One portion of our survey pertained to the process of making and recording DNACPR recommendations for care home residents. Here, a DNACPR recommendation must take into account the persons wishes, feelings, beliefs and values and consultation should usually be undertaken in order to determine what those wishes, feelings, beliefs and values are (BMA, RCUK and RCN, 2016, p. 13). The COVID-19 pandemic brought renewed attention to the so-called Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) recommendationsrecommendations, made in advance, about whether to attempt cardiopulmonary resuscitation (CPR) if a person stops breathing and/or their heart stops beating. The composition of each focus group was determined by both practical considerations of participant and researcher availability, and consideration of the professional backgrounds and roles represented within each group. This article will also analyse commonly used DNACPR forms, as well as the Recommended Summary Plan for Emergency Care and Treatment (ReSPECT) form, which aims to incorporate DNACPR decisions as part of more holistic end-of-life care planning. The participant reported that, ordinarily, general practitioners (GPs) would review DNACPR recommendations made in the hospital upon return to the care home, but this procedure had not always been followed during the pandemicand Care homes werent actually even informing the GP that a DNACPR order had been put on the individual: I had a gentleman who was very fit and healthy, and contracted COVID and ended up in hospital. The National Mental Capacity Forum is pleased to announce the launch of a second series of National Mental Capacity Webinars, produced in collaboration with the Autonomy Project at the University of Essex, and with support from the Ministry of Justice and the Department of Health and Social Care. Strictly speaking, DNACPR forms record the assessment of a persons best interests at a certain point in time that CPR should not be administered at a later point, but they are not binding and rather provide guidance to the person who needs to make a decision on CPR in an emergency situation. Even though these cases are regarded as purely clinical, consultation to determine the persons wishes would still be required. On the lilac form, one of the reasons for which a DNACR form can be signed is that CPR is unlikely to be successful, but no explanation is provided as to how likelihood is to be understood or evaluated. For full access to this pdf, sign in to an existing account, or purchase an annual subscription. One participant explained that consultation during the pandemic has happened in a very, very fast-paced way, which is why it may feel rushed (BIA). Code of Practice (TSO 2007) para 5.31. These initial codes were then re-contextualised (Bengtsson, 2016) by re-reading transcripts to ensure coverage, and agreed through discussion amongst all authors. No explanation is given as to the circumstances in which a discussion with relevant others would be necessary. The guidance states that, where no consultation has taken place, the reasons for this lack of consultation should be documented on the DNACPR form (BMA et al., 2016, p. 3). There is no simple solution to this problem, but it is nonetheless important that new standards, guidance and training include strategies for addressing it. In contrast, responsibility for a DNACPR recommendation ultimately lies with the relevant medical professional. The Mental Capacity Act 2005 (MCA) permits treatment to be provided to those who lack capacity only if the treatment is reasonably believed to be in the patient's best interests. Burke, R (on the application of) v General Medical Council & Ors [2005] EWCA Civ 1003. Winspear made clear that the Article 8(1) of the ECHR and common law duties to consult are also owed to persons who lack capacity. The red form mentions as a first reason why CPR would be inappropriate that there is no realistic possibility of CPR succeeding. Equally, the forms do not clarify what could be acceptable reasons for not carrying out a consultation. The aim of the present research was to investigate DNACPR practices within care homes during the pandemic; to better understand the role that capacity professionals might play in ensuring the lawful use of DNACPR recommendations in this setting and to consider how these professionals can best be supported in that role. Our analysis brought to light areas of continuing legal uncertainty regarding DNACPR decisions, but also significant areas of misalignment among current legal standards, authoritative guidance, and the proformas used to record such decisions. Z Fritz and others, Resuscitation Policy Should Focus on the Patient, not the Decision (2017) 356 BMJ j813. DNACPR - Mental Capacity Law and Policy Tag: DNACPR Legislative developments Revised CPR Guidance Published 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 Read More 30 June 2016 There is also a tick box for whether or not the decision was discussed with a relevant other person, asking for detail but providing very little space for presenting it. The ReSPECT form, produced by the National Resuscitation Council, serves a broader purpose, covering an array of issues pertaining to ceilings of treatment and end-of-life planning in addition to recommendations about CPR. St George's Healthcare NHS Trust v P (by his litigation friend, the Official Solicitor), Q [2015] EWCOP 42 [35] (Newton J). And so many times its just ticked no. And then it will say, the reason why and theyll tick, or theyll write, something such as dementia. (Advanced Practitioner, Deprivation of Liberty Safeguards). In what follows, we supplement the CQCs investigation by reporting findings from an online survey and focus groups. Specific form requirements apply to advance directives that refer to life-sustaining medical treatment, as would be the case with CPR. Correspondence to Emily Fitton, Essex Autonomy Project, School of Philosophy and Art History, University of Essex, Wivenhoe Park, Colchester CO4 3SQ, UK. The survey mainly consisted of closed questions, with some opportunities for elaboration in free-text response. Such an instruction, signed by a senior clinician, might understandably be interpreted as conveying a direct and binding instruction. Where forms exist to assist professionals with making and recording important and complex decisions, they are likely to understand these forms as setting the standards they need to comply with and as adequately reflecting what is required of them. Grant number: AH/V012770/1 (Ensuring Respect for Human Rights in Locked-Down Care Homes). First, for the person making and recording the initial DNACPR recommendation, the form would provide a clear indicator of the grounds upon which a DNACPR recommendation might be challenged, serving as a prompt to reinforce good practice. DNACPR decisions are non-binding decisions made by health professionals, in certain circumstances jointly with the person concerned. A new section which outlines core ethical principles, and UK law around resuscitation. But if lack of success can only rarely be predicted with certainty, we propose that similar consultation rules should apply to all DNACPR decisions, regardless of the grounds upon which they are made. More than two-thirds of the respondents (318 of 459) replied affirmatively (NMCF, 2022). The red form makes no reference to benefits and quality of life, but it provides as one of three possible grounds for a DNACPR decision that the patients condition indicates that CPR would have an uncertain outcome and that, after discussion, it was agreed that CPR would not be appropriate. An advance decision to refuse treatment (ADRT) is a written statement of your wishes to refuse a certain treatment in a specific situation. To call them orders or instructions is misleading and risks fostering misunderstanding of their legal status. But how should the concept of futility be understood and applied in this context? Care Quality Commission, Protect, Respect, ConnectDecisions about Living and Dying Well during COVID-19 (2021) (last accessed on 26 March 2022). Only decisions to provide treatment require a defence against a potential battery actioneither in the form of consent, where the individual concerned has capacity, 27 or in the form of the best interests tests, where this is not the case (section 5 of the Mental Capacity Act (MCA)). They would rather be bound to follow the form. Lord Goff stated that: I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. The senior clinician responsible has made the decision in consultation with the person and in line with the Mental Capacity Act 2005. Where a person is dying from an irreversible condition, CPR may be futile, or the benefits minimal and administering it may preclude a peaceful and dignified death (General Medical Council [GMC], undated, para 128). Focus group participants affirmed that DNACPR forms have influenced medical decisions beyond CPR. To use a DNACPR recommendation as the basis for denying other life-saving measures, or for the refusal of hospital admission, thus constitutes an unlawful departure from their authorised use. Regina (Tracey) v Cambridge University Hospitals (n 3) [32] (Lord Dyson MR). Two hundred sixty-two individuals responded to the survey; twenty-two individuals participated in the focus groups. To flag this and avoid confusion as to the legal force and status of DNACPR decisions, it is important that DNACPR forms clearly identify them as recommendations, as the ReSPECT form does. I do not consider that, in circumstances such as these, a doctor is required to initiate or to continue life-prolonging treatment or care in the best interests of his patient. Particularly problematic is the common truncation of the DNACPR acronym to DNARDo Not Attempt Resuscitation. Individual preferences for CPR also vary. In order to determine whether the benefits of CPR would be likely to outweigh the harms and burdens, or whether the level of recovery expected would be acceptable to the patient, there should be sensitive exploration of the patients wishes, feelings, beliefs and values.90. To do this, there needs to be clear and consistent training, standards, guidance and tools for the current and future workforce. For example, some persons, whether for religious or other reasons, may be quite clear in wishing for any and all treatment options to be exhausted, no matter how invasive, provided that there is some prospect that the treatment will be successful. The ReSPECT form includes at its top a question about the existence and location of other relevant care planning documents, including advance refusals to consent to CPR. Mental Capacity Act 2005. One strategy for reinforcing such training in the ongoing practice would be to include a dedicated section on the DNACPR form itself in which requests for review can be recorded. As decisions about CPR, by their nature, need to be made in acute crisis situations and under enormous time pressure, the purpose of DNACPR decisions is to record in advance whether or not CPR should be initiated, and to avoid resort to CPR in circumstances where it would be inappropriate to administer it. The practice of issuing blanket DNACPR decisions for all residents of a care home or for a group of persons with shared characteristic, such as age or disability, without carrying out individualised assessments of each persons situation, is thus clearly unlawful.26. One participant reported that, in the context of the pandemic, a DNACPR recommendation effectively means that a resident will not be transferred to hospital if they fall ill. There is thus not a single and uniformly accepted and applied legal definition of futility. They can be broad, refusing CPR in all circumstances, or narrow, refusing it only in particular situations, e.g. Often coming from a social work background, their professional role requires them to apply the provisions of the 2005 Mental Capacity Act (MCA). In particular, we sought to understand: whether participants felt adequate consultation had taken place prior to the making of a DNACPR recommendation; whether they had encountered blanket DNACPR recommendations; whether and in what ways the presence of a DNACPR recommendation had impacted other forms of treatment and what their experiences were in relation to the review of DNACPR recommendations. ibid [89] (Longmore LJ); [94] (Ryder LJ). Ethical approval for the survey and focus groups was obtained by the University of Essex Humanities Subcommittee. This includes seeking the persons own views where possible as well as those of appropriate others on the persons quality of life and best interests, a point we return to below in the context of a discussion of the consultation requirement. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken.76, Indeed, individuals can only be involved in their own care and, for example, reach the conclusion to refuse CPR, if they are told about DNACPR decisions that are being considered and informed of the reasons for them.77 Also, not to be told about the decision would deprive the individual of the opportunity to seek a second opinion.78, since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there is a presumption in favour of patient involvement. During the categorisation and compilation stages, sub-categories were further refined and discussed, resulting in the two primary categories explored below. As we have seen, current guidance establishes different standards for consultation, depending on the basis for the DNACPR decision. 25 A declaration could thus be sought that the application of the DNACPR was unlawful, most probably under the inherent jurisdiction or the Mental Capacity Act 2005 if the patient lacked the capacity to make decisions for . As both the CQCs report and our own data make evident, however, clear guidance on DNACPR has not always proven to be effective in ensuring lawful practice. Where poorly designed, they also have the potential to mislead or to reinforce poor practice. In what follows, this article will closely analyse these and related issues. Sample characteristics are provided as Supplementary Material. It is worrying that this seems to have been interpreted to mean more generally that where someone lacks capacity, consultation must only take place with those mentioned in section 4(7) of the MCA. The law on binding advance treatment refusals can be found in sections 2426 of the MCA 2005. The overall clinical responsibility for decisions about CPR, including DNACPR decisions, rests with the most senior clinician responsible for the persons care as defined explicitly by local policy. The Author(s) 2023. From a legal point of view, a DNACPR decision only becomes relevant if no advance CPR refusal exists.42. As we have seen, when the basis of a DNACPR recommendation is the medical conclusion that CPR will not restart the heart and breathing for a sustained period, clinical judgement is determinative. It follows that no such duty [exists] in the case of Anthony Bland, whose condition is in reality no more than a living death, and for whom such treatment or care would, in medical terms, be futile.51. The CQCs call for new guidance, training and standards provides an opportunity to address those longstanding issues. Who would have an ACP? The Supreme Court also discussed the concept of futility in Aintree. Given that the narrow clinical purpose of the treatment at issue could have been achieved, the way the concept of futility is applied clearly implies a quality-of-life decision. No reasons are given for this distinction. They would also like to thank their external project partners, who helped develop their study design and distribute the survey invitation. These guidelines should be operationalised in accordance with national mental capacity law. Thus, where a person is afflicted with a disability or an incurable illness, a DNACPR decision cannot be justified simply on the basis that resuscitation would restore the person to the disabled or ill state they were in before suffering a cardiopulmonary arrest, but not to a state of good health without disability. If it is completed according to the Mental Capacity Act 2005 it is legally binding. The recommendations made in the CQC report are important and welcome. Responses to our survey supported CQC findings regarding DNACPR recommendations in the context of the pandemic. Drawing on our empirical findings, supplemented by normative considerations drawn from existing law and guidance, we identify five areas of concern to be addressed in new policy and training for capacity professionals working in or with residential care facilities. The ReSPECT form rightly refers to a DNACPR recommendation and makes clear right at the beginning that the form is not a legally binding document. However, as soon as such uncertainty comes in, it is no longer clear why a decision as to whether or not to attempt CPR should be exclusively in the domain of clinical knowledge. In determining this, regard must be given to what is commonly referred to as the 'best interests checklist'. Whilst some DNACPR forms include a field to indicate a review date, the absence of national guidance results in the significant regional variation in review practices (Freeman et al., 2015). In addition, they show continuing confusion among frontline professionals as to the meaning and scope of DNACPR decisions and their appropriate use, both during and prior to the pandemic.13. Thus, futility was not assessed with regard to whether the treatment at issue, in this case artificial nutrition and hydration, had a chance of success in terms of achieving its immediate and physiological purpose, i.e. To provide a framework for people who wish to plan ahead for a time when they may lack capacity A revised, standardised DNACPR form should explicitly warn against reliance on a DNACPR recommendation in making other care decisions. In answering the CQCs call for new standards, guidance and training, it is worth keeping in mind that existing guidance is generally clear and accessible, and covers many of the essential legal points summarised above (BMA, RCUK and RCN, 2016), although one notable exception, as Freeman et al. However, where a DNACPR decision is made under these conditions, it seems important to record on the DNACPR form that there was a disagreement and what the different views were, so that the health professional who needs to decide whether to administer CPR in case of an arrest is privy to this information. Other courts applied futility with a narrow focus on the immediate function of the treatment in question, and thus its clinical effectiveness, which is only one of two parts of the futility definition applied in Bland and Aintree. Neither form provides an explanation for how success of the treatment should be assessed. Winspear concerned a man who was so severely disabled from birth that he never had capacity and it was impossible to communicate with him about his wishes, feelings, values, and beliefs.
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