At Ridouts, we have noticed increased scrutiny on the part of the Care Quality Commission (CQC) in relation to compliance with the Mental Capacity Act 2005. In part, this may be because CQC can now take direct enforcement action if the best interests framework established under the MCA is not being followed by a registered provider. This follows an amendment to Regulation 18 (consent to care and treatment) of the Regulated Activities Regulations in June 2012 which states that the best interests’ jurisdiction under the MCA applies for the purposes of Regulations 18 as it does for the MCA. Therefore, you should expect more legal enforcement around Regulation 18 from CQC.
Linked to MCA compliance, there has been a huge amount of media coverage lately about end of life care, of which DNAR decision-making is a key element. In our experience, there is a lack of awareness across the sector about the requirements that need to be followed by practitioners in relation to DNAR decision-making. The risk is that a provider will be criticised by CQC if external professionals (notably GPs) do not follow the correct procedures.
This Ridout Report offers providers some practical points aimed at securing compliance with end of life decisions relating to cardiopulmonary resuscitation (CPR).
- Does the service user have capacity? If they have capacity, they can refuse CPR and this would need to be documented and respected.
- If the service user does not have capacity, is there an advance decision refusing CPR? If there is a valid and applicable advance decision in place that needs to be followed.
- If the service user does not have capacity but there is a Personal Welfare Lasting Power of Attorney (LPA) which covers life sustaining treatment, then the Attorney can refuse CPR on behalf of the service user. However, in practice it is likely that the Attorney will defer to a medical practitioner given there are clear clinical aspects to any decision on whether or not to resuscitate a particular service user. In practical terms, therefore, it is far more likely that the decision-maker will be a doctor even if a LPA could potentially make a decision about CPR.
- A family member (who is not an Attorney under a Personal Welfare LPA which covers life sustaining treatment) cannot make a decision to refuse CPR, even if they are a court appointed deputy.
- The person making the best interests decision about CPR on behalf of the incapacitated service user (normally the GP) will need to follow the “best interests’ checklist” set out in section 4 of the MCA. In particular, the decision maker will want to consult other healthcare professionals, relatives and significant others (including anyone who is operating under a LPA or is a court appointed deputy) to inform the eventual decision. This will be particularly important if any decision about CPR is balanced. However, we would advise a doctor to consult family members and any other significant persons even if there is no clinical reason for undertaking CPR given the importance of ensuring that everyone is clear that CPR will have no clinical benefit for the service user.
- As part of the consultation process under section 4 of the MCA, the decision maker will want to consider all the relevant circumstances and will want to try to establish so far as practicable, the service users’ past and present wishes and feelings (including any written advance statement that might have been made when the service user had capacity).
- If it is a balanced decision about CPR, and there are no family members, consideration should be given to appointing an Independent Mental Capacity advocate or IMCA on behalf of the incapacitated service user.
- In the event of a fundamental disagreement about a DNAR decision relating to an incapacitated service user it may be necessary to apply to the Court of Protection for an appropriate direction. However, this is likely to be a rare occurrence as normally the decision of the appropriate clinician will be respected.
- If a valid DNAR is in place it needs to be respected but only in relation to CPR and not if the presenting circumstances fall outside of what the DNAR Order contemplates. We have come across situations where staff have interpreted DNAR Orders as applying to all aspects of treatment which is unlawful. DNAR Orders only apply to cardiopulmonary resuscitation.
In our experience, problems occur when doctors place DNAR Orders on the files of service users without having consulted family and significant others. This can lead to complaints and potentially legal challenges for failure to comply with the MCA requirements.
In summary, if it appears a service user lacks capacity, a capacity assessment should be undertaken. If the conclusion is that the service user lacks capacity to make specific decisions at the time in question, care decisions should be made on the basis of best interests. While routine decisions can be made by the care home’s staff, more significant decisions such as those relating to medical treatment will need to involve other parties. If it is a medical decision (as CPR would be) then ultimately a doctor will need to be involved.
Remember that providers have an obligation to make sure appropriate decisions are taken on behalf of their service users. It is not enough to say that you simply followed a doctor’s orders.
This is a complicated area of the law and in the event of any uncertainty or dispute, specialist legal advice should be taken. Please feel free to contact us if you have any concerns about DNAR decisions.
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