Bradford Children and Families Trust v Doncaster and Bassetlaw Hospitals NHS Foundation Trust & Ors

Summary[1]

The local authority in this case applied under the inherent jurisdiction for relief for a declaration of lawfulness in respect of a DNACPR form which had been placed in the medical records of a young boy in foster care who had a life-limiting medical condition. The boy’s parents and doctors had agreed that the DNACPR was appropriate, but the local authority did not consider it was able to consent to it, even though they did in fact agree that it was in the child’s best interests, as part of a wider palliative care plan for the child.

At the hearing, the Trust confirmed that it was not offering chest compressions, defibrillation or admission to intensive care to the child, and so there was no best interests issue for the court to determine. The only possible treatment where there was a choice to made was the use of non invasive ventilation and intraosseous access, which the Trust did not consider in the child’s best interests but which the doctors were not refusing to offer.  The Trust also pointed out that the DNACPR (in this case, the RESPECT form) is not legally binding and there was nothing stopping the Trust forming a different view in the future should the child’s circumstances change.

The local authority submitted that a court order was required since even though the local authority had the power to give or refuse consent to medical interventions through the care order, cases where the exercise of that power had very serious consequences for the child or its parents should be brought before the court.

The court decided to make a declaration that “It is not lawful, being unethical, for [the child] to be provided with” the treatments the Trust had said it was not offering.   McKendrick J noted that the medical records showed discussion of whether the RESPECT form was in the child’s best interests, which implied that there had not been a decision not to offer resuscitation, and the ReSPECT form itself did not make clear which treatments were being withheld because the medical professionals were not willing to offer them, and which were judged not to be in the child’s best interests.  The judge also took the view that a local authority could not consent to a DNACPR decision as it was a matter of life and death and since the medical records had not made clear that certain treatments were not on offer, the local authority had been right to issue the application. If the Trust’s position had been clear, the local authority would have understood that their only option was to issue proceedings for judicial review if they disputed the medical decision.

The judge therefore suggested that NICE may wish to consider whether its NG61 guidance, the CYCAP and ReSPECT should be revised.

Comment

The ReSPECT form includes what is described by the Resuscitation Council as “a recommendation on whether or not CPR should be attempted if the person’s heart and breathing stop.”  It is a clinical judgment, based on consultation with the patient or their family – the requirement of consultation or involvement of the patient and family having been confirmed in R (Tracey) v Cambridge University Hospital NHS Foundation Trust [2014] EWCA Civ 822 [2015] QB 543  and Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 (QB)). It is not a best interests decision, because a person can never, themselves, make the decision as to what the doctors should recommend.

The ReSPECT form itself does not characterise the decision to put in place a DNACPR recommendation as a best interests decision (and, in relation to adults, makes clear that the ‘capacity’ question is not capacity to make decisions about CPR, but capacity to participate in the making of recommendations).  It also – deliberately – does not include a place for the person themselves or for someone on their behalf to sign the form, because logically it is not a question of ‘consenting’ to the making of recommendations by medical professionals.[2]

However, this case makes clear that there is further work to be done to get this message across.  What does not help in this regard is the confusion caused by the analysis in the Winspear case, in which the court:

• endorsed established caselaw which confirms that the first stage in the decision-making process is for the doctor to decide what options to offer in the exercise of their clinical judgment; but
• framed the requirement to consult with the relatives of a person without capacity as deriving from s.4 MCA rather than Article 8 ECHR. This leads to confusion as it implies that the process the doctor is involved in is one of making a best interests decision, not deciding how to exercise their clinical judgment.

This confusion relates to adults with impaired decision-making capacity; it applies equally to children.

This sentence from R (Burke) v General Medical Council [2006] QB 273 correctly summarises the position: “If, after discussion with the patient, the doctor decides that the form of treatment requested is not clinically indicated he is not required to provide it although he should offer to arrange a second opinion.””  The doctor decides whether to offer CPR, following consultation with the patient or their family. If they decide not to offer it, they cannot be compelled to change their minds, and so there could not be any best interests challenge in the court, as it is procedurally improper to use the court to pressure a doctor to change their clinical opinion (AVS v A NHS Foundation Trust [2011] EWCA Civ 7).

This clarity in Burke is not reflected elsewhere – in addition to the confusion in Winspear, the joint statement by the Resuscitation Council, the BMA and the RCN throughout refers to the need to take decisions in the patient’s best interests.  And it is common for doctors to use the phrase “best interests” even when what doctors are referring to are their clinical decisions, not a best interests choice, as appears to have occurred in this case.

Finally, it is of interest in this case that the declaration made was not a best interests declaration, but a declaration of lawfulness, the Trust have clarified the situation by the time of the hearing.  If clarity about the nature of the clinical decision is given at an earlier stage, further such applications should be avoided.

[1] Note, Katie having been involved in the case, she has not contributed to this note.

[2] And also, in relation to adults, because a signature would turn the form into a Frankenstein advance decision to refuse treatment, both purporting to refuse CPR, but at the same time not complying with the requirements for validity under the MCA 2005. In relation to an adult, clinicians must be careful – if the person really wishes not to have CPR – to guide them towards creating an advance decision to refuse it, which will stand as their own decision.