The non-offering of Futile CPR by doctors: a concept past its use-by date?
I think the idea that doctors can decide to not offer cardiopulmonary resuscitation (CPR) because ‘CPR would be futile’ is now, in 2024, an anachronism. I suspect a well-considered court-ruling made now, would decide that doctors could decide to not offer CPR ‘if CPR could not restart the heart’.
Doctors will point out, that if the heart is restarted but only very temporarily – for example, the patient would in fact have died permanently before reaching an intensive care ward – then attempting CPR would be futile. I don’t disagree, but we should still move to ‘if CPR could not restart the heart’.
My problem, is mainly that it is now generally accepted, that for offered interventions the doctor describes the clinical outcomes, then a capacitous patient considers ‘the benefits and burdens’ and the patient decides whether to accept or refuse the offered intervention. For CPR, we have a peculiar situation when doctors [and patients] are being told that ‘if the benefits and burdens of attempted CPR’ are finely-balanced, then the doctor can decide whether to offer CPR. I can’t see where our ‘consent law’ (which is, basically, the Mental Capacity Act) draws any distinction between ‘finely-balanced’ benefits and burdens, and situations when the benefits and burdens are less in the balance. It seems to me, that a prediction of ‘finely-balanced benefits and burdens’ for attempted CPR, should not of itself result in CPR not being offered: put simply, if life of any quality and of any duration might be restored by attempted CPR, then the benefits and burdens should be considered by either the capacitous patient or else by a properly-performed best-interests determination.
There is also an issue of prognostic uncertainty: can any doctor say with certainty, whether attempted CPR would DEFINITELY only restore life of a very-poor clinical quality and for a very-limited time? I think all a doctor can usually say about prognosis is ‘almost certainly’. And as I’ve said, I think that it is for Informed Consent or MCA Best Interests to consider ‘benefits and burdens’.
Even if we could be ABSOLUTELY CERTAIN of the outcome of attempted CPR, I can construct a scenario when ‘futile’ is very difficult to define. Suppose, that for any cardiopulmonary arrest, we could always restore life by means of CPR - genuine ‘communicative life’ BUT OF A KNOWN TEMPORARY DURATION after which the patient dies permanently. Suppose we know that the patient would be restored to only 5 seconds of life by CPR. In that situation, the patient would ‘wake up’ and probably say ‘Oh – where am I – oh, so’ and then the patient would die permanently. It is hard to argue, that restoration of life for 5 seconds is anything other than ‘futile’. But how much life ceases being futile? Clearly restoration of a month of life, would allow a patient time to ‘organise their death’. Restoration of a day of life, would certainly allow for ‘final goodbyes’ with loved-ones. But how much restored life, isn’t futile if 5 seconds isn’t enough? A minute? Ten minutes? An hour? How long? Even if we remove the usual complication – the prognostic uncertainty – it isn’t clear how we would define ‘futile’.
For almost all medical interventions, there are cost-benefit considerations before the NHS offers the intervention: if a treatment costing a million pounds would extend your life by a day, then the NHS isn’t going to offer it to you. But, presumably if you are very wealthy, you can spend a million pounds of your own money on an intervention which would probably let you live for a day longer. This doesn’t seem to be true for CPR: we are never explicitly told ‘CPR isn’t on offer because the aftercare costs are too high for the NHS’. I don’t like the idea that ‘aftercare costs’ might be ‘hiding’ behind that word ‘futile’: and, if we move out of the NHS into ‘what a billionaire might pay for’ then even if attempted CPR would probably only be of miniscule benefit to the billionaire, presumably such CPR could be paid for.
We can throw in, that if a doctor is 100% certain that attempted CPR would not restart the patient’s heart at all, then the only costs (which I admit include any ‘psychological costs to clinicians’) are for the performing of the CPR itself – there is not any ‘aftercare’.
I think, we need to move to a world in which CPR is offered to capacitous patients, and the predicted outcome-spectrum is described, and then I hope most patients would refuse CPR if the predicted post-CPR prognosis was dire: if a few still want CPR to be attempted, then I believe it should be attempted.
I’ve been trying to avoid references in this piece, but I will insert two. Firstly, I wrote about this some years ago in my thread at:
And, in the Tracey ruling, which was in 2014, the judge did state that doctors could decide to not offer ‘futile’ CPR, with ‘futile’ clearly meaning something beyond ‘if CPR could not restart the heart’.
I will point to the Montgomery ruling, of 2015
https://www.supremecourt.uk/cases/docs/uksc-2013-0136-judgment.pdf
and to some things stated by Lady Hale. We were told by Lady Hale in 116
‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being’
and in 107
‘In the third (2010) edition of their leading work on Principles of Medical Law, Andrew Grubb, Judith Laing and Jean McHale confidently announced that a detailed analysis of the different speeches of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 was no longer necessary. A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 and the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 meant that it could now be stated “with a reasonable degree of confidence” that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland.’
PS Lady Hale also says in 115 ‘She (the patient) cannot force her doctor to offer treatment which he or she considers futile or inappropriate’. That says cannot force the doctor to offer the intervention – it does NOT say ‘cannot offer’ such an intervention. If ‘futile’ or ‘could not restart the heart’ CPR were to be offered to some capacitous patients, then surely on the grounds of ‘non-discrimination’ it would have to be offered to ALL capacitous patients.
The GMC guidance ‘Treatment and care towards the end of life: good practice in decision making’ which was first published in 2010 and has been updated in 2022, tells readers:
14. If a patient has capacity7 to make a decision for themselves, this is the decision-making model that applies:
a. The doctor and patient make an assessment of the patient’s condition, taking into account the patient’s medical history, views, experience and knowledge.
b. The doctor uses specialist knowledge and experience and clinical judgement, and the patient’s views and understanding of their condition, to identify which options for investigating, treating or managing the patient’s condition (including the option to take no action) are clinically appropriate. The doctor explains the options to the patient, setting out the potential benefits, burdens and risks of each option. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.
c. The patient weighs up the potential benefits, burdens and risks of the various options as well as any non-clinical issues that are relevant to them. The patient decides between the options They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor or for no reason at all.
d. If the patient asks for treatment or care that the doctor doesn’t think would be clinically appropriate, the doctor should explore their reasons for requesting it, their understanding of what it would involve, and their expectations about the likely outcome. This discussion will help the doctor take account of factors that are significant to the patient and assess whether providing the treatment or care could serve the patient’s needs. If after discussion the doctor still considers that the treatment or care would not serve the patient’s needs, then they should not provide it. But, the doctor should explain their reasons to the patient and explore other options that might be available, including their right to seek a second opinion.
I’m not entirely convinced about section d – but section c is in line with the Mental Capacity Act.
There is a comparatively recent court ruling, which you can find here:
https://www.bailii.org/ew/cases/EWCOP/2018/39.html
and I came across it, when it was being discussed on Twitter: people were saying that ‘the judge has ignored the fact that the doctors have said that CPR couldn’t work, and the judge has ruled that CPR should be attempted’. I knew that couldn’t be right – even before I read the ruling, I tweeted ‘I suspect the doctors said CPR would almost certainly either fail or else leave the patient in a really bad clinical situation: BUT that is a factor to be considered DURING best-interests decision-making – the prognosis is only a factor, and unless you are CERTAIN THAT CPR would not restore life, the acceptability of the quality of that life to the patient is at the heart of best-interests decision-making’.
The judge, Mr Justice Keehan, therefore took into account his section 26:
26 I then heard evidence from FB. She gave very moving evidence of discussions that she had had with her mother prior to her admission to hospital on 17 July. This discussion arose because of a previous admission to hospital that HB had had to endure and which brought to her mind that it was time for a lasting power of attorney to be drafted. The lasting power of attorney was in favour of FB and FB in evidence told me that her mother had said to her that were she to become ill again, that she would want all possible steps to be taken to keep her alive. I have no doubt that FB is accurately reflecting the views that her mother conveyed to her. Those views are entirely in keeping with HB's religious and cultural beliefs. She is a practising Muslim.
when arriving at his ruling of section 36 (my own added bolds here):
36 I entirely accept those submissions and the force in them, but key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish. In my judgment, at the moment, it remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet.
And there is [or was] a CPR Policy for Wales, which you can find from my piece at
which includes this section:
8.3 A clear request for CPR – when CPR is not likely to be successful or clinically
indicated
A patient might insist that future CPR is provided - even when (for clear clinical reasons) the clinical team feel it to be an intervention which cannot provide clinical benefit and will not be successful. When a patient requests CPR following a discussion that clearly outlines very significant risks and burdens, the senior clinician must record fully the patient’s expressed wishes, alongside their own clinical views. When conflict exists and whilst further advice is sought, the interim position should normally be to call the emergency services or arrest team in an arrest situation, to consider CPR under current circumstances on arrival, as appropriate. Efforts should quickly be made to reconcile the position if at all possible. In some cases a multi-professional team review might resolve to follow the patient’s wishes in an individual case, and to provide CPR, even if it is felt that it will not work or even potentially cause harm. In other situations, however, the conclusion might be that attempting CPR in the circumstances would be clearly contrary to best clinical judgement and good practice. In such cases, a second opinion must always be offered and legal advice may become necessary with further discussion with the patient. When there is serious challenge to a DNACPR position, from whatever quarter, the legal and ethical position must be considered. Healthcare professionals, who take a fully-considered ethical and clinical position, should immediately share and document their concerns and receive support from their organisation.
That guidance from Wales, isn’t exactly ‘unconflicted’ to use a word I’ll choose here: it would be much simpler if doctors explained the predicted outcomes of CPR, and then if a capacitous patient still requested CPR the clinicians would attempt CPR. At least, in my view it would be!