CPR and DNACPR – am I following orders?
I was listening to the news on the radio a few days ago, and the newsreader said the Covid Inquiry is going to look into ‘do not attempt resuscitation orders’ - meaning cardiopulmonary resuscitation, and presumably DNACPR documentation and/or DNACPR decisions. The point of interest, is that word ‘order’.
Can ‘I’ be ordered to attempt, or to withhold, CPR?
First, I’ll consider the ‘I’ in the title of this post. I will consider three categories of individual: family-carers and relatives, ‘senior’ clinicians and ‘junior clinicians’.
Relatives and family-carers (please note that I often flip-flop between these two terms, and that ‘relative’ should be taken as inclusive of close friends, and that family-carers need not be relatives: the only real distinction is that some of these people will be more actively-involved in caring for the loved-one/patient/friend than others are), sometimes explain that a 999 call handler had ‘ordered’ them to attempt CPR. That is usually within two contexts: one is ‘the call handler ordered me to attempt CPR and I refused’ and the second amounts to ‘I attempted CPR because I was ordered to – the CPR didn’t work, and with hindsight I regret having attempted CPR’. Often the family-carer or relative knows that the loved-one would not have wanted CPR: and, you cannot have a ‘peaceful death’ if CPR is attempted. So far as I can see, our law means that a family-carer or relative CANNOT be ordered to attempt CPR, or to not attempt CPR, by anyone. And family-carers/relatives do not require a defence for not attempting CPR: there is not a ‘legal duty’ to do anything at all under our law.
In theory, it seems to me that if a family-carer is aware of an Advance Decision which refuses CPR in the circumstances of the arrest, then if the carer ignores the ADRT and does attempt CPR, then the carer could be charged with assault. But when I asked on Twitter if anyone knew of a case when a relative had been charged for attempting CPR despite knowing that an ADRT forbade CPR, nobody could point to a court case.
‘Junior clinicians’ are in a rather complex situation. There is a provision in the Mental Capacity Act, in its section 42, which [using my phrase here] ‘allows for clinicians to be ‘steered by’ their professional guidance’. You need to look at section 42 of the MCA, and section 5.31 of the original version of the MCA’s Code of Practice. The legal situation, seems to me to be hugely-complex and very challenging: and the real-world consequences of section 42 do not appear to be analysed very much by authors. The intention seems to be ‘to steer clinicians towards doing the right thing’ which is an admirable objective: but the reality is tricky to say the least! There is something of a double-edged sword here: nurses in particular, seem to be in a very problematic situation, and I believe most nurses would be very reluctant to not attempt CPR unless there is some ‘DNACPR documentation’. Unlike relatives, clinicians cannot ‘just stand back’: clinicians do need a defence against the charge of ‘you should have intervened’.
So, can those ‘junior clinicians’ be ordered to not attempt CPR? If they could, then it is obvious that senior clinicians would be ‘giving the order’. Professor Mark Taubert, a consultant in palliative care (which you can think of as a consultant in end-of-life care), would definitely be one of the people ‘giving the order’: but Professor Taubert does not believe
https://www.bmj.com/content/386/bmj-2022-071661/rr
he can write ‘a DNACPR order’. Mark explains why in the BMJ ‘Letter to the Editor’ which the above link goes to – and I agree with Mark, which is not surprising as Mark and I were co-authors of that letter.
If a welfare attorney is present during a cardiopulmonary arrest, and if the attorney has got MCA section 6(6) authority over CPR, then the attorney can forbid CPR by saying ‘I consider that attempted CPR would be against the patient’s best interests’ or ‘I consider that it is in the patient’s best interests to not attempt CPR’: which I would describe as ‘an order’. I am also happy to describe an Advance Decision, which comes from the patient, as ‘an order’.
But the documents which the NHS refers to as ‘DNACPRs’ are NOT orders.
It looks as if ‘the NHS’ would prefer it if DNACPRs could be regarded as orders – that would simplify certain situations. But contemporary DNACPR forms should not be described as ‘orders’, and I think we need to fundamentally redesign CPR documentation as I have explained at
I will be loosely following the media reports of the Covid Inquiry, and if the Inquiry itself uses the term ‘DNACPR order’ then I will probably try to send an explanation to the Inquiry, as to why ‘DNACPRs are NOT orders’.
After reading the original post, several feelings and thoughts come to mind. The complexity surrounding DNACPR (Do Not Attempt Cardiopulmonary Resuscitation) “orders” is indeed intricate and nuanced. The post raises critical points about the language used in medical documentation and how it can lead to misunderstandings.
Ambiguity in Language: It's concerning that terms like "order" can imply a directive that isn't legally enforceable, potentially causing confusion among both relatives and healthcare professionals. The distinction between a DNACPR form and an actual binding order is crucial and should be clearly communicated to avoid any misinterpretation.
Role of Family-Carers and Relatives: The reality that family-carers and relatives can't be legally compelled to perform CPR or refrain from it highlights significant autonomy in end-of-life care decisions. However, it also underscores the importance of clear communication and legal clarity to ensure these individuals feel supported in their decisions.
Junior Clinicians' Dilemma: Junior clinicians are in a particularly challenging position. The lack of clear directives can leave them vulnerable to legal repercussions or moral dilemmas. This aspect is especially troubling as it suggests a gap in the system that needs addressing to protect healthcare workers.
Advance Decisions and Legal Authority: The post effectively argues for the necessity of Advance Decisions (ADRT) being respected as genuine orders. This not only respects the patient's autonomy but also provides a clear directive which clinicians can follow, minimizing legal and ethical confusion.
Need for Systemic Change: Overall, there seems to be a call for a systemic overhaul in how DNACPR is documented and communicated. Mark Taubert’s position in the BMJ highlights how language can impact clinical practice and patient care, reinforcing the need for clarity and precision.
For those interested in improving their understanding of CPR and emergency response, I recommend exploring the CPR course. It offers comprehensive training, enhancing one's ability to make informed decisions during critical moments.
Ultimately, this discourse invites further exploration into how we can improve the system for everyone involved, ensuring that decisions made at crucial moments are informed, compassionate, and legally sound.
Thank you Tommy.
I will be trying to contact the Covid-19 Inquiry, as this week they have been discussing DNACPR and ACP in a way which troubles me (I was pointed at the relevant video by a contact). I have no expectation that they will actually look at my communications - but all I can do is try!
According to the article, relatives cannot be ordered to perform CPR. CPR is a medical procedure that should only be performed by trained healthcare professionals.
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I attach a letter which I sent to the Covid-19 Inquiry yesterday morning.
The Inquiry has been listening to people from the RC(UK) and ReSPECT, and they want Wales to adopt ReSPECT: I very-strongly want Wales to NOT adopt ReSPECT.
As it is solely my letter to them, I see no reason why I should not publish it - which will allow others to consider the arguments I put forward, in support of Wales being left alone to continue developing its own Policy and documentation.
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A letter to the Covid-19 Inquiry from Mike Stone
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Hi Naomi,
What is it that the Resuscitation Council UK is doing its best to teach to as many normal people as possible then? If it isn't CPR, then what on earth is it?
See
There is an 'open access' (anyone can read it for free) article in the BMJ
https://www.bmj.com/content/387/bmj.q2247
about what was said to the Inquiry recently. It finishes with a bit about the discussion of DNACPR at the Inquiry.
Hi mike stone
And thank you for your responce!
I think it is worth discussing some wording, which was discussed in my Letter to the Covid-19 Inquiry which can be downloaded from an earlier post in this thread.
Basically, I suspect that many doctors ‘instinctively believe’ that the following must be true, when discussing treatments which might be of clinical benefit with family and friends if the patient lacks mental capacity:
‘If the relatives do not have legal authority to make the decision, you should be clear that their role is to advise you and the healthcare team about the patient’s wishes and preferences to inform the decision about whether attempting CPR would be of overall benefit to the patient. You must not give them the impression that it is their responsibility to decide whether CPR will be of overall benefit to the patient, or that they are being asked to decide whether or not CPR will be attempted.’
Now: that is NOT correct for England and Wales – but, it MIGHT BE correct in other countries. For England and Wales, not only is it legally incorrect, but it DOESN’T HELP TO STEER ANYONE TOWARDS CLEAR LEGAL UNDERSTANDING NOR TOWARDS CLEAR ANALYSIS EITHER.
The problem, is that our law – the Mental Capacity Act – is what the doctors must follow, in order to avoid being charged with wrongdoing [technically, not to avoid being charged, but in order to claim a legal defence against the charge: but in reality, if it is obvious the doctor could reasonably claim the defence, then I suspect the doctor would almost certainly not be charged].
And OUR law (in England and Wales) does not use the wording ‘of overall benefit to the patient’. Our law would use ‘is in the patient’s MCA best interests’.
Nor does the MCA assign ‘responsibility’ in the context of best-interests decision-making - it simply says that a person claiming to have satisfactorily made a best-interests decision, must have complied with MCA section 4:
4(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
‘a person other than the court’ clearly INCLUDES family and friends.
If a Welfare Attorney possesses legal authority over CPR, then what happens is the attorney’s expressed decision about CPR removes the defence of the doctor – sections 6(6) and 6(7) of the Act.
So, for England and Wales, that paragraph above, should actually be:
‘If the relatives do not have MCA section 6(6) legal authority, you should be clear that their role is to discuss the patient’s MCA best interests with you and the healthcare team to inform best-interests determinations about whether attempting CPR would be in the patient’s MCA best interests. You must not give them the impression that it is their responsibility to decide whether CPR will be in the patient’s MCA best interests, or that their own determination as to whether or not it would be in the patient’s best-interests for CPR to be attempted can be imposed on you and the healthcare team.’
I sent a printed letter to the Covid-19 Inquiry last Saturday (the Inquiry has got a FREEPOST address), and a few other printed pieces.
The letter I sent, with addresses and e-mails redacted, is attached as a PDF, if anyone cares to read it.
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Printed Letter to the Covid Inquiry
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The attached file is a further letter, I'm sending to the Covid-19 Inquiry, based on something already posted above.
In my opinion, a fundamental problem at the moment, is that what I wrote at the end is still being resisted by doctors:
In England and Wales, the legal-protections which clinicians need to claim, arise from having ‘satisfied’ MCA s4(9) – and it is section 4 which explains what best interests means/requires, not different wording [and not, if you work through the reasoning, ‘medical ethics’ either (the ‘ethics’ of MCA best interests must be found WITHIN the Act)]. Of course, a doctor cannot claim to have satisfied section 4(9) unless the doctor understands section 4, and has sought to gather the information/understanding described in 4(6), etc: and exactly the same is true for a Welfare Attorney; or indeed for a normal family-carer. The converse is of course also true: if a clinician, a legal proxy or ‘a normal relative/friend/family-carer’ has properly worked-through MCA section 4, then the person can say ‘I could honestly stand in front of a judge, and say that I believe I had reached a best-interests determination which is based on a correct application of MCA section 4’.
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Further letter to the Covid Inquiry from Mike Stone for DiC
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I have attached a PDF which is somewhere on DiC already, as I posted it a couple of years ago (my web search found the PDF - but not the thread). It fits very nicely with the theme of this thread, so I'm also putting it here.
Basically, even the GMC - who really should know better - have been telling doctors that relatives and friends cannot form perfectly-legally-adequate best-interests positions (which you can state as 'making a satisfactory MCA best-interests determination). That is clearly an absurdity: as I frequently point out, being appointed as a Welfare Attorney does NOT magically improve your ability to understand section 4 of the MCA, or to apply section 4 in such a way that you have arrived at a best-interests determination and could sensibly claim to have 'satisfied' MCA s4(9).
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An analysis of section 139 in some GMC EoL guidance
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