Argue the Toss: Consent and Cardiopulmonary Resuscitation (CPR)
I decided to write this piece, because I've just exchanged e-mails with a GP in Scotland - we seem to have been writing about much the same issues, for end-of-life behaviour.
This piece could be seen as an 'add on' to my 'Argue the Toss: can Consent and Best Interests live together or not ?' piece at:
Or, you could see it as a simple argument, about the implications of the fact that 'informed consent' is implicit in the Mental Capacity Act (for the position I am expressing here, section 25(4)(c) is the significant part of the MCA), and/or that the Montgomery legal ruling has 'consigned Bolam to history. 'Bolam' was the idea that for 'valid consent to treatment', the amount of information which clinicians give to a patient is acceptable if a peer group of clinicians consider the information given to be acceptable - 'Montgomery' has thrown that idea away, and replaced it with the concept of 'a group of patients similar to the patient in question' deciding if the clinicians have provided sufficient information for the patient to validly consent. Put simply, if the clinicians 'obtained consent but withheld anything which would have led to the patient not consenting, if the patient had known' then 'the consent which was obtained is not legally valid'.
In any event, whether we work from 'Montgomery' [which was about a case in Scotland, where the MCA is not a law] or we work from the MCA, if you apply the concept of 'consent has to be valid IF SEEN FROM THE PERSPECTIVE OF THE INDIVIDUAL PATIENT', then I believe that 'the rule for CPR' which you arrive at is the following (I originally wrote this, about 2012, working from my understanding of the MCA):
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If it is believed that CPR might restore life, then if the quality of that restored life might be deemed acceptable by some patients - even a very small minority - the usual ethical principles apply. In such a situation, it is for the patient himself to have judged whether the outcome of CPR would be acceptable, and for the patient to indicate his decision: which clearly must have been done, in advance of the CPA itself. This is usually described as patient autonomy, and a mentally capable patient, once informed of the clinical consequences of accepting or refusing an offered treatment, instructs the clinician whether or not to proceed with the treatment.
For CPR, the rule is that if a clinician is aware of information which would persuade a reasonable person, that the patient would have refused CPR for the CPA in question, had the patient somehow been able to consider the issues relevant to his CPR decision during a CPA and also to indicate his refusal, then the clinician must not attempt CPR. If a clinician attempts CPR, and a third party believes the clinician should have concluded that the patient would have refused resuscitation had the patient been capable of doing so during the CPA, the clinician is running a risk of prosecution for assault.
If the clinician is not reasonably persuaded that the patient would have refused CPR, then CPR should be attempted.
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The absolute 'primacy' of patient consent, seems to have been made crystal clear by a recent court case ('woman C') - see my discussion of that case at:
http://www.bmj.com/content/351/bmj.h6575/rr-0
And there was, in 'House of Commons Health Committee End of Life Care: Fifth Report of Session 2014-15', a submission from the Association of Ambulance Chief Executives' (section 106), which included this:
'Without a DNACPR form or information that establishes that a person is at the end of life, resuscitation may be the course of action decided upon by the clinician that may be later seen as unethical, inappropriate and most importantly not what the patient would have wished for.'
Consider the AACE's '... and most importantly not what the patient would have wished for' and my 'if a clinician is aware of information which would persuade a reasonable person, that the patient would have refused CPR for the CPA in question, had the patient somehow been able to consider the issues relevant to his CPR decision during a CPA and also to indicate his refusal, then the clinician must not attempt CPR'.
SO MY QUESTION: am I right about this - is my 'rule for CPR above' correct ?