In December 2020, the Care Quality Commission (CQC) published an interim report, looking at the use of Do Not Resuscitate (DNR) orders during the pandemic.

The final report is due in February 2021, but the initial findings suggest an inappropriate use of the decisions dating back to the beginning of the pandemic, and possibly before. The question is therefore, were some deaths avoidable?

 

What is a DNR Order? How and when can they be used?

A DNR Order is used as part of advanced care planning when deciding whether emergency treatment will be provided in response to cardiac arrest (a patient’s heart stopping) during treatment.  A DNR Order relates only to Cardiopulmonary Resuscitation (CPR) and does not affect other types of treatment.

A DNR Order is put in place once the risks and benefits of the procedure have been considered and the patient or their family or attorney feels that resuscitation is likely to cause or prolong the patient’s suffering with little other benefit.

This decision should be made after careful review of the patient’s individual needs. Once the Order is in place, if the patient’s heart should stop beating, the medical team will not take steps to try and restart the heart.

 

Why have the CQC investigated the use of DNR Orders?

The CQC were commissioned by the Department of Health and Social Care under Section 48 of the Health and Social Care Act 2008 to conduct a review into the use of DNR Orders during the pandemic due to concerns raised about whether these decisions were being made without involving the person concerned. This concern related to care and residential homes as well as healthcare providers.

The CQC have advised that there was:

clear confusion and miscommunication about the application of DNRs at the start of the pandemic, and a sense of providers being overwhelmed.

The concerns raised included: –

  • Whether patients were being involved in the discussion for a DNR Order;
  • Was the decision being communicated to the patient and their family, in a way that was easily understood;
  • Was there any discrimination when making the decisions; and
  • Did professionals have adequate time and training to have sensitive discussions with families relating to advance care planning?

The CQC wanted to investigate whether certain groups were at risk of being placed under a blanket DNR decision, which may have been in place due to age or disability, for example. There has been suggestion that DNR Orders were placed upon the records of all patients that fit into a specific group without appropriate individual assessment or consent.

 

Outcome of the Interim Report

The CQC have identified evidence of “unacceptable and inappropriate” use of DNR Orders; however, there was also information to suggest that medical providers were using poor practice in making these decisions prior to the pandemic.

It is important to note that while problems have clearly been identified, the CQC have highlighted that there is no evidence that this a widespread problem concerning all NHS Trusts and healthcare providers across the country.

The Interim Report states that there have been concerns that limited space within hospitals during the Covid 19 pandemic has led to steps in advance care planning being taken to increase the bed availability and capacity of intensive care units.

It has also been suggested that residents of care homes, both elderly and disabled, were being denied access to hospital care or treatment.

On the 30 March 2020, the CQC wrote to GPs and social care providers to remind them that it was inappropriate to complete DNR forms to complete groups of people, rather than on an individual basis.

This was reinforced by NHS England who wrote to NHS Trusts, GPs and other medical providers on the 7 April 2020.

 

What does the law say?

If the CQC’s full Report determines that blanket decisions have been made based on age or discrimination, then this may be unlawful.

If decisions were made without consulting the patient involved, there is a risk that Articles 2 and 8 of the European Convention of Human Rights were breached – the right to life and respect for your private and family life.

The Equality and Human Rights Commission said in October 2020, following a review of care provided in care homes during the pandemic, that:

the right to life is ‘non-derogable’ and must be maintained even in an emergency.

 

What are the next steps?

The CQC are currently taking steps to compile evidence to form the basis of their final Report. These steps include: –

  • Speaking to families affected by DNR decisions, as well as healthcare providers and medical professionals;
  • Reviewing the medical records of affected patients; and
  • Producing case studies on 7 different Clinical Commissioning Groups.

The aim of the full Report is identify areas of failing and needs for improvement in decisions relating to and implementing DNR Orders. The CQC aim to define good practice in this area and provide clear recommendations for improvement.

The full and final Report is due to be published in February 2021 and hopes to address the full scale of the concern, and whether this has been impacted by the pandemic.

 

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Call our Medical Negligence Team on 01522 561020 or email wecanhelp@ringroselaw.co.uk

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