At Ridouts, we have noticed increased scrutiny on the part of the Care Quality Commission (CQC) in relation to end of life care, of which DNAR decision-making is a key element. In our experience, there is often a lack of awareness about the requirements that need to be followed by practitioners in relation to DNAR decision-making in healthcare settings.
This was highlighted by the National Confidential Enquiry into Patient Outcome and Death in June 2012 in its report, Time to Intervene? A review of patients who underwent cardiopulmonary resuscitation as a result of an in-hospital cardiorespiratory arrest. The study found that “in practice it seems that no decision at all is taken in the overwhelming majority of cases, and CPR is too commonly an instinctive response to an unforeseen emergency.” The study added that:
“it is well established that surgeons who operate without the informed consent of their patients are guilty of assault and will be held to have acted unethically in the eyes of the General Medical Council. There is no basis for asserting that different considerations apply to CPR: certainly there are emergency circumstances in which a doctor is entitled to assume that the patient would wish an attempt at CPR to be made. But that cannot defend the failure over a period of several days to find out what the patient’s wishes may be, or where this is not possible, to determine the team’s views of the patients best interests.”
Equally, there are other cases where DNAR Orders are put in place without a proper assessment being undertaken of the particular patients. In our experience, problems occur when doctors place DNAR Orders on the files of patients without having consulted family and significant others. This can lead to complaints and potentially legal challenges for failure to comply with Mental Capacity Act requirements.
The law around end of life care has recently been addressed by the Supreme Court in the case of Aintree University Hospitals NHS Foundation Trust v James  UKSC67. The court stated that the question is whether it is lawful to give treatment not whether it is lawful to withhold treatment. In a best interests case where the patient does not have capacity the patient’s wishes are still of central importance and should be explored with family and any significant others. It is a subjective test not an objective one. Under the Mental Capacity Act Code of Practice treatment is not required to be given when it is futile or there is no prospect of recovery or it is overly burdensome. The court stated that futility is to be considered as treatment which is “ineffective” or “of no benefit to the patient”. Significantly the court said, “A treatment may bring some benefit to the patient even though it has no effect upon the underlying disease or disability.” At Ridouts we have seen DNAR Orders where the reason for not intervening is because the patient has severe dementia or Down’s syndrome. Such reasons are not sufficient to justify a failure to carry out CPR. The court also considered what was meant by prospect of recovery. The court said that recovery meant the resumption of life which the patient would regard as worthwhile, not one that others (including doctors) would regard as worthwhile.
Key practical points aimed at securing compliance with end of life decisions relating to cardiopulmonary resuscitation (CPR) are as follows:
- 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. In the unlikely scenario of a doctor wishing to perform CPR against the wishes of a LPA Attorney, consideration would need to be given to making an application to the Court of Protection for an urgent declaration.
- 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.
- 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.
End of life decision-making is fraught with difficulties both legal and moral. However, what is crucial is that proper assessments are carried out by doctors of patients in a timely fashion with full involvement of the patient if they have capacity and if not, with family and significant others. The Supreme Court in the Aintree case has emphasised that in best interests cases it is not merely a medical issue. An assessment of the medical needs of the patient is just one part of the equation. The doctor has to consult more widely in accordance with the best interests’ checklist in the Mental Capacity Act. Where a practitioner follows the mandatory requirements of the Mental Capacity Act they will be afforded a degree of protection from criminal and civil liability.
At a provider level, CQC has identified end of life care as one of the areas that it will judge hospital trusts on during inspection. For example, CQC highlighted inconsistencies in the completion of DNAR documentation in end of life care during an inspection of Harrogate District Hospital in November 2013. The report states, “There was incomplete information about discussions with the patient and their relatives, review dates, reason for the decision and a lack of signatures and countersignatures by consultants. This meant that there was no up to date record of consultation with patients or their relatives regarding their wishes.” CQC set a requirement on the Foundation Trust that runs this hospital requiring it to improve DNAR recording in end of life care. Hospital trusts should therefore be auditing end of life care to ensure that practice is lawful in order to avoid potential enforcement action.
At Ridouts we have considerable experience of advising providers on end of life care issues, including reviewing policies and procedures. Please feel free to contact us. We’re here to help.