DNAR orders can be medico-legally lethal

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By Charles Foster and Professor Tony Hope

Do not attempt resuscitation orders (DNAR orders), have been much in the news. There is concern about them being slapped on patients’ notes without adequate, or any, consultation with the patient or, if the patient is incapacitate, with the relatives or carers.

It’s worth standing back and looking at the legal status of these DNAR orders.

“DNAR order” is not a legal term. It refers to two entirely legally distinct types of direction. Clinicians often fail to distinguish between them. That failure is medico-legally dangerous for the clinician, and can be lethal for the patient.

Some basics: a DNAR order is a note to clinicians who attend a patient who has suffered a cardiac/cardio-pulmonary arrest. The note indicates that the patient should not be resuscitated. By definition a DNAR order will only be relevant when, by reason of the arrest, the patient is incapacitate. Prima facie, then, in the case of an adult patient, the Mental Capacity Act 2005 applies.

What does the Act say about this situation?

First: the basic principle is that the clinicians must act in the patient’s best interests. In ascertaining “best interests” they must have regard to the list of criteria in s 4. Section 4(6) provides:

“(6) He [the relevant clinician] must consider, so far as is reasonably ascertainable—

(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.”

Section 7 provides further that:

“(7) He [the clinician] must take into account, if it is practicable and appropriate to consult them, the views of—

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6)”.

Second: the Act of course makes provision for advance decision relating (inter alia) to the refusal of treatment. An advance decision, if “valid” and “applicable”, has the same effect as a refusal of treatment by a competent patient. If an advance decision relates to the refusal of life-sustaining treatment, it must be in writing, signed and witnessed: see s 25(6).

A lawful “DNAR order” may be either (a) a preliminary attempt to determine pre-emptively the likely outcome of the mandatory best interests determination carried out at the time of the arrest, or (b) a statement about the existence of an advance decision that complies with the formalities under the Act.

It is legally dangerous:

(a) To confuse (a) and (b), regarding (a) as having the legal effect of an advance decision.

(b) To regard (a) as a definitive best interests determination. The person responsible for the best interests determination under the Act is the person who attends at the arrest and makes the decision about whether or not to resuscitate. Of course, it is legitimate and clinically sensible to discuss the likely outcome of that best interests determination beforehand, rather than leaving it until the blue lights are flashing, but clinicians should beware of giving those earlier discussions a status that the law does not allow them.

(c) To fail, in the discussions leading to a preliminary best interests determination, to embark on the inquiries mandated by s 4. Those inquiries may involve an uncomfortable discussion with the patient.  




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