DNACPR Orders and COVID-19

Do not attempt cardiopulmonary resuscitation (DNACPR) orders have been the subject of media focus in recent weeks and many of us will have seen headlines criticising some organisations for sending out letters to patients asking them to agree to a DNACPR order being put in place.

DNACPR orders were touched on briefly in our “COVID-19 Future Planning” overview last week. In this article, we will explore what the law says about the way that DNACPR orders should be made in more detail and consider some practical solutions to difficulties being faced by clinicians in view of COVID-19.

What is a DNACPR order?

A DNACPR order can be put in place where a clinician considers that:

1. Attempting resuscitation is likely to be futile (i.e. it will not work); and/or
2. It is not in the patient’s best interests (for example because they are unlikely to have a good quality of life even if resuscitation is successful).

The decision as to whether CPR should be attempted is a medical decision and can only be made by a clinician. It cannot be overridden by a patient or a family member, even someone with legal power of attorney for health and welfare.

There does not have to be a DNACPR order in place for a clinician to decide not to attempt CPR if they take the view that attempting resuscitation would be futile.

A DNACPR order is not binding on other clinicians. If a patient goes into cardiac arrest and the treating team feels that it would be appropriate to attempt CPR, they are entitled to disregard the DNACPR order. This distinguishes a DNACPR order from an Advance Decision/Directive, which is legally binding provided it meets the requirements to be considered valid.

What does the law say?

• Although only a clinician can decide whether a DNACPR order is appropriate, it is mandatory for the clinician to consult with the patient before putting the order in place unless to do so would cause harm (see below). A failure to do so would constitute a breach of the patient’s Article 8 right to respect for a private and family life (R (Tracey) v. Cambridge University Hospitals NHS Foundation Trust [2014]).
• Where a patient lacks capacity, the clinician must consultant with those closely involved in the patient’s care before putting a DNACPR order in place. This might be a legally appointed deputy for health and welfare, but it could also be family members or even a close friend (Winspear v City Hospitals Sunderland NHS Foundation Trust [2015]).
• Where a patient or family member objects to a DNACPR order being put in place, it is not mandatory to offer a second opinion provided the DNACPR order has been agreed by the MDT involved in the patient’s care and all are in agreement that it is appropriate (R (Tracey) v. Cambridge University Hospitals NHS Foundation Trust [2014]).
• There will be very limited circumstances where a clinician can justify not speaking to a patient (or an attorney/family member/friend if applicable) before putting in place a DNACPR order. One of these is where the conversation could cause such significant psychological distress that it could cause harm. This must be severe harm and goes much further than a patient feeling upset by the topic being discussed. We recommend seeking legal advice in cases where a DNACPR order might be put in place in the absence of consultation.
• There could be very rare circumstances where a patient lacks capacity and does not have any family or close friends to consult. In such a scenario, the clinician should satisfy themselves that there isn’t anyone that they could speak to and make the decision as part of an MDT to ensure that everyone is in agreement.

DNACPR orders and COVID-19

Towards the beginning of the COVID-19 pandemic, clinicians were encouraged to think about which of their patients should have a DNACPR order put in place. It seems that this was prompted by concerns about a shortage of hospital resources and the potential for high numbers of patients with underlying health conditions to become seriously unwell with COVID-19. However, considering whether resuscitation would be successful and whether it is appropriate forms part of good advance care planning even in normal circumstances.

There are some practical difficulties that clinicians have encountered when putting in place DNACPR orders. These are largely caused by the inability to communicate face-to-face with patients or family members due to social distancing, as well as the number of patients that they now need to have discussions with. This has resulted in some organisations sending letters to patients, without prior discussion, asking them to sign a form agreeing that a DNACPR order can be put in place.

Whilst one can understand why this seems a practical solution to the difficulties, it is likely that this approach would be considered unlawful because clinicians are failing to consult with patients and consider each individual on a case-by-case basis.

On 15 April 2020, the Department for Health and Social Care clarified that:

“It is unacceptable for advance care plans, including Do Not Attempt Resuscitation orders, to be applied in a blanket fashion to any group of people, and the CQC have been urgently contacting providers where this practice has been brought to their attention. Everyone at risk of losing mental capacity or nearing the end of their life should be offered the opportunity and supported, if they wish, to develop advance care planning that make their wishes clear, and to make arrangements, such as lasting power of attorney for health and social care decisions, to put their affairs in order. This must always be a personalised process”

(Source: Department for Health and Social Care – “COVID-19: Our Action Plan for Adult Social Care” – paragraph 3.15.)

Practical tips for discussing DNACPR orders

In light of the Department of Health and Social Care’s statement above, how can clinicians go about putting a DNACPR order in place in circumstances where they cannot meet the patient in person and it may prove a sensitive topic?

Where the patient is already receiving treatment in hospital, it might be possible to speak to them in person. However, many patients will be at home or in another residential setting where it is impossible for the clinician to visit them to discuss a DNACPR order.

In such circumstances, all efforts should be made to replicate the environment of a consultation and the best way to achieve this would be via a video conferencing method. Many GP surgeries and other departments are already making use of services like Skype and Zoom for routine consultations. If video conferencing is not a possibility for some reason, a telephone call is likely to be the next best option.

Consideration may need to be given to including the patient’s loved one in the video/telephone call so that they can participate in the discussions if this is what the patient requests.

If at all possible, discussions about DNACPR orders should take place early on and before the patient becomes unwell. This avoids the possibility of making the decision in a rush when everyone is likely to be under pressure. It is important to remember that some patients and their family members might find it a difficult topic to discuss, particularly at the present time. Addressing it early allows time for them to consider the information and for a second conversation if necessary.

Comprehensive and unambiguous records should always be kept documenting the rationale for putting a DNACPR order in place and any discussions that have taken place with the patient and/or those close to the patient. This applies to all circumstances, but is particularly important where the patient or family disagrees with the DNACPR order or there is no one to consult.

Key messages

• DNACPR orders are a clinical decision, but are not legally binding.
• For a patient with capacity, it is mandatory to inform them that you will be putting a DNACPR order in place and hold a discussion with them to explain why you consider this to be in their best interests.
• Where the patient lacks capacity, it is mandatory to consult with and inform anyone closely connected with the patient’s care. This could be a legally appointed deputy, but it could also be family members or a close friend.
• There is no obligation to seek a second opinion if a patient or family member disagrees with the DNACPR order, as long as the decision is agreed by the patient’s MDT.
• Blanket policies applicable to all patients are never acceptable and are unlikely to be lawful, even in challenging circumstances.
• Clinicians should make use of video conferencing platforms to discuss DNAPR orders with patients and their loved ones wherever possible. However, a telephone call would be a good second option if video conferencing is unavailable.