Health and social care sector – Managing the risks around do not resuscitate orders

The COVID-19 pandemic shone the spotlight on health and social care providers’ use of do not resuscitate (DNR) or do not attempt cardiopulmonary resuscitation (DNACR) orders. Critics of DNR orders say they are open to misuse. It’s argued DNR orders are not always understood or applied as originally intended, therefore putting people’s lives at risk. Those defending DNR orders suggest they are an important element of compassionate care.

In this insight, we examine the legal, insurance and risk management landscape surrounding DNR orders, offering practical insight to help your health and social care organisation by reducing potential harms to patients and your organisation’s risk exposures.

Why are there concerns over DNR orders?

A 2021 investigation by care watchdog the Care Quality Commission (CQC) highlighted more than 500 potential breaches of individuals’ human rights due to inappropriate use of DNR orders. Recent media coverage of an incident involving a Mr Robert Murray, further brings some of the issues into focus.

Mr Murray, an 80-year-old resident of a care home in Eastbourne, sadly died from choking on a piece of fruit after paramedics were stood down due to the presence of a DNR order in his medical records. His family argued Mr Murray would have survived if the care home had checked and understood what the DNR meant, rather than assuming the DNR represented a blanket de facto reason to deny all treatment.

What does a DNR cover and when are they appropriate?

A DNR order does not mean ‘do not treat.’ Rather, it means you should not attempt cardiopulmonary resuscitation (CPR) – an emergency lifesaving procedure performed when the patient’s heart stops beating. You can, and should, in appropriate circumstances, provide other treatment that may prolong life, such as other emergency treatments, transfusions or using a ventilator.

What does the law say about DNR orders?

The Human Rights Act 1998 and the Mental Capacity Act 2005 are U.K. laws recognising three primary situations that permit the making of DNR decisions:

1. When a person with full capacity to make such a decision explicitly requests a DNR order. This will need to be communicated to all medical staff. Such a request can be made at any point.
2. Where a doctor, based on their professional medical judgment, deems a resuscitation attempt would probably not succeed.
3. In situation where a doctor has thoroughly discussed with the person and believes the potential negatives of CPR outweigh its benefits – for example, if CPR were to restore the person’s heartbeat/breathing at the cost of significantly diminished quality of life.

However, it’s important to remember, under the law, neither service user nor their family members must give approval for a DNR. In other words, a doctor has the authority to implement a DNR order even if the patient or their family does not desire one. It is also important to note service users cannot insist on receiving CPR if the medical professional deems it would be detrimental to them.

The role of medical malpractice cover in managing DNR order risks

We are often asked by health and social care providers about whether they may need medical malpractice cover and this question applies in the context of DNR orders understanding the differences between medical malpractice and the cover your organisation might consider through a treatment risk extension to your public liability insurance.

Any person or company providing healthcare services could be sued by a dissatisfied patient or their loved ones. Healthcare professionals usually obtain their own indemnity as an individual via a scheme, association or insurer. However, corporate healthcare providers are vicariously liable for the actions of their employees, which can result in claims being made against the corporate entity. Companies also have a duty of care in managing patients, as negligence can arise from incorrect internal procedures, for example, not having adequate training around DNR orders.

With a treatment extension applicable to your public liability policy, it’s worth bearing in mind how cover is often determined on a ‘case by case’ basis, which can lead to some uncertainty surrounding which activities are protected. While your policy could cover negligent treatment, it’s unlikely it would cover failure to treat, which can be a significant exposure.

Medical malpractice policies, on the other hand, not only protect you against negligence treatment claims, but also alleged negligence claims, including failure to treat claims. This is an important factor to take into account, as the cost of defending even a potentially spurious claim, can prove very expensive.

DNR orders risk management for health and social care

In care facilities, best practice is that all decisions relating to establishing a DNR should be made on an individual basis. You should ensure there is the appropriate engagement with the person and/or their relatives and no blanket policies dictating their use.

Your health and social care organisation should also clearly record any DNR order in your service users’ notes and review it regularly.

Rosie Benneyworth, the Chief Inspector of Primary Medical Services and Integrated care at the CQC, said: “Personalised and compassionate advance care planning, including DNACR decisions, is a vital part of good quality care. Done properly, it can offer reassurance and comfort for people and their loves ones – before and during difficult times. It is vital we get this right and ensure better end-of-life care as a whole health and social care system, with health and social care providers, local government and the voluntary sector working together.”

For health and social care organisations to offer both the appropriate protection to their patients and the long-term health of their organisations it’s vital to invest in the appropriate training of your people to understand when DNR orders are appropriate, when they are not and what they should cover.

It’s also crucial you record this training to support claims defensibility should you face any medical malpractice claims. You may also want to consider your insurance coverage.

To find smarter ways to manage DNR order risks and for support reviewing your exposures, get in touch with WTW Health and Social Care specialists.