The legal background

James Stevenson, MDU solicitor

There has been a degree of confusion surrounding the legalities and processes involved in placing a DNACPR (Do Not Attempt CPR) order on a patient's record. Given that such decisions are likely to affect the overwhelming majority of the population either directly or indirectly at some stage, it is perhaps surprising that it has taken so long for the matter to be brought fully to the attention of the courts.

The primary challenge in respect of such decisions has been that to impose such an order without involving the patient or their family and/or carers in the decision is a breach of Article 8 of the European Court of Human Rights (ECHR); the right to respect for family and private life.

Thankfully the recent Court of Appeal decisions in the case of Tracey v Cambridge Hospitals NHS Foundation Trust and the subsequent Queen's Bench decision in the case of Winspear v City Hospitals Sunderland NHS Foundation Trust have shed light on the matter and provided both families and clinicians alike with clearer guidance as to how best to approach the subject.

Tracey v Cambridge Hospitals NHS Foundation Trust

The wife of the claimant was admitted to hospital following a major road traffic accident weeks after being given a terminal cancer diagnosis. A DNACPR was placed on her records without consultation with the patient (who was able to communicate) or with her family. It remained on her notes until it was seen by a member of her family; objections were immediately raised and the notice removed. Several days later, after further discussions with the family, a second DNACPR was placed on her notes. Her condition deteriorated and she died several days later.

Winspear v City Hospitals Sunderland NHS Foundation Trust

In the subsequent case of Winspear, the claimant's son, who lacked capacity within the meaning of Mental Capacity Act 2005 and who suffered from cerebral palsy, spinal deformities and epilepsy, was admitted to hospital with a serious chest infection. A cardiology registrar took the decision to place a DNACPR on his notes as he felt that any attempts at CPR would be wholly futile.

As soon as the claimant was advised of the DNACPR order she immediately expressed her disagreement and the notice was cancelled. In that case it was held that the Trust had breached its procedural obligations under Article 8 to by failing to contact the claimant (as her son's primary carer) before the order was made to enable a discussion to take place.

By way of a broad summary, the following key tenets may be drawn from the recent decisions.

  • DNACPR decisions do engage a patient's rights under Article 8 of the ECHR.
  • There should be a presumption in favour of involving the patient or their relatives/carers in the decision making process. There have to be convincing reasons not to involve the patient.
  • The Article 8 rights apply equally to those patients able to make decisions for themselves and also to those who lack the capacity to do so.
  • In order to comply with Article 8.2, Trusts have an obligation to have a clear and accessible policy relating to the process for making a DNACPR order.

As regards the second bullet point, the decision not to inform patients of a DNACPR order should only be taken where to do so would cause the patient harm. While not explicitly defined, that harm must go beyond that of a patient being distressed by the nature of the discussion - to the cause of psychological harm1.

In respect of the final bullet point, it was held that the Article 8 right to be consulted and notified about decisions relating to resuscitation would be undermined if a patient or (in accordance with the decision in Winspear) their family or carer was not aware of the criteria by which the decision was made.

This would by definition not be in accordance with a 'clear and accessible policy' and thus not meet the requirements of Article 8.2. It is therefore vital for trusts to have and more importantly to advertise such a policy so that patients and/or their families are able to understand the reasoning behind the DNACPR decision making process.

If there is one takeaway conclusion from recent case law, it is that clinicians should wherever possible discuss the imposition of a DNACPR decision with patients and/or their families or carers before that decision is taken. Further, to avoid confusion, there should be a very clear note written in the patient's records detailing that such a discussion has taken place, as well as its substance.

Patient discussion

Photo credit: Getty

What doctors need to know

Dr Udvitha Nandasoma, MDU medico-legal adviser

End of life care continues to be a challenging area for all practicing clinicians. All such issues are inevitably emotive and perhaps none more so than decisions relating to resuscitation.

On the one hand, patients or their relatives may see such decisions as a doctor making choices about, or holding power over, the life or death of a patient. On the other, clinicians face the challenge of sensitively explaining that resuscitation techniques may not be of any benefit to the patient or make any difference to their prognosis. It can be difficult for clinicians to know the best way forward, as complaints can arise whether or not a doctor discusses resuscitation with a patient.

The recent cases discussed above do not change what amounts to good practice, but the law is now very clear in that it expects doctors to discuss resuscitation decisions either with the patient or (where the patient lacks capacity) with those who have an interest in the patient's welfare, such as close family members.

It is important to emphasise that this does not mean a doctor is compelled to provide treatment they consider inappropriate. But it does mean that it is important to discuss matters relating to resuscitation at an early stage and to resolve disagreements wherever possible.

What does this mean in practical terms?

It goes without saying that all clinicians should be familiar with the GMC's guidance on end of life care, especially as it relates to resolving disagreements and advanced care planning. You should also be familiar with policies about resuscitation in your hospital or practice. The Resuscitation Council also provides detailed advice about how to approach this difficult area of practice.

The law also makes clear that all such decisions should be taken as part of a robust framework, including having a resuscitation policy available to patients and their families on request. This is simply to check that organisations make sure everyone involved has a clear understanding of how decisions are reached.

It is also important to ensure that when documenting or discussing a resuscitation decision, your reasons for recommending a do not attempt resuscitation order are clearly explained.

There may also be practical difficulties in having this type of discussion on an urgent basis. Even in those circumstances it is still important that either the patient or those close to them are consulted, even if it is the middle of the night.

These decisions must be shared in all but the most exceptional circumstances.

In the case of Winspear (see above), the judge commented upon the importance of decisions involving patients who lack capacity being discussed with those close to them.

In such cases the key was to make a decision about CPR in the patient's best interests. By virtue of Section 47 of the Mental Capacity Act, the doctor was required to consult with those who would have an interest in the patient's welfare. Using the words of the Mental Capacity Act, this 'must take place if it was practicable.'

In Winspear, no discussion took place as the decision was taken in the early hours of the morning. The doctors had every intention that the family be consulted the next day, but the judge commented, 'I can see every reason why a telephone call at 3 a.m. may be less than convenient or desirable than a meeting in working hours, but it is not the same as whether it is practicable'.

This illustrates the view the courts now take of how these decisions must be shared in all but the most exceptional circumstances. There may be a very limited therapeutic exemption if it is felt that having such a discussion will result in serious harm to the person's health, and in some rare cases it may be impossible for a discussion to take place. But barriers such as time of day or concerns about causing distress to patients or their families are not necessarily a reason to avoid a discussion.

FOOTNOTES

1Per Dyson MR Para 54, 55 R (Tracey) v Cambridge Hospitals NHS Foundation Trust [2014] EWCA Civ 822


This article was correct at publication on 01/08/2016. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

James Stevenson

MDU Solicitor

LLB

James is a solicitor in the MDU's in house Legal Department. He was a partner at a leading clinical negligence firm before joining the MDU in 2013 and has a wide experience of claims and regulatory matters, with a particular interest in complex oncology cases and inquest work.

See more by James Stevenson

Dr Udvitha Nandasoma

Medico-legal adviser

BA MBBChir MRCP (UK) LLB(Hons)(Open) PhD MFFLM

Dr Udvitha Nandasoma joined the MDU as a medico-legal adviser in 2008 after completing specialist training in gastroenterology. His special interests at the MDU include advising on complaints. In addition to his work at the MDU, he also undertakes clinical practice in hepatology. He is the medical editor of the MDU Journal.

See more by Dr Udvitha Nandasoma