Following the revelations by the CQC that blanket DNAR orders (Do not attempt to resuscitate) were being imposed by care homes on the recommendations of GPs during the first stage of the Covid-19 pandemic, there has been a wave of understandable outrage. Following complaints about widespread use of DNARs without reference to the individuals themselves or their families, the CQC was asked to review their use and has recently issued its interim report noting: “Early findings are that at the beginning of the pandemic, a combination of unprecedented pressure on care providers and other issues may have led to decisions concerning DNACPR being incorrectly conflated with other clinical assessments around critical care.”
What is a DNAR?
A DNAR notice refers specifically to cardiopulmonary resuscitation (CPR) in the event of either cardiac or respiratory failure rather than any other resuscitative treatment. The nature of CPR, which can be a very physical intervention resulting in broken ribs and bruising, means that it is not appropriate in every case of heart or lung failure. Nonetheless, the overriding legal principle is that any decision around a DNAR notice must be discussed with the individual patient or, if they lack capacity, with their legal representative (such as a Health & Welfare attorney), family or person(s) with caring responsibilities. There is no scope for imposing a blanket DNAR on a group of individuals – this goes against all clinical and legal guidance. It seems clear that the alarming rise in Covid-19 cases and related deaths among the physically frail (which included those with disabilities as well as age-related frailty) during the first spike, led GPs to recommend the mass application of DNARs.
When can a DNAR order be issued?
Doctors are able to impose a DNAR without the consent of either the patient or their family, but their scope for doing so is limited; previous judicial reviews have ruled that it is imperative to discuss the issues with the patient or their representatives. There are three main reasons for a DNAR to be put in place: the patient has explicitly requested one; to attempt CPR would be futile; or that attempting CPR would not be in the patient’s best interests.
Understandably, many people may be reluctant to discuss a DNAR notice but if this is the case, this must be recorded in the patient’s medical notes. Likewise, if the patient is likely to suffer physical or psychological harm by being involved in discussions around the issuing of a DNAR order, then this also needs to be clearly recorded. In all other circumstances, patients, or their representatives, must be included in the decision-making process. Patients who do not agree with their doctor’s decision to put a DNAR in place can seek a second opinion. It is also worth noting that a DNAR does not prevent a patient receiving other treatment – it is specific to CPR only.
How a Health & Welfare Lasting Power of Attorney can help
The most effective way of exercising control over future treatment decisions is to have a health and welfare lasting power of attorney (LPA) in place. This is a legally binding document that allows you to appoint people you trust to make decisions on your behalf about your future health, welfare and medical treatment should you lose capacity to do so. Although doctors will make the final decision about the most appropriate treatment for you, an LPA will ensure that your legal representatives are involved in any related discussions and they, of course, will know your wishes and will advise accordingly. To accompany your LPA, you can draft a letter of wishes or an advance decision (commonly known as a living will) which will state your wishes in relation to life-sustaining treatment (such as artificial nutrition and hydration) as well as a DNAR notice. An advance decision is not binding but it does help to guide doctors when talking to someone about end of life treatment. However, it is important to note how advance decisions and LPAs interact and it is advisable to seek professional guidance to ensure that the two documents do not invalidate each other. It is also wise to keep both documents under regular review.
Early discussions about DNAR orders are helpful
Talking about end of life treatment, including DNAR notices, can be difficult and distressing. However, the sooner the discussion can take place, the easier it is for everyone concerned to come to terms with what may be necessary. This pandemic has forced many people to face their mortality possibly earlier than they might have expected; an LPA, and possibly an advance decision, allows you to retain a degree of control to the end – whether exercised directly or via your appointed attorney.
The CQC has stated that it believes that the imposition of blanket DNARs has stopped and was primarily a panic response in the face of a rising tide of seriously ill, frail people. It is continuing its investigation and is due to publish its final report early next year.