Written in the stars: do not resuscitate orders

Practically everyone will come ?into contact with a ‘do not resuscitate order’ (DNR) either directly or indirectly in his or ?her lifetime.

Sixty-eight per cent of the population in England and Wales die in hospital, and 80 per cent of these individuals die with a DNR in place.

A DNR is a doctor’s written advice within a patient’s medical notes to advise that cardio pulmonary resuscitation (CPR) or advanced cardiac life support should not be attempted if the patient’s heart were to stop or they were to ?stop breathing.

Unknown territory

DNRs, also known as do not attempt resuscitation orders (DNARs) and do not attempt cardio pulmonary resuscitation orders (DNACPRs), affect thousands of people, yet many are unaware of how a DNR decision can be made, and some ?I have spoken to are even unaware DNR is an option for anyone who has not explicitly requested one.

Currently DNR policies (if indeed they exist) differ from trust to trust, so establishing what the ‘correct’ standard is for their use is not straightforward. National guidance exists for professionals in the form of a joint statement by the British Medical Association, the Royal College of Nursing and the Resuscitation Council. The General Medical Council has also issued professional guidance for doctors concerning DNR decisions.

In short, these allow DNR decisions to be made where it is believed by the senior treating clinician that resuscitation would not succeed, or, where even if it would succeed, the doctor considers the patient’s quality of life would be such that the benefit of sustaining life would be outweighed by the burdens.

Arguably, the guidance provides a right to a second opinion in the event ?of disagreements regarding DNRs, although whether there is a duty to ?offer a second opinion or it is merely good practice to offer one is a matter ?of interpretation.

To the surprise of many, there is a huge discretion given to clinicians as to whether to discuss a DNR with a patient or even inform a patient of a DNR being implemented.

Under the policies of some trusts, patients are given a right to know if a DNR decision has been made; however, in the majority we have seen, as well as in the professional guidance aforementioned, there is no obligation ?on doctors or nurses to inform a patient that he or she has been designated DNR.

With no obligation to inform a patient comes no obligation to consult with a patient, and of course if a patient does not know such a decision has been made, any discussion of whether and how a DNR decision can be challenged is worthless.

As far as I am aware, only a small number of trusts elect to have a patient information leaflet on the topic and there is no national policy or guidance for patients and families in relation to how DNRs are used and patient rights in relation to them.

Indeed, there is no widely used document explaining that a doctor can make a decision, based on their judgment of the quality of life that ?may be acceptable to you, to deny ?you potentially life-sustaining or reviving treatment.

Case in point

The legality of the current position is under challenge in the case in which I act for David Tracey, the husband of Janet Tracey, against Cambridge University Hospitals NHS Trust. Mrs Tracey had terminal cancer with a prognosis of about a year left to live. She was involved in a traffic accident and a DNR was placed on her notes twice. The family contend that the second DNR was placed on her notes despite the fact Mrs Tracey and her family had successfully challenged the first. The family’s account is challenged by the hospital.

We are hoping to successfully contend the facts of the case, but also, more crucially for other families, we hope the outcome will lead to a clarification of the law.

Advising clients in the meantime ?is not straightforward, and some of the legal issues that arise will differ depending on the circumstances and ?the local trust policy.

What is certain is that there is no legal right for anyone to demand treatment from a doctor, which that doctor does not wish to give, and which that doctor does not believe is in his or her patient’s best interests. This applies to CPR in the same way as any other treatment. This is the lone point regarding the use of DNRs that is clear in law.

It is long established that decisions regarding medical treatment and personal autonomy engage the rights protected by the Human Rights Act 1998. DNRs, due to their very nature of denying potentially life-sustaining treatment, arguably engage and interfere with the rights enshrined in articles 2 and 8, and potentially 3, depending on the circumstances of their use.

Any such interferences are required to be in accordance with the law and this test is only satisfied where domestic law, be it legislation or common law, is sufficiently certain to prevent arbitrary and confused decisions. In R (Purdy) v DPP in the House of Lords, Lord Hope stressed that domestic law must indicate the scope of a discretion where the use of that discretion purports to justify an interference with article 8 rights.

Purdy concerned the DPP’s policy regarding bringing prosecutions of assisted suicide (interestingly another end-of-life issue). Lord Hope, in finding for Mrs Purdy, referred to the need for the law to provide foreseeability, to be accessible and to provide a capability to be challenged.

The trust policies on the use of DNRs, which I have seen, fail repeatedly to meet these requirements. Without a patient information leaflet or other type of document, which notifies patients of the existence of an internal trust policy, accessibility is probably the most widespread area where trusts may not be meeting their obligations under the HRA.

Without the criteria in Purdy being met, arguably all use of DNRs by those trusts may be unlawful and will nearly all be open to challenge.

The trust policy in the Tracey case, by example, provided that: “The rights of the patient are absolute to any decision making regarding resuscitation. The patient’s rights must be respected.”

Yet then later states that “the final decision rests with the clinician” and further states that palliative care patients do not need to be told of DNR decisions unless “after careful consideration” it is considered appropriate to do so.

There is no mention in the policy of what is required if a patient, having been told of a DNR decision, disputes it or if a patient requests CPR from a doctor who considers a DNR should be imposed.

National lottery

In terms of the national position, the Department of Health has never produced guidance, but rather issued a health service circular in 2000 advising that doctors “have a duty to act in accordance with an appropriate and responsible body of professional opinion”, referencing the joint statement by the British Medical Association, the Royal College of Nursing and the Resuscitation Council.

Mr Tracey brought his judicial ?review and HRA claim against the secretary of state for health, together ?with the local trust, to try and secure national policy on DNRs and put an ?end to the postcode variance in how DNR decisions are made.

The secretary of state for health in that case maintains that resuscitation policies are ‘matters for local trusts’ and is defending the claim. This is in stark contrast to the position in Scotland, where NHS Scotland has decided that a “single integrated and consistent approach to this complex and crucial area [is] a necessity” and issued a national policy, including a national patient information leaflet.

There is an inherent contradiction in the secretary of state’s position in the Tracey case. While endorsing professional guidance, which expressly permits DNRs to be imposed without informing a patient, the NHS Constitution 2010, which he committed to provides: “You have the right to be involved in discussions and decisions about your healthcare, and to be given information to enable you to do this.”

In the next year, the court will hopefully clarify the legal position, so what to do in the meantime?

In my experience many relatives do not find out about a DNR decision until a patient has died or occasionally following discharge from the hospital. Human rights challenges and judicial reviews may be possible after the ?event and specialist legal advice should ?be sought.

For living patients facing a DNR decision or who have had one imposed on them and wish to challenge it, the process will differ depending on whether a patient has capacity or not to make the resuscitation decision. For patients without capacity, any disputes may need to come before the Court of Protection. For patients with capacity, the Court of Appeal recently reaffirmed the “great safety net” of the High Court’s inherent jurisdiction, however bringing such cases will only be worthwhile where there is a doctor willing to perform CPR.

Merry Varney is a solicitor in the human rights and public law department at Leigh Day & Co. She is acting for Mr Tracey in R (Tracey) v CUHNFT & SoS for Health