A ‘DNR’ is a signed order which is placed in a patient’s hospital records instructing attending clinicians not to perform CPR should the patient suffer a cardiac arrest and/or not to place them on a ventilator should they stop breathing. Whilst this practice is widely accepted it does however raise issues surrounding a patient's right to be involved in medical treatment/non-treatment decisions and their right to demand treatment. The decision should only be taken once clinicians have consulted the patient themselves or their family members.

In a recent case reported in The Guardian, a DNR was placed upon Mrs Janet Tracey’s medical records without having first consulted Mrs Tracey or her family and subsequently failed to inform them that the order was in place, in direct breach of the Trust’s policy and Guidelines. Having learnt of the DNR’s existence, Mrs Tracey’s relatives asked that it be removed only to later have it reinstated in agreement with their families wishes.

Breach of vulnerable patient’s rights

Mrs Tracey had sustained a broken neck in a car accident, had contracted pneumonia, required ventilation and was suffering from terminal lung cancer. Therefore her family reached the difficult decision that it was in fact in Mrs Tracey’s best interests that she should not be resuscitated should her condition deteriorate. It is important to note however that whilst Mrs Tracey’s family subsequently agreed to the DNR being reinstated, their grievance lay in the fact that they had not been consulted prior to the initial DNR order being entered into Mrs Tracey’s records. The issue of entering into a DNR order only arises in very severe cases where a patient’s life and future health are at risk and therefore arise during emotionally difficult times for both the patient and their loved ones. DNR’s are not agreed to lightly and it constitutes a gross breach of a patient’s rights where DNR’s are the result of a unilateral medical decision of a patient’s treating clinicians who fail to seek the views of those directly affected by the DNR’s implications.

Unilateral medical decisions

In a related case, Helen Lewis, a specialist medical negligence solicitor here at Pannone, has also recently reported on her case in which she represented Patient L, who having suffered a cardiac arrest and ensuing brain damage having been successfully resuscitated was diagnosed as being in a vegetative state. Following this diagnosis a ‘DNR’ was placed upon Patient L’s records without having first consulted his relatives. L’s family raised objections and the DNR was subsequently removed by his treating clinicians.

Subsequently the Trust admitted that placing a DNR notice upon a patient without having first consulted either the patient or their family was grossly wrong and in contravention of the Trust’s policy and professional guidelines, amounting to a breach of their duty of care.

Despite agreeing to remove the DNR the Trust made an application to the Court of Protection for an order declaring it lawful for them to abstain from resuscitating L should his condition deteriorate.

The family remained strongly opposed to such an order believing that would not be in L’s best interest as they believe he is showing continuous signs of improvement. L’s family also believe that his deep religious Muslim faith meant that he would want his life to be prolonged as much as possible.

Following numerous dramatic twists and turns at the hearing in August, at which we represented L’s family, the case was adjourned until October 2012 in order to ascertain whether L was indeed demonstrating any signs of improvement.

Patient’s best interests

At the October hearing which took place in the Royal Courts of Justice the Trust agreed that there had been an improvement in L’s condition such that he is now in a minimally conscious state but doctors from the Trust remain of the view that resuscitation is not in L’s best interests. Their stance is that resuscitation would serve only to prolong L’s death and that even if L were to be successfully resuscitated; he would in all likelihood sustain further brain injury.

The court found in favour of the Trust having balanced the family’s evidence that L would want all steps to be taken to prolong his life against the medical evidence advanced by the Trust. It was held that it would not be in L’s best interests to resuscitate him if his condition were to deteriorate. Resuscitation would prolong L’s death and not prolong his life in any meaningful way.

Uncertain future

Despite the court’s findings it was clearly inappropriate to place a DNR order in L's notes without informing or consulting his family. His family continue to remain of the view that with the uncertainty surrounding his condition and future prognosis, it was premature of the clinicians to enter a DNR without having first sought the views of L’s family.

It is evident that policy surrounding DNRs is inconsistent and lacks transparency. Many of those families subjected to DNRs following a unilateral medical decision seek for the law surrounding DNR notices to be clarified as they can constitute an interference with the fundamental rights of vulnerable patients. Whether they should be governed by the Department of Health following a public enquiry and ensuing national policy is one suggestion, however it is clear that the current status quo of surrendering this issue to individual Trust policy and professional guidelines is inadequate.