ATENEO DE DAVAO UNIVERSITY

COLLEGE OF LAW

THE LIMITED RIGHT TO DIE

In Partial Fulfillment of the Requirements in

Legal Medicine

Submitted by:

Deiparine, Angelica
Delos Santos, Lara Aurea
Palma Gil, Louis
Piodos, Vicco
Sanchez, John Rey
Santiago, Reginald Matt
Tan, Benrich
Ulangkaya, Jasielle Leigh

Submitted to:

Atty. Maria-Theresa D. Yu-Panes, M.D.

 The Limited Right to Die 2

Preliminaries

“The human soul develops up to the time of death.” – Hippocrates.

Understanding Advanced Directives

Death is inevitably a part of human life, technically of all life. Death can come in
different ways; some die due to accidents and some die due to illness. Whether one
embraces the fact or steers away from it, death will come. There are those who decide to
prepare for such inevitability – matters involving death and dying. It is a known fact
that when one will reach a certain age in life, one will need medical interventions, the
older the person becomes the more medical monitoring one might need. It is well-
settled that every adult patient has the freedom to control their medical treatment but it
might come to a point that when decisive actions are to be taken the person might not
be able to express his or her wishes as to the procedure, process or intervention to be
made upon his or her body. This is where the concept of advanced directives come.

Advanced directive is “a legal document that allow people to communicate their

decisions about medical care to family, friends, and health care professional in the event
that they are unable to make those decisions for themselves – for example, due to being
unconscious or in a coma.”1 As discussed by Abando, et al. (2018), there are two main
types of advance directives, which are:

(1) Living will. – Where people indicate what kind of medical care, especially
that of life-sustaining care, they would or would not like to receive if they will
become unable to speak for themselves; and

(2) Medical power of attorney. – Where the person is allowed to name another to
make the decision about the medical care in cases where they become unable
to communicate these decisions, temporarily or permanently 2.

In short, an advance directive is a legal document where a person lays down the
medical decisions or the manner of making medical decisions for him in case, he or she
becomes incapacitated to do so. Advance directives are usually present in cases of end-

1
Abando, M. et al. (2018). Advance Directives by Terminally Ill Patients: A Grounded Theory. Asia
Pacific Journal of Education, Arts & Sciences, Vol. 5 (4). Retrieved from
https://research.lpubatangas.edu.ph/wp-content/uploads/2019/06/APJEAS-2018.5.4.01.pdf
2
Ibid p.2.
 The Limited Right to Die 3

of-life medical care. One of the matters that are included in advance directives is a “do
not resuscitate” order or “do not attempt to resuscitate” order also known as DNR
orders.

“Do Not Resuscitate” Orders

Before understanding what “Do Not Resuscitate Orders” are, it is helpful to first
paint the context why they came into existence. Cardiopulmonary resuscitation, also
known as CPR, was primarily developed in order to restart the heart and breathing of
the patient who suffered an acute insult leading to cardiac arrest. However, there are
many factors to consider in order that CPR shall be “appropriate” such as prognosis,
general health, and the wishes of the patients and their relatives. In addition, CPR may
be ethically unjustifiable where it is unacceptably futile and inappropriately aggressive 3.

It is now accepted that CPR is an appropriate intervention for certain patients,

such as those who are already with terminal malignancy. This idea that CPR is no
longer a viable procedure, led to the DNR orders or “Not for CPR’ orders. 4 DNR order
has been applied where most elderly patients die with an order in place that they not be
given cardiopulmonary resuscitation5. Tersely put, a DNR order means that if a patient
should stop breathing the physician and his staff will not perform a CPR.

The DNR order is hounded by ethical considerations owing to the nature of this
advanced directive. To illustrate, in the Philippines, Eddie Garcia, a known actor, has
been in a coma since he suffered an accident while filming. In his case, it was the family
of Eddie Garcia who agreed to “do not resuscitate” (DNR) instruction in case Garcia
would stop breathing6.

In the article, the family had to deny the “rumor” that he was being removed
from life support. It can be inferred that indeed a DNR order is poorly understood and
should be given a closer look. In this paper the following matters on DNR shall be
discussed:
3
Cook, I., Kirkup, A. L., Langham, L. J., Malik, M. A., Marlow, G., & Sammy, I. (2017). End of Life Care
and Do Not Resuscitate Orders: How Much Does Age Influence Decision Making? A Systematic Review
and Meta-Analysis. Gerontology and Geriatric Medicine. https://doi.org/10.1177/2333721417713422
4
Mead, G. E., & Turnbull, C. J. (1995). Cardiopulmonary resuscitation in the elderly: patients' and
relatives' views. Journal of medical ethics, 21(1), 39–44. https://doi.org/10.1136/jme.21.1.39
5
Cherniack E. P. (2002). Increasing use of DNR orders in the elderly worldwide: whose choice is it?.
Journal of medical ethics, 28(5), 303–307. https://doi.org/10.1136/jme.28.5.303
6
INQUIRER.net (2019). Eddie Garcia put on ‘do not resuscitate’ status – doctor. Retrieved from
https://entertainment.inquirer.net/333986/eddie-garcia-put-on-do-not-resuscitate-status-doctor
 The Limited Right to Die 4

1. Its enforceability;
2. Its legal bases;
3. Its ethical and moral considerations; and
4. The liabilities that are attached with it.
 The Limited Right to Die 5

I. Enforceability of the DNR Orders

As of date, there is no specific rule of law that governs the enforceability of

advance directives, though there have been many attempts in Congress to codify end-
of-life care7. The paucity of legislation as to end-of-life care made difficult the
determination of “validity” and “enforceability” of advanced directives – such as that of
a DNR order. However, Leido (2012)8 made a legal framework in determining validity
and then the enforceability of advanced directives in the Philippines.

Informed Consent

Necessity of an informed consent. The essence of a DNR order is the consent of the
patient upon the time of giving the prohibition, which is in itself rooted within the
principle for the patient’s own autonomy. The Philippine Medical Association’s Code of
Ethics reflects of the principle’s importance by providing that a physician shall respect
the right of the patient to refuse medical treatment, moreover the physician shall obtain
from the patient a voluntary informed consent.9

The applicable type of consent in case of a DNR order is an informed consent,

which is different from a mere simple consent stated in Philippine contract laws. In the
latter, consent is simply “the meeting of the offer and the acceptance upon the thing and
the cause which are to constitute the contract”.10

In the case of an informed consent however, this predicates between the

relationship of the physician and the patient, for which the consent that is voluntary
given (or refused) in response to a prior, explicit disclosure, detailing the nature, risks,
costs, benefits, and side-effects of a proposed course of action, perhaps with a
specification of the risks, costs, benefits, and side effects of all alternative courses of
action, or of taking no action at all. Simply put, informed consent is the decision-making

7
One of the examples thereof is the Advance Directives Education Bill or S.B. 2573, it set forth the
definition of “advance directives” as well as the mandatory nature of informed consent as provided in the
proposed definition of “advanced care planning.”
8
Leido, (2012), Live and Let Die: Establishing the Legal Status of Advance Directives for Refusal of Life-
Sustaining Medical Treatment, Their Enforceability, and Limitations, 57 ATENEO L.J. 491
9
Sec 5, PMA Code of Ethics
10
Merriam-Webster Online Dictionary, Definition of “consent” (https://www.merriam-
webster.com/dictionary/consent)
 The Limited Right to Die 6

of the patients, wherein they are given the liberty to consent or to refuse a proposed
course of action.11

A measure of protection and procedure. By dissecting the concept of an informed

consent, it can be viewed as both a measure of protection and a procedure. It is deemed
a measure of protection, since it protects the patient from the perils of unconsented
medical intervention, as well as the physician from the suit thereof. It also serves as a
measure of insurance that the informed consent is a form of legal documentation by
showing that the patient was told about the nature of the risks, and he has
acknowledged understanding and accepted whatever risks were explicitly mentioned. 12

On the other hand, it is deemed as a procedure as it serves both as an

autonomous authorization by individual patients and an institutionalized set of policy
rules ensuring the authorization of patients as condition precedent to medical
intervention, manifested in whatever manner the physician or the hospital deems
acceptable. 13

It is important to note however that the DNR only prohibits the performance of
CPR. Other treatments that may be deemed to be necessary by the doctors shall not be
carried within the scope of the order.14 A DNR order does not mean "do not treat."
Rather, it means only that CPR will not be attempted. Other treatments (for example,
antibiotic therapy, transfusions, dialysis, or use of a ventilator) that may prolong life can
still be provided. Depending on the person's condition, these other treatments are
usually more likely to be successful than CPR. Treatment that keeps the person free of
pain and comfortable (called palliative care) should always be given.15

When the patient is incapable of giving an informed consent. While generally

informed consent is deemed as indispensable and absolute as to the execution of a DNR
order, it may be held limited when the patient himself is not in a position to consent,
such as being unconscious or in a state of mental deficiency. In such cases, the informed
consent may be given by a spouse or immediate relatives and in the absence of both, by
the party authorized by an advance directive of the patient. In case the subject is a

11
Neil C. Manson, Cosnent and Informed Consent, in Principles of Health Cares Ethics 299 (2007 ed)
12
Manson, supra
13
Leido (2012), page 505
14
Makati Medical Center, Advanced Directives(https://www.makatimed.net.ph/patient-and-visitor-
guide/patientreferences/advanceddirectives#:~:text=A%20Do%20Not%20Resuscitate%20(DNR,or%20if
%20you%20stop%20breathing)
15
MSD Manual, Do Not Resuscitate (https://www.msdmanuals.com/home/fundamentals/legal-and-
ethical-issues/do-not-resuscitate-dnr-orders)
 The Limited Right to Die 7

minor, the informed consent should be given by the parents or guardian, members of
the immediately family that are of legal age. 16 However ambiguity arises from this,
whereby it raises the following situations:
(1) A patient may be unable to give consent and no surrogate can be identified.
(2) Medical indications may not support the utility of CPR, but surrogates insist
that it be done.
(3) In an emergency crisis, when survival is highly unlikely.

Medical ethicists are divided on the question whether it is ever ethically

acceptable for a physician to make a unilateral decision, that is, a decision to refrain
from resuscitation without the consent of the patient or the patient’s surrogate, perhaps
even in the face of objections from the patient or surrogate. 17Some hospitals have even
adopted so called "unilateral DNR orders," sometimes requiring two physicians to agree
or an ethics committee consultation, or notification of the decision to the
patient/surrogate and/or hospital administration18.Such remaining ambiguity, absent an
enacted law in our jurisdiction that specifically governs the practice of DNR, raises the
ambiguity of informed consent as an absolute rule to the execution of a DNR order.

Formalities of an Advanced Directive

Should not contain unlawful provisions. Given the dearth of legal guideposts, Leido
referred to the Civil Code provisions on formalities of wills in determining the
formalities to consider in an advanced directive. Basically, like conventional wills, an
advance directive cannot contain provisions that are contrary to law – such as
euthanasia, which if present, cannot bind the physician since it is illegal 19.

Should enshrine patient’s right to self- determination. But as to what the directive
looks like and what should it contain, there is no statutory rule to guide hospitals and
physicians. Leido however emphasizes that the document shall be executed with the
assistance of the attending physician who should explain the risks of the treatment
options. The absence of a required or “pro-forma” advanced directive can be attributed
to the fact that an advanced directive should not be so specific since it is the patient who

16
PMA Code of Ethics, Art II
17
Jonsen, A et al (2015), A Practical Approach to Ethical Decisions in Clinical Medicine
18
AMA Journal of Ethics (2001), Do Not Resuscitate Orders: A Call for Reform
(https://journalofethics.ama-assn.org/article/do-not-resuscitate-orders-call-reform/2001-07)
19
Ibid, page 560.
 The Limited Right to Die 8

shall decide and it is his or her preferences that should be respected by the physician as
long as it is within the bounds of the law20.

Notarization, when necessary. Should an advanced directive be notarized? There is

no absolute answer yet – so it depends. Leido discussed that notarization is usually done
for purposes of evidence and should not be viewed as a limitation of the patient’s right
to self-determination such as when circumstances become dire as to effectively abridge
such right by requiring notarization for advanced directives. However, when the
advance directive is in the form of a “healthcare power of attorney” then there will be a
need for acknowledge by a notary public because the latter shall certify that indeed the
patient appointed an agent who shall make decisions for him or her. 21

Formalities of DNR Orders. Considering the discussion of Leido, he basically states

that advanced directives, absent statute limiting such, should be tailored respect the
patient’s right to self-determination. Meaning, advanced directives should be in a form
in which the patient and the physician can communicate clearly as to what treatment
options or decisions to be considered in the advanced directive. DNR orders in the
Philippines, however, have been implemented in a pre-printed form:

20
Ibid, page 561-562.
21
Leido (2012), page 562.
 The Limited Right to Die 9

Front page of 2017 DNR Form22

22
Sample of DNR Form https://rojosonwritingsonhospitaladministration.wordpress.com/2017/11/05/do-
not-resuscitate-forms-enjoining-other-hospitals-in-the-philippines-to-share-2/
 The Limited Right to Die 10

Back page of 2017 DNR Form23

Upon perusing through the DNR forms used by a private hospital, it can be seen
that the pertinent information is obtained through a check mark or brief statements to
be written on the printed form. It is also important to note that the DNR form requires
the signature of the person executing the DNR form specifying his relation to the
patient, the physician and the witnesses.

It is also important to note that in the revocation part the statement provides for
the “patient/family member/legal representative xxx” showing that the DNR form
must be executed by a person who is empowered to give informed consent in behalf of
the patient as to the consequences of the DNR order. Though the law has not yet
provided a specific statutory format for DNR forms, hospitals and physicians have
already prepared forms to cater to such scenarios.
Overview of Enforcing an Advanced Directive

23
Sample of DNR Form https://rojosonwritingsonhospitaladministration.wordpress.com/2017/11/05/do-
not-resuscitate-forms-enjoining-other-hospitals-in-the-philippines-to-share-2/
 The Limited Right to Die 11

Leido (2012) suggested a legal framework in enforcing an advanced directive in

case the need arises:

(1) If there is a dispute as to the validity of an advance directive, there should be a

conciliation proceeding in the ethics committee of the hospital. This is because
the hospital ethics committee is expected to create hospital policies that may
serve as guidance when cases involving ethical issues arise – such as those
involving advanced directives like DNR orders24;

(2) If attempts at conciliation still prove fruitless, the hospital, through its hospital
ethics committee may request the local municipal, city or provincial health officer
that guardianship proceedings be instituted, and the local health officer be
named as general guardian invoking the State’s claim as parens patriae over the
patient25, as such appointment as judicial guardian empowers power over the
person of the patient to aid in dispute as to the end of life care preferences of the
incompetent ward;

(3) In determination the ethics committee or the guardianship court shall be guided
by different considerations to ascertain the will of the patient. First, if the
advanced directive, such as the DNR order, is valid then it shall be honored
simply because these have already been expressly set in the paper 26. But if the
advance directive is disputed or was invalid, then the following tests are
considered:

a. Test of Bodily Integrity. – Whether the patient’s body has degenerated

that treatment is medically futile, and that no person wants to continue
living in a condition where their slowly, cruelly, and inevitably wastes
away to eventual death27;

b. Test of Independence. – Which presumes that reliance on instruments and

machinery to be kept alive is undesirable28;
c. Test of Capacity for Subjective Critical Thought. – Ability of the patient to
form subjective critical interest and to pursue any activity remotely
meaningful of life shall be considered 29.

24
Leido (2012), page 563.
25
Ibid, page 566.
26
Ibid, page 568.
27
Ibid, page 568.
28
Ibid, page 569.
29
Ibid, page 569.
 The Limited Right to Die 12

(4) But if in the end the patient’s preferences cannot be ascertained, it befalls upon
the physician to determine for the best interests of the patient30.

II. Legal Bases of DNR Orders

The Legal Basis of Patient Self-Determination

as a Right to Refuse Life Saving or Sustaining Treatment
30
Ibid, page 571.
 The Limited Right to Die 13

There is no statute or case law in Philippine law that recognizes patient-self

determination. Such absence of legal recognition, however, is not without want of
trying from some Philippine legislators.

In hoping to lay the predicate, we not turn to discuss an analysis of how, and
from where, a patient’s right to self-determination can be read into existing law.

The Philippine Constitution and Statutes

From a survey of the Philippine legal landscape, principles such as liberty

interests31, privacy32, the inviolability of persons 33, and the exaltation of the human
dignity34 emerge, which serve to highlight the inescapable fact that the Philippine legal
system has in place principles which recognize the integrity of persons---physical or
therwise---as well as their capacity for autonomous thought and action.

Extensions of the right to life and liberty under the first section of the Bill of
Rights have found themselves in other provisions 35 of Article III, as well as in tort
jurisprudence, backed by a wealth of American case law from which, to begin with, the
Philippines largely bases its Bill of Rights and tort law.36

Under the Philippine Constitution, particularly the Due Process Clause, there is a
guarantee of protection of life and liberty. 37 As to the right to life, the provision
guarantees the right to a good life, and not merely “the right to be alive or the security of
one’s limb against physical harm.”

The protection of the right to life secures is not limited to the enjoyment of mere
existence, but extends to all those qualities which make life worth living, guided solely
by conscience, and limited only by compelling State interests, or those societal
limitations that ensure that the enjoyment of freedoms of some do no trample on the
freedoms enjoyed by others.
31
Phil. Const., Art. III, S1.
32
Phil. Const., Art. III, SS 2, 3 & 6; Civil Code, Arts. 26 & 32.
33
Phil. Const., Art. III, S2.
34
Phil. Const., Art. II, S11.
35
Phil. Const., Art. III, SS 12 & 14. These provisions on criminal due process echo the right enshrined in
Section I of the Bill of Rights (Article III of the 1987 Constitution).
36
Phil. Const. Art. III & Civil Code, Arts. 2195-2235
37
Phil. Const. Art. III, S1. This Section provides that “no person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the equal protection of the laws.”
 The Limited Right to Die 14

More elegantly worded by retired Associate Justice Isagani A. Cruz, the

guarantee of the right to life “includes the right to give full rein to all his natural
attributes, to expand the horizons of his mind, to widen the reach of his capabilities, and
to enhance those moral and spiritual values that can make his life more meaningful and
rewarding.

Right to Privacy

The right to liberty protects the latter value of quality of life.

But, it is the broad right to privacy that best enunciates this general grant of liberty.

The concept of privacy has progressed, under American law, from a simple
assertion of a “right to be left alone,” to a right, for example, to abortion and control
over child-bearing, or to exclude the long arm of the state from actions and decisions in
the bedroom. With such a progression of permissible rights, there has been an inability
to find a unanimous basis from where, textually, the right to privacy comes from.

But, in relation to a Patient’s Right38, the right to privacy and confidentiality is

explained as follows:

Right to Privacy and Confidentiality. - The privacy of the patients must

be assured at all stages of his treatment. The patient has the right to be
free from unwarranted public exposure, except in the following cases: a)
when his mental or physical condition is in controversy and the
appropriate court, in its discretion, order him to submit to a physical or
mental examination by a physician; b) when the public health and safety
so demand; and c) when the patient waives this right in writing.

The patient has the right to demand that all information, communication
and records pertaining to his care be treated as confidential. Any health
care provider or practitioner involved in the treatment of a patient and all
those who have legitimate access to the patient's record is not authorized
to divulge any information to a third party who has no concern with
the care and welfare of the patient without his consent, except:

38
The Rights of the Patients, https://samch.doh.gov.ph/index.php/patients-and-visitors-corner/patients-
rights
 The Limited Right to Die 15

a) when such disclosure will benefit public health and safety;

b) when it is in the interest of justice and upon the order of a competent
court; and
c) when the patients waives in writing the confidential nature of such
information;
d) when it is needed for continued medical treatment or advancement
of medical science subject to de-identification of patient and shared
medical confidentiality for those who have access to the information.

Informing the spouse or the family to the first degree of the patient's
medical condition may be allowed; Provided That the patient of legal age
shall have the right to choose on whom to inform. In case the patient is not
of legal age or is mentally incapacitated, such information shall be given
to the parents, legal guardian or his next of kin.

The US Supreme Court in Whalen v. Roe 39, bifurcated privacy into “decisional
privacy” and “informational privacy.” Decisional privacy has been defined as “the
interest in independence in making certain kinds of important decisions,” whereas
informational privacy is the “individual interest in avoiding disclosure of personal
matters.” Of particular interest, as regards asserting patient self-determination, is
decisional privacy, or as similarly termed, personal autonomy, which is “the freedom
of individuals to perform or not perform certain acts or subject themselves to certain
experiences.”

This respect for personal integrity is also found in statutory law, particularly
Philippine tort law.40 Unsurprisingly, in much the same way that early American cases
discussing the constitutional right to privacy were in fact tort cases, Philippine tort law
is founded on similar tents.

The pertinent provision is the special tort41 of Article 26, which provides---

Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though
they may not constitute a criminal offense, shall produce a cause of action for
damages, prevention and other relief:

a. Prying into the privacy of another’s residence;

39
Whalen v. Roe, 429 U.S. 589, (1977)
40
Civil Code, Art. 2176.
41
Civil Code, Arts. 19-28 & 1314.
 The Limited Right to Die 16

b. Meddling with or disturbing the private life or family relations of

another;
c. Intriguing to cause another to be alienated from his friends; and
d. Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal
condition.

Extent and Foundations of Patient Self-Determination

Culled from all the bases above, it can be said that Philippine laws protect
autonomy, integrity and dignity under general grants of liberty in the Constitution and
in statute. The State guarantees individuals being able to be who they want to be, thing
how they like, believe whatever they believe in, relate with whomever they choose to,
and expect that neither the State nor his fellow man will intrude into such affairs.

Consequently, there is a pliability in Philippine law that would allow for a

similar liberty interest to assert a right to refuse life-saving treatment. The Philippine
legal landscape is rife with grants and guarantees of such autonomy, integrity and
dignity, both under the Constitution and under civil law.

Although untested in Philippine courts, analyzing the underlying principles of

the grants of life, liberty and privacy--- whether from case law, from the intendment of
the drafters, or from the American law precepts from which both Philippine
Constitutional law and tort law provisions are based---the inescapable conclusion that
the bases of a patient’s right to self-determination to the extent of refusing life-saving or
-sustaining care, exists.
 The Limited Right to Die 17

III. Legal and Moral Duties

A patient has Glasgow Coma Scale (GCS) of 3, pupils don’t respond to light,
shows no reaction to pain, dependent on mechanical ventilator and palpatory blood
pressure. The family was appraised of the patient’s condition and gave them the option
of signing a “Do not resuscitate” order to which the family signed. The patient
suddenly had an arrest. Is the doctor legally and morally bound to implement the DNR
order?
On the next room is a patient who has a GCS of 15 but terminally ill with Stage 4
Breast Cancer. The patient requested to sign the “Do not resuscitate” order. However,
the family objected to such. The patient suddenly had an arrest. The family insisted that
a Cardio-pulmonary resuscitation be done. Should the doctor and nurses do the
resuscitation? Are they legally and morally bound to respect the wish of the patient?

Is the doctor legally bound to respect the DNR order?

The legal status and processes surrounding DNR orders vary from country to
country. Most commonly, the order is placed by a physician based on a combination of
medical judgement and patient wishes and values. 42 Through a variety of laws, many
states have recognized that persons have a right to refuse treatment in almost every
circumstance. In a life-threatening situation, however, it is crucial that care not be
mistakenly withheld. So, it is crucial to make sure that the patient indeed does not want
to be resuscitated.43
Many states have recognized "living wills" or do not resuscitate (DNR) orders as
the basis for not undertaking CPR. Initially, only persons with terminal conditions were
permitted to execute these documents. Thus, they generally were found only in nursing
homes, hospices or other medical facilities. However, now there are many cases in
which individuals who were not necessarily previously suffering from serious medical
problems have executed such documents. Therefore, living wills are being found more
commonly in private residences and other settings.44
Nowadays, many countries recognized Do Not Resuscitate (DNR) orders as the
basis for not performing a cardiopulmonary resuscitation (CPR) and other appropriate

42
Santonocito C, et. al (2013). "Do-not-resuscitate order: a view throughout the world". Journal of Critical
Care. Retrieved from: https://www.sciencedirect.com/science/article/abs/pii/S0883944112002249?via
%3Dihub
43
Legal Implications of DNR Order (1996). Retrieved from:
https://www.firehouse.com/leadership/article/10544263/legal-implications-of-dnr-order
44
Ibid.
 The Limited Right to Die 18

measures to revive a patient who stops breathing or who’s heart stops beating.
However, it should be stressed that, an advance directive or living will is not sufficient
to ensure a patient is treated under the DNR protocol, even if it is their wish, as neither
an advance directive nor a living will legally binds doctors. 45
Although the issue has garnered media attention and has raised awareness of
advanced directives, physicians still may disregard a patient's last wishes for fear of
legal reprisal or due to lack of communication. 46 Do Not Resuscitate Orders may be
legally binding in appointing medical representatives, or in some cases, guardians or
agents. However, it does not legally bind physicians in medical treatment decisions.

Is the doctor morally bound to respect the DNR order?

The primary health care provider goal is to restore patients' health as possible by
maximizing benefits and minimizing harm. Doctors are then morally bound to respect
the DNR order especially “if” in his judgement, the benefits of resuscitation do not
outweigh its corresponding harm. The decision to implement the do not resuscitate is a
clear clinical medical decision done by competent health care professionals. Decisional
authority to use or withhold CPR must reside in providers who can use their training,
skills and knowledge to provide the best available care.
In Catholic patients who are terminally ill, it is permitted to withhold or refuse
life-sustaining treatment like CPR. Such is judged to be extraordinary by the patient and
family, and should always be respected and complied with that decision, unless it is
contrary to Catholic moral teaching.
On the other hand, according to the Islam teaching, the life of human being is
sacred and wealthy and nobody on earth can end it. So, there is a value and great
respect to human life and the exciting civil forbids euthanasia or assisted suicide. With
regard to other issues like brain death and DNR, the verdicts of the Islamic faith has
been facilitating easy courses medical futility prescribed by specialist doctors. So, the
DNR order is permissible in cases of a high degree of certainty that resuscitation is not
feasible and will not lead to a net and lasting benefit to the patients permanently.
Applying the above principles to the first situation presented at the start of this
chapter to wit:

45
Philpot, J (2011). Myths and Facts about Health Care Advance Directives. Retrieved from:
https://www.americanbar.org/content/dam/aba/migrated/Commissions/myths_fact_hc_ad.authcheckdam
.pdf
46
Saitta and Hodge Jr. (2013). What are the consequences of disregarding a "do not resuscitate directive"
in the United States?. Retrieved from: https://pubmed.ncbi.nlm.nih.gov/24552107/
 The Limited Right to Die 19

A patient has GCS 3, pupils don’t respond to light, shows no reaction

to pain, dependent on mechanical ventilator and palpatory blood pressure. The
family was appraised of the patient’s condition and gave them the option of
signing a “Do not resuscitate” order to which the family singed. The patient
suddenly had an arrest.

The doctor is morally bound to respect the decision of the family as in this case, it
is highly probable that the patient will remain in a vegetative state even if resuscitation
succeeds.

The problem arises when a patient who is very much oriented and awake
decides for himself to withhold resuscitation such as in the second situation above to
wit:
On the next room is a patient who has GCS of 15 but terminally ill
with Stage 4 Breast Cancer. The patient requested to sign the “Do not
resuscitate” order. However, the family objected to such. The patient suddenly
had an arrest. The family insisted that a Cardio-pulmonary resuscitation be
done.

Is the doctor morally bound to respect his wishes even if the family objects?
The group submits that the doctor is still morally bound to respect the DNR
decision of the patient but the doctor has to exert effort in explaining the status of his
disease and whether resuscitation is beneficial. If after explaining, the patient is still
insistent in a “do not resuscitate” decision, then the doctor has to respect his patient’s
decision. Patients have the right to autonomy to make health care decisions and their
right must be protected subject to certain exceptions like if the patient is capacitated at
the time he made the decision of “do not resuscitate”. In such a case, the doctor may,
according to his judgement, not implement the do not resuscitate order. Not only that
the patient has a right of autonomy, he, as well as his family, has the right to a quality of
life. Quality of life, the degree to which an individual is healthy, comfortable, and able
to participate in or enjoy life events, must also be taken into consideration.
To summarize, a DNR order does not mean "do not treat." Rather, it means only
that resuscitation will not be attempted. Other treatments that may prolong life can still
be provided. Certain measures need to be taken into consideration to ensure that the
potential harm to patients is minimized, right of autonomy is respected as well as his
right to a quality of life. Thus, if resuscitation succeeds but the patient remains in a
 The Limited Right to Die 20

vegetative stage and the patient or the family will not attain a quality of life that the
resuscitation has primarily intended to achieve, the doctor, and the other members of
the health care team are duty bound to respect the do not resuscitate decision of the
patient or of the family.
 The Limited Right to Die 21

IV. Liability of Physicians

There is no explicit or direct law which governs the liability of a physician in

cases of disobedience to a Do-Not-Resuscitate (DNR) order. However, several rules and
regulations govern the liabilities of a physician with respect to the practice of medicine,
and such rules can be applied to dictate the liability of physician with respect to a Do-
Not-Resuscitate order. There are three aspects to the liability of a physician:
Administrative, Criminal, and Civil liability. This section of the paper aims to provide
an overview of the possible liabilities of a physician in disobeying a Do-Not-Resuscitate
order.

Administrative Liability

A physician’s administrative liability in relation to the practice of medicine is

governed by several rules and regulations that aim to supervise, control and regulate
the practice of medicine in the Philippines. These rules include: Republic Act No. 2382
or the Medical Act of 1959, Code of Medical Ethics, and the rules and regulations issued
by the Professional Regulations Commission. A physician found to be liable for any of
the grounds that warrant administrative liability may suffer the penalty of reprimand,
suspension, or revocation of license, and have his right to practice medicine temporarily
or permanently withdrawn pursuant to the valid exercise of the police power of the
State47.

A physician who disobeys a Do-Not Resuscitate Order may be found

administratively liable for violating the Code of Ethics of Medical Profession. The Code
of Ethics of the Medical Profession outlines the ethical rules and principles that shall
govern the actions, decisions and professional practice of Physicians, with the end in
view of ensuring the safety and interest of the patients and the public in general 48.

The said code provides that a physician shall obtain voluntary informed consent
prior to performing any procedure or treatment before a patient. This is in consonance
with the respect that a physician must give to a patient’s right to accept or refuse
treatment. Hence, Section 3.6 of Article III of the Code of Ethics of Medical Profession
provides:

47
Section 24, Republic Act No. 2382, The Medical Act of 1959
48
Professional Regulatory Board of Medicine Resolution no. 29, Series of 2019.
 The Limited Right to Die 22

Autonomy. A physician shall obtain voluntary informed consent

prior to performing any procedure or treatment. The patient’s
decision must be based on his/her free will and choice. The
physician shall provide all relevant information in a simple and
understandable manner leading patients to either accept or refuse
a proposed action. The physician shall inform the patient about the
consequences of his/her choices. When a patient is unable to decide,
the consent must be given by the next of kin, or his/her legally
authorized representative. (Section 3.6 of Article III of the Code of
Ethics of Medical Profession)

Furthermore, Section 1, Article I of the Code of Ethics of Medical Profession

provides that the Physician must not only respect a patient’s life but must also respect a
patient’s autonomy and uphold utmost trust which is central in the physician-patient
relationship. The pertinent provision of the Code of Medical Ethics provides:

1.1. Principle of Respect for Life. The right to life is inviolable. Life is a
necessary condition for all other human goods. It must be
protected and fostered at all its stages beginning from conception
to its natural end.

1.2. Principle of Respect for Person. Every person has an intrinsic

worth and dignity. Trust shall be central to the physician-patient
relationship. Physicians shall respect patient autonomy.
(Sections 1.1-1.2 of Article I. Fundamental Principles of the Code
of Ethics of Medical Profession)

Where the physician disobeys a patient’s valid and express will not to be
resuscitated, a physician is violating the patient’s right to autonomy as stated in the
above quoted sections. Settled is the principle that a patient has the right to give his
consent or to withhold his consent with respect to any treatment or procedure
performed upon his body and his life 49. Thus, disobedience to a patient’s Do-Not-
Resuscitate Order is tantamount to malicious and deliberate disrespect to a patient’s
autonomy and right to accept or refuse treatment. The same code thus provides that a
violation of any of the provisions of the code of medical ethics as stated above warrants
appropriate penalties. The penal clause as provided in the code is cited below:

49
WMA - The World Medical Association-WMA International Code of Medical Ethics. (2020). Retrieved
10 December 2020, from https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/
 The Limited Right to Die 23

Violation of any section of the Code of Ethics shall constitute

unethical and unprofessional conduct, and therefore be a sufficient
ground for the reprimand, suspension, or expulsion from the
PMA. The PRC may revoke the certificate of registration of the
offending physician in accordance with the provisions of the
Medical Act of 1959 as amended and Republic Act 8981 (PRC
Modernization Act of 2000). (Article X. Penal Provisions of the
Code of Ethics of Medical Profession)

To further emphasize a physician’s liability for violating the Code of Medical

Ethics, Section 24 of Republic Act. No. 2383 provides that a violation of any provision of
the Code of Ethics as approved by the Philippine Medical Association is a ground for
reprimand, suspension or revocation of a physician’s licensee.

In addition to the above cited ethical rules, governing the patient’s right to
autonomy, section 2 of the Code of Ethics of the Board of Medicine provides that a
physician should adhere to the generally accepted principles of the International Code
of Medical Ethics adopted by the Third General Assembly of the World Medical
Association at London, England in October, 1949, as part of his professional conduct 50.
The said International Code of Medical Ethics provides some duties which the
physician must observe, in relation to the topic of respecting a patient’s valid Do-Not-
Resuscitate Order51:

 A physician shall respect a competent patient’s right to accept or

refuse treatment52.
 A physician shall respect the rights and preferences of patients,
colleagues, and other health professionals53.
 A physician shall always bear in mind the obligation to respect
human life54.
 A physician shall act in the patient’s best interest when providing
medical care55.

50
Section 2, Article I of the Board of Medicine Code of Ethics
51
WMA - The World Medical Association-WMA International Code of Medical Ethics. (2020). Retrieved
10 December 2020, from https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/
52
Id.
53
Id.
54
Id.
55
Id.
 The Limited Right to Die 24

Criminal Liability

A physician may suffer criminal liability where his act or omission constitutes a
crime in accordance with the Revised Penal Code or other special laws. The issue now
arises, can a physician be criminally liable for violation of a patient’s Do-Not-
Resuscitate order? There is no specific penal law penalizing a physician for his violation
of the Do-Not-Resuscitate order, this however does not mean that he is without any
criminal liability for such act. Where the acts of a physician, in disobeying a valid Do-
Not-Resuscitate order, fall squarely within any of the elements of the crimes punishable
by law, criminal liability should be imposed.

For instance, where a physician falsifies a patient’s record, wherein he provides

for a Do-Not-Resuscitate Order, where no consent was given by the patient; or where he
deletes a valid and existing Do-Not Resuscitate Order given by the patient, the
physician, in addition to his other administrative or civil liabilities, will also be held
criminally liable for Falsification by private individuals punished under Article 172 of
the Revised Penal Code. The crime is committed where: (1) the offender committed any
of the acts of falsification (2) That the falsification was committed in any private
document, (3) That the falsification caused damage to a third party or at least the
falsification was committed with intent to cause such damage. Should such physician
use such falsified medical record to prevent resuscitation of a victim, or perhaps to
escape liability after resuscitating the victim in disobedience with a valid Do-Not-
Resuscitate order, he will be liable for a separate crime of use of such falsified document
punished in the same provision of the Revised Penal Code.

The Physician may further be liable under Article 365 of the Revised Penal Code,
where the physician was imprudent or negligent in doing or falling to do an act from
which material damage results, or where the physician exhibits lack of precaution
displayed in those cases, in which the damage impending to be caused is not immediate
nor the danger clearly manifest.

Civil Liability

A physician is made civilly liable to compensate for any injury or damage which
a victim may suffer on account of the physician’s act or omission as a breach of the
contractual relationship of both parties. In an action for breach of contract, the
negligence of the physician is not an issue, for if the physician makes a contract with the
patient, including therein the Do-Not-Resuscitate Order, and he fails to comply with
 The Limited Right to Die 25

such provision, the physician is liable for breach of contract, even though his act was
done in good faith and pursuant to the promotion of the patient’s life.

As a general rule, breach of contract may give rise to an action for specific
performance or rescission of contract 56. It may also be the cause of action in a complaint
for damages filed pursuant to Art. 1170 of the Civil Code 57. However, for obvious
reasons, the breach of the provision involving a Do-Not-Resuscitate order cannot give
rise to an action for specific performance, that is to compel the doctor to comply with
such order, especially where the patient has already been resuscitated. Thus, a breach of
contract involving the Do-Not-Resuscitate Order may only give rise to a claim for
damages under Article 1170 of the Civil Code58.

A physician can also be liable for a Tort or Quasi-delict. Article 2176 of the Civil
Code provides that: “Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.” The primary basis for
the recovery of damages here is the negligence or fault of the physician as the one
directly responsible for the injury sustained by the patient.

56
Radio Communications of the Philippines, Inc. v.Court of Appeals,  435 Phil. 62, 68 (2002)
57
Pacmac, Inc. v. Intermediate Appellate Court,  234 Phil. 548, 556 (1987)
58
Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay,
and those who in any manner contravene the tenor thereof, are liable for damages.
 The Limited Right to Die 26

Conclusion

The first fundamental principle as listed in the code of medical ethics is the
physician’s duty to protect a patient’s life 59, yet the issue on the Do-Not-Resuscitate
order seemingly mandates a physician to act in a way that deprives that patient of a
chance in the life that a physician must endeavor to protect. This is reflective of the next
fundamental principle provided in the same code of ethics, the patient’s right to
autonomy60. A patient has the right to accept or refuse any treatment or procedure over
his or her body. Further, since the physician-patient relationship is a binding contract,
based on mutual consent of both parties; and is a fiduciary contract, based on mutual
trust and confidence, the provisions of the said contract must be respected and upheld
by the physician, lest he suffer the consequences of his breach.

It is unfortunate, however, that there is no specific law that governs the

enforceability a Do-Not-Resuscitate order, though the Congress has attempted to create
a law governing a patient’s end-of-life care 61. Only the general principles in the practice
of medicine such as govern a physician’s conduct in relation to a Do-Not-Resuscitate
order. Furthermore, Institutional DNR policies were developed prior to any sustained
effort at health professional education concerning the communication skills necessary to
implement such policies62. This means that not all physicians practicing medicine have
been equipped with the necessary knowledge and information concerning the
appropriate implementation and liabilities in relation to a Do-Not-Resuscitate order.

Therefore, there is a need for the Congress of the Philippine government to create
a policy that would govern the enforceability of the Do-Not-Resuscitate order. This
policy would necessarily include some of the following principles and provisions:

First, the policy should provide a clear definition of the requisites for a valid
DNR order as well as the required consent to be given before such order is considered
valid. The policy should dictate the manner of giving such consent, whether it be in
writing, in an affidavit, or in a public document duly executed by the patient. The
policy should also include specific issues such as whether a minor can give such consent
to govern over his or her body, or would the consent given by his or her parent and/or
legal guardian would govern. Furthermore, the policy should address the requirements
59
Sections 1.1of Article I. Fundamental Principles of the Code of Ethics of Medical Profession
60
Sections 1.1-1.2 of Article I. Fundamental Principles of the Code of Ethics of Medical Profession.
61
Advance Directives Education Bill or S.B. 2573.
62
Weissman, D. (2001). Do Not Resuscitate Orders: A Call for Reform. AMA Journal Of Ethics, 3(7).
Retrieved from https://journalofethics.ama-assn.org/article/do-not-resuscitate-orders-call-reform/2001-07
 The Limited Right to Die 27

before a patient gives his or her consent, such as the information that the physician
must disclose or advise to the patient to aid him or her in making an informed and
conscious consent governing his or her body and life. These are only some of the
matters which is imperative to be included in the policy involving a valid DNR order.

Second, the policy should provide for the specific liabilities of a physician in
relation to disobedience to a DNR order. The current status quo would show that a
physician is only governed by broad general rules and regulations of medical ethics in
dealing with DNR orders. There is no specific rule of law that dictates a physician’s
liability in case of breach of the patient’s valid DNR order.

Third, the policy should provide for an order to the Philippine Medical
Association to conduct an information and education drive that would not only inform
physicians of their duties and responsibilities in relation to a DNR order, but also
inform the general public as to their right to have such order included in their medical
records.

This proposed policy would address the seemingly paradoxical situation that
every Physician gets into every time he receives a DNR order: A physician ending one’s
life when he has the duty to protect such life. Indeed, several moral, ethical, and legal
dilemmas continue to haunt the enforceability and implementation of the practice of
Do-Not-Resuscitate order. This paper only hopes to be both guide and inspiration to the
law makers of our country to address this relevant medical issue once and for all.