By Dr Lucy M. Davis, School of Law, University of Limerick, Ireland. Email: lucy.davis@ul.ie and lucymdavis@yahoo.com
Twitter: @LucyMDavis
“Why did you choose to research DNAR orders?”
This was one of the first questions raised by examiners when I defended my PhD thesis. A standard question for most PhD viva voce exams and definitely, a valid question for my research, given that my PhD thesis was in the area of law and not medicine or health sciences.
However, for me, it was an easy question to answer. I chose to research Do Not Attempt Resuscitation (DNAR) decisions (as they are referred to in Ireland) because they are not regulated in Ireland and this has significant consequences for the treatment of vulnerable patients who are at the end of life.
Such consequences were particularly evident during the last year, where the rise of the COVID-19 pandemic sparked fresh concerns over DNAR decisions being made without including patients or considering their individual circumstances. In Ireland, this was highlighted by a number of media reports in 2020 that publicised stories of patients being labelled as ‘Not for Resuscitation’ without their knowledge.
Unfortunately, however, the exclusion of patients from DNAR decisions in Ireland is not limited to pandemic conditions. Prior to the rise of COVID-19, Irish medical research had already identified that there was lack of certainty amongst healthcare practitioners in Ireland regarding DNAR decisions. Indeed, a number of studies revealed that healthcare practitioners of all ranks and qualifications are not certain as to who should be involved in the conversation about resuscitation, who should have the authority to make DNAR decisions and if a decision is made, if it should apply to treatments other than resuscitation.
This uncertainty has realised practical implications for the treatment of patients as Irish research also suggests that these practitioners may be slow to make DNAR decisions for fear of receiving a request for futile resuscitation from a patient’s family. In other circumstances, practitioners may only include a patient’s family and may opt not to include a patient because they believe they do not have to be involved. Most significantly, if a patient has a DNAR order, the uncertainty surrounding its remit can mean that some patients may not be provided with other treatments and instead, they ‘may be parked in a corner’ and not looked at again.
In my PhD research, I sought to examine why the current framework governing DNAR decisions in Ireland is not sufficient to ensure that patients are safeguarded in DNAR decisions. This entailed looking at the law in the area, of which there is very little, and examining the codes of practice and guidelines that govern practitioners and members of the National Ambulance Service. There is currently no legislation in Ireland to govern DNAR decisions and there has only been one court case to address these decisions directly. Thus, from a legal perspective, there has been little legal attention given to these decisions in practice.
In relation to policy/guidelines, all healthcare practitioners and members of the National Ambulance have their own codes of practice that provide them with broad guidance. However, there is no national guidance or policy specifically governing DNAR decisions that would be comparable to the guidance in England, or the national policy in Wales, with its wrap-around TalkCPR resources for members of the public. Instead, the Irish Health Service Executive (HSE), which is the national organisation governing the Irish healthcare system, has only addressed DNAR decisions as part of a broader policy focusing on consent, called the “National Consent Policy” (See: https://www.hse.ie/eng/about/who/qid/other-quality-improvement-programmes/consent/national-consent-policy-hse-v1-3-june-2019.pdf). Part 4 of this policy, which relates to DNAR decisions, is not mandatory however and at present, every hospital and healthcare facility in Ireland has discretion to develop their own resuscitation policy and DNAR form.
In this respect, it may be acknowledged that the guidance within the National Consent Policy means that there is some guidance in Ireland for DNAR decisions. Furthermore, legal practitioners in Ireland may rightfully contend that Ireland will soon have very important legislation in operation to govern advance decision-making, which will provide patients with the opportunity to refuse resuscitation in a legally binding advance healthcare directive. However, neither this law nor the policies in this area are sufficient to ensure patients in DNAR decisions will be safeguarded in practice.
Indeed, what is needed going forward is specific regulation to govern DNAR decisions that introduces important safeguards for patient rights. To do this, this regulation must build upon the new law governing advance decision-making and provide clarity to practitioners regarding how they should incorporate advance directives into resuscitation decisions. Furthermore, this regulation must provide detailed guidance to practitioners regarding who can make a DNAR decision and who should be involved in the conversation. Practitioners should be given clarity regarding conducting DNAR conversations and involving patients in a discussion of resuscitation and it should be clarified that this process may in reality require several conversations (See Royal College of Physicians ‘Talking about Dying Report 2018’ at: https://www.rcplondon.ac.uk/projects/outputs/talking-about-dying-how-begin-honest-conversations-about-what-lies-ahead). Finally, specific national procedures need to be introduced which standardise DNAR decision-making across Irish practice in the same way that the National Policy in Wales has standardised the resuscitation practice in the Welsh NHS.
To achieve all of these goals, I determined that either national policy (like in Wales) or legislation (like in Ohio) or a combination of both could provide a suitable model for regulating DNAR decisions. Whichever model is chosen, the most important aspect of the regulation is that there is a drive to ensure that is incorporated and followed in practice.