Doctors must ask carers before placing DNAR notices on files of mentally incapacitated patients

BMJ 2015; 351 doi: (Published 16 November 2015) Cite this as: BMJ 2015;351:h6179
  1. Clare Dyer
  1. 1The BMJ

Doctors must consult the carers of patients who are mentally incapacitated before placing “do not attempt cardiopulmonary resuscitation” (DNAR) notices on their files, the High Court has ruled in a landmark case.

Mr Justice Blake ruled that City Hospitals Sunderland NHS Foundation Trust breached the European Convention on Human Rights and the UK Mental Capacity Act in putting the notice in Carl Winspear’s records without first consulting his mother, Elaine Winspear.

The judge made it clear that the decision on whether to attempt cardiopulmonary resuscitation is one for the doctor to make in the best interests of the patient, exercising clinical judgment. But the Mental Capacity Act states that before making the decision, or acting on it, the doctor must consult the carer or the representative appointed to take decisions on an incapacitated patient’s behalf if this is “practicable or appropriate.”

The judgment came after a Court of Appeal ruling in 2014 in the case of Janet Tracey, who had full mental capacity but was not consulted before a “do not attempt cardiopulmonary resuscitation” notice was placed in her record.1 The appeal court held that patients should be consulted in advance unless there was a convincing reason not to do so. Mr Justice Blake said that the same principle applied whether the patient had capacity or not.

Winspear died aged 28 on 3 January 2011, the day after he was admitted to hospital with a chest infection. He had epilepsy, cerebral palsy, a deformed spine, and associated health conditions and was incapable of taking his own decisions about medical treatment.

His mother accompanied him to the hospital in an ambulance around 3 pm on 2 January and stayed until about 9 pm. She was told he was put on oxygen, fluids, and a high dose of antibiotics. She contacted the hospital around 10 pm and was told that his condition was unchanged.

Around 3 am on 3 January a specialist registrar in cardiology put an entry in Winspear’s clinical record that read, “DNAR. Speak to family in the morning.” The registrar thought that cardiac or respiratory arrest was unlikely, he told the court in his witness statement, but he wanted to avoid a possible resuscitation attempt because the patient’s severe spinal deformity and contractures of the arm meant it would not succeed. He did not want to inflict a treatment on the patient that would be “distressing, painful, undignified, and futile.”

Winspear was examined by another specialist registrar at 11 am the next day. Some deterioration in his condition was noted. His mother was called in for a discussion with the clinical director of emergency care around midday. The DNAR notice was cancelled, and Winspear was moved to the intensive care unit at 2.40 pm.

His treatment plan, reached in consultation with his mother, included non-invasive support for his breathing. His condition deteriorated that evening, and he died of bronchial pneumonia at 11.05 pm.

His mother claimed that she was not told about the DNAR notice at the time and found out only months later. But the judge accepted evidence from the hospital trust that the clinical director had told her about the notice and had cancelled it because he thought that its existence would obstruct the family’s cooperation with the patient’s future treatment.

The judge, who decided not to award damages, said that the notice had had no bearing on Winspear’s treatment or his time of death.


Cite this as: BMJ 2015;351:h6179


View Abstract

Log in

Log in through your institution


* For online subscription