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.

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.

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.

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.