Do not resuscitate decision-making: Ohio's do not resuscitate law should be amended to include a mature minor's right to initiate a DNR order.

• Author: Mantz, Allison

1. INTRODUCTION II. DO NOT RESUSCITATE: AN OVERVIEW A. A Do Not Resuscitate Order: What is it and Why is it Issued? B. Ohio's Current Do Not Resuscitate Law III. A LOOK AT THE MINOR AND HEALTHCARE: PAST AND PRESENT A. A Historical Glance at the Minor's Healthcare Rights B. Exceptions to the Common Law Rule C. Ohio's Statutory Exceptions IV. THE EVOLUTION OF THE MATURE MINOR EXCEPTION A. The Mature Minor Exception Defined B. Cases Involving a Mature Minor's Right to Consent or Refuse Medical Treatment C. The Medical Perspective V. NEW YORK AND WEST VIRGINIA: RECOGNITION OF A MATURE MINORVS RIGHTS IN DO NOT RESUSCITATE LAW A. West Virginia's DNR Law B. New York's DNR Law VI. THE MATURE MINOR DOCTRINE AS APPLIED TO THE ABORTION DECISION A. Ohio's Abortion Law B. Court Decisions on the Mature Minor's Right to Consent to an Abortion VII. PROPOSED AMENDMENT TO OHIO'S DO NOT RESUSCITATE LAW VIII. CONCLUSION I. INTRODUCTION

   "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess Constitutional rights." (1)

   Consider the following scenario in light of the ethical and the legal implications that would arise:

   A cystic fibrosis patient, nearly 18 years old and unmarried, is brought to the ER in respiratory distress. She's told the ER nurses and the attending doctor that she wants a Do Not Resuscitate (DNR) order, but her parents are refusing to sign it. Meanwhile, the patient goes into respiratory arrest. What would you do? (2) This scenario was printed in a 1993 edition of the nursing magazine, RN, along with the responses provided from various nursing professionals. In reply, the majority of nurses expressed that any solution would be problematic based on the ethical and legal issues involved. (3) For instance, a Tennessee home health nurse wrote "I would have to assist in the code [to resuscitate], even though it would break my heart," (4) and a Pennsylvania rehab nurse commented "I would like to honor the patient's wishes, but I have no legal basis for doing so." (5) The moderator, Amy Haddad, a physician and widely publicized ethicist, noted that although parents have the legal right to make medical decisions for their minor children, minors have rights as well. (6) Even if there are ethical reasons for not issuing or implementing a DNR, we must remember that parents do not always do what is best for their children, and it is possible that there are other factors that must be taken into consideration. (7)

   As reflected by the scenario, as well as the nurses' responses, matters involving a minor's capacity to make health care decisions are highly debated. Changes in both the common law and legislation over the years have resulted in minors gaining some degree of autonomy in making their own medical decisions. (8) According to Professor Angela Holder, "[t]he court and legislatures of this country have not been unmindful of [these] societal changes, and there is a definite trend toward allowing adolescents more freedom to make decisions, and to exercise autonomy and self-determination in their relationships with healthcare providers." (9) Even though these decisions typically involve low-risk medical procedures, as opposed to life-saving or life-sustaining treatment, some states permit minors to make significant medical decisions, including whether to have an abortion without parental consent or notice. (10) Using reasoning similar to the abortion argument, this note will conclude that Ohio's DNR Order law should be amended to include an exception for unemancipated mature minors who wish to initiate a DNR order when their parents refuse to consent on their behalf.

   Part one discusses Ohio's current DNR law, which does not include an exception for mature minors. (11) It explains the medical difference between initiating a valid DNR order and refusing life-sustaining medical treatment. However, the note solely focuses on DNR and how it relates to a minor's right to initiate his or her own DNR order in light of parental disagreement.

   Part two explains the evolution of the minor and healthcare. Specifically, the progression from the early common law assumption that minors lack the capacity to consent, to the present, in which minors are permitted to make some medical treatment decisions without parental consent or knowledge.

   Part three examines the development of the mature minor exception, and the effect it has had on minor's healthcare rights. This section will also discuss three cases that have applied a mature minor exception in determining whether a minor was capable of consenting to some form of medical treatment. (12)

   Part four compares West Virginia and New York's DNR statutes to Ohio's current law, and ultimately determines that Ohio's law should be amended to permit mature minor's to initiate a DNR order with or without parental consent.

   Part five will focus specifically on Ohio's abortion statute, which recognizes a mature minor's right to have an abortion without parental consent or knowledge. (13) It will include an overview of Ohio's abortion law, and an explanation of the judicial bypass proceeding for a mature minor who does not wish to notify her parents. The section will also discuss the mature minor exception as it was applied in the abortion cases of Bellotti v. Baird, (14) Ohio v. Akron Ctr. for Reproductive Health, (15) In re Jane Doe 1, (16) and In re Jane Doe. (17) It will conclude that Ohio law should apply the mature minor exception to the area of DNR because it already applies in the significant medical situation of abortion.

   All of the above factors lead to the conclusion that Ohio should amend its current law to include an exception for unemancipated mature minors who wish to initiate their own DNR orders. Additionally, the exception should provide a method for resolving disputes when the minor's wishes and the parent's wishes are in conflict. This section will provide a draft for a proposed exception to Ohio's DNR law that will include a provision for mature minors.

2. DO NOT RESUSCITATE: AN OVERVIEW

   "ℕo right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." (18)

   1. A Do Not Resuscitate Order: What is it and Why is it Issued?

      Cardiopulmonary Resuscitation (CPR) was initially developed to preserve life, restore health, relieve suffering and limit disability of persons who unexpectedly went into cardiac arrest. (19) More specifically, it is an emergency lifesaving procedure that is performed when a person's own breathing or heartbeat have stopped. (20) CPR is a combination of rescue breathing, which provides oxygen to the victim's lungs, and chest compressions, which keep oxygenated blood circulating until an effective heartbeat and breathing can be restored. (21) CPR was not, however, intended to delay the approaching death of terminally ill patients. (22) Despite its intended purpose, CPR continues to be classified as an "emergency" procedure for which patients' consent is presumed unless an order is issued to the contrary. (23)

      Not long after the development of resuscitation techniques in the 1960's, it became clear that a minimal number of patients who were successfully resuscitated survived long enough to be discharged from the hospital. (24) Because many resuscitated patients were elderly, terminally ill, or severely and irreversibly demented, resuscitation only prolonged their suffering or sustained patients in a permanent vegetative state. (25) Resuscitation was determined to not always be in the patient's best interests, and many physicians believed that resuscitating every patient was in violation of the "ethical principle of non-malfeasance (not doing harm)." (26)

      DNR orders direct hospital staff not to apply CPR if and when cardiac or respiratory arrest occurs. (27) There are two basic responses to patients in cardiopulmonary arrest: code or no code. (28) To "code" a patient means to administer CPR, while "no code" implies that aggressive treatment will not be given to the patient in cardiac arrest (typically DNR). (29) DNR orders are issued so that the patient can avoid the negative effects of CPR. Even after receiving CPR, only five to ten percent of patients survive and are able to function as they once did. (30) Some patients survive but subsequently die before they are released from the hospital. (31) If a patient survives, he or she may suffer from a collapsed lung or a broken rib. (32) More serious side effects of CPR, such as brain damage, may also occur. (33) Finally, even if a patient survives CPR and is not injured, the patient may be left weak and the CPR has prolonged an already uncomfortable dying process.

      Historically, hospitals favored administering CPR in an attempt to maintain life. (34) However, in the 1960's, the doctrine of informed consent became more widely recognized as it allowed for increased patient autonomy and a decline in unilateral decision making by physicians. (35) This increase in autonomy resulted in the appearance of DNR orders, as a vehicle for hospitals to address life saving treatment decisions. These new procedures arose as a result of evolutions in technology and subsequently created a new wave of ethical dilemmas in healthcare. (36) It also opened the door to a number of legal issues, including the right to die, which has led more patients to become involved in decisions regarding their medical treatment. (37) In 1973, The American Hospital Association adopted the Patients' Bill of Rights, which allowed patients to be apprised of their diagnosis and treatment options, and allowed patients to consent or refuse treatment, to the extent that the law would allow. (38) By 1986, most hospitals...