Dr. Andrea Mulligan BL LL.B, LL.M(Harv.) The Use of DNAR Orders Dr. Andrea Mulligan BL LL.B, LL.M(Harv.)

The Use of DNAR Orders I. CPR in Clinical Context and DNAR Notices II. Irish Law and Guidance on DNAR Notices III. UK Law and Guidance on DNAR Notices IV. Tracey v Cambridge University Hospital

I. CPR in Clinical Context and DNAR Notices Cardio Pulmonary Resuscitation: Chest compressions Electric shocks Injected medications Mouth-to-mouth breathing or inflation of the lungs Success rates – Real v. Perceived DNAR is a clinical decision

I. CPR in Clinical Context and DNAR Notices Distinguishing DNAR’s from ADR’s Futile Treatment Terminological discussions DNAR – Do Not Attempt Resuscitation DNR – Do Not Resuscitate AND – Allow Natural Death

II. Irish Law and Guidance on DNAR Notices Constitutional background The right to refuse treatment The right to die a natural death The right to autonomy/self-determination

In Re SR [2012] 1 IR 305 Boy, 1 year and 10 months old, involved in drowning accident. Hospital seeks permission to make DNACPR decision. Kearns P Best interests of the child. Intubation and ventilation not in best interests of SR.

In Re SR [2012] 1 IR 305 Kearns P on clinical judgment: One final point should be mentioned and that is whether it would ever be appropriate for a court to require a medical practitioner to adopt a course of treatment which in the bona fide clinical judgment of the practitioner is not in the best interests of the patient. Although it does not arise in the instant case, I cannot conceive of any circumstance where such an order would be suitable, as this would clash with the primary duty of the medical practitioner to act in the best interests of their patient. The Hippocratic Oath emphasises the duty on doctors to do no harm to their patients, and that would be difficult to reconcile with an order of the court requiring them to treat a patient in a manner inconsistent with their own clinical judgment.

National Consent Policy (2013) - Part IV When CPR is appropriate Competent v Incompetent Patients However, the role of those close to the individual is not to make the final decision regarding CPR, but rather to help the senior healthcare professional to make the most appropriate decision. Where CPR is judged inappropriate, it is good practice to inform those close to the patient, but there is no need to seek their ‘permission’ not to perform CPR in these circumstances. [p99] Disagreements between doctor and patient Communication and discussion

National Consent Policy (2013) - Part IV DNAR notices and children 1. Parent(s)/legal guardian(s) and the healthcare team should work in partnership when deciding about CPR, with decisions being made on the basis of consensus. 2. Where appropriate, given the child’s level of knowledge, understanding and experience, he/she should also be involved and participate in the decision‐making partnership. 3. Therefore, children should be informed and listened to and their ascertainable views and preferences should be taken into consideration. 4. The final decision reached should be in the best interests of the child. Documentation and Review

III. UK Law and Guidance on DNAR Notices Joint Statement (2014) British Medical Association, Resuscitation Council and Royal College of Nursing. “Blanket” policies Statutory basis for advance directives: Mental Capacity Act 2005

IV. Tracey v Cambridge University Hospital Core issue: To what extent a competent patient must be informed that a DNAR decision has been made, even if that knowledge will cause them great distress? Court of Appeal: “Since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient.”

IV. Tracey v Cambridge University Hospital Exceptional significance of the decision Right to a second opinion Risk of distress not sufficient to justify non-disclosure, must be actual harm Doctor’s right to refuse clinically inappropriate treatment

The Use of DNAR Orders Questions or comments? Questions and comments welcome: Andrea Mulligan andreamulliganbl@gmail.com The Law Library, Four Courts, Dublin 7. DX 810 120