An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

We are now well aware that in England and Wales, a decision that anticipates withholding cardiopulmonary resuscitation (CPR) when a patient’s heart or breathing stops must be discussed with them beforehand. This obligation is important, because it allows the patient to bring to our attention matters to which we, as clinicians, are almost certainly oblivious. The patient may be days away from the maturity of an insurance policy, earmarked as an essential support for the family’s finances; or perhaps a wedding or birth is imminent, at which the patient regards herself as an essential guest. The prospect of remaining alive for these events may be, for the patient, a sufficient benefit to make the risk of enduring cardiopulmonary resuscitation acceptable.

This revelation will not necessarily sway our decision as to whether CPR is in the patient’s best interests; it is the doctor, not the patient, who is the decision-maker in these circumstances. But it is self-evidently essential that we consider the patient’s wishes in this respect. If the patient so requests, we should provide them with a second opinion with respect to the advisability of CPR.

There is a qualification to this duty: If we believe that the discussion relating to withholding CPR will cause not just distress, but also harm, we may avoid it.

To what extent does this duty to discuss resuscitation apply to relatives, when the patient lacks the capacity to contribute? The mother of 28 year old Carl Winspear claimed that his human rights were breached, because she was not consulted over the DNAR decision made about him. He had cerebral palsy and had been admitted to hospital with pneumonia, necessitating oxygen, fluids and antibiotics, lacking capacity to discuss his possible needs for resuscitation.

After his admission to the ward at 19.00, Carl’s mother went home at 21.00, called the ward again at 22.00, and went to bed. The registrar looking after her son considered that his severe kyphosis and flexion contractures made the performance of effective CPR impossible. The registrar asserted that ‘he did not want to inflict a treatment that was distressing, painful and undignified because it had no chance of success’. Accordingly, he entered “DNACPR. Speak to family in the morning” in the notes.

Explaining why he did not first discuss his decision with Carl’s mother, the registrar did not think Carl had a high risk of deterioration overnight; although he was unwell, he was stable. He delayed filling in the prescribed DNACPR form until the opportunity to discuss the decision with Ms Winspear arose later that morning.

Following a conversation with mother shortly before midday, the order was cancelled. Subsequently, it was explained that artificial ventilation was unsuitable, because he would be unlikely ever to be weaned off it. His condition deteriorated that evening and he died of bronchopneumonia at 23.05.

The litigation that followed concerned only the lack of consultation with his mother; no criticism was levelled at the clinical decision itself.

The court found that in the circumstances, it would have been appropriate to discuss the proposed decision with Carl’s mother; it was plainly important; she had been Carl’s lifelong carer; that she had travelled into hospital with him and had remained in contact whilst at home. All of this established her ‘credentials’ as an interested relative. It was also practicable for the registrar to contact her by telephone at 0300, to discuss the proposed decision, before the DNACPR notice had been appended to her son’s notes. Accordingly, Carls rights had been breached by the failure to consult with his mother, before the final decision over his resuscitation status had been made.

This case provides explicit guidance. We must discuss proposed DNACPR decisions with the relatives of incapacitated patients, providing it is appropriate and practicable to do so, before the decision is made.

Robert Wheeler
Department of clinical law