Observations Ethics Man

Cautionary tales about DNACPR

BMJ 2016; 352 doi: https://doi.org/10.1136/bmj.i26 (Published 05 January 2016) Cite this as: BMJ 2016;352:i26
  1. Daniel K Sokol, barrister and medical ethicist
  1. 1112 King’s Bench Walk, London, UK
  1. Sokol{at}12kbw.co.uk

Doctors must consult patients and families, even if they think resuscitation would be futile

Decisions about inappropriate DNACPR (“Do not attempt cardiopulmonary resuscitation”) orders continue to make headlines.1 Some will remember the landmark case of Janet Tracey,2 3 who was given a diagnosis of lung cancer in February 2011. A few weeks later she broke her neck in a road traffic crash and was admitted to Addenbrooke’s Hospital in Cambridge. The Court of Appeal for England and Wales later found that the anaesthetist completed a DNACPR notice without discussing it with Tracey. This failure to involve the patient, the court held, breached article 8 of the European Convention on Human Rights—namely, the right to respect for private life (which includes respect for the patient’s autonomy, integrity, dignity, and quality of life).4

In a recent blog post the solicitor from the firm Leigh Day who had acted against the NHS in the Tracey case reported receiving four or five queries a month about DNACPR decisions.5 She wrote, “Families leave me voicemails calling their loved one’s doctor a murderer, such is the level of mistrust and suspicion aroused by finding a DNR [“Do not resuscitate”] decision has been made without prior information and consultation.” Her conclusion was that the judgment in the Tracey case is often not followed and that “unlawful DNR decisions remain widespread.”

An unwelcome shift in attitude

Many years ago a consultant intensivist told me that she never used DNR orders because they caused an unwelcome shift in the attitude of clinicians. DNR does not stand for “do not respond.” As the US clinician and ethicist Joseph Fins observed, “a DNR order is simply a plan for the last fifteen minutes of a patient’s life.”6 It should not affect other aspects of care. The discussion about resuscitation is only one component of a broader discussion about advance care planning.

The main conclusion of the Tracey case is this: there should be a presumption in favour of involving patients in discussions about resuscitation unless there are convincing reasons otherwise. A clinician’s belief that involving the patient will result in physical or psychological harm can constitute a convincing reason. The fact that a doctor considers cardiopulmonary resuscitation to be “futile” is not.

If the patient lacks capacity, clinicians should consult anyone engaged in caring for the person (or anyone who falls under section 4(7) of the Mental Capacity Act 2005) unless doing so is not “practicable or appropriate” or there is some other compelling reason not to consult.

Carl Winspear was a 28 year old man who had had cerebral palsy, epilepsy, and other health problems.7 He lacked capacity in the days before his death on the evening of 3 January 2011. He had been admitted to hospital the previous afternoon. At 3 am on the day of his death the cardiology registrar placed a DNACPR notice on his clinical record. He made the decision on clinical grounds and did not consult with the patient’s mother. The medical note stated: “DNAR. Speak to family in the morning.” In the morning Winspear’s family contested the notice, and the DNACPR was revoked hours before his death.

Article 8 rights

The High Court held that a telephone call to Winspear’s mother at 3 am, although inconvenient and undesirable, would have been practicable. The registrar’s view that writing the DNACPR order was a clinical decision that did not require a discussion with the relatives reflected, in the court’s view, a “misunderstanding as to the purpose of the consultation.” The purpose, the judge wrote, was “to communicate the decision to the patient or in the event of incapacity . . . the patient’s carer, so that important medical decisions about treatment are taken with relevant input into the decision making process, the principle of dignity and best interests is respected in the widest sense and the family can take on board and respond to the news.” The court held that the hospital breached Mr Winspear’s article 8 rights.

The names of Tracey and Winspear should echo in hospital corridors until the ethical and legal imperative of involving patients and relatives in DNACPR decisions is understood by all.

Notes

Cite this as: BMJ 2016;352:i26

Footnotes

  • Competing interests: None declared.

  • thebmj.com Analysis When and how to discuss “do not resuscitate” decisions with patients (BMJ 2015;350:h2640, doi:10.1136/bmj.h2640)

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References

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