CQC published its special review on the provision of health care to those in care homes in March 2012. It found that 30% of nursing homes included in the review did not have a ”Do Not Attempt Resuscitation” (DNAR) policy in place (in settings where having a DNAR policy was appropriate and required). Where a DNAR policy was in place, most staff (76%) were aware of the policy, although very few staff (37%) had received formal training in the policy. In addition the report identified that “where inspectors found DNAR decisions in case files, less than half (42%) had been made in line with the home’s DNAR policy.”
There is a real risk that if a care home fails to effectively implement a DNAR policy in relation to its service users, civil and criminal liability may arise at the level of the provider, as well as at the managerial and healthcare professional level.
The basic position is that (1) a DNAR decision applies only to cardiopulmonary resuscitation (CPR) and not any other aspects of treatment and (2) any decision about CPR must be made on the basis of an individual assessment of each service user.
As failure of cardiac or respiratory functions is part of dying and thus CPR can theoretically be attempted on every individual prior to death, it is essential to identify service users who are at the end of life and for whom cardiopulmonary arrest represents a terminal event in their illness. In addition some service users will be at risk of cardiorespiratory arrest due to their underlying clinical condition.
The guidance produced by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing – Decisions relating to cardiopulmonary resuscitation (October 2007) sets out that “Healthcare professionals have an important role in helping patients to participate in making appropriate plans for their future care in a sensitive but realistic manner, making clear whether or not attempted CPR could be successful. Helping patients to reach a clear decision about their wishes in respect of CPR should be regarded as a marker of good practice in any healthcare setting…” To ensure good practice is implemented care homes should be proactive in discussing with GPs or other healthcare professionals the identification of service users with whom it would be appropriate to discuss their wishes about CPR.
A service user with capacity can refuse CPR and any such advance decision (assuming it is valid) is binding even if the service user subsequently loses capacity.
If a service user lacks capacity and has a welfare attorney, this person must be consulted about a DNAR decision. If there is no welfare attorney in place and no advance decision, then the decision rests with senior health professional in charge of the patient’s care, taking into account the views of any relatives and friends and applying the best interest test set out in the Mental Capacity Act 2005. The senior healthcare professional could be a consultant, GP or suitably experienced nurse. In a care home, it will be essential for the home and the GP to discuss the issue with each other and any other members of the healthcare team. Ordinarily, one would expect to see such a decision made at a best interests meeting.
Any decision must be recorded and made readily available to all health and social care professionals who may need to know and most importantly kept under review.
As CPR may be required at any time, it is essential for the provider to ensure sufficient and suitable staff are trained and on duty at all times to undertake CPR.
What happens if there is either no DNAR order in place or no applicable advance decision refusing CPR? The guidance produced by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing – Decisions relating to cardiopulmonary resuscitation (October 2007) – states that there is a presumption in favour of CPR when there is no DNAR decision in place.
However the guidance to healthcare professionals is clear that if CPR is not clinically indicated, in that it would not restart the heart and maintain breathing there is no duty to provide it. This would of course need to be documented. However, if CPR might re-start a patient’s heart and maintain breathing for a sustained period, then one has to weigh up the benefits and burdens. Again this highlights the importance of individual assessments and dialogue with service users. A Do Not Attempt Resuscitation (DNAR) decision does not override clinical judgement in the unlikely event of a reversible cause of respiratory or cardiac arrest that does not match the circumstances envisaged.
If CPR is not undertaken in the absence of a DNAR decision, an advance decision refusing CPR or a documented assessment that CPR is not clinically indicated, the risk is that the provider may be found to have neglected the service user. At the provider level, this could lead to a number of adverse consequences including regulatory intervention by CQC, an adverse verdict by a coroner (should it go to an inquest) and potential criminal liability ranging from health and safety offences to corporate manslaughter. There is also a potentially liability in damages for negligence. Furthermore, a liability could arise on the part of the provider in relation to a local authority funded service user for breaches of the Human Rights Act 1998. At the managerial and employee level there could be disciplinary issues, as well as the need for referrals to the Nursing and Midwifery Council and Independent Safeguarding Authority. There is also a risk of it becoming an adult protection matter with potential commissioning implications. All of this emphasises the need for care homes to have DNAR policies in place which are followed in relation to each and every service user.
CQC highlights the importance of DNAR decisions in its supporting note to its compliance inspectors on “End of life care”. This guidance states that DNAR decisions “are an important element of care. Where possible, the individual’s preference should be elicited through advance discussions with them and their relatives and carers.”
It is clear that the DNAR issue is on the CQC radar. In October 2011, CQC criticised the York Teaching Hospital NHS Foundation Trust stating, “Documentation relating to whether a patient should be resuscitated or not, was not being completed correctly, or reviewed as required by the hospital’s own guidelines. This meant that some patients may have had an instruction that was out of date, incorrect or no longer in their best interests.” In February 2012, CQC then criticised East Sussex Healthcare NHS Trust in relation to a “…lack of evidence that best interests meetings had taken place with regard to decisions on their behalf such as Do Not Attempt Resuscitation (DNAR) decisions.” On the back of the criticism of care home DNAR practice in the March 2012 report, “Health care in care homes” one can expect CQC to continue to focus on this complex and sensitive area of practice.
It will be important for providers to reflect on their practice in this area, taking specialist legal and consultancy advice as necessary to ensure full compliance with the requirements of the Mental Capacity Act 2005 and the supporting Code of Practice in respect of both the formulation of policies and the effective implementation of DNAR decision-making on a service user by service user basis. At Ridouts we are experienced in advising providers on such issues. For legal advice, please contact Neil Grant of Ridouts LLP on 020 7317 0347 and for consultancy advice, Fiona Wood of Gairnswood Limited on 01453 887909.
Key Points
- Ensure you have a DNAR policy where it is appropriate to your service users needs.
- Provide staff training in relation to DNAR policies and CPR
- Make it part of your admission procedure to check if service users have any advanced decisions refusing CPR
- Ensure you pro-actively engage appropriate clinical staff in the assessment of any individuals who are, or become at risk of cardiorespiratory arrest due to their clinical condition
- Document all attempts to get GPs or other external clinical staff engaged in these discussions
- Ensure you have, or can access support from staff trained to engage in a supportive dialogue with service users and families regarding DNAR issues where appropriate. Sensitive advance discussion should always be encouraged, but not forced. Have available information and leaflets for service users and families
- Follow and document best interest discussions and decisions
- Ensure decisions about attempting CPR are communicated effectively to relevant health and social care professionals.
