During the coronavirus pandemic, it has come to light that do not resuscitate orders (DNROs) have been applied in a blanket manner to vulnerable and elderly patients. These have been implemented without discussion or consultation with the patient or their families. Whilst decisions for DNROs are often made in the patient’s best interest, practice is ambiguous on a number of points. Patients and their families should be at the heart of these discussions and instead, paternalism is at the forefront. Should a system of informed consent be implemented to ensure that patient’s wishes are given appropriate attention?
Kate Masters is currently taking legal action due to the Government’s failure to provide national guidance on DNROs, which has contributed to poor healthcare decisions during the pandemic. In 2014, her father had brought a successful judicial review claim in relation to his wife’s Article 8 Human Rights in response to an imposed DNRO. This case established the legal duty to consult with patients if a DNR order is placed in their records.
In response to recent legal action, the Government have stated that they will publish guidance for both patients and families on DNRs for the first time on the NHS website, as well as information for medical staff when making these decisions. Although this will help in clarifying DNR guidance, it seems the importance of these decisions in law have been misplaced.
In the USA, a doctor can only write a DNRO after consulting with the patient, a proxy or their family. In the UK, DNR decisions ultimately rest with medical practitioners and are administered in the best interest of the patient. Unlike the USA, the law in the UK does not require the consent of the patient for a DNR order.
Making DNR decisions without clear consent of the family of the patient is a breach of human rights. Article 8 of the Human Rights Act protects the right to private and family life and covers DNR decision-making. Both the patient and their family should have the right to involvement in these discussions and be the sole decision makers on these matters.
Article 14 of the Human Rights Act protects non-discrimination. For doctors to be making decisions regarding a patient’s quality of life seems excessively paternalistic and almost runs along the same lines as assisted suicide which is illegal in the UK. Doctors are able to make these decision based on whether a certain condition or disability is worth living, which takes away autonomy from the patient in making decisions regarding their own life.
Circumstances such as coronavirus where pandemic medicine is used highlights the growing problems with the current law. The law does not go far enough in ensuring that autonomy in decisions about one’s own body are protected. The majority of medical decisions require patients to give informed consent where they receive explanation from a clinician. It seems misconceived not to require the same consent for important end of life decisions. Where the inevitable outcome of a decision means that an individual will die, it is only ethical if an individual or a proxy for that individual consents to that decision.
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