Examining the Rise of DNAR Orders During the COVID-19 Pandemic
Amid the ongoing COVID-19 pandemic, a number of reports have emerged in media outlets about proposals by certain GP surgeries to apply DNARs wholesale to individuals with certain characteristics, such as those living with certain physical, learning, and/or sensory disabilities, without further consideration of their circumstances. These reports have caught the attention of the NHS, leading to the publication of detailed guidance, as well as the media, and human rights activists, sparking a much-needed discussion on the use of DNARs during the COVID-19 pandemic. However, before engaging with the substance of these reports, it is first necessary to examine the nature of DNARs and the complex legal framework that surrounds their implementation. Ultimately, it will be argued that the wholesale use of DNARs targeted at certain individuals, absent any detailed consideration of individual circumstances, is unjustifiable and arguably unlawful.
Explaining DNARs
The term DNAR is used as an acronym for a ‘Do-Not-Attempt-Resuscitation’ order. These are, in effect, statements that are kept in a patient’s medical notes stating that cardiopulmonary resuscitation (CPR) should not be attempted. The term is often colloquially used in the media to encompass a number of entirely distinct types of DNAR; however, the author wishes to draw a foundational distinction between two of these forms.
The first type of DNAR is an order made in advance (alternatively referred to as a “living will”) by an adult with decision-making capacity, which expresses a wish to refuse CPR at a later date. Here the DNAR is intended to take effect at an unspecified future date should the patient lack the capacity to refuse resuscitation at that point in time. It is an established principle of English law that individuals with decision-making capacity have the legal right to refuse treatment (including life-saving treatment). This was recognised by the Mental Capacity Act 2005[1] (MCA 2005).
The second type of DNAR is an order made by a clinician for, and on behalf of, a patient who lacks decision-making capacity to the effect that CPR should not be attempted. The law imposes a duty on the clinician, in making such a decision, to both assess and act in accordance with a patient’s ‘best interests.’[2] It is trite to state that CPR would be in the ‘best interests’ a patient if, for example, the use of CPR would likely result in the patient recovering and living healthily for a longer period of time. However, determining when the use of CPR is not in a patient’s ‘best interests’ and, by extension, therefore when a DNAR should be used is often significantly more complex. This article will focus on the reported increase in the use of both types of DNAR order due to the COVID-19 pandemic and examine their legality.
The Mental Capacity Act 2005 framework
It is important to note that the MCA 2005 does not define precisely what constitutes the ‘best interests’ of a patient. However, the MCA 2005 sets out a list of factors which must be considered by any clinician when making a decision to implement a DNAR. The foundational principle enshrined in the MCA 2005 is that all individuals are assumed to have decision-making capacity unless it is established to the contrary[3] and that a determination of what is in a person’s ‘best interests’ cannot be established merely by reference to an individual’s ‘age,’ ‘appearance,’[4] or ‘a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about what might be in his best interests.’[5] Broadly speaking, in outline, the provisions of section 4 of the MCA 2005 set out that, when making a determination about what is in the ‘best interests’ of a patient, a clinician must, so far as is reasonably ascertainable, consider the patient’s ‘past and present wishes and feelings.’[6] Moreover, a clinician must take into account and, if practicable, consult with the views of any individuals engaged in the caring for the individual in question or otherwise interested in their welfare.[7] As such, it is evident that clinicians ought to act in accordance with what any individual patient would wish if they had decision-making capacity. In ascertaining this, the MCA 2005 provides that a clinician should consider, so far as is reasonably ascertainable, the values and beliefs[8] of the patient.
In sum, the framework of the MCA 2005 provides an apparent subjective-objective[9] test of what constitutes the ‘best interests’ of a patient: such interests are to be objectively determined by the clinician at the relevant time, having regard to all relevant factors, including the necessarily subjective values, beliefs, and feelings of the patient. Therefore where, for example, a clinician’s medical view is that, objectively, the use of CPR is not in the ‘best interests’ of a patient (for example where the use of CPR would leave the patient in a materially worse condition), nonetheless the clinician must consider, as far as is reasonably ascertainable, the subjective wishes and beliefs of the patient.[10] It is against this complex, legal and factual background that the suggested wholesale implementation of DNARs reported in the media recently must be assessed.
Examining the rise in use of DNARs during the COVID-19 crisis
Turning Point, a leading charity supporting individuals with learning disabilities, recently indicated that it had received notice of 13 DNAR notices that it considered to be ‘unlawful’ since the beginning of the COVID-19 pandemic in the UK. The Chief Executive of Turning Point, Julie Bass, noted that, in practical terms, this meant that Turning Point had ‘come across more unlawful DNRs put in place for people who lack mental capacity than we would normally see in a year.’[11] Numerous other reported examples of accelerated and arguably inappropriate uses of DNARs during the COVID-19 pandemic have emerged, including particularly disturbing reports that three adult social care services in Somerset, Derbyshire, and East Sussex were contacted by a number of GP surgeries to say that the GPs considered that all of the individuals supported by those services (chiefly individuals with certain physical, learning, and/or sensory disabilities) should have DNARs placed on their medical records,[12] without any direct individual or familial consultation or detailed consideration of the nuanced circumstances of each individual.
Many of these DNARs were seemingly put in place despite robust official NHS guidance to the contrary. On April 1 2020, the British Medical Association issued a joint statement alongside the Care Provider Alliance, Care Quality Commission, and the Royal College of General Practice stating that it was ‘unacceptable’ for DNARs to be ‘applied to groups of people of any description.’[13] Following the alarming reports recounted above, a further joint statement made by NHS England’s Chief Nursing Officer and National Medical Director on April 7 2020 reminded all NHS trusts and GP providers that the imposition of blanket DNAR forms was not ethically acceptable—‘Blanket policies are inappropriate whether due to medical condition, disability or age.’[14] It is important to note that, in essence, these statements of policy merely reflect the established consensus that consultation must, where possible, be at the heart of the decision to put a DNAR in a patient’s medical record.
While it is true that a patient does not have to strictly consent to the application of a DNAR, in 2014 the Court of Appeal in a landmark decision[15] established that, absent extraordinary circumstances, the failure to consult a patient prior to the use of a DNAR amounted to an unjustifiable interference with the human rights of a patient. Therefore, beyond merely contradicting NHS guidance and best practice, it is arguable that the approach of certain GPs to ask all patients with certain identity characteristics (such as those with learning difficulties) to sign DNARs in advance may amount to an unjustifiable interference with one’s autonomy interests under Article 8 of the European Convention on Human Rights (ECHR), and violate the principles of non-discrimination under Article 14 ECHR. Furthermore, attempts to put in place blanket DNARs applicable to certain individuals, without appropriate familial or individual consultation, clearly contravene the established requirements of the MCA 2005. The requirement for prior consultation, whenever possible, has been described in case law as a ‘core principle’ in the absence of which it would be ‘procedurally flawed’[16] to issue a DNAR.
Conclusion
While it is certainly understandable that during the COVID-19 pandemic medical resources may be stretched, it is incumbent upon us to challenge the use of DNARs and ask why, despite such clear guidance to the contrary, DNARs are, according to reports, being issued at an ever increasing rate in a manner that clearly contravenes the provisions of the MCA 2005. It is the author’s view that the blanket application of DNARs for all individuals with certain identities, such as those living with learning, sensory, or physical disabilities, without appropriate individual attenuation and consultation not only directly contradicts existing NHS guidance, but is also of questionable legality.
It is argued that the wholesale use of DNARs targeted at certain individuals, absent any detailed consideration of individual circumstances, is unjustifiable and arguably unlawful. Image source: Rebecca Vine via Activists at Work
Turning Point, a leading charity supporting individuals with learning disabilities, recently indicated that it had received notice of 13 DNAR notices that it considered to be ‘unlawful’ since the beginning of the COVID-19 pandemic in the UK. Image source: Celia Jacobs
Beyond merely contradicting NHS guidance and best practice, it is arguable that the approach of certain GPs to ask all patients with certain identity characteristics (such as those with learning difficulties) to sign DNARs in advance may amount to an unjustifiable interference with one’s autonomy interests under Article 8 ECHR, and violate the principles of non-discrimination under Article 14 ECHR. Image source: Medical Futility Blog
It is the author’s view that the blanket application of DNARs for all individuals with certain identities, such as those living with learning, sensory, or physical disabilities, without appropriate individual attenuation and consultation not only directly contradicts existing NHS guidance, but is also of questionable legality. Image source: medium.com
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Sources Cited
[1] Mental Capacity Act 2005 (MCA 2005), ss 24 and 26.
[2] ibid, s 1(5).
[3] ibid, s 1(2).
[4] ibid s 4(1)(a).
[5] ibid, s 4(1)(b).
[6] ibid, s 4(6)(a).
[7] ibid, s 4(7)(b).
[8] ibid, s 4(6)(b).
[9] John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (OUP 2012) 16
[10] MCA 2005, s 4(6).
[11] Rebecca Thomas, ‘“Unprecedented” number of DNR orders for learning disabilities patients’ (HSJ, 24 April 2020) <https://www.hsj.co.uk/coronavirus/unprecedented-number-of-dnr-orders-for-learning-disabilities-patients/7027480.article> accessed 5 May 2020.
[12] Frances Ryan, ‘It is not only coronavirus that risks infecting society – our prejudices do, too’ (The Guardian, 9 April 2020) <https://www.theguardian.com/commentisfree/2020/apr/09/nice-guidelines-coronavirus-pandemic-disabled> accessed 4 May 2020.
[13] ‘Joint statement on advance care planning’ (Care Quality Commission, 3 April 2020) <https://www.cqc.org.uk/news/stories/joint-statement-advance-care-planning> accessed 5 May 2020.
[14] Letter from Ruth May and Stephen Powis to Chief executives of all NHS trusts and foundation trusts and others (7 April 2020) <https://www.england.nhs.uk/coronavirus/wpcontent/uploads/sites/52/2020/04/maintaining-standards-quality-of-care-pressurised-circumstances-7-april-2020.pdf> accessed 4 May 2020.
[15] Tracey v Cambridge Uni Hospital NHS Foundation Trust and others [2014] EWCA Civ 822.
[16] Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 (QB), [2016] QB 691[45] – [47] (Blake J).