This is a personal view about the recent high court decision around cardiopulmonary resuscitation (CPR). This opinion identifies that the judge failed to recognise the statutory role given to clinicians in identifying when a treatment is life sustaining. In failing to recognise the role of the clinician, the ruling in Winspear risks the likelihood of inappropriate CPR attempts.
- Legal Aspects
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Decisions around cardiopulmonary resuscitation (CPR) continue to cause confusion in spite of the recent high profile cases aimed at bringing clarity to the situation. The Court of Appeal decision in Tracey found that the formulation of a Do Not Attempt CPR (DNACPR) decision engaged an individual's Article 8 rights (this right was identified in Tracey as incorporating decisions around end of life). Their lordships accepted there were times when CPR would not work, but they concluded that the patient had a right to know such a judgement had been made, not least because it afforded the patient the opportunity to seek a second opinion.1 Most recently in Winspear, Blake J identified the Mental Capacity Act 2005 (MCA) as the mechanism for upholding the Article 8 rights of those lacking capacity.2
In Winspear, the medical registrar, having identified that CPR would be ineffective owing to the kyphosis and contractures the patient suffered duly instigated a DNACPR notice. Blake J found such instigation without consultation was procedurally wrong. He opined that any DNACPR notice had to comply with the requirements for best interests’ decision-making set out in section 4 of the MCA, which requires taking into consideration the views of others.3 Blake J identified that the patient's mother was entitled to be consulted before the notice was made that CPR should be withheld. Blake J commented that the clinical assessment, though a necessary first step in decision making, is generally not sufficient in identifying best interests since the latter is a broader concept than clinical judgement.
The 2013 Supreme Court decision in the case of James looked specifically at the issue of best interests in the light of the MCA.4 This case gives an invaluable summary on the law around medical treatment and best interests; it identifies some clear principles that do not appear to have been considered in Winspear. In quoting from the case of Tony Bland, Lady Hale identified first, the key question to be answered when considering best interests as ‘whether the invasion of bodily integrity as a result of the proposed intervention is lawful in the absence of consent’. Second, Lady Hale identified from MCA section 5 that the fundamental question that the MCA seeks to address, when it comes to care and treatment, is whether such treatment can lawfully be given in the best interests of the patient; in particular, she notes that MCA section 5 makes no mention of omissions or the withholding of treatment. Finally and most notably, Lady Hale identified that the court, in upholding the provisions of the Act, has no more power than a patient with full capacity; therefore, a court cannot order a course of action that clinicians (acting reasonably and non-negligently) identify as having no benefit, because such an act would by definition be unlawful.
CPR is unusual in that it is not, in general, a proposed treatment but a default course of action born of necessity in the face of imminent death. However, there is now a clear body of medical opinion that identifies when CPR should not be attempted. The guidance produced by the Resuscitation Council in 2014, and active at the time of Winspear, states ‘If the healthcare team is as certain as it can be that a person is dying as an inevitable result of underlying disease or a catastrophic health event, and CPR would not restart the heart and breathing for a sustained period, CPR should not be attempted’.5 In addition, the Supreme Court in James recognised that if a patient is actively dying or their underlying condition is deteriorating in spite of treatment, making death inevitable, CPR should not be attempted.
Two crucial facts apply to CPR. First, there is only one purpose in attempting CPR, namely to attempt to sustain life. Second, it is for the clinicians using their knowledge and experience of CPR, and their understanding of the individual circumstances of the patient, to make a reasonable, reasoned and non-prejudicial decision as to whether attempting CPR might achieve this purpose. The fact that this decision lies with the clinician is identified in section 4.10 of the MCA:
‘Life-sustaining treatment’ means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
One can surmise from James that best interests, as contained in the MCA, is not there to identify whether a treatment is of potential benefit but whether a treatment of potential benefit can be lawfully given. In the absence of any life-prolonging effect, CPR has no therapeutic role and so cannot be anything other than the unlawful ‘invasion of bodily integrity’. Seen in this light CPR cannot be a proposed treatment that falls under section 5. If it is not a proposed treatment, then there is no best interest decision to make; it can never be in the best interests of the patient to be subject to an unlawful act.
Misapplication of MCA section 4 runs the risk that patients lacking capacity can be subject to an ineffective intervention because the patient's wider best interests are served by keeping a relative, who wants CPR attempted, ‘on side’. Indeed, this was the basis for the revocation of the DNACPR notice in Winspear itself. Such an outcome for a patient appears ethically wrong.
There is no doubt that timely information to relatives is good practice and a professional duty; it fosters clinical accountability and it may uphold the rights of the patient by affording the relatives the opportunity to seek a second opinion, or even to challenge the course of action in court under the MCA. However, when clinicians are as certain as they can be that CPR will not sustain life, then the default nature of CPR provision means that the priority cannot be seeking the views of relatives on whether CPR can be withheld (as Blake J asserts), but instead must be the efficient dissemination of this clinical assessment so that the patient is not subject to an unlawful assault.
Competing interests None declared.
Provenance and peer review Not commissioned; externally peer reviewed.
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