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Cardiopulmonary resuscitation: nurses and the law

Wood J, Wainwright P (2007) Cardiopulmonary resuscitation: nurses and the law. Nursing Standard. 22, 4, 35-40. Date of acceptance: June 26 2007.

Summary
This article updates nurses on the laws governing cardiopulmonary resuscitation in relation to patients who have capacity at the time of admission to hospital, and promotes thoughtful ethical practice.

cardiopulmonary resuscitation (CPR) on his or her own behalf.

Consent, autonomy and common law

The NMC code (2004) states that the nurse: must obtain consent before you give any treatment or care and must respect patients and clients autonomy their right to decide whether or not to undergo any health care intervention even where a refusal may result in harm or death.... Consent and autonomy feature strongly in the ethics of nursing practice, but they are also legal concepts that cannot be ignored. Common law, sometimes known as case law, is where precedent is set when decisions are made by the courts. Laws or legal principles are established by courts over time. These may become statute law if passed by government as an Act of Parliament (codified into a statute) or they can be overruled by such an act. Kennedy and Grubb (2000) note that intentional touching without lawful justification or consent amounts to battery. The position of the common law is expressed in the quote from Justice Cardozo in Schloendorff v Society of New York Hospital [1914]: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault.... That consent should be sought before touching a patient is clear in common law, as is the right of any person who is competent, uncoerced and informed to refuse treatment, even if this may result in their death (Re C adult: refusal of medical treatment [1994] and Re MB (an adult: medical treatment) [1997]). This does not extend to a right to demand treatment. In Re J (a minor) (child in care: medical treatment) october 3 :: vol 22 no 4 :: 2007 35

Authors
Julia Wood is research assistant and Paul Wainwright is professor of nursing, Faculty of Health and Social Care Sciences, Kingston University and St Georges, University of London, London. Email: jwood@hscs.sgul.ac.uk

Keywords
Codes of Conduct; Ethics; Law; Resuscitation These keywords are based on the subject headings from the British Nursing Index. This article has been subject to double-blind review. For author and research article guidelines visit the Nursing Standard home page at www.nursing-standard.co.uk. For related articles visit our online archive and search using the keywords.

THE NURSES ROLE has changed beyond recognition over the past 50 years. The doctors handmaiden has been replaced by skilled practitioners who are accountable for their actions. The Nursing and Midwifery Councils Code of Professional Conduct (NMC 2004) states that: You [the nurse] are personally accountable for your practice. This means that you are answerable for your actions and omissions, regardless of advice or directions from another professional. The code also states: You [the nurse] must adhere to the laws of the country in which you are practising. With these obligations in mind, the law as it stands today and how it will apply after the Mental Capacity Act comes into force (partially in April and the remainder in October 2007), are considered in relation to a hospital patient who, at the time of admission, has capacity to make a decision about NURSING STANDARD

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[1993], Lord Donaldson and Lord Justice Balcombe made it clear that a medical practitioner would not be ordered by a court to provide treatment contrary to his or her clinical judgement. The recent Burke case (R (On the Application of Burke) v The General Medical Council [2005]), where the GMCs (2002) guidance on withholding and withdrawing lifeprolonging treatments was challenged, confirmed the patients right to refuse treatment but made it clear that there is no equivalent right to receive treatment considered inappropriate by the patients medical practitioner. In 2006, Burkes application to the European Court of Human Rights (ECHR) in Strasbourg (Burke v United Kingdom (2006)) was declared inadmissible. Necessity The NMC code (2004) states: In emergencies where treatment is necessary to preserve life, you may provide care without consent, if a patient or client is unable to give it, provided you can demonstrate that you are acting in their best interests. This reflects common law. Lord Goff in Re F (mental patient: sterilisation) [1990] pointed out that treatment without consent can be legally justified under the principle of necessity as long as it is in the incompetent patients best interests. In the same case Lord Brandon stated that: The operation or other treatment will be in their best interests if, but only if, it is carried out to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health. Lord Justice Butler-Sloss widened the scope of best interests in Re MB (an adult: medical treatment) [1997] commenting that best interests are not limited to best medical interests. As a CPR attempt is intended to save life, it is unlikely to be ruled an unlawful act, as long as there is no valid advanced refusal. The second issue is whether necessity can be used, in the absence of consent, when consent might have been obtained before the patient lost capacity. When anyone is admitted to hospital it is known that CPR will be attempted in the event of a cardiac arrest unless a decision to the contrary is made beforehand. Doctors and nurses need to consider whether, if cardiac arrest occurs, it is acceptable to act without consent using the defence of necessity. In Glass v United Kingdom [2004], the ECHR criticised an NHS trust for waiting for an emergency when an advance decision could have been made. Although this was a case of a child and there was disagreement between the medical team and the parents, the principle of not waiting for an anticipated 36 october 3 :: vol 22 no 4 :: 2007

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emergency situation still holds. In common law there appears to be doubt that the defence of necessity can be used when consent could have been obtained before the patient became incompetent (Box 1).

Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity (Department of Health (DH) 2005). However, it does not explicitly state the need to obtain advance consent for future emergency procedures, even those that are foreseen (Box 2). Best interests is also the standard for decision making. The Mental Capacity Act 2005 states that the decision maker must consider the incompetent persons past and present wishes and feelings, beliefs and values and other factors he or she would be likely to consider if able to do so. It also talks of the need to consult those close to the patient when this is appropriate. Such a considered decision is difficult in an emergency situation. If one is to consider a persons best interests it is essential that this is done before the emergency arises. Even so, there are circumstances where a decision has not been made in advance of a cardiac arrest, where presuming in favour of attempting resuscitation may not be lawful. If the health professional instigating treatment is as certain as he or she can be that the patients heart and breathing will not BOX 1 Best medical interests
Except in exceptional circumstances the presumption will be on the prolongation of life. The preservation of life. The promotion of health. The relief of pain. The welfare balance sheet includes all other welfare issues, both physical and psychological. The Mental Capacity Act 2005 says the following must be taken into account: The person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). The beliefs and values that would be likely to influence his or her decision if he or she had capacity. The other factors that he or she would be likely to consider if he were able to do so.

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BOX 2 Capacity
There is an assumption of capacity unless it is established otherwise. Capacity is specific to the decision being made, a person may have capacity to make one decision but lack capacity to make a different decision. According to the Mental Capacity Act 2005, to have capacity a person must be able to: Understand the information relevant to the decision. Retain that information. Use or weigh that information as part of the process of making the decision. Communicate his or her decision, whether by talking, using sign language or any other means. Making an unwise or irrational decision does not demonstrate incapacity. A person must be given information in a form appropriate to the person and his or her circumstances, maximising his or her chance of understanding.

proposed procedure. However, failure to give information may amount to negligence. Moreover, misinforming a patient, whether or not innocently and the withholding of information which is expressly or impliedly sought by the patient may well vitiate either consent or refusal (Re T (adult: refusal of medical treatment) [1992]).

Consent, refusal and the Mental Capacity Act 2005

The Mental Capacity Act 2005 does not deal with advance consent to treatment which it is anticipated will be needed when the patient has lost capacity. It does, however, codify the common law position that any adult over the age of 18 years, when he or she has the capacity to do so, can, in advance, refuse any medical treatment even if his or her life is at risk. To be valid a refusal must be: in writing; signed; and witnessed. It must clearly apply to the situation that materialises and if the advance refusal of treatment is to apply to life-sustaining treatment (including CPR) this must be stated explicitly. It will no longer be valid if there are reasonable grounds for believing that circumstances exist, which the person did not anticipate at the time of making the advance decision and which would have affected the decision had they been anticipated. Any advance refusal of treatment can be withdrawn at any time while the patient has capacity and this need not be in writing. It is clear that the law is intended to err on the side of providing life-sustaining treatment if there is any doubt, again reflecting the position of the common law (Box 3).

be restarted, it is not possible for him or her to argue that attempting CPR is in that persons best interests, leaving no defence against a charge of battery. The making of a reasoned analysis of the clinical, legal and ethical issues is impossible when a nurse discovers a patient is not breathing. There are only moments to commence CPR and erring on the side of treatment is predictable.

Advance decisions to refuse treatment

It has already been established that there is a legal right to refuse medical treatment. This is in relation to contemporaneous refusals but advance refusals are also protected by the common law. If a decision to refuse treatment is voluntarily made by a competent person, who understands the nature of the treatment and the likely risks, it must be respected (Re T (adult: refusal of medical treatment) [1992]). This will only apply in the circumstances that were envisaged at the time of making the decision.

Lasting power of attorney

In England and Wales there has never been any provision for anyone to give consent on behalf of another adult. Thus, unconscious or incompetent patients have always been treated without consent, using the defence of necessity. This situation will be changed by the Mental Capacity Act 2005 which introduces the lasting power of attorney. In Scotland, the Adults with Incapacity (Scotland) Act 2000 already allows people over the age of 16 to appoint someone to make decisions about treatment on their behalf should they become unable to make those decisions for themselves. The Mental Capacity Act 2005 will allow persons over 18 years of age in England and Wales to appoint another individual to make decisions on his or her behalf if he or she later lacks capacity, including consent or refusal of medical treatment. The patients appointed representative (referred to as the donee), can only refuse life-sustaining treatment for the patient if october 3 :: vol 22 no 4 :: 2007 37

Informing
The importance of informing patients we intend to treat is specified in common law. If consent to treatment is to be gained, or a refusal of the treatment accepted, appropriately full information must be given (Re T (adult: refusal of medical treatment) [1992]). If this duty is not performed, this will not necessarily render the consent or refusal invalid, as long as the patient is informed of the nature and purpose of the NURSING STANDARD

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this is expressly stated in the lasting power of attorney instrument. Although this will make many end of life decisions easier, it will not help in an emergency situation such as cardiac arrest where there is no time for consultation.

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Human Rights Act 2000

The Human Rights Act came into force in 2000, incorporating the Council of Europes European Convention on Human Rights 1950 into UK law. The act allows individuals to challenge UK legislation if it is incompatible with a convention right. Further, they can challenge the actions of a public authority if these are not compatible with a convention right. The act therefore affects the actions of individuals, when they are acting on behalf of a public authority, for example, carrying out their duties as a nurse within the NHS (Department for Constitutional Affairs 2000). The articles that are directly relevant to healthcare practitioners include Articles 2, 3, 8, 10 and 14. The implications of these are considered here. Article 2 Article 2 encompasses the right to life and the right not to be intentionally deprived of ones life. This is relevant when referring to CPR, the withholding of which will certainly result in death. However, providing the treatment is no guarantee that the patient will live. It is not difficult therefore to suggest that if CPR is withheld because its clinical appropriateness is BOX 3 Advanced decisions about cardiopulmonary resuscitation
To be valid, the advanced decision must: Explicitly mention CPR and say it applies even if life is at risk. Be in writing (although the patient can ask someone else to write it on his or her behalf). Be signed by the patient, or signed by someone else under his or her direction and in his or her presence. Be witnessed. Will be invalid if: The patient withdrew the decision while he or she had capacity (verbally or in writing). The patient made a lasting power of attorney after the advanced decision. His or her actions suggest he or she has changed his or her mind or the circumstances have changed, for example, she is pregnant and did not anticipate this. The patient did not have capacity when the advanced decision was made (although capacity is assumed unless there is reason to doubt it). Does an advance decision exist? The patient is responsible for bringing it to the attention of health professionals.

doubted, this does not constitute the deprivation of life, for example, in a patient in the final stages of metastatic cancer (NHS Trust A v M; NHS Trust B v H [2001]). In such a case, the patient is likely to die of the illness, disease or condition rather than through a breach of Article 2. Death comes to everyone at some point and Article 2 does not require heroic action in an attempt to delay this time. Article 3 Article 3 includes the right not to be subjected to inhuman or degrading treatment. This is an absolute right and must be upheld without exception. This can be considered from two perspectives, the provision of inappropriate treatment and the withholding of requested treatment. It is unlikely that performing CPR would be considered a breach of Article 3. In Herczegfalvy v Austria (1993), the ECHR held that a treatment which is both therapeutic and medically necessary cannot be regarded as inhuman. It would need to be considered whether the attempt at CPR is therapeutic. If there is little or no chance of the patient surviving, the undignified process of a CPR attempt concluding with the death of the patient may be considered by some to be degrading, if not inhuman treatment. If the patient has not had the opportunity to consent to or refuse treatment it is normal to err on the side of attempting CPR (British Medical Association (BMA) et al 2001). Inevitably, if the patients views have not been canvassed, there will be occasions when those who would have refused treatment will receive CPR. The patient may consider this to be inhuman or degrading treatment. In the case of unsuccessful CPR, it appears that the protection of Article 3 does not apply as the patient must be aware of the treatment for it to be potentially degrading (NHS Trust A v M; NHS Trust B v H [2001], Wicks 2001). A patient who was unconscious when CPR was commenced and did not live to reflect on the treatment will not have been aware of the CPR attempt and being deceased will have no rights. If a non-consensual CPR attempt is successful it could be claimed to have been therapeutic, having saved a life and thus achieved the medical aim of the intervention. However, the medical professional must have acted according to a standard accepted by a responsible group of peers (Bolam v Friern Hospital Management Committee [1957]) and the treatment must have been in the patients best interests (R (On the Application of N) v M [2002]). Assuming these conditions were realised, no breach of Article 3 will occur. It seems likely that other health professionals will support colleagues in their decision to successfully resuscitate a patient, NURSING STANDARD

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and at least the best medical interests have been satisfied. Nonetheless, what is therapeutic is specific to the individual so, although provision of CPR is unlikely to result in a challenge under Article 3, it is worth considering that under certain circumstances it may be in breach of the spirit of the law. The second perspective arises where a patient is requesting that CPR be attempted in the event of a cardiac arrest and the medical team refuses. Assuming the refusal is based on perceived clinical futility, this would not be in breach of Article 3. The medical team cannot be required to act against their clinical judgement as long as it is reasonably and responsibly formed. Article 8 Article 8 concerns the right to respect for private and family life. This has been interpreted to include the physical integrity of the person (X and Y v the Netherlands (1985), Wicks 2001, Pretty v United Kingdom [2002]). In X v Austria [1969], the ECHR stated that: compulsory medical intervention... must be considered as an interference with this right. At the moment CPR is commenced the patient is unconscious and consequently incompetent. However, consent could have been sought in advance to ensure that patients are not treated against their will. If an advance decision to refuse treatment (sometimes referred to as a living will or advance directive) has been made and health practitioners are aware of it, believe it to be valid but still proceed with treatment, they will undoubtedly be in breach of Article 8. It may also be a breach if an opportunity existed to explore patients preferences while they were competent, but the healthcare team waited until the patient became incompetent, and then performed non-consensual CPR under the guise of medical necessity. Article 10 Article 10 protects the right to freedom of expression, including the expression of opinions and receiving and imparting information. In a system where there is a presumption in favour of attempting CPR unless the medical team consider it clinically inappropriate, or the patient has expressly refused the treatment (BMA et al 2001) the patient, under Article 10, has a right to information. This would likely include some information on what CPR is, its success rate and side effects. The guidelines recommend a model patient information leaflet produced by the BMA (2002) and suggest that this should be available to all patients and those close to them. This information along with a willingness to answer patients questions would be enough to ensure compliance with the requirements of Article 10. The literature identified in Cherniacks (2002) review stated that patients typically know little about CPR, with most of their often inaccurate knowledge gleaned from television, but they NURSING STANDARD

BOX 4 Decision making about cardiopulmonary resuscitation

If the responsible medical officer (RMO) considers CPR to be clinically appropriate: The person with capacity when appropriately informed can decide whether he or she wishes to have the treatment or not. Refusal of treatment can be made in advance or contemporaneously. If the person has capacity, this decision cannot be overridden by medical staff or even the courts. When the person lacks capacity the RMO makes the decision after considering the persons best interests and, consulting formal and informal carers and significant others if this can be achieved without breaching confidentiality. Where there is a dispute between interested parties the courts may need to decide.

would like to be told more and have the chance to discuss it with the physician. Reluctance to discuss the subject appears to be on the side of the physician, not that of patients. Article 14 Article 14 prohibits discrimination. It is not a stand-alone right, but is intended to ensure that everyone can benefit from the Conventions rights without discrimination. The scope of the Article is wide and most characteristics could be included. However, Article 14 will only be referred to if another Article is breached. Overall the European Convention on Human Rights had the aim of protecting individual freedom. This should include protecting people from medical treatment they do not want but can only refuse if they have the information to make an informed decision, and are consulted about their preferences. Even though it appears unlikely that provision of CPR will result in challenges under human rights law, consideration of the principles the Convention is designed to protect should guide decision making and practice. Disputes over provision of CPR can be decided in the courts (for example, the case of Charlotte Wyatt (Portsmouth NHS Trust v Derek Wyatt, Charlotte Wyatt (by her guardian CAFCASS) and Southampton NHS Trust (Intervener) [2004]), but the courts are likely to support medical opinion as long as decisions are made solely to avoid the infliction of treatment which is unlikely to provide an overall benefit to the patient (Box 4).

The nurses role in cardiopulmonary resuscitation decisions

Legal challenges to nursing and medical decisions are rare. Practitioners who act reasonably and in good faith will usually avoid legal disputes. However, a nurse is a practitioner accountable for his or her actions and as such is responsible for the legality of those actions. Nurses cannot claim that october 3 :: vol 22 no 4 :: 2007 39

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they acted under the direction of a doctor who made (or failed to make) a decision on whether to attempt CPR. There is an obligation to understand the law; ignorance of the law is no justification for its breach. The NMC code (2004) states that the nurse must co-operate with others in the team, including the patient or client, their family and informal carers, as well as health and social care professionals. This may involve the nurse in a balancing act between advocating for patients and those close to them while acting as a co-operative member of a healthcare team. The nurse can take on several important roles in decision making on CPR in the promotion of lawful practice. They can provide information to patients and encourage dialogue when this is appropriate. They can then uphold the autonomy of patients, encouraging them to make their own decisions. Nurses can also promote the value of consent, through communication with, and education of, colleagues, involving themselves in the writing and implementation of policies and protocols. Communication in the team is essential to ensure that decisions are made when necessary. These decisions should be reviewed at regular intervals and when the patients condition or circumstances change. The

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nurse can promote patient involvement when appropriate and encourage openness on the decision-making process. To ensure the legality of practice in the area of CPR, nurses should provide information to all patients and answer any questions honestly and comprehensively. If they do not have the expertise they must find the information or ask an appropriate person to take over. Where possible, and particularly when there is a foreseeable risk of cardiac arrest and there is an intention to resuscitate, they should ensure that a member of the healthcare team gains consent. Good communication with patients and other members of the healthcare team is essential to enable good practice in a legal framework.

Conclusion
This article has examined the law and decision making regarding CPR in relation to the patient who is competent to make his or her own treatment decisions when admitted to hospital. It has considered the importance of the common law, the Human Rights Act 2000 and the most recent relevant legislation, the Mental Capacity Act 2005. Consideration has been given to the nurses role in the decision-making process. The article aims to promote good nursing practice in the area of CPR, which needs to be informed, thoughtful and well considered before it can be ethical and legal NS

References
Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. British Medical Association, Resuscitation Council (UK) and Royal College of Nursing (2001) Decisions Relating to Cardiopulmonary Resuscitation: A Joint Statement. BMA, London. British Medical Association (2002) Decisions About Cardiopulmonary Resuscitation (model information leaflet). BMA, London. Burke v United Kingdom (2006) Application no 19807/06, 11 July 2006 (European Court of Human Rights). Cherniack EP (2002) Increasing use of DNR orders in the elderly worldwide: whose choice is it? Journal of Medical Ethics. 28, 5, 303-307. Department for Constitutional Affairs (2000) Human Rights Act: An Introduction. www.dca.gov.uk/peoplesrights/human-rights/pdf/hrintro.pdf (Last accessed: August 29 2007.) Department of Health (2005) Mental Capacity Act 2005, Summary. www.dh.gov.uk/ PublicationsAndStatistics/Bulletins/ ChiefExecutiveBulletin/ChiefExecuti veBulletinArticle/fs/en?CONTENT_I D=4108436&chk=z0Ds8/ (Last accessed: August 23 2007.) General Medical Council (2002) Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision Making. GMC, London. Glass v United Kingdom [2004] 1 FCR 553, [2004] Fam Law 410 at 79 (ECHR). Herczegfalvy v Austria (1993) 15 EHRR 437 (ECHR). Kennedy I, Grubb A (2000) Medical Law. Third edition. Butterworths, London. NHS Trust A v M; NHS Trust B v H [2001] FAM 348. Nursing and Midwifery Council (2004) The NMC Code of Professional Conduct: Standards for Conduct, Performance and Ethics. NMC, London. Portsmouth NHS Trust v Derek Wyatt, Charlotte Wyatt (by her guardian CAFCASS) and Southampton NHS Trust (Intervener) [2004] EWHC 2247 (Fam). Pretty v United Kingdom [2002] 35 EHRR 1 (ECHR). R (On the Application of Burke) v The General Medical Council [2005] EWCA Civ 1003. R (On the Application of N) v M [2002] EWCA Civ 1789. Re C adult: refusal of medical treatment [1994] 1 All ER 819 (High Ct). Re F (mental patient: sterilisation) [1990] 2 AC 1, (1989) 4 BMLR 1 (HL). Re J (a minor) (child in care: medical treatment) [1993] Fam 15, 4 All ER 614 (CA). Re MB (an adult: medical treatment) [1997] 38 BMLR 175 (CA). Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, (1992) 9 BMLR 46 (CA). Schloendorff v Society of New York Hospital [1914] 105 NE 92 (NY). Wicks E (2001) The right to refuse medical treatment under the European Convention on Human Rights. Medical Law Review. 9, 1, 17-40. X and Y v the Netherlands (1985) 26 March 1985, Series A no 91 (ECHR). X v Austria [1969] No 3374/67, 12 YB 246 (ECHR).

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