Who can make ‘Do Not Resuscitate’ decisions for me?

Do not resuscitate
As if Covid-19 itself has not already created enough panic amongst us, reports that blanket ‘Do Not Resuscitate’ (DNR) orders were being issued without consulting patients individually left many of us worried about our future care – and that of our loved ones. We look at the law surrounding DNR orders and the extent to which your wishes will be complied with.

Q: What is a ‘Do Not Resuscitate’ order?

A ‘Do Not Resuscitate’ order is an order not to attempt cardiopulmonary resuscitation, otherwise known as a DNACPR, DNAR or DNR. Cardiopulmonary resuscitation, or CPR, means administering chest compressions and electric shocks where the heart has already stopped beating. Such treatment is only used where the patient has suffered cardiac arrest.

If a DNR order is issued, this does not mean the medical team treating the patient will simply cease all treatment, unless the patient has completed an Advance Directive to the contrary. Every possible measure will be taken to prolong their life. The order only relates to the administering of CPR in the event of cardiac arrest.

Q: Were blanket DNR notices issued?

Recent reports in the media centred around care homes in Hove, East Sussex and south Wales where blanket DNR notices were apparently applied to residents’ care home plans without consultation with either the residents or their families.

Such reports resulted in the Care Quality Commission along with the BMA, CPA and RCGP issuing a warning to stop which stated:

“It is unacceptable for advance care plans, with or without DNAR form completion, to be applied to groups of people of any description. These decisions must continue to be made on an individual basis according to need.”

According to the Royal College of General Practitioners, many GP practices had written to care homes asking them to update their care plans in the light of Covid-19, since this had a greater impact on the older generation. It would appear that some care homes misinterpreted what they were being asked to do, which was simply to discuss such plans with patients individually.

Q: How are decisions regarding life-sustaining treatment made?

While you have capacity, you can accept or refuse life sustaining treatment in a number of situations. For example, you might decide that you don’t want to receive antibiotics for life-threatening infections if you are suffering from a terminal illness.

If you lose ‘mental capacity’, the decision to give life-sustaining treatment will be made by the lead clinician in charge of your care. Any decision not to give such treatment will also be made by your clinician, unless you have made a Lasting Power of Attorney for Health and Welfare and/or an Advance Directive.

Your clinician will try to include you in such decisions as far as possible, even if you have lost capacity. However, in some cases this simply won’t be possible – for example, you may be unconscious or too severely ill to participate in the discussion. In such cases, where possible, the senior clinician will take advice from those close to you, such as family members.

Your family cannot refuse life-sustaining treatment for you unless you have granted them this power specifically in a Lasting Power of Attorney. However, it is possible that those discussing the issue with your clinician may not be aware of your wishes and views concerning such care. For this reason, it is always best to have a Lasting Power of Attorney in place.

Q: What is a Lasting Power of Attorney for Health and Welfare?

A Lasting Power of Attorney for Health and Welfare allows you to give someone else (an “attorney”) the power to make health and welfare decisions on your behalf, should you lose mental capacity. These might include decisions relating to:

  • daily routine, such as washing, dressing and eating
  • medical care
  • where you live (Source: Gov.uk).

Lasting Power of Attorney for Health and Welfare

You can have more than one attorney, and you can decide whether they must act together or whether they can make decisions individually. You may decide they must act jointly for some decisions but can act individually for others.

In addition to decisions regarding day-to-day care, you must decide whether your attorneys will have the power to accept or refuse life-sustaining treatment for you, or whether this power should rest with your doctors. Such decisions might arise, for example, if you are unconscious following an operation or if you lose mental capacity and then receive a diagnosis of cancer. Whilst life-sustaining treatment might mean CPR, it could also mean something as simple as a course of antibiotics to treat pneumonia.

At all times when deciding whether to accept or refuse treatment, your attorneys must act in your best interests. You can find out more about what this means in the Mental Capacity Act Code of Practice (page 64 onwards).

If you decide to give this power to your attorneys, you can limit it. You could, for example, give your attorneys the power to make decisions regarding the administration of CPR, but leave other decisions regarding treatment to your doctors.

If you decide to give the power to your doctors, you can also include refusals of particular types of treatment on your Lasting Power of Attorney, but it is more common to give this level of detail on an Advance Directive.

Q: What is an Advance Directive?

An Advance Directive is a legally binding document that allows you to refuse in advance certain types of life-sustaining treatment. This might include, for example, CPR, clinically assisted nutrition and hydration, artificial or mechanical ventilation and antibiotics for life-threatening infections. You do not need a solicitor to make this document – a free template is available here. However, if you are making a Lasting Power of Attorney at the same time, you should work with your solicitor to ensure the two documents do not conflict.

You can refuse a range of life-sustaining treatment in various circumstances, such as stroke or a vegetative and minimally conscious state. You can also set out any other circumstances in which you would like to refuse such treatment. If a health care professional went against your wishes (for example, administering CPR with the knowledge that your Advance Directive refused it), they would be at risk of a charge of battery. Further, your family cannot challenge your decision, even if they disagree with it.

Q: Can I insist that I am given life-sustaining treatment?

If you have capacity, you cannot demand a particular treatment; nor can you demand it on your Lasting Power of Attorney or Advance Directive. Such decisions always rest with the senior clinician in charge of your care. Consequently, they may issue a ‘Do Not Resuscitate’ order, even if you or your family indicate that your wishes are to the contrary.

There is a right to be consulted on such decisions, which are never be taken lightly. A clinician would only reach such a conclusion if, in their view, attempted CPR would not be likely to be appropriate for you in the event of cardiac arrest. Doctor Rachel Clarke explains that CPR does not work as often as television shows or movies might lead us to believe:

“When we bring a patient back from the dead, we want to shout from the rooftops. But too often, the rigmarole is futile. The heart cannot be restarted because the patient is too frail, too weak and waning. Their cardiac arrest has not been caused by a reversible problem. Rather, it is the natural end of their life – the heart has stopped because the patient is dying. In these cases, all we have achieved is an ugly, brutal cacophony of noise in place of dignified dying.”

Your doctors will always consider your best interests as an individual in light of your health. The decision is medical and rests on whether resuscitation would be successful and how much additional harm it would cause you. Even when CPR is successful, it can cause brain damage, broken ribs and even punctured lungs, which you may not be able to recover from.

Action points:

  • Make a Lasting Power of Attorney setting out who should make decisions regarding your day-to-day care, should you lose capacity.
  • Decide if the decision to accept or refuse life-sustaining treatment should lie with your attorneys or your doctors.
  • If you give your attorneys this power, decide whether or not to limit it. You could, for example, give your attorneys power to act individually on matters of day-to-day care but require that they act jointly when making decisions about life-sustaining treatment. You might alternatively give them power to make certain decisions (e.g. CPR) but not others.
  • If you are pro life-sustaining treatment in some/all circumstances, set out your preferences on the Lasting Power of Attorney. Rather than relying solely on conversations with family members, your clinician will be in no doubt as to your views and wishes – although will still have the final decision.
  • If you are against life-sustaining treatment in some circumstances, use your Lasting Power of Attorney to provide details. In addition, consider making an Advance Directive.

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