On the 12^th October, the Care Quality Commission (CQC) announced the launch of a review into the imposition of blanket ‘do not attempt cardiopulmonary resuscitation’ (DNACPR) notices for patients in care homes, primary care and hospitals.  This follows revelations earlier in the year that potentially thousands of patients were being placed in care homes with blanket ‘do not attempt resuscitation’ (DNAR) notices in place.  This has led to widespread public criticism and at the beginning of this month Amnesty published their report “As if expendable” which looked at the UK Government’s failure to protect older people in care homes during the Covid-19 pandemic.

Background

Between March and June 2020, 28,186 “excess deaths” were recorded in care homes in England, with over 18,500 care home residents confirmed to have died with COVID-19 during this period. Care home managers and staff have described a complete breakdown of systems, and that they were left without guidance, PPE or access to testing. 

Against this backdrop, and as the nation enters into a second spike in COVID-19 cases, management of patients in care home, primary care and hospital settings will surely remain fixed in the spotlight. 

The CQC’s announcement follows a joint statement in April 2020 by CQC, the BMA, Care Provider Alliance and Royal College of General Practitioners in which they warned against the use of DNARs on anything more than an individual basis. This is clearly an issue that will continue to unfold in the coming months as such notices continue to form a part of patients’ care and treatment plans. 

Interim findings from the CQC’s review are expected to be reported later this year with a final report in early 2021.

This article explores whether a DNACPR notice is valid without the consultation of family members or other representatives of a patient receiving care and, if not, what should be done?

Forward Care Planning

Forward care planning allows people to make informed decisions about what treatment they would like to receive and how they would like to be supported.  DNACPR notices can be part of this anticipatory care plan to allow individuals to voice their views about what intervention they would like if they suffer cardiac or respiratory arrest, which would include refusing resuscitation.

For patients who lack capacity to make their own decisions, a DNACPR may be drawn up, provided the appropriate best interests assessments have been undertaken and there has been due consultation with family members and/or personal representatives (for ease of reference we will call them the patient’s ‘stakeholders’).

There is an obligation to consult stakeholders so they are given every opportunity to participate in the decision-making process and they can raise objections if they disagree.  However, this does not give those persons a right to veto a decision to withhold treatment, where that decision is in the best interests of the patient (for example, this may be the case where the treatment is considered to be futile).  If clinicians believe that a DNACPR notice should be in place and, despite full consultation, the stakeholders dispute this position, such that it cannot be resolved, it may be necessary to put the matter before the Court of Protection.

Any step or decision taken on behalf of an incapable patient must be in the best interests of the patient.  

Best Interests Decision

As many clinicians and carers will be aware, cardiopulmonary resuscitation (CPR) is an aggressive, traumatic intervention and can often result in broken ribs and intubation. 

In relation to life-sustaining treatment such as CPR, it will be in a patient's best interests to withdraw or withhold it, where it would otherwise be futile, overly burdensome or where there is no prospect of recovery. Futile for these purposes means ineffective or of no benefit to the patient.

In addition, the usual test of what is in a person's best interests should be applied, which requires:

• consideration of all relevant circumstances;
• the patient's past wishes or feelings so far as they can be known;
• the views of family or carers (as to best interests) and any statement of wishes;
• in particular, anyone holding an LPA should be consulted.

In considering what is in the patient's best interests, the treating staff must look at their welfare in the widest sense, not just medical but social and psychological. This includes:-

• considering the nature of the medical treatment in question, what it involves and its prospects of success;
• considering what the outcome of that treatment for the patient is likely to be;
• trying to put themselves in the place of the individual patient and ask what the patient’s attitude to the treatment is or would be likely to be; and
• consulting others who are looking after the patient or interested in the welfare of the patient, in particular for their view of what the attitude of the patient would be.

Duty of care

As a matter of law, a clinician is only obliged to treat in accordance with his or her duty of care. They are not required to give treatment which they do not believe to be in a patient's best interests. The Mental Capacity Act Code of Practice makes this clear in the context of a concurrent obligation not to take any step which is motivated by a desire to bring about a person's death (see paragraphs 5.31 – 5.33).

It is clear therefore that blanket policies to place patients onto DNAR notices are unacceptable. These decisions must be made on an individual basis.

In practice DNACPR form a part of advance decision making and will be included as part of a patient’s treatment and care plan.  It will take innovative solutions to demonstrate best interest decision making within the ongoing restrictions of COVID-19 and a patient’s family or representatives being unable to see them in person with clinical and care staff.

We can help

Bevan Brittan have extensive and recent experience in advising public / private health and care providers in DNAR notices and policies.  We regularly represent clients in Court of Protection proceedings where such an application is considered necessary.  For more information on how we can help you, please feel free to get in contact with one of our team.