Do Not Resuscitate/Do Not Treat Orders – The Public Have a Right to Know

Posted on 24th August 2020

The Daily Telegraph revealed late last night that during the Spring of 2020 care homes were asked by NHS managers and GPs to place blanket ‘Do not resuscitate’ (DNR) orders on all of their residents.

The Queen’s Nursing Institute (QNI) conducted a survey which found that one in 10 care home staff surveyed was ordered to write “Do not resuscitate” into patient’s records without discussion with family members, nursing staff, or with the residents themselves.

Half of care home staff members who said they had been asked to change DNRs worked in homes for the elderly, while half worked in homes for younger people with learning or cognitive disabilities.

The article goes on to say that “Staff also warned that some hospitals were operating a ‘no admissions’ policy for care home residents – even for non-Covid-19 conditions such as heart attacks – and some said they had struggled to make appointments with GPs for elderly people.” (my emphasis)

One anonymous care home worker said:  “We were advised to have them in place for all residents. We acted in accordance with medical advice and resident wishes, not as advised by a directive to put in place for all by a Clinical Care Group representative. We challenged this as unethical.”

Another said that DNRs were: “Put in place without family consent by trust staff, and no consultation with staff in the home.”

The article does not report the sample size of the survey, who issued the orders nor how they were issued. Presumably the CCG directive referred to was in writing?  If so, one would hope that a whistle-blower will leak such a document to the press.

But if this is true, any NHS manager who issued an edict ordering blanket DNR orders on patients / care homes staff and disabled persons was acting ‘ultra vires’ and by this I mean that they were acting beyond the powers of authority allowed to them  by the State. DNR orders can only be issued on an individual case by case basis following careful consideration and discussion with the patient and their family.

The only circumstance in which a patient may be excluded from the process is if their doctor reasonably considers involving them would cause them psychological harm, for instance, severe mental distress over and above that which all of us would suffer when discussing end of life care.

That cannot have been the case if there was a blanket order issued.

The fact that guidelines appear to have been breached in such wanton way is a matter for the civil law and also to be examined at a future public inquiry.

But, is it enough to simply to say that this issue for the Covid 19 public inquiry to explore? There is a vague promise of a public inquiry into the Government’s handling of Covid 19 and their response to the illness at some undetermined point in the future  – which some may feel is sufficient.

However, the blanket use of DNR orders, if that is what occurred, would be illegal as was the decision to refuse treatment for non-covid conditions. I am sure many families who lost loved ones in the past few months would want to see an investigation launched immediately.

Another question that needs answering is – were these decisions, to impose blanket DNR orders and to refuse treatment for heart attacks, made by NHS managers of their own initiative, or were they acting on orders of others above them? The public have a right to know as soon as possible.

There may be also be question as to whether an individual who gave such an order is guilty of “wilful neglect” under the criminal law. A person is guilty of such an offence under sections 20 and 21 of the Criminal Justice and Courts Act 2015 if they “wilfully neglect or mistreat” a patient with full mental capacity or oversee such wilful neglect and ill treatment.

Section 20 – is the” care/health worker offence” which applies to individuals; and

Section 21 – is the “care/health provider offence” which applies to various prescribed bodies including NHS Trusts.

“A care provider commits an offence if—

(a) an individual who has the care of another individual by virtue of being part of the care provider’s arrangements ill-treats or wilfully neglects that individual,

(b)the care provider’s activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and

(c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.”

The law was implemented following a number of care home scandals and the Mid Staffordshire NHS Inquiry.

Looking at the above statutes I would say that if the content of the QNI report is true then it is clearly arguable that criminal offences have taken place and should be investigated.

Also, if the policy of refusing medical treatment was implemented upon those who lack capacity then offences may have been committed under section 44 of the Mental Capacity Act 2005.

We all know that anecdotal reports in newspapers can sometimes be inaccurate. I would hope, however, that any health care worker or care home worker who knows of such incidents will immediately report them to the relevant authorities.

 

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