The issuing of bulk do not attempt resuscitation notices (DNAR) on older and vulnerable people has been relatively commonplace during the COVID-19 pandemic. A GP practice in South Wales issued a standardised letter to vulnerable patients informing them that they were having a DNAR notice placed on their file (Busby, 2020). In England, a report found that care homes were advised by some clinical commissioning groups and GP practices to place all their residents on DNAR orders (Knapton, 2020).
With a second wave of COVID-19 expected to compound the usual pressures on the NHS through the winter it is essential that nurses apply the law and professional duty accurately when considering DNAR orders.
DNAR notices
DNAR notices avoid the inappropriate use of cardiopulmonary resuscitation (CPR) in hospital and settings such as care homes. The notice applies to CPR only and does not exclude the provision of other active interventions, care and treatment by nurses. A DNAR notice also protects nurses and other care workers from an allegation of wilful neglect under the Criminal Justice and Courts Act: section 20(1) (R v Patel [2013]).
Duty to consult the patient
The decision to place a DNAR notice on a patient's record is generally taken by the doctor in charge of the patient's care. Controversy over the decision to issue bulk DNAR notices arises because patients and their families are not consulted about this and are unaware that a notice has been issued (Leary, 2020).
In Tracey v Cambridge University Hospital NHS Foundation Trust and others [2014], the Court of Appeal held that Article 8 of the European Convention of Human Rights (ECHR) (Council of Europe, 1950) is engaged by a DNAR decision because it concerns how an individual chooses to pass the closing days and moments of their life and how they manage their death (Pretty v United Kingdom [2002]).
Because a DNAR decision is one that potentially deprives a patient of life-saving treatment there must be a presumption in favour of patient involvement. That is, patients must be involved in the DNAR decision—in cases where such a consultation has not taken place there must be convincing reasons why not, and it is unlikely that the mere presence of a viral pandemic would amount to a convincing reason (Tracey v Cambridge University Hospital NHS Foundation Trust and others [2014]).
Consulting the relatives of incapable patients
The decision in Tracey v Cambridge University Hospital NHS Foundation Trust and others [2014] limited the right to be consulted about the placing of a DNAR notice in cases when patients have decision-making capacity.
In Winspear v City Hospitals Sunderland NHSFT [2015], the High Court held that Article 8 of the ECHR was also engaged when the patient lacked capacity to be consulted. The core principle of prior consultation applied before a decision not to attempt CPR was put in place. In these circumstances, the discussion should be with the appropriate person identified to be consulted as part of the best interests decision under section 4(7) of the Mental Capacity Act 2005. If such a person could not be identified, then there would be a duty under the Mental Health Act 1983, section 37, to instruct an independent mental health advocate on behalf of the patient because withdrawing or withholding CPR would have serious consequences for the patient.
DNAR policy
The law requires NHS bodies and GP practices to have a DNAR policy that describes the circumstances under which they would not provide CPR. The policy must be accessible and clear to be compatible with the ECHR—that is, any interference with the right to a private life, as in the case of a DNAR decision, must be:
Professional duty to consult
The initial duty set out by the courts to consult with patients or their families before issuing a DNAR notice is grounded in human rights law. Nurses and other health professionals also have a professional duty to consult before the placing of a DNAR notice. The Nursing and Midwifery Council (NMC) (2018)Code requires registered nurses and nursing associates to:
Assisting in applying bulk DNAR notices would be in breach of these standards and would be considered unprofessional behaviour.
The Resuscitation Council UK, in a joint statement with the British Medical Association and the Royal College of Nursing (BMA et al, 2016), argues that a standardised DNAR form is the best way to record the decision and ensure all policy and legal requirements have been met.
Patient-centred approach to advance care planning
DNAR notices are paternalistic, health professional decisions that, in many cases, continue to exclude the person they concern and their family (Leary, 2020). The Mental Capacity Act 2005 and the NMC Code (2018) encourage nurses to adopt a more patient-centred approach to planning care. Rather than imposing a DNAR notice, NHS bodies should be encouraged to empower patients to create advance care plans that include advance decisions to refuse treatment (ADRT), following a discussion about future care.
ADRTs allow adults with capacity to set out the treatment they would wish to refuse at a future point when they lacked capacity to make the decision themselves (Mental Capacity Act 2005: section 24). This includes life-sustaining treatment, such as CPR, that would lead to a person's death if withheld or withdrawn.
Before a nurse can rely on an advance decision, they must be satisfied that this:
Validity of an advance decision
Advance decisions to refuse treatment are informal instruments. They do not have to be made out on official forms and do not have to be scrutinised by a solicitor, court or public guardian to have effect. Advance decisions do not have to be in writing. A person can refuse treatment in advance orally. The nurse should make a record of this advance refusal, so it will be identified should the patient become incapable at some point in the future. The record should include:
Applicability of an advance decision to refuse treatment
To be an applicable advance decision, the treatment and conditions expressed by the patient must have come into effect and the patient must be incapable of making a decision to accept or refuse treatment themselves (Mental Capacity Act 2005, section 25).
To safeguard the patient, the Mental Capacity Act 2005 imposes specific formalities that have to be complied with if an advance decision is to be applicable to the refusal of life-sustaining treatment—this is defined as treatment that a person providing health care regards as necessary to sustain life, such as the CPR (Mental Capacity Act 2005: section 4(10)).
Where a person wishes to make an advance decision refusing life-sustaining treatment, the 2005 Act requires that the advance decision is:
Conclusion
The COVID-19 pandemic has, in some cases, provoked a paternalistic response to a concern that health services would become overwhelmed, by imposing bulk DNAR notices on care-home residents and other vulnerable groups. Such notices are unlawful when accessible patient-friendly policy is not available, and the consultation requirements imposed by the courts are not carried out. Nurses might face further professional sanction for breaches of the standards of the Code (NMC, 2018), which require a patient-centred approach to treatment.
With the annual winter pressures on the NHS likely to be compounded by a COVID-19 second wave, it is essential that nurses ensure that DNAR notices are applied only when the law has been complied with, and strive to avoid the need for DNAR by empowering patients to discuss and create their own advance care plans underpinned by a legally binding ADRT.