-life care by providing important options for gravely ill and dying patients. The way DNR is currently used in end-of-life discourse, however, has become an obstruction to clear communication and good care.

Asking every patient who might die—ultimately all patients—whether he or she wants to be resuscitated has become standard practice in the United States and is generally thought of as a marker of good end-of-life care. In its latest incarnation as a central component of the goals-of-care conversation, the question is usually introduced when a patient’s prognosis is grave and doctors have run out of what they consider reasonable chances of successful curative therapy. The DNR order of the 1970s was a logical response to what can now be recognized as a failed experiment, begun early in the history of the modern age of resuscitation with the notion that everyone who died would first be in cardiac arrest and should therefore undergo resuscitation. This was a radical shift from prior practice.

Prior to this shift, as noted in A Manual on Cardiac Resuscitation published in 1954, the indication for resuscitation procedure was “cardiac arrest or stoppage of the heart in the operating room,” most commonly from a catastrophic reaction to anesthesia [5]. Until 1960, cardiac resuscitation involved the application of open-cardiac massage to a limited number of patients, usually via thorocotomy and almost exclusively in the operating room. But in response to the high success rate with the first 20 patients to be resuscitated using closed-chest compressions (70 percent survival), reported in 1960, the study authors decided to take their technique to the rest of the hospital and explicitly changed the definition of cardiac arrest [6]:

Cardiac Arrest is [now] the sudden and unexpected cessation from whatever cause of circulation producing cardiac activity. This term once applied only to the sudden death associated with anesthesia and surgery [7].

Within a very short time, despite the much grimmer success rate of chest compressions when more generally applied, and without any widely vetted public policy debate, cardiac arrest became accepted as a new stage in the human experience of dying, and cardio-pulmonary resuscitation (CPR) became the universal default for all patients in cardiac arrest in the hospital [8].

A cascade of ensuing forces then led to the development of the “order not to resuscitate” (ONTR) in 1974, followed most significantly in 1976 by a mandate that patients or their families be allowed to make this decision [9]. These changes arose because the early expectations of dramatically altering life expectancy were dashed by CPR’s lack of efficacy in the vast majority of patients to whom it was applied. The escalating public debate about the ambiguous value of many life-prolonging therapies and the growing patients’ rights movement reached a climax with the Quinlan decision in 1976, which authorized the first publicly acknowledged removal of ventilatory life support in a person who was still alive [10].

The Quinlan decision set the stage for open discussions about actually limiting treatment, as heralded by an editorial in the New England Journal of Medicine, “Terminating Life Support: Out of the Closet” [11]. One of the papers in this series was precedent-setting in its call for the active participation of the patient and family in deciding whether or not to forgo CPR [12]. The idea of giving patients and families ultimate choice was again supported by the President’s 1983 Ethics Commission, which suggested that the concept of futility was inherently too uncertain to allow for the creation of “clear and workable categories” for limiting CPR [13].

Legacy of Cardiac Arrest and DNR

Although much has changed in the past 30 years, the case of Mr. Abbot shows that much has also stayed the same. The repercussions of the establishment of cardiac arrest as the liminal state between life and death and the subsequent DNR order for withholding CPR still echo in our present-day conversations with patients and families. The choice of whether or not to perform CPR was the first specific, mandated decision in which patients and families were explicitly given a voice in determining their care. As such the “code” discussion served as an early prototype for decision making with patients and families. It is still often used as a point of entry to talk about future care, both with gravely ill patients in the hospital and, as in Mr. Abbot’s case, with healthy individuals when considering the more distant future.

Physicians can use the advance-directive frame or code discussion as a barometer to gauge desired intensity of care. In some circumstances, physicians will go beyond the question of code status to discuss with patients exactly what level of aggressiveness they want, ranging from everything except CPR to various other possible limitations. This practice is further reinforced by the use of “partial DNR” orders, in which patients and surrogates choose from a menu of options parsed out from the CPR protocol, including intubation, cardioversion, compressions, and use of antiarrhythmic and vasopressor drugs. Over time, these choices have been expanded to include procedures that are not necessarily related to resuscitation, but to more general advance care planning, such as the use of artificial hydration and nutrition. The DNR discussion can thus serve as a springboard for other aspects of care.

The great irony of this legacy is that the CPR procedure, which stimulates all of this discourse, will most likely not be effective in significantly altering the outcome of the illness or process from which most of us will die. (Of course, there are many conditions related to acute, sometimes iatrogenic events that are reversible by CPR/advanced cardiac life support (ACLS) and deserve its rapid application.) Nevertheless, in homage to the history of resuscitation, cardiac arrest, DNR, and the spirit of patient autonomy, we are left with a ritualized discussion that compels physicians to offer a therapy which will most likely be ineffective.


From the perspective gained through this historical review, let’s get back to Mr. Abbot. He had chosen DNR in the event his dementia became intolerable to his “then” self. This is a reasonable choice, especially in a nursing home, where the rate of successful resuscitation is even lower than in the hospital and where some have advocated to not even offer CPR [14]. We may also be justified in assuming that his DNR order signifies “then” Mr. Abbot’s desire for less-aggressive therapy in general [15]. But the DNR tells us little about what he would want now, and assumptions about aggressiveness based on a DNR order are nebulous. Ever more detailed advance directives based on the flawed cardiac arrest model have not yielded significant improvements [16-18].

There are several decision points that make more sense than DNR in contemplating Mr. Abbot’s situation. The “do not hospitalize” order functions as a much more powerful advance directive and can be applied to nursing-home residents who have reached a point in their disease trajectory where the burden of hospitalization overwhelms the potential benefit it offers [19]. Once Mr. Abbot is in the hospital, the decision to intubate for impending respiratory failure must be clearly differentiated from the intubation performed as part of CPR/ACLS. Elective intubation for impending respiratory failure associated with a potentially reversible condition like pneumonia, although fraught with higher rates of morbidity and potential mortality for Mr. Abbot than for a younger, healthier patient, as Lawrence points out, is a life-saving procedure in the majority of patients in a study he cites. A time-limited trial of intubation with aggressive antibiotic treatment for pneumonia is often a quite palatable choice for older patients who share the understandable dread of spending the last days of their life in a prolonged death on a ventilator.

This time-limited trial would be the choice I would offer to the family if Mr. Abbot is not able to be involved in the decision. It appears that they are making decisions based on his best interest and his current, quite decent quality of life and want him to be treated if there is a reasonable chance of his returning to that life. If, after a reasonable time, the duration of which should be clearly stipulated beforehand, he does not appear to be improving, he would be extubated. Aggressive palliative care should be part of his treatment during his entire hospitalization, with special considerations if he is extubated because of lack of improvement. Of note, if he is extubated because of lack of response, when his heart stops he should not be considered to be in cardiac arrest but dying, and CPR would not be indicated.

Of course, to follow the procedure that I advise would require some conceptual and bureaucratic changes, but perhaps it is time for us to move beyond the current paradigm.


  1. Brauner DJ, Merel SE. How a model based on linguistic theory can improve the assessment of decision-making capacity for persons with dementia. J Clin Ethics. 2006;17(2):139-148.
  2. Mayo AM, Brauner DJ. Three-person decision-making discourse: a study of engagement and control by advocates for persons with dementia. J Am Geriatrics Soc. 2008;56(4):A61.

  3. Post SG. Alzheimer disease and the “then” self. Kennedy Inst of Ethics J. 1995;5(4):307-321.
  4. van der Steen JT, Ooms ME, Ader HJ, Ribbe MW, van der Wal G. Withholding antibiotic treatment in pneumonia patients with dementia: a quantitative observational study. Arch Intern Med. 2002;162(15):1753-1760.
  5. Hosler RM. A Manual on Cardiac Resuscitation. Springfield, IL: Blackwell Scientific Publications; 1958: 17.

  6. Moss AJ, Kouwenhoven WB, Jude JR, Knickerbocker GG. Closed-chest cardiac massage. 1960. Ann Noninvasive Electrocardiol. 2001;6(1):78-80.
  7. Jude JR, Kouwenhoven WB, Knickerbocker GG. Cardiac arrest. Report of application of cardiac massage to 118 patients. JAMA. 1961;178:1063-1070.

  8. American Heart Association. Editorial: the closed chest method of cardiopulmonary resuscitation: benefits and hazards. Circulation. 1962;26:324. Accessed July 6, 2009.

  9. Standards for cardiopulmonary resuscitation (CPR) and emergency cardiac care (ECC). II. Basic life support. JAMA. 1974;227(7):841-851.

  10. In re Quinlan, 355 A2d 647, 651 (NJ 1976).

  11. Fried C. Editorial: terminating life support: out of the closet. N Engl J Med. 1976;295(7):390-391.
  12. Rabkin MT, Gillerman G, Rice NR. Orders not to resuscitate. N Engl J Med. 1976;295(7):364-366.
  13. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment: Ethical, Medical, and Legal Issues in Treatment Decisions. Washington DC: US Government Printing Office; 1983.

  14. Finucane TE, Harper GM. Attempting resuscitation in nursing homes: policy considerations. J Am Geriatr Soc. 1999;47(10):1261-1264.
  15. Tomlinson T, Brody H. Ethics and communication in do-not-resuscitate orders. New Engl J Med. 1988;381(1):43-46.
  16. Tulsky JA. Beyond advance directives: importance of communication skills at the end of life. JAMA. 2005;294(3):359-365.
  17. Perkins HS. Controlling death: the false promise of advance directives. Ann Intern Med. 2007;147(1):51-57.
  18. Hawkins NA, Ditto PH, Danks JH, Smucker WD. Micromanaging death: process preferences, values, and goals in end-of-life medical decision making. Gerontologist. 2005;45(1):107-117.
  19. Culberson J, Levy C, Lawhorne L. Do not hospitalize orders in nursing homes: a pilot study. J Am Med Dir Assoc. 2005;6(1):22-26.


Virtual Mentor. 2009;11(8):576-581.




I want to thank Jeff Rees, PhD, Sarah Grusin, and Barbara Chubak, MD, for their insightful editorial comments.

The people and events in this case are fictional. Resemblance to real events or to names of people, living or dead, is entirely coincidental. The viewpoints expressed on this site are those of the authors and do not necessarily reflect the views and policies of the AMA.