Cautionary tales about DNACPR

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 In the morning Winspear’s family contested the notice, and the DNACPR was revoked hours before his death.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.