Opinion No. 2016-094

March 21, 2017

The Honorable John Cooper
State Senator
62 CR 396
Jonesboro, AR 72401

Dear Senator Cooper:

This is in response to your request for my opinion on the following questions concerning do-not-resuscitate orders in a school setting:

Question 1: Are school districts required to comply with, or honor, a do-not-resuscitate order (DNR) for a student? If so, to what extent should a school comply?

Question 2: If a school district complies with, or honors, a do-not-resuscitate order of a student, what liability does the school district have under present law?

RESPONSE

Arkansas Code Annotated �� 20-13-901(5)(A) and 20-13-904(a) provide that emergency medical services personnel shall comply with emergency medical services do-not-resuscitate (�DNR�) orders. The plain language of section 20-13-901(7) does not include school personnel or school districts within the definition of �emergency medical services personnel.� Thus the answer to your first question is �no� under section 20-13-901 et seq. Regarding your second question, in the absence of clear guidance from the courts or specific statutory language, I am unable to speculate as to the potential liability of a school district that complies with or honors a student�s DNR order. A school district�s decision to comply with such an order involves a number of potential issues that must be addressed by the district in consultation with its own legal counsel.

DISCUSSION

The Arkansas Emergency Medical Services Do Not Resuscitate Act (�Do-Not- Resuscitate Act� or �the Act�), codified at Ark. Code Ann. � 20-13-901 et seq., provides immunity for certain actors when withholding or withdrawing cardiopulmonary resuscitation. The Do-Not-Resuscitate Act is limited in scope, both with regard to whom it applies, as well as to precisely what the DNR orders entail. The Act defines an �Emergency Medical Services Do Not Resuscitate Order� (�DNR order�) as:

a written physician�s order in a form approved by the [Department of Health] which authorizes qualified emergency medical services personnel to withhold cardiopulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest.[1]

�Emergency medical services personnel� is defined as �� paid or volunteer firefighters, law enforcement officers, first responders, emergency medical technicians, or other emergency service personnel acting within the ordinary course of their professions.�[2]

DNR orders under the Act permit the withholding or withdrawal of a life-sustaining procedure, defined as �cardiopulmonary resuscitation or a component of cardiopulmonary resuscitation.�[3] Under the Act, �cardiopulmonary resuscitation� includes �cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation, administration of cardiac resuscitation medications, and related procedures.�[4] DNR orders specifically do not authorize the following procedures:

� Withholding of other medical interventions such as intravenous fluids, oxygen, nutrition or hydration, or both, or other indicated therapies short of cardiopulmonary resuscitation unless the therapies are also specified by advance directive or durable power of attorney for health care to be withheld.[5]

With this general overview of the law in mind, I now turn to your questions.

Question 1: Are school districts required to comply with, or honor, a do-not-resuscitate order (DNR) for a student? If so, to what extent should a school comply?

The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language.[6] Courts will construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect will be given to every word in the statute if possible.[7] When statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used. Our courts will not resort to a strained construction of statutory language for the purpose of restricting or expanding the plain meaning of a statute.[8] Finally, nothing is taken as intended by the legislature that is not clearly expressed.[9]

Under section 20-13-904(a), emergency medical services personnel other than physicians:

� shall comply with the Do Not Resuscitate Protocol[10] when presented with either Do Not Resuscitate Identification approved by the Department of Health, an oral Do Not Resuscitate Order issued directly by a physician, or a written Do Not Resuscitate Order entered on a form prescribed by the department.[11]

It is clear, based on the plain language of sections 20-13-901(5)(A) and 20-13-904(a), that the Do-Not-Resuscitate Act focuses solely on the actions of emergency medical services personnel. And following the above rules of statutory interpretation, it is equally clear that only emergency medical services personnel are required to comply with a DNR order. Because neither school personnel nor school districts are included within the definition of �emergency medical services personnel,� in my opinion, they are not subject to the requirements of the Do-Not-Resuscitate Act.

Question 2: If a school district complies with, or honors, a do-not-resuscitate order of a student, what liability does the school district have under present law?

In the absence of relevant Arkansas statutory or case law, I cannot speculate as to what liability, if any, a school district may face if it chooses to comply with a student�s DNR order.

Section 20-13-902(a)(1)-(5) provides immunity from civil or criminal liability and unprofessional conduct (upon discovering and acting pursuant to a DNR order) for the following persons:

A physician who causes the withholding or withdrawal of life-sustaining procedures from that person;
A person who participates in the withholding or withdrawal of life-sustaining procedures under the direction or with the authorization of a physician;
Emergency medical services personnel who cause or participate in the withholding or withdrawal of life-sustaining procedures from that person;
A health care facility in which withholding or withdrawal of life-sustaining procedures from that person occurs; and
Physicians, persons under the direction or authorization of a physician, emergency medical services personnel, or health care facilities that provide life-sustaining procedures pursuant to an oral or written request communicated to them by a person who possesses Do Not Resuscitate Identification.[12]

School personnel and school districts are not included in this list; thus it is clear that they are not afforded the immunity provided by section 20-13-902 for adhering to a student�s DNR order.[13] But this fact alone does not provide a basis for concluding that a school district is liable if it follows a student�s DNR order. The question concerning the potential liability of a school district under such circumstances is much more complex. There is little doubt that school districts face difficult legal, moral, and ethical issues when deciding whether to follow a student�s DNR order.[14] Local counsel should be consulted when considering these matters. Because of the numerous potential issues involved�and lacking clear guidance from the courts or the legislature�I cannot, in the context of an Attorney General�s opinion, speculate upon a school district�s potential liability should it honor a student�s DNR order.

Sincerely,

Leslie Rutledge
Attorney General

[1]Ark. Code Ann. � 20-13-901(5)(A) (Repl. 2014).
[2]Id. at � 20-13-901(7).
[3]Id. at � 20-13-901(9).
[4]Id. at � 20-13-901(5)(B).
[5]Id. at � 20-13-901(5)(C).
[6]See Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003).
[7]Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm�n, 342 Ark. 591, 29 S.W.3d 730 (2000).
[8]Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984).
[9]State ex rel. Sargent v. Lewis, 335 Ark. 188, 969 S.W.2d 894 (1998).
[10]The �Emergency Medical Services Do Not Resuscitate Protocol� is �a standardized method of procedure for the withholding of emergency life-sustaining procedures by emergency medical services personnel� that is approved by the State Board of Health and adopted in the rules of the Department of Health. Ark. Code Ann. � 20-13-901(6).
[11]Ark. Code Ann. � 20-13-904(a) (emphasis added).
[12]Ark. Code Ann. � 20-13-902(a)(1)-(5).
[13]I am assuming that, in general, school personnel are not covered under section 20-13-902(a)(2): �[a] person who participates in the withholding or withdrawal of life-sustaining procedures under the direction or with the authorization of a physician.� But certain factual scenarios might arise where this subsection applies.
[14]See Jessica Adelman, The School-Based Do-Not-Resuscitate-Order, 13 DePaul J. Health Care L. 197 (2010) (noting that careful consideration must be given when determining whether or not to honor a student�s DNR order, due to the wide variety of conflicting issues and opinions including, but not limited to, matters such as medical autonomy of the student, the role of the school district in providing competent medical care, the effect that following a student�s DNR order will have on other students, and moral concerns of school personnel); Todd A. DeMitchell & Scott Fletcher, Do Not Resuscitate Orders in Schools: A Conundrum of Duty, Ethics, and Policy, 235 Ed. Law Rep. 11, 22 (2008) (�This � reflects both a moral and legal debate over the fundamental role and limit of parents in determining the life outcomes of their children, as well as the potential interests of the state and its representatives.�).