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DNACPR and planning for Covid-19

Within a few weeks of the pandemic taking hold in March 2020, concerns were already being voiced in many quarters about the use of “blanket DNACPR” decisions for groups of people, or decisions being made without discussion with residents, families or care home staff. DNACPR stands for ‘Do not attempt cardiopulmonary resuscitation (CPR)’. If a person has a cardiac arrest or dies suddenly, it provides guidance on what action should or should not be taken by a healthcare professional, including not performing CPR on the person. DNACPR notices are not legally binding and are subject to clinical judgement. Complicating factors include evidence that success rates for CPR in Covid-19 patients are low and increased risks to those administering CPR in respect of an aerosol generating procedure.

The legality of such decisions and the ethical considerations applied by professionals in reaching decisions about end of life care has continued to attract attention. As we face the challenges of the second wave the government is being questioned about what assessment they have made of the use of Do Not Resuscitate notices in hospitals and nursing homes since March this year.

In July following threats of legal action the government announced that it will publish new national guidance for England on DNACPR orders. NHS England and NHS Improvement are preparing guidelines on how to challenge a DNACPR and access support.

On 18 September 2020 the government published the Adult Social Care: Winter Plan 2020 to 2021. This refers to DNACPR decisions and makes clear that clinical decision making should always be personalised and should never be done on a blanket basis.

Whilst assurances have been given that CQC have been requested to monitor, investigate and report on this issue, in reality a second wave is likely to stop all but essential assessments.

Training for those working in hospitals and care homes is crucial. Covid-19 has highlighted the difficult and complex decisions that must be made, often very quickly. As individuals become critically ill, decisions will be taken about whether CPR will benefit their condition.

Guidance from the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing identifies the key ethical and legal principles that should inform all CPR decisions. The ‘main messages’ about decisions relating to cardiopulmonary resuscitation can be summarised as follows:

  • Consideration of and making anticipatory decisions about whether or not to attempt CPR is an important part of good quality care for those individuals nearing  end of life and/or at risk of cardio-respiratory arrest.
  • Every decision about CPR must be made on the basis of a careful assessment of each individual’s situation.
  • Each decision about CPR should be subject to review based on the person’s individual circumstances.
  • There must be a presumption in favour of involvement of the person in the decision-making process.
  • If a patient with capacity refuses CPR, or a patient lacking capacity has a valid and applicable advance decision to refuse treatment (ADRT), specifically refusing CPR, this must be respected.
  • Even when CPR has no realistic prospect of success, there must be a presumption in favour of explaining the need and basis for a DNACPR decision to a patient, or to those close to a patient who lacks capacity. It is not necessary to obtain the consent of a patient, or of those close to a patient, for a decision not to attempt CPR that has no realistic prospect of success.
  • Where there is a clear clinical need for a DNACPR decision in a dying patient for whom CPR offers no realistic prospect of success, that decision should be made and explained to the patient and those close to the patient at the earliest practicable and appropriate opportunity.
  • Effective communication is essential to ensure that decisions about CPR are made well and understood clearly by all those involved. There should be clear, accurate, honest and timely communication with the patient and (unless the patient has requested confidentiality) those close to the patient, including provision of information and checking their understanding of what has been explained to them.
  • It is essential that healthcare professionals, patients and those close to patients understand that a decision not to attempt CPR applies only to CPR and not to any other element of care or treatment. A DNACPR decision must not be allowed to compromise high quality delivery of any other aspect of care.
  • A DNACPR decision does not override clinical judgement in the unlikely event of a reversible cause of the person’s respiratory or cardiac arrest that does not match the circumstances envisaged when that decision was made and recorded. Examples of such reversible causes include but are not restricted to – choking, a displaced tracheal tube or a blocked tracheostomy tube.
  • Decisions about CPR must be free from any discrimination, for example in respect of a disability. A best-interests decision about CPR is unique to each person and is to be guided by the quality of future life that the person themselves would regard as acceptable.
  • A CPR decision form in itself is not legally binding. The form should be regarded as an advance clinical assessment and decision, recorded to guide immediate clinical decision-making in the event of a patient’s cardiorespiratory arrest or death. The final decision regarding whether or not attempting CPR is clinically appropriate and lawful rests with the healthcare professionals responsible for the patient’s immediate care at that time.
  • Where no explicit decision about CPR has been considered and recorded in advance there should be an initial presumption in favour of CPR. However, in some circumstances where there is no recorded explicit decision (for example for a person in the advanced stages of a terminal illness where death is imminent and unavoidable and CPR would not be successful) a carefully considered decision not to start inappropriate CPR should be supported.
  • Failure to make timely and appropriate decisions about CPR will leave people at risk of receiving inappropriate or unwanted attempts at CPR as they die. The resulting indignity, with no prospect of benefit, is unacceptable, especially when many would not have wanted CPR had their needs and wishes been explored.

The guidance makes it clear that all establishments that face decisions about attempting CPR, including hospitals, general practices, care homes, hospices and ambulance services, should have a policy about CPR decisions. These policies must be readily available and understood by all relevant staff and should also be available to the public.

All decisions should be clearly documented with rationale and evidence to support judgements made.

There are other ways of making decisions:

For people who also want to create a personalised plan for other types of care and treatment, there are some other processes and decision-making forms in place in the form of broader emergency care plans such as Treatment Escalation Plans (TEPS). These include:

Resuscitation Council UK Recommended Summary Plan for Emergency Care and Treatment (ReSPECT)

The ReSPECT process creates personalised recommendations for a person’s clinical care and treatment in a future emergency in which they are unable to make or express choices. Recommendations are created through conversations between a person, their families, and their health and care professionals to understand what matters to them and what is realistic in terms of their care and treatment.

Patient preferences and clinical recommendations are recorded on a non-legally binding form which can be reviewed and adapted if circumstances change.

Advance Decision to Refuse Treatment (ADRT)

An ADRT enables someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may not be able to do so.

It is a document that is binding on health professionals that allows the individual to express their wishes while they are able to make decisions and communicate them in advance of a possible emergency. The months of the pandemic may have led to many individuals planning for outcomes such as being put on ventilation and to specifically refer to Covid-19 as circumstances which apply. ADRTs should be easily accessible and be given to family, carers and GPs with consent to share with healthcare professionals.

Summary

A decision about whether a life is worth living is a fundamental right protected under Article 8 of the Human Rights Act 1998. This covers respect for private and family life and extends to personal autonomy relating to decisions about life or death. Such decisions should, where possible, rest with patients rather than be taken by doctors alone.

CPR involves life-saving treatment and as a DNACPR potentially involves withholding life-saving treatment, patients are entitled to know when doctors consider that CPR will not work. If they are not informed, they are also deprived of an opportunity to seek a second opinion. A patient’s human rights are unlikely to be breached, however if doctors decide not to consult because they believe this would cause serious physical or psychological harm.

Healthcare professionals can expect heavy scrutiny of the systems and processes for dealing with DNACPR orders. Where there is time and resource ahead of the long winter months it is advisable to ensure that procedures are robust and able to withstand challenge.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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