Intended for healthcare professionals

Rapid response to:

Observations Ethics Man

Cautionary tales about DNACPR

BMJ 2016; 352 doi: (Published 05 January 2016) Cite this as: BMJ 2016;352:i26

Rapid Response:

Re: Cautionary tales about DNACPR

In this series of responses, Jay Ilangaratne has provided links to the Tracey and Winspear rulings, and Richard Venn has commented that 'Ongoing dialogue around ‘Emergency Care and Treatment Plan’ is a start in the right direction'.

The Resuscitation Council UK is currently hosting a consultation about a proposed 'universal' ECTP (ref 1). I dislike many features of the 'prototype' ECTP, for example that a patient can only be either 'FOR CPR' or 'NOT FOR CPR': it is very clear, from considerations of consent law or from the Mental Capacity Act's description of Advance Decisions, that a patient's refusal or acceptance of CPR [or a CPR best-interests decision] could be conditional - it can be 'CPR should not be attempted unless 'specified conditionality'' (although it is 'technically' very difficult to write an ADRT refusing CPR with that structure - you can apparently {see MCA 25(4)(b)} only write 'I refuse CPR if 'specified conditionality''). It is equally clear that if there is a suitably-empowered welfare attorney, best-interests CPR decision-making falls to the attorney [and not to anybody else {MCA 6(6) and 6(7), and MCA Code of Practice 7.29}] if CPR might be clinically successful (and I do not consider 'we will not offer CPR, because in our expert opinion CPR could not be successful in restarting the heart' as being a 'best-interests decision': it doesn't seem to be a decision at all, if the prediction is correct, because the outcome is death with or without CPR). The ECTP prototype also mentions shared decision making, which I greatly dislike as a phrase (ref 2).

The recent ruling by Mr Justice MacDonald (see ref 3) has made it clear that mentally-capable patients make their own decisions, which are not then to be questioned by others, and I have pointed out above that sometimes it is legally clear that a welfare attorney [or, but never for CPR, a court deputy] is the decision maker. The Winspear ruling starts its point 4 with 'Although the precise terms of that conversation are a matter of dispute,' and exactly who said what during Tracey, is very uncertain indeed. The ECTP prototype does mention conversations between clinicians, patients and relatives - but it does not suggest that such records of conversations, should be 'signed off' by 'all sides': the ECTP wants only clinicians to sign. Similarly, the ECTP does not seem to want attorneys and deputies to sign to confirm their decisions - again, it wants the clinicians to do the 'signing off'.

This is both legally dubious - people should sign for whatever they are responsible for, so a clinician signs for a clinical prediction, a welfare attorney signs to 'authenticate' his/her own best-interests decision, etc - and anachronistic. This type of 'clinical control' of 'patient records' reinforces inappropriate distinctions between clinicians and involved laymen, it potentially introduces 'bias', and it definitely does not promote the necessary cooperation and integration between the clinicians, family, friends, and if they are present attorneys and deputies, which decent 'joined-up' care requires.

Once, husbands 'owned their wives' - but no longer: and clinicians do not 'own their patients'. Until patient records contain within them the 'right' signatures (at the very least, the possibility of the right signatures being present: I accept that it might be difficult for patients and family members to sign such documents, but they should definitely not be prohibited from signing them) - signatures based on authority, responsibility and involvement, and not simply on whoever happens to be 'the senior clinician' - there will in my opinion never be satisfactory integration between the many people who are typically involved in supporting, and caring for, patients.

The complexity of best-interests decision-making, and my mother’s death (see ref 4), convince me that we should be pushing for patient-expressed decisions made in advance: so it is Advance Decisions which need to be promoted. But there seems to be an agenda to encourage patients to create ‘written advance statements’, which – unlike a written advance decision – cannot ‘just be followed in an emergency’. In contrast to this push to promote the essentially ‘very challenging in application’ ‘written advance statement’, nobody seems to be trying to address the problem I mentioned in reference 5 of a patient at home expressing a decision to only a family carer.

I am not reluctant to state, and the perceptive reader might have discerned this, that I am very annoyed by this situation.

Ref 1

Ref 2

Ref 3

Ref 4

Ref 5

Competing interests: No competing interests

20 January 2016
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN