Doctors warned again over unlawful use of do not resuscitate orders

Doctors have been warned again by NHS bosses not to impose blanket do not resuscitate orders on elderly patients and those with learning disabilities, as regulators have announced new plans to team up to safeguard patients human rights.

In a letter to hospital trusts and GPs this week, England’s top doctor and chief nurse warned medics that using a learning disability as a reason for a do not attempt resuscitation (DNAR) decision was unacceptable.

The latest warning follows repeated examples of blanket DNARs being imposed on elderly patients and care home residents as well as on learning disability patients. Blanket DNARs are likely to be unlawful and a breach of human rights.

The Care Quality Commission is expected to publish the findings of an inquiry into use of DNARs during the pandemic soon and this week signed an agreement with the Equality and Human Rights Commission which see both regulators team up on investigations into human rights breaches and allow them to share information and cross refer concerns about potential breaches in the NHS and care sectors.

In December, the CQC warned inappropriate DNARs may have led to avoidable deaths with many incorrect orders likely to still be in place.

In letter to the health service earlier this month, which was seen by The Independent, NHS England’s medical director Steve Powis and chief nurse Ruth May warned doctors must consider the individual patient.

They warned: “Blanket policies are inappropriate whether due to medical condition, disability, or age. This is particularly important in regard to DNAR orders, which should only ever be made on an individual basis and in consultation with the individual or their family. The NHS is clear that people should not have a DNAR on their record just because they have a learning disability, autism or both. This is unacceptable.

“The terms ‘learning disability’ and ‘Down’s syndrome’ should never be a reason for issuing a DNAR order or be used to describe the underlying, or only, cause of death. Learning disabilities are not fatal conditions.”

GPs have been told to review the DNAR decisions on people with learning disabilities as part of the GP contract for 2020-21 to make sure all orders are appropriate.

The letter added: “We know that the overwhelming majority of clinicians are helping patients make these important decisions in the right way and we understand that these conversations are never easy.”

Earlier this week clinicians and charities warned the incorrect use of do not resuscitate orders could undermine the care of patients who were terminally ill and would benefit from discussing their wishes. The health secretary, Matt Hancock, has promised to improve information about DNARs after the threat of legal action but so far the government has failed to act.

A DNAR notice is a medical decision not to attempt cardiopulmonary resuscitation if the patient is deemed unlikely to survive. It does not require the consent of the patient but by law clinicians must consult with families or patients in most circumstances. A failure to do so would be a breach of human rights.

The CQC has announced it will be working with the Equality and Human Rights Commission (EHRC) to “safeguard” patients’ human rights.

The EHRC has the power to bring legal cases against organisations for breaches of the Equality Act as well as helping victims of discrimination and it can launch judicial reviews.

Under a memorandum of understanding the two watchdogs will share more information on services and even launch joint inquiries.

This could include making sure hospitals and care homes meet their obligations towards patients and tackle discrimination in access to services.

Ted Baker, chief inspector of hospitals at the CQC, said: “Everyone deserves equal access to health and social care. Over the past year, Covid-19 has highlighted the inequalities that already existed — and magnified them. We have seen a disproportionate impact on some people with protected characteristics, such as those from black and minority ethnic backgrounds, older people, disabled people and people with long-term health conditions.”

He said the EHRC would work with the CQC on mutual areas including its look at the use of DNAR decisions as well as reducing restraint, segregation and seclusion in mental health services.

Alastair Pringle, executive director at the Equality and Human Rights Commission, said: “The pandemic has highlighted a number of concerns both organisations share about the need to protection the rights of people in health and social care.

“This agreement will further strengthen our relationship with CQC, and by joining forces we can better protect people’s human rights and prevent unequal treatment in health and social care.”