Do not resuscitate: Lawful or unlawful?

Abstract

When is it lawful not to resuscitate and when is it unlawful? What is the meaning of mental capacity on the part of the patient and what is meant by patient autonomy? What is the extent of clinical discretion in decisions not to resuscitate? Does the presumption in favour of life still obtain? What about the risks in cardiopulmonary resuscitation? What have the judges decided about decisions not to resuscitate, and what is the contemporary role of the doctor in this area? Is there any need for change or reform?

The doctor puts or causes to be put the instruction in the hospital notes or on the clinical record: Do not resuscitate (DNR) or do not attempt to resuscitate (DNAR) or do not attempt cardiopulmonary resuscitation (DNACPR). Is this lawful or unlawful? The basic test to be applied by the judge is the best interests of the patient, the common law and the Mental Capacity Act 2005 (section 4).

Cardiopulmonary resuscitation

CPR has a comparatively low survival or success rate. There are real risks, such as fractured ribs, damage to internal organs such as the liver and spleen, and brain damage. The likely future quality of life is a relevant consideration.

Capacity

If the patient retains his mental capacity then he must be consulted and his autonomy, integrity, dignity and decision must be respected. Patient autonomy has triumphed over medical paternalism Montgomery v Lancashire Health Board [2015] UKSC 11. A person must be assumed to have capacity unless it is established otherwise Mental Capacity Act 2005 (section 1(2)). A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (section 1(3)). Making an unwise decision is not in itself indicative of a lack of capacity (section 1(4)). Any decision made on behalf of the patient must be made in his best interests (section 1(5)). Lack of capacity means an impairment of, or a disturbance in the functioning of, the mind or brain (section 2(1)). The impairment or disturbance may be permanent or temporary (section 2(2)). Lack of capacity cannot be established merely by reference to age or appearance or a condition or an aspect of behaviour which may mislead others (section 2(3)). A person is unable to make a decision for himself if he is unable to understand the relevant information, or to retain the information or to evaluate the information or to communicate his decision (section 3(1)) though a poor memory (section 3(3)) or a limited language understanding (section 3(2)) does not suffice in himself to prove lack of capacity.

Best interests

For statutory purposes, best interests are not to be determined merely on the basis of age or appearance or condition or behaviour (section 4(1)). The patient must be permitted and encouraged to participate in the treatment so far as reasonably practicable (section 4(4)), although in DNR his capacity may be only limited, there may be only limited treatment available, if any, and the options only limited. The decision-maker must, so far as reasonably ascertainable, take the patient's past and present wishes and feelings and beliefs and values and other personally relevant factors into account (section 4(6)). Any nominated person, the family, carers, any holder of a power of attorney and anyone appointed by the court must be consulted (section 4(7)). Life-sustaining treatment means treatment which in view of the doctor is necessary to sustain life (section 4(10)).

Ascertaining the wishes of the patient

How to ascertain the wishes of the patient now unable to express them himself? He may have made a formal advance directive or decision (sometimes known as a living will) (sections 24–26); he may have left clear written instructions; he may have executed a power of attorney to act for him (sections 9–14); he may have expressed strong views to his family and friends which they can give in credible evidence.

For a legally valid advance directive the patient must be 18 or over, freely make the advance directive, specify the treatments concerned, and the circumstances; if life-sustaining treatment could be involved the document must be witnessed by a third party as well as the maker. The patient must have adhered to the view expressed.

Presumption in favour of life

There is a presumption that the patient would choose life rather than death, whether he be secular or non-secular, religious or non-religious. In practice, the majority of patients in the event do choose life. The patient would choose CPR rather than non-CPR. The religious, moral, ethical and cultural traditions in our society favour life over death. In a case of cardiac arrest without CPR the patient will almost certainly die or emerge with serious medical problems. CPR may divert death or virtually bring the patient back from death. We cling to life. The sanctity of life is not a legal concept, though the phrase is sometimes used by the judges. But life is recognised as precious, a human right, to be maintained and preserved so far as possible and practicable. However, the principle is not absolute. There may come a point when life becomes intolerable, awful and unsustainable, such that the patient rejects or would reject CPR or other life-sustaining treatment. CPR would be invasive, painful, distressing, undignified and anyway, the outcome would be very uncertain, unlikely to be effective, perhaps even permanently further harming, perhaps even worse than doing nothing. The justification for DNR is not whether the patient will or will not be cured or recovered or improved, but whether CPR would give him what he subjectively would consider to be a worthwhile quality of life even though most or many or even some other people would not share that view. Worthwhile quality of life is an inherently vague, uncertain and undefinable concept. If the patient prefers that outcome, and all that is involved in CPR, so be it. That is his decision. Called upon to make the decision, DNR lawful or unlawful, best interests or not, the judge must balance or weigh all the benefits and disbenefits, all the material factors. If challenged DNR requires a compelling and convincing justification in law. Usually, the patient will not be content to let nature take its course, he will wish to cling to life, relying upon medicine, powerful drugs and palliative care to give him some degree of manageable existence. Usually, he will go for, or would have gone for, resuscitation; but in the particular case perhaps not. He may wish not to suffer rather than to live; it is not that he wishes to die.

Consultation of others

So far as is practicable and appropriate the doctor must consult persons nominated by the patient, the family, friends, carers, those interested in the patient's welfare, anyone holding a power of attorney and anyone appointed by the court (section 4(7)). The human rights of the family to family life are engaged in these situations, article 8 of the European Convention on Human Rights R (Tracey) v Cambridge University Hospitals NHS Trust [2014] EWCA Civ 822, [2015] QB 543, [2015] 1 All ER 450, [2014] Med LR 273.

Clinical decision

The decision, DNR, or DNAR, or DNACPR always has been, and still is, solely a clinical decision for the doctor, solely his responsibility, no-one else. However, today we live in the age of patient autonomy and for the doctor in the age of candour and transparency and public confidence. The patient should be consulted and informed, so far as is appropriate having regard to his character and personality and state of physical and mental health and capacity. In many of these DNR situations, the patient is likely to be seriously ill, very often dying or expecting to die. The family should certainly be consulted and informed. Reasons and explanations should be given, in a suitably intelligible and sensitive manner. The consent of the family is not required, but clearly understanding, goodwill and support are much more likely to be forthcoming if the consent of the family can be obtained. The worst possible situation would be where the family said: ‘They wrote our loved one off without even telling us’. Factors in the mind of the doctor informing the family and seeking their consent are likely to be the medical prospects, and the likely quality of life, following the best practice in the medical profession.

The wishes of the patient, so far as are known through an advance directive or otherwise, must be followed.

Guidance

The decision-maker should take account of the guidance available, the Mental Capacity Act 2005 Code of Practice and Treatment and care towards the end of life: Good practice in decision-making, issued by the General Medical Council, and Decisions relating to CPR issued by the British Medical Association (BMA), the Royal College of Nursing, and the Resuscitation Council (UK), which is conducting an inquiry into the problems 2021. Advance decisions on CPR should be restricted to situations where there is something more significant than a small risk of respiratory failure. The Care Quality Commission (CQC) will investigate complaints of inappropriate CPR and DNR, and the NHS requires individual decisions, newer collective decisions and full consultation.

Premature

By definition, DNR is a decision made now for a future eventuality. Forward preparation is sensible in principle, and helpful for all the medical staff should an emergency such as a cardiac arrest arise. But circumstances may change, the condition of the patient may improve, so it may be better to keep all the medical options open. The judge tends to be of a cautious disposition and depending upon the circumstances may incline to the view that withdrawal of treatment may be premature.

Do not attempt cardiopulmonary resuscitation

Issues have arisen in the comparable situation of DNACPR. Allegations have been made that, because doctors are under pressure due to the coronavirus disease-2019 pandemic, blanket decisions are being made for DNACPR without consulting or making aware the patient, the family, the carers, the appropriate representative, or taking account of the wishes and needs of the particular patient. Therefore the Department of Health and Social Care (DHSC) asked the CQC to investigate. The CQC found evidence that in some 500 cases DNACPR was in effect imposed on the patient and family, not enough information was given and not enough time given to consider. The CQC recommended advance care planning and end of life care, a consistent national approach, and an individual patient plan, involving appropriate communication and care, record keeping and improved oversight and assurance. Former Secretary of State for Health, Jeremy Hunt MP, found the situation ‘shocking’ and called for leadership.

The court cases

The patient, aged 17, was a Hillsborough football victim. His lungs were crushed and punctured, no oxygen reached his brain, he suffered catastrophic and irreversible brain damage. He lay for over three years in a persistent vegetative state (PVS) and all agreed that there was no prospect or hope whatsoever of any improvement or recovery. The family said that the patient would not have wanted to stay technically alive in such circumstances. The court held that accordingly switching off was perfectly proper and lawful, there was no therapeutic purpose to justify keeping the patient alive Airedale NHS Trust v Bland [1993] AC 789, [1993] 1 All ER 821.

The patient, aged 68, suffered chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure, and an infection. He was treated for a stroke, cardiac arrest, multiple organ failure and recurring infections. He received various treatments. His condition had significantly deteriorated. The doctors wished to withdraw or to stop administering some of the treatments, though continuing with assisted hydration and nutrition. The family objected. The case was not a DNR case as such, but wholly analogous and raised analogous legal issues. The Supreme Court held that the patient lacked mental capacity. Therefore the question was: What were the best interests of the patient? Best interests must be the welfare of the patient, in the widest sense, medical, psychological and social. The test is subjective, not objective. What would have been the attitude of the patient to the situation? What would have been his wishes, feelings, beliefs and values? In consultation what do the family say about this? What is the likely outcome of the treatments? The test is not whether there will be a cure or no prospect of recovery or no or only limited palliative care available. The test is whether the patient would have thought that, despite the most dismal and unpromising prospect, nonetheless he would see the CPR and treatment as likely to give him some quality of life which he would regard as worthwhile; and that is what the patient would say, not what others would say. If the patient would see the treatment as of no benefit, as he would see it, to him, worthless, ineffective, futile, if he had had full capacity he would have refused it, then in accordance with his wishes the doctors need not administer the treatments; otherwise, they should continue to do so Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, [2014] 1 All ER 573.

The patient suffered a heart attack, was deprived of oxygen for a considerable period and suffered brain damage. The doctors wished to withdraw the life-sustaining treatment, the family opposed it. The judge was faced with the usual balancing exercise. Relevant factors were:

• As a matter of law, the best interests of the patient are that where possible he should stay alive, at least as a starting proposition.

• The views of the patient so far as they could be ascertained.

• Relevant factors go beyond medical considerations, important that those are.

• The nature of the life-sustaining treatment, whether invasive or painful or unpromising.

• The extent to which the patient is enjoying pleasure from his existence.

• Whether he had expressed the opinion that he did not wish to be a burden.

• Whether he held strong religious views, on matters such as sanctity of life or euthanasia.

• Whether he had made it clear that he would not and did not want his children to see him in an unhappy painful distressing condition, but be able to remember him as in happier times.

• The views of the members of the family, especially those close to him.

In practice, it is difficult successfully to challenge the decision of the trial judge by way of appeal unless it can be shown that the judge was wrong in law or unjust JB v University Hospital Plymouth [2020] EWCA Civ 1772, applying Aintree (supra).

The patient aged 40 suffered lifelong kidney failure; recently he suffered a cardiac arrest and hypoxic brain damage, resulting in a profound prolonged disorder of consciousness. All agreed that there should be no CPR in the event of a cardiac arrest The patient was receiving life-sustaining renal replacement therapy (RRT). The doctors wished to discontinue RRT on the basis that the patient was in a PVS, there was no prospect of recovery, and the treatment was futile and overly burdensome. The family objected, alleging that occupational therapy and neurorehabilitation indicated a minimally conscious state (MCS), not PVS. The judge found that the patient was religious and would have wanted the treatment to continue as seen as worthwhile, and was indeed MCS. Therefore out of caution, the judge found that in a situation of the uncertain prospect of recovery the treatment should continue St George’s Healthcare NHS Trust v P [2015] EWCOP 42, [2015] Med LR 463. Before reaching the decision not to give or to discontinue treatment, and especially in a DNR situation, the doctor should make a careful structured assessment, the internationally respected assessment process known as SMART, so that in the event of challenge all the relevant material is readily to hand paras 8 and 46–49.

The patient was very seriously injured in a road accident. A DNACPR notice was placed in the hospital notes. Neither the patient nor the family was consulted. No second opinion was sought. The hospital had no policy on DNR. The court held that the patient should have been consulted and so far as possible the situation explained to him, even if the patient might thereby suffer distress and even if the doctor thought that CPR would be useless and futile; though not if the patient would suffer physical or psychological harm. The autonomy, integrity, dignity and quality of life of the patient were involved. Consultation would give the patient the opportunity to take a second opinion. Respect for private and family life was involved article 8 of the European Convention on Human Rights. There is no statutory duty on the Department of Health or the hospital to have a DNR policy, though it would be desirable to have one National Health Service Act 2006 section 1B(1). R (Tracey) v Cambridge University Hospitals NHS Foundation Trust [2014] EWCA Civ 822, [2015] QB 543, [2014] Med LR 273, paras 56-65, 66-87, 89-93, 94-97.

The patient, aged 28, lacked mental capacity and suffered cerebral palsy, epilepsy and spinal deformities (kyphosis). He was suffering from a suspected chest infection, for which he was being treated with fluids, oxygen and antibiotics. Although frail there was no anticipated imminent risk of cardiac or respiratory collapse. The doctor, a consultant cardiologist, issued a DNACPR notice. He acted in good faith, he feared that CPR would be distressing, painful, undignified and futile. He did not consult anybody. The judge held that in the particular circumstances there was no compelling reason for not consulting the family and that there had been an unjustified interference with the human right of the patient to family life article 8 of the European Convention on Human Rights, and therefore the DNACPR notice was unlawful Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 (QB), [2016] 2 WLR 1089.

The patient, aged 72, suffered a cardiac arrest and received CPR. He remained in hospital in a frail condition. He had suffered brain damage, he was in a coma, and the doctors agreed that he was in a MCS, with no realistic prospect of recovery, no realistic prospect of recovery of a meaningful neurological function, poor prognosis, life expectancy of one year. DNR was placed in the notes. The family objected. The judge held that attention must be paid to the wishes, feelings, values, likes and dislikes of the patient, as a person ‘in the round’ so far as could be ascertained. The doctors were justifiably concerned that CPR would cause discomfort, distress and pain. Attention must be given to the guidance available. On balance it was in the best interests of the patient to declare the DNR lawful NHS v VT [2014] COPLR 44. However, a limited form of resuscitation would be appropriate, e.g. bag and mask and respiratory blockages could and should be treated, by way of ventilation or suction.

Particular care must be taken to ensure that a DNR instruction is attached to the correct patient and not allowed to cause confusion. The doctor suspended CPR for a cardiac arrest being given to a patient in the belief that the patient was subject to a DNR; it transpired that the DNR was in fact attached to another patient, not the one in cardiac arrest R v Bawa-Garba November 2015 Nottingham Crown Court.

Remedy

A successful claimant is entitled to a declaration of unlawfulness, and damages where appropriate. If the claimant is challenging the policy of the hospital then a judicial review may be sought and a declaration of unlawfulness, and the quashing of any public authority decision where appropriate Winspear paras 61–64.

Conclusion

The concept and practice of DNR have been recognised and upheld by the judges, provided that there is strict compliance with the statute, human rights law and common law. The court cases have shown the way. The patient with capacity may autonomously agree to DNR. So may the legal representative, and the family. The doctor is engaged in forward thinking, the best practice, a supportive framework of individualised care planning, preparation for a crisis, the clinical medical team able and ready in the event to act swiftly, professionally and in an informed way. The DHSC must provide guidance and the leaders of the medical profession must provide leadership.

However, DNR is viewed by the public with some suspicion and reservation. Age UK and sister bodies are concerned about so-called ‘blanket’ decisions or collective decisions, and also about pressure being brought upon the older and vulnerable patient, who may thereby come to experience anxiety and distress; and the family, other patients and to the nursing staff. In medicine, all decisions for the future have to be provisional, i.e. subject to a change in circumstances, or upon reflection. Forward thinking is a virtue, but inflexible decision-making for the future cannot be good medicine.