Government to issue new guidance on do not attempt resuscitation orders after legal threat

By Jane Kirby, Reporter15th July 2020News EnglandCoronavirus / Covid-19, Courts / Justice, Mental Capacity, News England, NHS, Resuscitation

The Government is to issue new guidance for patients and their families on do not attempt resuscitation orders (DNARs) after a woman threatened legal action.

Kate Masters instructed law firm Leigh Day to take the Government to court over its failure to provide consistent advice on DNARs in the wake of the Covid-19 pandemic.

She said she was concerned that DNARs were being imposed in “seemingly blanket ways”, without consultation with patients or their families.

Ms Masters’ late father David Tracey brought a successful judicial review in 2014, which established that a DNAR notice issued to his late wife Janet Tracey (pictured) without her or her family’s knowledge was a violation of her human rights.

During the Covid-19 pandemic, concerns have been raised by care organisations that elderly people and others are being pressured into signing DNAR forms.

The Government has now said it will publish two documents to ensure patients and families understand how DNAR decisions are made in light of the current coronavirus pandemic.

One document will be for patients and their families setting out matters such as the right to be involved in the decision and how to request a review, while the other is for NHS staff.

Both will be published on the NHS website.

Ms Masters had signalled her intention to apply for permission for judicial review of the Secretary of State for Health and Social Care’s failure to issue clear national guidance or a directive to ensure that patients’ Article 8 rights in relation to DNARs are protected.

Article 8 requires that DNAR decisions (also known as do not attempt cardiopulmonary resuscitation, DNACPR) are taken in consultation with a patient or their family, that patients know in advance how decisions will be made and what to do in a disagreement.

In her legal letter to the Government and Health Secretary Matt Hancock, Ms Masters provided examples of DNARs being made without consultation and said concerns about blanket DNARs were a result of Mr Hancock delegating resuscitation policies to a local level during the pandemic.

Initially, according to law firm Leigh Day, the Government maintained this was a matter for local health bodies, before accepting after legal correspondence that clearer guidance was needed.

However, a request for fuller information on the NHS website was denied, and for weeks Government lawyers “maintained that other generic statements were sufficient to inform people about DNARs and the decision-making process required by law”, Leigh Day said.

Following further legal correspondence, the Government committed to taking action, the firm added.

Ms Masters said: “I am really pleased that, following correspondence with my legal team, Matt Hancock has informed us that he will be issuing patient-facing information on the NHS website.

“Previously, in response to many stories in the press, various regulatory and professional bodies including NHS England have issued letters aimed at clinicians to remind them that DNACPR decisions must be based on clinical need and individual circumstances.

“There has however to date been no such national initiative to ensure that patients have the information to hand to ensure that they can engage in these discussions.”

Ms Masters said her lawyers had “provided specific information that needs to be made available which is based on what people have told us they are confused about and what legal rights they need to know about”.

She said she would take further action if this was not set out in the Government guidance.

Leigh Day partner Merry Varney said: “It is fundamentally important that at such a crucial stage in the care of people who may be approaching the end of their life, that people know and understand how the DNAR process works, and what authority the medical profession may have, outside of a patient’s and family’s wishes.

“Since the start of the pandemic, we have been inundated with requests for help from confused and distressed patients and families about do not resuscitate decisions.

“Many appear to have had their right to respect for private life infringed, just as Kate’s mother had, with evidence of DNARs being implemented without consultation, without families being told, and without any clear explanation of the process for making these decisions.”

Davina Hehir, director of policy and legal strategy at Compassion in Dying, which supported the move, said: “This is a victory for common sense.

“Coronavirus has highlighted and exacerbated ongoing problems concerning accurate and accessible national guidance regarding CPR, the lack of which has contributed to a proliferation of poor and unlawful practice during the pandemic.

“We know that many patients who express a wish to protect themselves from potentially harmful or futile CPR are not supported to do so, and equal distress is caused when a DNACPR decision is not thoroughly and sensitively explained to a patient and their family.

“Both scenarios completely undermine person-centred care at the end of life, and risk jeopardising sensible efforts to demystify CPR decisions and improve communication between doctors, patients and families around end-of-life decisions.”

A Department of Health and Social Care spokeswoman said: “We have made clear that it is completely unacceptable for DNACPR orders to be applied in a blanket fashion to any group of people.

“The Government has taken consistent action on a number of fronts to prevent this from happening and NHS England is currently creating patient-facing guidelines on how to challenge a DNACPR and access support.

“This work was already under way and is not a result of legal action.”