Alex RK
The British Medical Association (BMA), the Resuscitation Council (UK), and the Royal College of Nursing (RCN) have today (3o June) issued updated guidance regarding anticipatory decisions about whether or not to attempt resuscitation in a person when their heart stops or they stop breathing.
This update to the 3rd edition takes into account, in particular, the decision in the Winspear case, concerning the requirement to consult family members (or others properly concerned in the person’s welfare) where they do not have capacity to participate in the process leading to decisions made about CPR.
I reproduce below the main messages from the guidance, although cannot emphasise enough that they are not intended to be a substitute for reading the whole document and having regard to the clear and helpful flow-charts to assist decision-making.
1. Considering explicitly, and whenever possible making specific anticipatory decisions about, whether or not to attempt CPR is an important part of good-quality care for any person who is approaching the end of life and/or is at risk of cardiorespiratory arrest.
2. If cardiorespiratory arrest is not predicted or reasonably foreseeable in the current circumstances or treatment episode, it is not necessary to initiate discussion about CPR with patients.
3. For many people, anticipatory decisions about CPR are best made in the wider context of advance care planning, before a crisis necessitates a hurried decision in an emergency setting.
4. Every decision about CPR must be made on the basis of a careful assessment of each individual’s situation. These decisions should never be dictated by ‘blanket’ policies.
5. Each decision about CPR should be subject to review based on the person’s individual circumstances.
6. In the setting of an acute illness, review should be sufficiently frequent to allow a change of decision (in either direction) in response to the person’s clinical progress or lack thereof. In the setting of end-of-life care for a progressive, irreversible condition there may be little or no need for review of the decision.
7. Triggers for review should include any request from the patient or those close to them, any substantial change in the patient’s clinical condition or prognosis and transfer of the patient to a different location (including transfer within a healthcare establishment).
8. For a person in whom CPR may be successful, when a decision about future CPR is being considered there must be a presumption in favour of involvement of the person in the decision-making process. If she or he lacks capacity those close to them must be involved in discussions to explore the person’s wishes, feelings, beliefs and values in order to reach a ‘best interests’ decision. It is important to ensure that they understand that (in the absence of an applicable power of attorney or court-appointed deputy or guardian) they are not the final decision-makers, but they have an important role in helping the healthcare team to make a decision that is in the patient’s best interests.
9. If a patient with capacity refuses CPR, or a patient lacking capacity has a valid and applicable advance decision to refuse treatment (ADRT), specifically refusing CPR, this must be respected.
10. If the healthcare team is as certain as it can be that a person is dying as an inevitable result of underlying disease or a catastrophic health event, and CPR would not re-start the heart and breathing for a sustained period, CPR should not be attempted.
11. Even when CPR has no realistic prospect of success, there must be a presumption in favour of explaining the need and basis for a DNACPR decision to a patient, or to those close to a patient who lacks capacity. It is not necessary to obtain the consent of a patient or of those close to a patient to a decision not to attempt CPR that has no realistic prospect of success. The patient and those close to the patient do not have a right to demand treatment that is clinically inappropriate and healthcare professionals have no obligation to offer or deliver such treatment.
12. Where there is a clear clinical need for a DNACPR decision in a dying patient for whom CPR offers no realistic prospect of success, that decision should be made and explained to the patient and those close to the patient at the earliest practicable and appropriate opportunity.
13. Where a patient or those close to a patient disagree with a DNACPR decision a second opinion should be offered. Endorsement of a DNACPR decision by all members of a multidisciplinary team may avoid the need to offer a further opinion.
14. Effective communication is essential to ensure that decisions about CPR are made well and understood clearly by all those involved. There should be clear, accurate, honest and timely communication with the patient and (unless the patient has requested confidentiality) those close to the patient, including provision of information and checking their understanding of what has been explained to them. Agreeing broader goals of care with patients and those close to patients is an essential prerequisite to enabling each of them to understand decisions about CPR in context.
Speaking for myself, I do hope that this – very important – document is the last iteration of its kind before we can move beyond the fixation with DNACPR decisions into a broader approach to advance care planning: see in this regard the ReSPECT (Recommended Summary Plan for Emergency Care and Treatment) project currently being undertaken by the Resuscitation Council (UK).
You can find this in the CPR Guidance, on page 20:
‘It is important to understand that a personal welfare
attorney is not empowered to make decisions on behalf of
a patient regarding whether or not CPR will be attempted,
unless their power of attorney document states specifically
that the personal welfare attorney has the power to consent
to or refuse life-sustaining treatment (which would include
CPR). It is likely (although this has not been tested by
the courts) that in such a case the attorney can make an
advance decision that CPR should not be attempted. Such
a decision should be recorded on the CPR decision form or
equivalent. If the welfare attorney makes that decision, it is
a binding decision that clinicians must respect, unless:
• the circumstances of a cardiorespiratory arrest are not
those envisaged when the advance decision about CPR
was discussed with and made by the welfare attorney, or
• the clinician has good reason to believe that the decision
made by the welfare attorney was not made on the basis
of the patient’s best interests.
A deputy does not have such a power, nor does any other
person close to the patient.
Where there is disagreement between the healthcare team
and an appointed health and welfare attorney or court-appointed
deputy about whether CPR should be attempted
in the event of cardiorespiratory arrest, and this cannot be
resolved through discussion and a second clinical opinion,
the Court of Protection may be asked to make a declaration.
More information about welfare attorneys, deputies and the
Mental Capacity Act can be found in the Mental Capacity
Act code of practice37 (see page 23 for decision-making and
legal representatives flow chart).’
Now, I fundamentally disagree with certain things in this version of the CPR Guidance [as I did with the earlier versions], and I have been writing about this guidance in a piece on the Dignity in Care website. I only discovered this website earlier today, and I am not sure if I am allowed to post links. But what I wrote about the above section in my DIC piece (titled ‘A Criticism of the BMA/RCN/RC(UK) Joint CPR Guidance’) is this:
I’ll explain my objections as they occurred, when I read that.
‘It is likely (although this has not been tested by the courts) that in such a case the attorney can make an advance decision that CPR should not be attempted.’
Patients can make – and write down – Advance Decisions to refuse CPR: and this type of patient-expressed decision is covered by sections 24-26 of the MCA.
A Welfare Attorney most definitely CANNOT make such an ‘advance decision’ – what a welfare attorney can definitely do, if it can be done at all, is to make a best-interests decision for DNACPR in advance of a CPA. This CPR guidance spends much time ENCOURAGING such ‘anticipatory DNACPR decisions’ and it most definitely supports the idea of the making of ‘anticipatory best-interests DNACPR decisions’ and of their recording in a written form. It FOLLOWS that if there is a question about [the legality of] anticipatory best-interests DNACPR decisions made by welfare attorneys, much of the guidance in this document is also in doubt.
As I have pointed out in a BMJ piece, if a welfare attorney makes such a best-interests DNACPR decision, the attorney’s signature should be the signature on any DNACPR documentation:
http://www.bmj.com/content/352/bmj.i26/rr-5
Moving on, we find:
‘If the welfare attorney makes that decision, it is a binding decision that clinicians must respect, unless:
• the circumstances of a cardiorespiratory arrest are not those envisaged when the advance decision about CPR was discussed with and made by the welfare attorney, or
• the clinician has good reason to believe that the decision made by the welfare attorney was not made on the basis of the patient’s best interests.’
Now, AS A PATIENT I would be appointing a welfare attorney to make the best-interests decisions: AS AN ATTORNEY I would have accepted that making those best-interests decisions was my responsibility to the patient.
Clinicians might feel that a welfare attorney’s decision is flawed – and a relative or friend I might take issue with a clinician’s decision/position re ‘best interests’ – but
‘If the welfare attorney makes that decision, it is a binding decision that clinicians must respect, unless the clinician has good reason to believe that the decision made by the welfare attorney was not made on the basis of the patient’s best interests.’
is NOT what the law states.
And the rules (these are very clear in the MCA) are these.
From the MCA itself:
6(6) Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by-
(a) a donee of a lasting power of attorney granted by P, or
(b) a deputy appointed for P by the court.
6(7) But nothing in subsection (6) stops a person-
(a) providing life-sustaining treatment, or
(b) doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.
Those sections of the Act are covered in the Code of Practice (a document which I am less than happy with !) in 7.29:
7.29 Attorneys must always follow the Act’s principles and make decisions in the donor’s best interests. If healthcare staff disagree with the attorney’s assessment of best interests, they should discuss the case with other medical experts and/or get a formal second opinion. Then they should discuss the matter further with the attorney. If they cannot settle the disagreement, they can apply to the Court of Protection (see paragraphs 7.45-7.49 below). While the court is coming to a decision, healthcare staff can give life-sustaining treatment to prolong the donor’s life or stop their condition getting worse.
This joint guidance implies that a welfare attorney’s best-interests DNACPR decision can be disregarded if a clinician has serious doubts about it – all the law says is that in such a situation, WHILE A COURT RULING IS BEING APPLIED FOR, CPR can be attempted.
I’ll illustrate – I’ve just noticed this particular flaw in the Code – why the Code is problematic. Immediately after section 7.29 (which is legally correct) we can read section 7.30 – and 7.30 is not legally correct:
7.30 An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority.
Nobody – not welfare attorneys, nor anybody else – ‘consents’ to a treatment during mental incapacity. Nobody ‘refuses’ a treatment, either, during incapacity. ‘Consent and Refusal’ are things which patients do during capacity (and patients can project forwards into anticipated future incapacity) – best-interests decision-making REPLACES the concept of ‘consent’ during mental incapacity.
What happens, is the treatment ‘is offered’: so, the clinicians would inform the attorney that if the patient arrested, CPR might be clinically successful. The attorney then considers the two situations of CPR being attempted, or not attempted, and the outcomes of these two alternatives, in the context of section 4 of the MCA, and the attorney would then say (or write down) ‘DNACPR is in the patient’s best interests’ or ‘attempting CPR would be in the patient’s best interests’. THAT IS NOT ‘CONSENTING TO’ ‘offered CPR’.
Another fairly obvious way of thinking about the incompatibility of ‘consent’ and best interests, is to consider the situation of the clinicians making a best-interests decision – if the concept of ‘consent’ applies during best-interests decision-making, then the clinicians would be making the decision, and also consenting to their own decision (which is absurd).
This is still in this latest version of the CPR guidance, and (see my BMJ piece mentioned earlier) I still disagree with it:
‘Some healthcare professionals have suggested that adult patients should sign CPR decision forms, in a similar way that patients provide signed consent to treatment, such as an operation. This is not a legal requirement. Such a policy could be an obstacle to effective end-of-life care for some dying patients for whom discussions about CPR decisions will be potentially harmful and unnecessary. There is no requirement for those close to patients to sign forms to confirm their agreement with/to a DNACPR decision. Asking them to do so could contribute to them inferring incorrectly that they are being asked to make the decision. It is common for those close to patients to misinterpret or forget precise detail of what they are told at such times, when they are understandably anxious and often tired. For this reason it is crucial that healthcare professionals document details of such discussions and explanations clearly in the patient’s health records.’
And the final two sentences, are still as logically stupid as they were when I complained about them a couple of years ago.
‘It is common for those close to patients to misinterpret what they are told at such times, when they are understandably anxious and often tired. For this reason it is crucial that healthcare professionals document details of such discussions and explanations clearly in the patient’s health records.’
That is ABSURD – if the healthcare professional suspects ‘misinterpretation’ of the conversation, it is the duty of the HCP to check on that, and then if necessary to explain the situation again.
And the best way to be sure such a misunderstanding has not taken place, is for whoever (this would be the layman involved, if the clinician wrote the note of the conversation: or vice versa) did NOT write down a description of the conversation, to read the written description and the to either sign it to say ‘I agree this is what we discussed’ or to write down ‘this isn’t what we discussed – in my opinion the conversation went …’.
My Dignity in Care piece about the CPR Guidance is at:
http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=883&forumID=45
There are other serious problems with this CPR guidance – the worst two are probably that this guidance implies that a verbal refusal of CPR ‘is not legally binding’ (a clear misunderstanding of the purpose of a written ADRT). See reference 1 in my BMJ piece here:
http://www.bmj.com/content/352/bmj.i1494/rr
And the second, is what I can only describe as ‘the pure invention of’ a section 6(6)(c) which would, if it were there [and it is NOT there], say ‘or the senior clinician’. In other words, the MCA gives legal authority over best-interests decision-making to attorneys and court deputies, but not to anybody else: the MCA imposes a duty on anyone who makes a best-interests decision to satisfy 4(9) (or, to be more correct, if you make a decision and can reasonably claim to have satisfied 4(9) [without breaching 6(6), etc] then the MCA gives you legal protection); and the MCA has got the very complex section 42 to deal with, but section 42 [which is horribly ‘tricky in application’ if the dispute is between laymen and professionals] does not give the same legal authority as section 6(6).