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Legal rights and coronavirus: Do Not Resuscitate (DNR) Decisions

As the coronavirus pandemic continues we aim to provide useful discussions of your legal rights. With thousands of people now being treated in hospital for symptoms of COVID-19, human rights solicitor Merry Varney sets out the legal rights associated with do not resuscitate decisions.

Posted on 08 April 2020

Many years ago, after acting for the late David Tracey in a case about whether his wife, Janet, should have been informed and consulted before a decision was made to withhold resuscitation from her, I wrote a guide for patients and their families regarding do not resuscitate (DNR) decisions. There has long been much misunderstanding in relation to these decisions and there can be a reluctance by families to discuss end of life issues and death.
A guide for patients and families to Do Not Resuscitate (DNR) decisions 
Although it is sadly true that the current pandemic is placing unprecedented demands on our NHS and hence resources are going to be a significant issue when deciding on what treatment a patient will receive, the law in terms of patients’ rights has not changed.
As the guide sets out, and has been reinforced by the welcomed statements from NHS England and others, decisions about resuscitation should be taken in consultation with patients, and on an individual basis. These decisions should not be taken secretly from a patient or their family, but it is important to remember there is no legal requirement for a patient or their family to consent to a DNR decision.
Where an advance decision not to receive CPR is made by a healthcare professional rather than a request by a patient, their decision should be based on an understanding of the individual patient’s health and wishes. It should involve exercising their clinical expertise to reach a view on whether CPR is likely to work. If a doctor considers CPR is not going to work, then they do not need your consent to complete a DNR and withhold resuscitation.
Any DNR decision about you should be discussed with you and you have a right to know of any decision made. This is a matter of basic human rights and the Court of Appeal in the case of Janet Tracey made it clear that there would need to be significant and exceptional reasons not to inform and involve a patient in such an important decision.
For patients lacking the required mental capacity to make their own advance decision about resuscitation or to express their own wishes about receiving CPR, there is a legal requirement to involve families in the decision making process and for them to be informed. There may well be emergency situations where this is not possible, however with families likely to be available by telephone or video call, exceptions should be rare.
From my experience the key factor in DNR decision-making is good communication. The stories in the media about mail outs to older people or a particular care home telling residents and their families that DNRs are being considered/imposed are appalling examples of poor and possibly unlawful behaviour. There should be no blanket decisions.
Decisions about resuscitation need to be individual and made with the individual. A timescale should be set out for a review, and this is particularly important I think in present times as a patient’s chances of survival if they require CPR may be very different if there becomes capacity in a specialist hospital, which is currently unavailable or the anticipated reason for needing CPR, such as contracting coronavirus is no longer relevant.
There is no doubt these discussions and decisions are hard for everyone involved and are made more so now, given the extreme pressure brought by the pandemic.  However, the reality of the pandemic will force many to start considering end of life care and decisions in a way they have not done so previously.
It is often easy to see the making of a DNR decision as giving up, or being written off and I have heard many patients and families refer to healthcare professionals as ‘playing God’ or worse. Thankfully Harold Shipman was a very rare example and I believe most would endorse the words of an intensive care unit consultant who tweeted recently: 
“We will all die one day, I would like to die with dignity and peacefully and try to ensure the same for all my patients who are dying. That's why I write DNAR orders”
It is vitally important  that everyone’s human rights are protected in the decision making process and patients’ voices are heard and considered. Through understanding your rights and good communication, hopefully agreed decisions will far outweigh those that are not agreed and the focus can remain on delivering high quality patient care whether a DNR is in place or not.


Merry Varney
Court of Protection Human rights Inquests Judicial review

Merry Varney

Merry is a partner in the human rights department and head of the Leigh Day inquest group