Who decides DNR decision when patient is non compos mentis?

Question

My 83 year old mother's mental and physical health has deteriorated rapidly in last six months. At this point, she asks if her mother (dead 35 years) is coming to see her, if her grandchildren are taking music lessons in elementary school (all graduated from college now), etc.

She is married to a much younger man, my stepfather, a good guy who loves her and only wants the best for her, and he has asked if she has a DNR wish.

There is no DNR order in effect that anyone knows about, and I'm pretty confident that she would not be considered competent to be able to understand her situation well enough to make her own decision regarding this.

My guess is that it would be the husband's decision, even if he asks for and takes the advice of her children (my brothers and sister and I).

Is this correct?

DISCLAIMER: I'm obviously not asking for binding, rock-solid legal advice here, just wondering if anyone has any idea before we inevitably go to a lawyer.

(By the way, the jurisdiction is the State of Florida, USA)

Answer 1

tl;dr Spouse before adult child. Patient’s designated surrogate, and court appointed guardian, before both.

Assuming your mom does not have an advanced directive or has not designated a proxy, then her husband would come before you. He can ask whoever he wants and in fact he should get the information he can to determine what she would want. The standard is what the decision maker believes the patient would want, not necessarily what the decision maker wants. For example, if the patient has for as long as anyone can remember said repeatedly “I’m not dying hooked up to machines- when the time comes, let me go.” And the next of kin is of the “try whatever is possible to try” mindset, they should still go with what they believe the patient wants. This can be very hard in real life.

In Florida, the decision to withhold (e.g. DNR) or withdraw must be with evidence that that is what the patient would want or is in her best interests. You may recall this coming up in the Terry Schiavo case- husband (who was also court appointed guardian) takes precedence over parents, but parents challenged his decision in court.

Florida law laws out the order:

765.401 The proxy.— (1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection; (b) The patient’s spouse; (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient; (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or (g) A close friend of the patient. (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider’s bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient’s care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. (2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. (3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.

Answer 2

One of four people can make the decision in most jurisdictions:

1. The patient themselves, if they are of sound and reasonable mind
2. The patient's next of kin, if the patient is not able to make the decision themselves
3. The patients enduring power of attorney for health, and they can override the next of kin's decision on this
4. The doctor themselves, if they determine that a resuscitation attempt would not provide meaningful quality of life for the patient - they can, but typically do not in most cases, override the above threes decisions (e.g., there's no moral or ethical reason to resuscitate a 100 year old severely demented individual who is bed bound, even when the family demands it)

In your case, the difficulty is the "next of kin" aspect - who has priority here, the husband or the child. That might take an actual lawyer to determine (but someone else might be able to chime in here).