Guest post – the risks of ReSPECT

[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 issues that their firm have been encountering as regards the potential misuse of ReSPECT forms; full disclosure, a process with which I am involved. For more about getting advance care planning right, see here]

The rise of ReSPECT forms, promoted by the Resuscitation Council UK, is an excellent way of positive plan for future care and treatment should it become impossible to communicate decisions. To quote from  the Council’s website:  “The ReSPECT process creates personalised recommendations for a person’s clinical care and treatment in a future emergency in which they are unable to make or express choices.” 

And as part of this: “These recommendations are created through conversations between a person, their families, and their health and care professionals to understand what matters to them and what is realistic in terms of their care and treatment.”

In the vast majority of cases it is clearly a step forward to have such recommendations encapsulated in one form. Unfortunately, our access to records in care and nursing homes, and to hospital records in our representation of clients in the Court of Protection proceedings has demonstrated that this form also creates the possibility for the same abuse as the DNACPR form (Do Not Attempt Cardiopulmonary Resuscitation), with unfortunately even wider application. This is because ReSPECT forms cover all forms of treatment not just DNACPR. Thus, unfortunately we have seen forms that:

  1. have indicated that the patient has no capacity to make decisions as to medical treatment, but without any indication of the relevant assessment:
  2. having “assessed” the patient as lacking the relevant capacity to make decisions on treatment, has then lacked any recorded attempts to obtain the patient’s wishes and feelings; or the views of family members or friends, or of any professional care staff:
  3. and have “written off” an elderly patient assessed with no recorded assessment as lacking the relevant capacity such that they should only be given palliative care and not admitted to hospital for any condition, even though they did not have a terminal, or indeed any, illness.

These ReSPECT forms have included signed recommendations that DNACPR  should not be attempted. In the case of care and nursing homes they have been generally been signed by someone who works at a GP Practice who has seen the patient but who is not the GP, although on one form the GP (and no one else) was apparently consulted.

Such forms are clearly unlawful. What we wrote in our article “The Dangers of DNACPR”, is clearly applicable again. As we indicated then, the case of Tracey v Cambridge University Hospital NHS Foundation Trust & Ors [2014] 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 [2015] 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).” And as Alex Ruck Keene has pointed out, “ 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.”

A summary of the  previous “dangers of DNACPR” in practice during COVID-19 was also catalogued by the CQC in and is again appropriate here.

ReSPECT forms are, as with the designated DNACPR forms, of course only recommendations. However such recommendations are usually taken as an effective instruction, as Essex University found in its recently published study.

Thus, for example,  we found that where there a nursing home resident was inappropriately indicated for no hospital admission on a ReSPECT form, a 999 call was cancelled after she had a fall which was causing her some considerable pain. The call was cancelled after nursing home staff saw the relevant form with its “recommendation.” Fortunately, the client was later found to have only bruising.

It has to be said that in the cases of the unlawful ReSPECT forms that we found, the GP surgeries in question responded immediately to address the issues raised. In addition, an NHS ReSPECT lead has confirmed that further training is under way to ensure that such fundamental errors should not arise in the future, particularly for those who lack capacity. Other legal challenges are also available, as are of course complaints and safeguarding reports. In the meantime, relatives, friends, and professionals should ensure that any ReSPECT form that exists, especially for a resident in a care home, nursing home or in a hospital, is properly created. We do not know how many other unlawful ReSPECT forms are out there which could have potentially tragic consequences.

Bharati Gidoomal & Richard Charlton

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