Landmark ruling on Resuscitation orders.

Do Not Attempt Cardiopulmonary Resuscitation Decisions

A Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) decision states that cardiopulmonary resuscitation should not be attempted if a person's heart or breathing stops. It may also be described as a DNAR or DNR decision. A DNACPR decision relates specifically to cardiopulmonary resuscitation. It does not mean that the person should receive no treatment, nursing care, pain relief, antibiotics, oxygen, fluids or other appropriate medical support.

Who Makes a DNACPR Decision?

The senior healthcare professional responsible for the patient's care makes the clinical decision about whether CPR should be attempted. The decision should be based on the patient's individual circumstances, including:

• The likely cause of a future cardiac or respiratory arrest;
• Whether CPR has a realistic prospect of success;
• The likely benefits and burdens of attempting CPR;
• The patient's health and prognosis;
• The patient's wishes, values and beliefs;
• Any valid advance decision to refuse treatment; and
• Whether the patient has capacity to participate in the decision.

A patient cannot require a doctor to provide treatment that the doctor considers clinically inappropriate. However, the patient should normally be consulted and given a clear explanation of the decision.

The Janet Tracey Case

The leading case is R (Tracey) v Cambridge University Hospitals NHS Foundation Trust, decided by the Court of Appeal in 2014. Janet Tracey had terminal lung cancer and was admitted to Addenbrooke's Hospital following a serious road accident. A DNACPR notice was placed in her medical records without adequate consultation with her. The Court of Appeal decided that a decision concerning CPR engaged Mrs Tracey's right to respect for private life under Article 8 of the European Convention on Human Rights. The hospital acted unlawfully by failing to involve her in the process leading to the first DNACPR notice.

The Right to Be Consulted

There is a strong presumption that a patient with capacity should be involved in a proposed DNACPR decision. The discussion should normally cover:

• Why CPR is being considered;
• Whether CPR is likely to work;
• What CPR may involve;
• The possible injuries or other burdens associated with CPR;
• The patient's wishes and concerns;
• Whether the patient would like another person involved; and
• Whether the decision will be reviewed.

Consultation does not mean that the patient is being asked to take sole responsibility for the clinical decision. It allows them to understand the recommendation, express their views and participate in planning their care.

Can a Doctor Avoid the discussion?

A doctor should not avoid discussing a DNACPR decision merely because the conversation may be upsetting, uncomfortable or difficult. Information may be withheld only in exceptional circumstances where discussing it is likely to cause the patient serious physical or psychological harm. Ordinary distress or anxiety will not normally be enough. Where information is withheld, the reasons should be recorded, capable of justification and kept under review.

What If CPR does not work?

Where the clinical team considers that CPR would have no realistic prospect of restarting the patient's heart or breathing, the doctor is not required to offer or attempt it. The patient should still normally be informed of that conclusion and allowed to discuss it. A DNACPR record can help prevent an invasive and distressing procedure that would provide no clinical benefit.

What If CPR Might Work but Could Cause Harm?

Sometimes CPR may have a limited chance of success but could leave the patient with serious injury, prolonged intensive care or a substantially reduced quality of life. In these circumstances, the patient's wishes and values are particularly important. The doctor should explain the likely benefits, risks and burdens and seek to reach a shared understanding with the patient.

Can a Patient Demand CPR?

A patient can express a strong wish for CPR to be attempted, but cannot compel a healthcare professional to provide clinically inappropriate treatment. Where disagreement remains, the patient should normally be offered:

• A further explanation;
• An opportunity to ask questions;
• A second clinical opinion where appropriate;
• Support from a patient advice or advocacy service; and
• Information about the complaints procedure.

Urgent legal advice may be required where there is a serious and unresolved dispute.

What If the Patient Lacks Capacity?

Where a patient lacks capacity to make or participate in the decision, healthcare professionals must act in accordance with the Mental Capacity Act 2005. They must consider the patient's best interests and, where practical and appropriate, consult:

• Family members;
• Close friends;
• Carers;
• An attorney appointed under a health and Welfare Lasting Power of Attorney;
• A court-appointed deputy; and
• An Independent Mental Capacity Advocate where required.

Relatives do not automatically become the legal decision-maker merely because they are next of kin. Their role is generally to help the clinical team understand the patient's wishes, feelings, beliefs and values.

Health and Welfare Attorneys

An attorney appointed under a Health and Welfare Lasting Power of Attorney may have authority to make decisions about life-sustaining treatment if the document expressly gives them that power. The attorney must act in the patient's best interests and within the scope of the authority granted. Healthcare professionals should inspect the LPA and confirm whether it applies to the particular decision.

Advance Decisions to Refuse treatment

An adult with capacity can make an advance decision refusing specified medical treatment in future circumstances. An advance decision refusing life-sustaining treatment, which may include CPR, must:

• Be in writing;
• Be signed and witnessed;
• State that it is to apply even if life is at risk; and
• Be valid and applicable to the circumstances that arise.

A valid and applicable advance decision is legally binding. A person cannot use an advance decision to require doctors to provide a particular treatment.

The Role of Family Members

Family members should normally be involved where:

• The patient wants them to be involved;
• The patient lacks capacity;
• They can provide information about the patient's wishes; or
• The patient does not wish to discuss the matter personally but agrees that information can be shared.

The family does not have a general right to insist that CPR be attempted or withheld. Where the patient has capacity, confidentiality and the patient's own wishes remain central.

DNACPR Is Not a Decision to Stop All Treatment

A DNACPR decision applies only if the person suffers a cardiac or respiratory arrest. The patient should continue to receive all other appropriate treatment and care, which may include:

• Pain and symptom relief;
• Food and fluids where appropriate;
• Antibiotics;
• Oxygen;
• Surgery or other active Treatment;
• Hospital admission;
• Intensive monitoring;
• Palliative care; and
• Emotional and spiritual support.

Any limits on other treatment should be considered and recorded separately.

Blanket DNACPR Decisions

DNACPR decisions must be made individually. They must not be applied to groups of people solely because they:

• Are elderly;
• Live in a care home;
• Have a learning disability;
• Are autistic;
• Have dementia;
• Have a physical disability; or
• Have a particular medical diagnosis.

NHS England has stated that it is unacceptable to place a DNACPR decision on someone's record simply because they have a learning disability, autism or both.

Recording the Decision

The healthcare professional should record:

• The clinical reasons for the decision;
• Whether the patient has capacity;
• The patient’s views and wishes;
• Who was consulted;
• Any disagreement;
• Why consultation did not take place, if applicable;
• Whether a second opinion was offered or obtained; and
• When the decision should be reviewed.

The decision should be communicated to the professionals responsible for the patient's care so that it is followed consistently. GMC guidance requires decisions and the people consulted to be recorded.

DNACPR and ReSPECT Plans

Some NHS services use a Recommended Summary Plan for Emergency Care and Treatment, known as a ReSPECT plan. A ReSPECT plan records personalised recommendations for emergency care where a person may later be unable to communicate. It can cover CPR but is wider than a DNACPR form. It may also record:

• The person's priorities and wishes;
• Recommended emergency treatments;
• Whether hospital admission would be appropriate;
• Treatment limitations; and
• Other advance-care planning information.

The plan should be developed through discussion with the patient or, where they lack capacity, through an appropriate best-interests process.

Reviewing a DNACPR Decision

A DNACPR decision should be reviewed when circumstances change. A review may be necessary where:

• The patient's health improves or deteriorates;
• The patient moves between hospital, home and a care setting;
• The patient changes their wishes;
• New Treatment becomes available;
• The reason for the decision no longer applies; or
• The form contains inaccurate or outdated information.

A DNACPR decision should not remain on a medical record indefinitely without consideration of whether it is still appropriate.

What to Do If You Disagree

A patient or family member who is concerned about a DNACPR decision should first ask the responsible doctor to explain:

• Why the decision was made;
• Whether the patient was consulted;
• Whether CPR has any realistic prospect of success;
• What other Treatment will continue;
• When the decision will be reviewed; and
• How to obtain a second opinion.

Concerns may also be raised with:

• The consultant or senior clinician;
• The hospital’s Patient Advice and Liaison Service;
• The GP or care provider;
• An independent advocate;
• The NHS complaints service;
• The relevant professional regulator; or
• A specialist solicitor.

Legal Challenges

A DNACPR decision may potentially be challenged where:

• The patient was not consulted without convincing justification;
• The Mental Capacity Act was not followed;
• The decision was discriminatory;
• A valid advance decision or LPA was ignored;
• The decision was applied as part of a blanket policy;
• Relevant family members or advocates were improperly excluded; or
• The clinical decision-making process was irrational or procedurally unfair.

Depending on the circumstances, the available routes may include:

• An NHS complaint;
• A complaint to the Parliamentary and Health Service Ombudsman;
• Judicial review;
• An application to the Court of Protection;
• A Human Rights Act claim; or
• A clinical negligence claim where harm resulted.

Urgent cases may require immediate legal action, particularly where a patient is seriously ill and a disputed treatment decision is about to be implemented.

Finding a Solicitor

A solicitor specialising in medical law, human rights, community care or the Court of Protection can advise on DNACPR disputes. When contacting a solicitor, provide:

• The DNACPR or ReSPECT form;
• Relevant medical records;
• Details of discussions with healthcare professionals;
• Any advance decision or Lasting Power of Attorney;
• Information about the patient's capacity; and
• The reason the matter is urgent.

To find a Clinical Negligence, Human Rights or Court of Protection Solicitor, use the search facility at the top of this page.