[I am very pleased to be able to host here a guest post by Richard Charlton and Bharati Gidoomal, two very experienced Court of Protection solicitors, who set here both issues that their firm have been encountering as regards DNACPR notices, and also practical steps that solicitors should be taking in welfare cases in which they are instructed to make sure that they have identified potential danger signs]
DNACPR – the danger signs
As winter and the resurgent Covid-19 approach us, elderly care and nursing home residents again face a heightened threat to health and indeed their lives, raising fundamental concerns under Article 2 ECHR and the Equality Act 2010. That threat has been exacerbated as the pandemic has fully bit with a clear indication that a number of GPs have been inappropriately issuing a substantial number of “Do Not Attempt Cardiopulmonary Resuscitation” (DNACPR) notices regarding some of their patients, including those residing in such homes. These concerns were very recently recognised by the Joint Committee on Human Rights in their excellent report released on 21 September 2020, further confirming fears raised by advocates and families that such notices were being issued on occasions on a group basis, based effectively on age and/or diagnosis, with very scant regard to the individual patient.
Our experience as Court of Protection solicitors
Our firm represents a number of such residents, generally in various proceedings in the Court of Protection. Within these proceedings, the court commonly orders disclosure of care and nursing home records, and indeed we did see an increase in DNACPR notices in such disclosure. However, we were not always supplied with the DNACPR notices, notwithstanding a general order for disclosure of all such documents. It appears that some care and nursing homes filed such notices separately, and we have had to ask particularly for this disclosure. On occasions we were alerted by concerned advocates or family members on the basis that they understood a DNACPR was in place but sometimes were not aware of the details. As a result of these concerns we conducted a full audit of vulnerable clients to identify DNACPR notices directly pursuing when they had not been delivered to us. Many of our clients had DNACPR notices in place and in some instances urgent concerns arose as to how these decisions were made.
Concerns as to the process of creating DNACPR notices have been raised nationally since the early stages of the pandemic. On 15 April 2020 the General Medical Council and the Nursing and Midwifery Council put out a joint statement reflecting concern that GP’s were making blanket DNACPR decisions for particular patient groups rather than on the required individual assessments and reminding medical practitioners of the procedure that should take place in reaching such decisions. On the same day the Secretary of State, Matt Hancock, reflected this concern in a televised address.
The case of Tracey v Cambridge Uni Hospital NHS Foundation Trust & Ors  EWCA Civ 822, confirmed the general duty to consult with a patient who has the capacity to make the decision prior to a decision to place a DNACPR notice being put in place. This was extended to those who lacked capacity, by the case of Elaine Winspear v City Hospitals Sunderland NHS Foundation Trusts  EWHC 3250 (QB), which confirmed that s4 Mental Capacity Act 2005 (MCA) should be applied. Thus the need to incorporate P’s wishes and feelings was recognised, if ascertainable, under s4(6) MCA; and also the views of those people set out in s4(7) MCA, together with any LPA who has health and welfare powers s4(8). As has been pointed out by this newsletter, of great significance, is that a failure to comply with such s4 consultation, leaves the decision-maker open to challenges for breach of the ECHR, and potentially, also under common law. The requirement for this process was also generally confirmed in the 15 April 2020 statement from the GMC and Nursing and Midwifery Council.
There is a substantial incentive, therefore, for decision-makers, who should be the most senior treating clinician, to comply with the law. However, a clear national exposition of this not only to decision-makers, but also critically for relevant person and for family members, has yet to be forthcoming from the Government. This is notwithstanding ongoing challenges by the daughter of David Tracey, from the 2014 case, through Leigh Day & Co, and a general Government commitment, that clear national guidance should be made quickly available.
In the interim it remains essential, therefore that family members and professionals should remain alert as to DNACPR decisions that have been made; and to understand whether the person at the centre of the decision has been consulted; or if that person has a lack of capacity for that decision, that the consultation set down in s4 has taken place. This process should be encapsulated in the equivalent format in the red edged DNACPR form supported by the Resuscitation Council which is completed by the senior treating clinician. There is no nationally agreed form, but, whichever form is used, there should be common features in the form.
What to look for on the form
First on the form should be the full details of the subject, including NHS number. The form should also then address whether the person has the capacity to make a decision as to whether to receive DNACPR. In cases before the Court of Protection, we will be looking at the position of the protected person (P). The form should allow the decision-maker to comment on whether P has an attorney with lasting powers in health and welfare, or have made a valid advance decision refusing CPR. The form should also state that all decisions will be made in the patient’s best interests and comply with the current law. There then should be a section explaining the clinical basis for deciding that DNACPR would not be clinically successful or not in the patient’s best interests. . If P is at an “end of life” stage, or has advanced cancer, the diagnostic basis for the decision may be uncontroversial. However, the question of simply recording, say, “dementia” may be open to challenge. Dementia appears frequently to be equated to “frailty” as a clinical reason as a reflection of Clinical Frailty Scale. However, NICE guidelines published end of April of this year, COVID-19 rapid guideline: critical care in adults, makes it clear that the use of such a scale should be applied with caution. Nevertheless we have been aware of GPs taking the view that an active person with dementia in their 60s, capable of running, with no underlying health conditions, can be found to be “frail” within the clinical basis of the decision to make a DNACPR. We would suggest that this is challenged in the ways suggested below.
Also within the form, there should be details of whom was consulted in making the decision and when this discussion took place. Primarily this should include P, including P’s wishes and feelings if a lack of capacity is found s4(6)MCA , such inquiry would include any Health and Welfare attorney. It is our experience that this part of the form may not always be adequately completed. Other sections should include consultation with family members, close friends, and those involved in P’s care. Once again, as reflected in s4(7). Again, we have found such consultation was not always carried out, or not adequately recorded if it was. The DNACPR form should then be signed by the decision-maker and dated. This should be the most senior clinician responsible for the person’s care as set out in joint guidance by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing in guidance published in 2016. Any further review, or endorsement by another GP, or consultant, should also be available for scrutiny on the form. P’s views, and their family and friend’s views, and indeed with regards to future treatment generally, may in addition be expressed through a ReSPECT form, which should also be made available in disclosable records if this form has been created. The views on that form should be checked against any DNACPR form. It should be noted that the DNACPR is valid indefinitely, unless stated otherwise.
Challenges to DNACPR forms
In our experience, DNACPR forms that have been withdrawn following challenges have included where P’s religious views as a Roman Catholic have not been considered, or where the decision has been made without any consultation with P, or with family and friends. In one case P was admitted to hospital following a minor fall, a procedure was required and a specialist registrar completed the form instructing that P should be DNACPR.. This decision was made less than 24 hours after his admission. P’s adult children held Health and Welfare LPA to make the relevant decision but had not been consulted. A ReSPECT form indicating an agreed approach to care was also ignored. The DNACPR has been now withdrawn at the request of P and his LPAs and the elderly gentlemen is now much better.
How to challenge a DNACPR form
Challenges can be by way of initial letter to the relevant decision-maker and health trust, with P’s placement copied into this correspondence, particularly referring to the unlawful breaches in the decision-making process especially with reference to the Winspear case. It might be appropriate to ask for any DNACPR notice to be immediately suspended whilst any review is taking place. The British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing guidance, mentioned above, does allow for a second opinion where appropriate. Other steps could include a complaint against the decision-maker, a safeguarding referral, or legal proceedings. We have also raised the issue of an apparently inappropriate DNACPR proceedings within existing s.21A Mental Capacity Act proceedings concerning a challenge to a DoLS authorisation: although on one view this was on the ‘edges’ of the application, we considered it appropriate to do so because it so directly engaged P’s Articles 2 and 8 rights. In addition, on occasion the supervisory authority has accepted a condition on the standard authorisation requiring that family members should be informed by the managing authority as to a DNRCPR imposed without family consultation. Again, this might be on the edges of what can be included in an authorisation, but given the importance to P it is legitimate to push for it.
It should also be remembered that in very many cases DNACPR decisions are completely appropriate, especially for very frail people, including those close to the end of life. CPR procedures are physically demanding and distressing for the person concerned, and for any family and friends present. In addition, there will always be emergency situations when the relevant clinician cannot properly carry out s4 procedures, although these circumstances should be as limited as possible.
However, DNACPR involves life and death decisions which should be properly made and in accordance with the law. Such protection is critical for vulnerable people everywhere as we approach winter in the middle of a pandemic.