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DNACPR- involving patients and families in decision-making

9 May 2016

The issue of Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notices has once again been in the headlines recently following a report from The Royal College of Physicians. The report found that one in five families had not been consulted before issuing a DNACPR order and therefore thousands of DNACPR notices were made without the patient or family being consulted.

Although the report found that hospitals had improved their practices greatly in recent years in relation to consulting with patients and their families around end of life care and DNACPR, there is still further work hospitals could do to improve communication on these issues. It is not always clear when clinicians should discuss such matters with the patient and family members, especially if the patient lacks capacity. The cases below set out the most recent case law on the area.

Patient has capacity

In Tracey v Cambridge University Hospitals Foundation Trust (June 2014), the Court of Appeal clarified the law in relation to DNACPR.

Mrs Tracey was terminally ill with cancer and was only expected to live for 9 months. Unfortunately, she was then admitted to hospital following a car accident and was subjected to a DNACPR notice without her or her family being consulted. Her family objected to it and the trust lifted the notice. Mrs Tracey deteriorated and lacked capacity to make decisions about her treatment and a second DNACPR was imposed. Mrs Tracey then died and her family sued the trust and the Secretary of State for breach of Article 8 of the ECHR on the basis that Mrs Tracey had not been consulted regarding the first DNACPR.

Lord Dyson held that there had been a breach of Article 8 by Mrs Tracey’s doctor in failing to consult her in relation to the first DNACPR. The decision related to end of life care and in such circumstances there should be a presumption that the patient is involved in those discussions unless it would cause undue physical or psychological harm (with the warning that “doctors should be wary of being too ready to exclude patients from the process on the grounds their involvement is likely to distress them”.) This is, of course, absolutely in line with the wider trend in health and social care policy (and society generally) to greater involvement of the patient in decision making - seen in personal health budgets / direct payment, the language of patient rights and empowered consumers of healthcare, informed by ever greater transparency, mirrored in the recent case law on clinical negligence for failure to secure consent (Montgomery v Lanarkshire Health Board, 2015), and epitomised in 'no decision about me without me'.

Even so, no patient can compel a doctor to provide treatment which is not clinically indicated (see, for example, Burke v GMC) or, for that matter, something the NHS won’t provide as unaffordable. In this context, consultation about a clinical decision not to offer CPR – for example because it would be futile – is not about enabling the patient to make a decision about this for themselves, as it is not their decision to make, but about informing them, because of the gravity of the decision and respect for the patient, and enabling them to seek a second opinion if they wish.

Of course, if a doctor would be willing to provide CPR if a patient wanted this, then it does become the patient’s decision to make and a failure to inform them and enable and support them to make this choice may be indefensible.

Patient lacks capacity under MCA 2005

The same principles apply where a best interests decision is to be made for a patient who lacks capacity to make a decision about CPR for themselves. If a doctor is not willing to offer CPR then it is not an option and it is meaningless to talk about best interests. A patient without capacity can no more demand treatment which is not being offered than a patient with capacity can.

However, a lack of capacity does obviate the duty to involve the patient in the decision making – if only to inform them of the clinical decision that CPR would not be offered, as stated by Mr Justice Blake in Winspear v City Hospitals Sunderland NHSFT (November 2015).

Carl Winspear had cerebral palsy and was also severely physically disabled. He lacked capacity to make decisions about CPR. A DNACPR notice was made in the early hours of the morning and the decision was not discussed with him or his mother until 9 hours later, when she objected to the notice. The hospital removed the DNACPR but sadly Carl died later the same day.

Blake J said:

“There is nothing in the case of Tracey or the Strasbourg case law to suggest that the concept of human dignity applies any the less in the case of a patient without capacity.”

So regardless of capacity, the core principle of prior discussion regarding DNACPR should be applied in all circumstances – though great care needs to be taken to be clear whether this is a discussion about a clinical decision not to offer CPR and the reasons for this, or (if CPR might be an option on the table) enabling the patient to make a decision for themselves or, if they lack capacity to do so, to follow a best interests decision process in the usual way.

In best interests decision making, proper weight needs to be given to the patient’s own past and present wishes, their values and beliefs (MCA s4(6). This may be difficult to do without a discussion with the patient themselves. There is also an obligation on the decision maker to take into account the views of 'anyone engaged in caring for the person or interested in his welfare.' (MCA s4(7) –typically not necessarily, family, friends and carers).

Blake J held that as a result of the trust’s failure to attempt to discuss the matter with Carl or his mother before the DNACPR and record such procedural steps was a breach of section 4(7) of MCA 2005 and a violation of the procedural duty under Article 8.2 of ECHR.

Involving family and others and confidentiality

Despite this, it is worth flagging the need to take care over involving family / others in this decision making. Many patients with capacity to make their own decisions about care, and to make decisions about sharing information, may want their family to be involved in those discussions.

Equally, subject to the qualification in MCA s4(7) that it must be appropriate, family / others should be involved in a discussion of best interests, which necessarily means sharing information with them.

But remember that clinical information is confidential to the individual patient, and a patient with capacity to make their own decision about information sharing can decide that their family should not be told about their CPR status, just like any other aspect of their care. In this sense, there is nothing special about CPR decisions that requires breach of confidentiality to involve families, against a capacitous patient’s wishes.

We appreciate that these can be fraught and difficult decisions, at a time of great distress for the patient and for others. We are always happy to discuss the appropriate approach on a case by case basis, including out of hours if need be, as well as reviewing trust policies and protocols to ensure that they reflect good and the law.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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