Do Not Attempt CPR orders and the law

The aim of this article is to explain what the courts in England and Wales have said the law requires regarding involving patients in DNACPR decisions.

The issue is a thorny one, that elicits strong feelings on all sides. My impression is that one reason for this is that DNACPR orders hover somewhere between the exercise of clinical judgment and the making of a best interests decision, with recent decisions by the courts placing them on the best interests side of the divide with a perceived lack of respect for clinical judgment.

The courts in England and Wales have always been clear that the law does not entitle patients to demand treatment from their doctors. Doctors must not act negligently, but they are the ultimate deciders of what treatment will be offered to a patient. “A patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient’s clinical needs” (Burke v GMC [2005] EWCA Civ 1003). Equally, any treatment that is offered to a patient must be clinically appropriate, and, if the patient lacks mental capacity to give consent to or refuse the treatment, it must be in the patient’s best interests for the treatment to be administered.

So, a doctor cannot be compelled by a court to attempt CPR if she does not consider it appropriate. But it does not follow automatically from this that the doctor has no obligation to explain or discuss her view with the patient. The Court of Appeal in the case of Tracey v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822 said that ‘since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient.’ The medical bodies involved in that case (including the Resuscitation Council by whom I was instructed as junior counsel) submitted to the court that where CPR was futile because it would simply not work, and it would therefore be a breach of the doctor’s obligation to do no harm to attempt it, there could not be any requirement to consult the patient. After all, what would such ‘consultation’ achieve, when the doctor would never agree to attempt CPR, whatever the patient’s views, and no court could compel the doctor to act other than in accordance with her own views? The Court of Appeal rejected this submission, saying that because CPR was potentially life-saving treatment, it was particularly significant, and the decision not to attempt it ‘calls for particularly convincing justification.’ The essence of the court’s decision is contained in these few sentences:

‘Prima facie, the patient is entitled to know that such an important clinical decision has been taken. The fact that the clinician considers that CPR will not work means that the patient cannot require him to provide it. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told that the clinician has made a DNACPR decision, he will be deprived of the opportunity of seeking a second opinion.’

What is being required of doctors is to inform the patient that the decision has been taken, not necessarily to do what the patient requests. It may be that in some cases, as a result of informing the patient, new information may come to light, or the doctor may revise her view about whether the DNACPR order should be made, but the decision remains one for the doctor to take.

In response to the Tracey case I’ve heard doctors say — ‘why should I tell my patient I’m not going to offer a treatment that is pointless? I don’t tell my [lung/heart/kidney] patient that I’m not offering him a [hip replacement/antidepressants/ECT]’. And it is right to say that generally speaking, the obligation on the doctor is to identify and offer treatment options, not to tell the patient about all the things that not going to be offered. What the Court of Appeal were getting at, in my view, is that CPR seems, to a lay person at least, to be a potential treatment for everyone, and one that can save our lives. We’ve all seen it being done (usually successfully) on screen, we’ve seen the equipment being put up in pubs and public places, our children have been trained in resuscitation techniques. If CPR isn’t going to happen to us even though we’re in hospital with doctors trained in resuscitation on hand, someone needs to tell us and explain why.

What’s more, most, if not all, decisions described as being ‘the exercise of clinical judgment’, contain value judgments or a “best interests” component. Saying ‘CPR is futile’ can cover a range of circumstances, from those where CPR simply will not be successful in restarting the heart, to those where it may work but only so that the patient lives for a further very short period, to those where the patient may go on to live for days, weeks or months, but in a severely compromised state. In most of those scenarios, weight is being placed on the impact on the patient of the physical acts involved in CPR, the quality of life of the patient if CPR is successful, and whether CPR would do more than prolong the process of dying. These are all factors which different people might afford different weight, and which are quintessentially part of a best interests approach. The High Court in the subsequent case of Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 (QB), which concerned an adult patient who lacked capacity to make decisions about his medical treatment, explained the DNACPR consultation process in the following terms:

“The second reason that Dr S gives for not contacting Ms Winspear is the clinical nature of the judgment rather than a discussion as to the quality of life. This seems to evidence a misunderstanding as to the purpose of the consultation. It is not a debate about clinical judgment, although one consequence of consultation may be to afford the family to obtain a second opinion if they did not accept it. Rather it is to communicate the decision to the patient or in the event of incapacity without any other appointed representative, the patient’s carer, so that important medical decisions about treatment are taken with relevant input into the decision making process, the principle of dignity and best interests is respected in the widest sense and the family can take on board and respond to the news. Ms. Winspear as carer does not have a veto over the treatment plan but she is entitled to be consulted, and it is best practice to consult any other relevant family members.”

The High Court concluded that the doctor had not complied with the requirement to consult the family imposed by the Mental Capacity Act 2005 and the DNACPR order that had been put in place had violated the patient’s Article 8 rights. The facts of the case are instructive: once Mr Winspear’s mother was consulted, the doctor decided to remove the DNACPR order, which would have made it rather difficult for the Trust to argue that this was a case of pure clinical judgment where consultation was not required, even if that line of argument had not been ruled out by the Tracey decision.

A particular concern expressed by doctors about the approach the Court of Appeal took in Tracey is that by raising the issue, patients will be unnecessarily distressed. The Court of Appeal was clear that it was not a legal requirement to involve the patient in the process if the doctor considers that to do so ‘is likely to cause her to suffer physical or psychological harm’ but that if what was anticipated was ‘distress’ rather than ‘harm’, this was ‘unlikely to make it inappropriate to involve her’. The court was very clear, however, that all of this is a matter for the conscientious doctor to deal with in what might be difficult circumstances, and so ‘court should be very slow to find that such decisions, if conscientiously taken, violate a patient’s rights’. It is worth remembering that the court found that Mrs Tracey had indicated that she wanted to be involved in treatment decisions, but the DNACPR order was put in place and not reviewed until her daughter spotted it. Against those facts, it is perhaps understandable why the Court of Appeal were anxious to ensure that doctors did not focus on looking for reasons to avoid discussing things with their patients.

In summary then, the law in this area can be summed up as follows:

- Generally speaking, doctors must consult patients and, if the patient lacks capacity, the patient’s family, carers or IMCA when making DNACPR decisions, even if to do so might cause distress.

- Doctors cannot be compelled to act against their clinical judgment.

-Doctors do not have to consult patients if doing so is likely to cause them physical or psychological harm.

-The courts will be slow to criticise a doctor who has conscientiously considered whether consultation is a good idea in a particular case and has recorded appropriate reasons for not doing so.

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[If you want to make your own decision about CPR, rather than leave it to the doctors, you can make an advance decision to refuse treatment or appoint a lasting power of attorney — resources, free telephone helpline and more available from www.compassionindying.org.uk — full disclosure: I’m their Chair of Trustees.]

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