What does the law say about DNACPR recommendations?
Autonomy Project researchers, Sabine Michalowski and Wayne Martin, have published an analysis of the law relating to DNACPR recommendations. Below, we summarise some of the key findings.
DNACPR recommendations must be made on the basis of individualised assessment; ‘blanket’ recommendations – where DNACPR recommendations are applied to groups of people solely on the basis of a protected characteristic, such as age or disability – could constitute discrimination.
National guidance and key court rulings (such as in the Tracey and Winspear cases) have made clear that doctors must consult with the patient and/or those close to them before recording a DNACPR recommendation, unless the consultation would cause significant physical or psychological harm.
Consultation must involve the patient, where they have capacity to make decisions about their care, or relevant others (such as family and friends, or those with a Lasting Power of Attorney) when they do not. When a DNACPR recommendation is made on the basis that there is no reasonable prospect that CPR will work, the decision is purely clinical. In such cases, the purpose of the consultation is to inform the patient and/or those close to them of the decision. This enables the patient to plan accordingly, and to seek a second opinion if they wish to do so.
When a DNACPR recommendation is made on the basis of a weighing up of benefits and burdens, consultation serves a broader purpose. Strictly speaking, only decisions to administer treatment are ‘best interests’ decisions under the Mental Capacity Act 2005 (MCA). Since a DNACPR recommendation concerns the withholding of treatment, it is not therefore, strictly speaking, a best-interests decision. Nevertheless, the same legal principles apply. Best-interests decisions require that the wishes, feelings, beliefs and values of the patient are taken into consideration, so one objective of the consultation should be to find out about the patient’s wishes, feelings, beliefs and values. Where the patient is unable to make these known, those close to them may be able to provide insight.
It is important to note that, even where the doctor is required to consider the wishes, beliefs, feelings and values of the patient, the decision to make a DNACPR recommendation ultimately lies with the doctor. A patient does not have the right to receive CPR that the doctor does not believe to be in the patient’s interest.
Wherever possible, DNACPR consultation should be undertaken as part of a broader exercise in end-of-life planning (sometimes called ‘advance care planning’), which, in addition to recommendations about CPR, may involve discussions about where the patient wishes to die, and what other forms of care they would, and would not, wish to receive. The ReSPECT form is often used to record such decisions.
DNACPR forms should clearly record the grounds for the DNACPR recommendation; should record whether a consultation has taken place (and if not, why not); and should include the signature of the clinician. In some cases, the expectation is that the DNACPR recommendation will remain in place indefinitely, but in other cases a date for review may be recorded. DNACPR recommendations should be reviewed when there is a change in the person’s circumstances.
Using DNACPR recommendations
DNACPR recommendations are often confused with Advanced Decisions to Refuse Treatment (ADRTs). While a person can make an Advance Decision to refuse CPR, there are important differences between this and a DNACPR recommendation. ADRTs are made by the person they concern, while DNACPR decisions are made by a doctor. If you have made an Advance Decision to refuse CPR, this is legally binding, and a clinician must adhere to this decision unless there are circumstances that they believe you could not reasonably have foreseen, and that they believe would have influenced your decision about whether to refuse CPR. DNACPR recommendations, by contrast, are not legally binding. This means that a clinician might decide to perform CPR even if a DNACPR recommendation is in place.
What to do if you are concerned about a DNACPR recommendation
Research has shown that DNACPR recommendations are not always made or applied correctly. In particular, there is evidence that:
- Consultation does not always happen prior to the recording of a DNACPR recommendation.
- DNACPR forms do not always contain all the necessary information.
- DNACPR recommendations are not always reviewed after a relevant change in circumstances.
- DNACPR recommendations sometimes influence treatment or care other than CPR.
If you feel that a DNACPR recommendation has been made or applied inappropriately, it is important to make your concerns known as soon as possible. The NHS advise that you speak to your doctor in the first instance, and, if necessary, request a second opinion. They also provide information about how to take the matter further should you remain concerned. If you are concerned on behalf of a relative who resides in a care home, make sure to speak to the care home manager.
For help regarding any DNACPR questions you may have, refer to the freely available guidance prepared jointly by the British Medical Association, the Resuscitation Council, and the Royal College of Nursing.