Do not attempt cardiopulmonary resuscitation (DNACPR) notices avoid the inappropriate use of cardiopulmonary resuscitation (CPR) in hospital and other settings. The notice applies to CPR only and does not exclude the provision of other active interventions, care and treatment by nurses. A DNACPR notice also protects nurses and other care workers from an allegation of wilful neglect under the Criminal Justice and Courts Act, section 20 (1) (R v Patel [2013])
Duty to provide treatment
In R(Burke) v GMC [2005], the Court of Appeal held that, once a patient is accepted by the hospital trust, nurses come under a positive duty to care for the individual. A fundamental aspect of this positive duty of care is to take such steps as are reasonable to keep the patient alive. In the case of CPR, the initial presumption would therefore be in favour of attempting resuscitation. Nurses would normally be required to instigate CPR on patients in their care who required it.
Duty not to provide futile treatment
In Aintree University Hospitals Foundation Trust v James [2013] the Supreme Court held that it would be lawful to consider treatment futile if it were not in the patient's best interests to receive it. The ruling confirms the approach adopted in R (adult: medical treatment) [1996] that a DNACPR notice would be lawful where it was decided that it would not be in the patient's best interests to provide it.
Requirement to consult the patient
The decision to place a DNACPR notice on a patient's record is generally taken by the doctor in charge of the patient's care. Controversy over the decision to issue a DNACPR notice often arises where patients and their families were not consulted about the notice and were unaware that it had been issued (R (On The Application Of Oliver Leslie Burke) (Respondent) v General Medical Council (Appellant) & The Disability Rights Commission & 8 Others (Interveners) [2005]).
In Tracey v Cambridge Uni Hospital NHS Foundation Trust and others [2014] a man sought judicial review of the decisions of an NHS trust concerning the treatment of his wife, who had terminal lung cancer and had been admitted to hospital following a road traffic accident. The trust had placed a DNACPR notice on her medical file that was cancelled after three days when the family expressed concern about it. Three days later, her condition deteriorated and another notice was imposed after consultation with her family; she died two days later.
The family argued that:
The Court of Appeal held that article 8 is engaged by a DNACPR decision because it concerns how an individual chooses to pass the closing days and moments of their life and how they manage their death (Pretty v United Kingdom [2002]).
Article 8 is concerned with the everyday right of individuals to respect for their private and family life, home and correspondence. However, as a qualified right article 8(2) allows scope for intrusion into this qualified right on a variety of grounds including the denial of futile treatment. The ECHR interprets the concept of private life very broadly. It includes the right to autonomy and self-determination, and to psychological and physical integrity that includes personal dignity (Pretty v United Kingdom (2002)).
Any intrusion with an article 8 right must be in accordance with the law and be proportionate to the aim being achieved. This gives rise to a positive obligation to have procedures in place to ensure effective respect for these rights. The ECHR guarantees rights that are practical and effective, not theoretical or illusory. Since a DNACPR decision is one that potentially deprives a patient of life-saving treatment there must be a presumption in favour of patient involvement. That is, patients must be involved in the DNACPR decision and there must be convincing reasons where such a consultation has not taken place (Tracey v Cambridge Uni Hospital NHS Foundation Trust and others [2014]).
The Court of Appeal in Tracey held that the courts should be slow to give general guidance as to the circumstances where it would not be appropriate to consult a patient in relation to a DNACPR decision. Nevertheless, if a nurse considers that consultation is likely to cause the patient to suffer physical or psychological harm then it should not be initiated. Nurses would not be justified in excluding a patient from the consultation on the grounds that the patient may find the topic distressing.
Consulting the relatives of incapable patients
The decision in Tracey v Cambridge Uni Hospital NHS Foundation Trust and others [2014] limited the right to be consulted about the placing of a DNACPR notice to patients with decision-making capacity.
In Winspear v City Hospitals Sunderland NHSFT [2015] a mother claimed that an NHS trust had breached her son's rights under article 8 of the ECHR by placing a DNACPR notice on his clinical record without consulting her. Her son lacked capacity for medical decisions under the Mental Capacity Act 2005. He had been admitted to hospital with a chest infection. During the early hours of the morning, a specialist registrar in cardiology had placed the notice on the son's record without consulting the mother or any person representing his interests. The registrar had not considered that there was an imminent risk of cardiac arrest, but made the decision because he considered that CPR would be futile should one occur.
The High Court held that, although this case concerned a patient who did not have capacity to express any view on treatment, article 8 of the ECHR was still engaged. His mother was clearly involved in the care of her son and was interested in his welfare. The concept of human dignity did not apply any less in the case of a patient without capacity. The core principle of prior consultation applied before a decision not to attempt CPR was put into place. In these circumstances the discussion should be with a person to be consulted as part of the best interests decision under section 4(7) of the Mental Capacity Act 2005, or an independent mental capacity advocate (IMCA) if such a person could not be identified.
Where the incapable person has a designated decision maker, such as an attorney under a health and care lasting power of attorney or a court-appointed deputy for health and care, then they must also be consulted as part of the DNACPR decision-making process.
DNACPR policy
The law now requires that NHS trusts have a DNACPR policy that describes the circumstances in which it would be right to come to a decision not to provide CPR. The DNACPR policy must be accessible and clear to be compatible with the human rights convention. That is, any interference with the right to a private life, as in the case of a DNACPR decision, must be:
The right to be consulted and notified about DNACPR decisions would be undermined if the patient, or the relative of an incapable patient, was not aware of the criteria against which the decision to complete a DNACPR notice was made.
A decision about whether or not to attempt CPR must be recorded clearly in the patient's record and be readily available to all health professionals. The Resuscitation Council (UK), in its joint statement with the British Medical Association (BMA) and Royal College of Nursing, argues that a standardised DNACPR form is the best way to record the decision and to ensure that all policy and legal requirements have been met (BMA et al, 2016).
Conclusion
DNACPR notices are now routinely used where providing CPR to a patient would be futile. Nurses are now required to involve the patient in the DNACPR decision, unless to do so would cause the patient physical or psychological harm. The patient's involvement must be underpinned by a clear and accessible DNACPR policy that sets out the criteria used to reach the decision to complete a DNACPR notice and be clearly recorded and available for other health professionals who may need to act on it.