The government, specifically the Department of Health and Social Care and its boss Matt Hancock, are facing legal action over its failure to protect sick and disabled people during the coronavirus (Covid-19) pandemic. It specifically relates to controversial and potentially “illegal” Do Not Resuscitate (DNR) notices. But the possible court case is unique. Because currently, medical professionals are the ones accountable for DNRs, not the government.
DNRs: a history of controversy
A DNR notice is something medical professionals use. They can issue it with or without a patient’s consent; the latter when the patient is deemed unable to make a decision themselves under the Mental Capacity Act. In short, a doctor puts a DNR on a person when they think trying to save that person’s life would be unsuccessful. It also happens when attempts at resuscitation may leave the person more sick or disabled than they originally were; brain-damaged, for example.
For some people, DNRs are controversial. There have been countless cases where families did not know a loved one had a DNR. Moreover, they pose ethical questions about the value of human life in some situations. And since the coronavirus pandemic took hold, DNRs have sparked yet more outrage.
As The Canary previously reported, there have been press and social media reports of an increase in medical professionals’ use of DNRs. One GP practice targeted people with “neurological conditions”. And in terms of government guidance, this would include learning-disabled people. One charity that provides residential support to learning-disabled people claimed it had an upsurge in what it said were “illegal” DNRs. As The Canary estimated, if this charity’s experience was happening nationally, up to 19,000 learning-disabled people in England could be subject to unlawful DNRs.
Now, someone is legally challenging the government on the situation.
Looming legal action?
The law as it stands means doctors decide whom they place DNRs on. It also means that, in some situations, they don’t have to tell the patient or families about the DNRs. Nor do these people have to agree (consent). But because of media reports about a rise in DNRs, Kate Masters has decided to act. She is the daughter of David Tracey, who in 2014 made a successful legal challenge to his late wife Janet’s DNR. At the time, the judge ruled that a DNR:
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. …
doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement is likely to distress them. …
The duty to consult … involves a discussion, where practicable, about the patient’s wishes and feelings that is better undertaken at the earliest stages of the clinical relationship so that decisions can be reviewed as circumstances change. That involves an acknowledgement that the duty to consult is integral to the respect for the dignity of the patient.
But in recent months, it appears that doctors may not have been adhering to that ruling.
Unlawful violations?
Solicitors Leigh Day said in a press release for The Canary:
Kate argues that blanket DNRs are unlawful and that without action from the government on the issue herself, her family members and many others are at a considerable risk of having a DNR imposed on them without full information being given in advance, without a proper consultation and without any information as to what to do if the decision is disagreed with. Local NHS Trusts and their staff are already under unprecedented burden dealing with the virus and she believes a lack of clear national guidance or DNR policy further adds to this burden.
Article 8 of the European Convention on Human Rights (ECHR), the right to respect for your private life, requires that the law in relation to the imposition of DNRs is sufficient clear and certain. The decision to impose a DNR must be taken by reference to clear and accessible criteria and information must be addressed to patients so they can know in advance how decisions will be made. Kate argues in her letter that her own situation and that of many others shows these lawful requirements are not being met, and human rights are being violated, or at significant risk of being violated on a widespread basis.
Safeguards needed
Masters wants the government to use its emergency coronavirus laws to put several safeguards in place. These state that doctors must not issue DNR notices unless the patient and/or their family/carers are:
- Told “that it is not appropriate to consider CPR and why”.
- Provided with “an opportunity to discuss their views and wishes regarding receiving CPR with the healthcare professional making the decision”.
- Given “clear information as to how the healthcare professional will take into account their views/wishes, the relevance of clinical judgement regarding efficacy of CPR (including being clear consent is not required) and how resource constraints are taken into account”.
- “Informed of the DNR decision and the reasons why (which must be individual to the patient)”.
- Advised “they can request a second opinion if they disagree with the decision”.
If Hancock doesn’t respond by 7 May, she will consider bringing a judicial review to force his and the government’s hands.
Upholding human rights
Masters said in a press release for The Canary:
I have watched with alarm as reports of blanket DNR orders in care homes and failures to consult with patients and their families have been reported in the news since the start of the coronavirus crisis. After all that my dad did to fight to clarify the law regarding DNRs I am determined to ensure that my human rights and those of others are not breached due to a lack of government direction.
Leigh Day solicitor Merry Varney said:
DNRs imposed in circumstances where patients and their families have no or little information, and no consultation, often lead to a complete breakdown in trust and numerous stories reported in the media show how common it is that patients and families believe these cannot be imposed without consent. Healthcare professionals are already overburdened, our client believes it is time for the government to step up and give national guidance that will ensure consistent and lawful decision-making at a local level and also ensure patients’ fundamental human rights are being upheld.
Blanket discrimination and abuse
As has repeatedly been the case with the Department for Work and Pensions, it seems that the only way the government may rectify this situation is if a court forces it to. But as The Canary previously reported, there are bigger societal questions posed by the current scandal over DNRs:
‘Morally wrong’ may just be the tip of the iceberg. Because there is an elephant in the room with the DNR situation. Firstly, it’s that doctors are having to make decisions on whose lives are more valuable than others at all. And secondly, it’s that they view learning disabled people as expendable compared to other people.
Now, with Masters’s potential court case, a third issue arises. It’s that we have a government unwilling to acknowledge there’s now a huge problem with DNRs, and therefore are already failing to act. It remains to be seen how many sick and disabled people have been affected. But the government’s heel-dragging on this could have been disastrous for countless people and their families.
Featured image via Sky News – YouTube
