The Rise in Inappropriate DNAR Orders
A DNAR (do not attempt resuscitation) notice, aka a DNR or a DNACPR, is a notice placed on a person’s medical record indicating that resuscitation should not be attempted.
Recent research conducted by Solicitors for the Elderly (SfE) has shown that 70% of SfE members report seeing a rise in the inappropriate use of DNARs during the pandemic – but also that this misuse has actually continued post Covid.
It appears that DNARs are being applied without prior discussion with the patient, their family or those nominated as attorneys where an LPA (Lasting Power of Attorney) is in place.
One of our internal Solicitors, Harriet Betteridge, has the following comments.
“I wouldn’t want to be resuscitated” is a phrase I commonly heard from clients when I was advising them on what they could do to shore up their health and medical treatment wishes in the future. It’s an important conversation to have, apparently now more than ever.
There are many options for clients wanting to grapple with future decisions on life-sustaining treatment. Here’s a quick overview which will hopefully demystify the situation and assist you in advising your clients.
The DNAR form is signed by a doctor, and this is generally after a discussion with the patient. A doctor can also put a DNAR in place without your client’s agreement, for example if they think that CPR won’t work. They must inform your client that they have done so.
No one can legally demand to be given CPR or other medical treatment, but if your client disagrees with the decision to place a DNAR on their medical records then they should discuss this with their doctor, and they have a right to seek a second opinion.
DNARs are not legally binding, and they only deal with CPR. So, if your client has strong wishes that they would not want to receive certain medical treatment (including CPR) they should consider putting an Advance Decision in place.
An Advance Decision is a legally binding document by which an individual can refuse medical treatment in advance in case at the relevant time they do not have the capacity or are unable to communicate a decision. The Advance Decision should clearly set out the treatments which the client is refusing and the circumstances in which the refusal is to apply. To the extent that it deals with life-sustaining treatment, it also clearly needs to state that it is to apply even if the client’s life is at risk.
An Advance Decision can be revoked at any time whilst the client has mental capacity. They should also review it on a regular basis.
If the client also has a Lasting Power of Attorney for health & welfare it is important to consider how the two will interact, and to ensure that one does not inadvertently negate the effect of the other.
Lasting Power of Attorney for Health & Welfare
By putting a Lasting Power of Attorney (LPA) for health & welfare in place a client is choosing to give others the authority to make decisions about their medical treatment on their behalf if they do not have the capacity to make those decisions. This differs from an Advance Decision where the client is making their own decisions ahead of time.
If a client makes a health & welfare LPA after an Advance Decision, and the LPA confers authority on the attorneys to give or refuse consent to treatment that is also covered by the Advance Decision then LPA will override the Advance Decision. If the Advance Decision is made after the LPA then that will take precedence.
However, a statement can be inserted into whichever document is made later, setting out how the two are to interact. If under an LPA the client does not give their attorneys the authority to make life-sustaining treatment decisions and such decisions are covered by the client’s Advance Decision, then that will be effective irrespective of whether the Advance Decision is made before or after the LPA.
It is therefore sensible if preparing an LPA or an Advance Decision for your client to:
- Check whether they have previously made the other type of document.
- Discuss whether they want their Advance Decision to have priority in terms of refusal of specified medical treatments or if they actually want their attorneys to make such decisions at the relevant time.
- Include appropriate wording in the document to ensure the position is clear.
Finally, it is worth mentioning ReSPECT forms. ReSPECT stands for Recommended Summary Plan for Emergency Care and Treatment. These set out what types of clinical care and medical treatment a client would want in an emergency if they are unable at that point in time to express their wishes. For example, it might express the client’s desire to prioritise comfort over sustaining their life or vice versa.
The plan is put together by the client and their doctor or other healthcare professional and, once completed, should be kept in a place that it is easy to locate. These are not legally binding but can be very helpful to ambulance crews, A&E staff, and other healthcare professionals in making a decision as to what is in the client’s best interests.
Your clients should talk to their GP in the first instance about DNAR and ReSPECT forms.
LPAs and Advance Decisions can be efficiently drafted in Arken Professional, Arken’s Will Writing Software. Visit our website for more information.