- Email: [email protected]
CPR policies and the patient's best interests
Resuscitation 83 (2012) 168–170
Contents lists available at SciVerse ScienceDirect
Resuscitation journal homepage: www.elsevier.com/locate/resuscitation
Commentary and concepts
CPR policies and the patient’s best interests夽 Stuart McLennan Institute for Biomedical Ethics, Universität Basel, Missionstrasse 24, CH-4055 Basel, Switzerland
a r t i c l e
i n f o
Article history: Received 2 July 2011 Received in revised form 23 September 2011 Accepted 19 October 2011
Keywords: CPR Patient best interests Policies Common law
a b s t r a c t Standard hospital CPR policies in many countries require CPR to be attempted on all patients having a cardiac arrest unless a Not-for-CPR order is in place. It has recently been shown that this approach is legally inappropriate in New Zealand. It appears that this argument may also potentially apply in other common law countries given the role that ‘best interests’ has in these jurisdictions in providing treatment to patients lacking decision-making capacity. Not-for-CPR orders provide an important and transparent mechanism for making advanced decisions regarding resuscitation. However, advanced planning is not always possible and it is legally inappropriate to require CPR to be performed when it is not in the patient’s best interests. Notwithstanding the difficult practical balance that exists at the time of arrest between initiating CPR without delay or interruption for it to be effective for those whom CPR is in their best interests, and recognising as quickly as possible those patients for who CPR is not appropriate, it is argued that policies should be modified to allow clinicians to consider whether CPR is appropriate at time of arrest. Such a change may require ALS training to include a stronger emphasis on early recognition of patients for whom CPR is not in their best interests. © 2011 Elsevier Ireland Ltd. All rights reserved.
1. The changing use of CPR By the early 1960s various elements of resuscitation had been brought together to create cardiopulmonary resuscitation (CPR).1 Once CPR became available, decisions had to be made about when it should be attempted. A review of the changed patterns of use is informative. Initially CPR was used very selectively in a hospital setting at the discretion of the doctor and generally on patients with acute illnesses whose cardiac arrests resulted from reversible conditions; those who had “hearts too good to die”.2 This selective use of CPR was linked to the fact that training in its use was fairly restricted, being provided mainly for those practitioners (cardiologists, surgeons and anaesthetists) whose patients were most likely to have reversible causes of cardiac arrest.3,4 As the introduction to a monograph on CPR in 1965 stated: “Resuscitation of the dying patient with irreparable damage to the heart, lungs, brain, or any other vital system of the body has no medical, ethical, or moral justification. The techniques described in this monograph are designed to resuscitate the victims of acute insult, whether it be from drowning, electrical shock, untoward effect of drugs, anaesthetic accident, heart block, acute myocardial infarction or surgery.”5
夽 A Spanish translated version of the abstract of this article appears as Appendix in the final online version at doi:10.1016/j.resuscitation.2011.10.007. E-mail address: [email protected] 0300-9572/$ – see front matter © 2011 Elsevier Ireland Ltd. All rights reserved. doi:10.1016/j.resuscitation.2011.10.007
Later in the same volume, two of the founders of CPR spelt out principles for its use. The first was as follows: “1. The patient must be salvable. Cardiopulmonary resuscitation is indicated for the patient who, at the time of cardiopulmonary arrest, is not in the terminal stage of an incurable disease. Resuscitative measures on terminal patients will, at best, return them to the dying state. The physician should concentrate on resuscitating patients who were in good health preceding the arrest, and who are likely to resume a normal existence.”6 The use of CPR expanded rapidly, however, to the point where it was begun promptly on all patients having a cardiac arrest in hospital, regardless of the underlying illness.4 A number of reasons why CPR became the required default position for all patients having a cardiac arrest have been suggested in the literature. One writer states that these changes were instituted “to improve the chances of a response to cardiopulmonary resuscitation, and to ensure good neurologic function in patients who did respond”.4 Another suggests that the “ever-present legal threat for failure to resuscitate” was also an important factor.7 It has also been suggested that the increased demands that morality was seen to place on the medical profession to combat sudden cardiac death subsequent to the development of CPR may have been an important factor as well – that they could not now sit idly by and allow any patient having a cardiac arrest to simply die when there was the slightest chance they could now prevent death by using CPR.1 However, problems resulted from the use of CPR on all hospital patients who were having a cardiac arrest.4,8 It has been said that “far more often than not CPR transiently restored physiologic
S. McLennan / Resuscitation 83 (2012) 168–170
stability but prolonged patient suffering”.8 By the late 1960s reports of this phenomenon were appearing in the medical literature, describing the agony that many patients experienced from CPR that only prolonged their dying.9 Consequently, many practitioners did not commence CPR, or performed less than a full attempt, when they considered CPR inappropriate.8 In response, institutions began to develop their own means of indicating that CPR was not to be used on a particular patient if they had a cardiac arrest. As it has been noted: “At some institutions, these decisions were concealed as purple dots on the medical record or written as cryptic initials in the patient’s chart, whereas at other institutions, they were simply communicated as verbal orders passed on from shift to shift...”8 Given the greater emphasis on patient autonomy and participation in decision-making that now existed, these developments did not pass without controversy.3 There was concern about the lack of patient involvement in decisions to withhold CPR and about the lack of documentation of these decisions. There was felt to be a failure “to provide sufficient rationale and accountability for what did transpire”.8 It was in this context that a more formal process began to emerge in the early 1970s, with guidelines recommending that advanced decisions not to perform CPR should be formally documented in the medical record.10 The first hospital policies on Do Not Resuscitate (DNR) orders were subsequently reported in the medical literature in 1976.11–13 While there were initially only patientinitiated DNR orders, policies evolved over time and by the late 1980s many hospital policies allowed doctors to make medically initiated DNR orders for patients if, in their judgement, it would be futile to attempt CPR if a cardiac arrest occurred.14 While these changes led to modifications of CPR policies, CPR has remained the required default position for all patients having a cardiac arrest. Hospital policies in many countries now generally require CPR to be attempted on all patients having a cardiac arrest unless a DNR order is in place.15 A distinction should be made here, however, between “Not-for-CPR” orders and “Not-forResuscitation” orders, as resuscitation includes more interventions than simply CPR. In light of this, a number of policies refer to Notfor-CPR orders rather than DNR orders. 2. The use of CPR and the common law After examining the changing application of CPR in the hospital setting since its development, we can see that the switch from using CPR very selectively at the discretion of the doctor, to CPR being required to be performed on all patients having a cardiac arrest, was a significant change and one that created problems with CPR being clearly inadvisable for a number of patients having a cardiac arrest within the hospital. Not-for-CPR orders were developed in an attempt to address this issue, by providing a mechanism for making advanced decisions regarding resuscitation in a transparent manner. CPR, however, has remained the required default position for all patients having a cardiac arrest in-hospital, regardless of their underlying illness, giving clinicians no other option at time of arrest but to perform CPR if there is no Not-for-CPR order in place. It is perhaps therefore not surprising that ‘slow codes’, the delayed or token efforts to provide CPR, involving a deliberate decision not to aggressively attempt to prevent the patient having a cardiac arrest from dying, have remained an issue.16–22 Slow codes now tend to occur where there is no Not-for-CPR order in place, and thus where CPR is required to be performed, but where the health practitioners see attempting CPR on the patient having the cardiac arrest as clearly inappropriate and futile. This situation can cause health practitioners, what has been termed,
169
‘moral distress’.23 In such a situation, health practitioners may view a slow code as, “the only way of gaining some control over the situation and escaping in some way from participating in a perceived immoral act.”16 Thus, a slow code may provide health practitioners, as Muller suggests, an adaptive response to what they see as an untenable requirement of their job.24 Indeed, it has been recently argued in New Zealand that this requirement of current CPR policies, to attempt CPR on all patients having a cardiac arrest unless a Not-for-CPR order in place, is actually legally inappropriate.15 While certain aspects of New Zealand’s medico-legal system are unique among common law systems (i.e. non-fault compensation system), the major criticism of this approach was based on considerations that are generally shared by all common law systems and therefore potentially has wider relevance. An important aspect of the common law is the right of individuals to have their bodily integrity respected.25 One of the consequences of this is that the provision of medical treatment without consent or some other legal justification can incur various forms of liability, including criminal (assault) and tortious (battery).26 A patient having a cardiac arrest will clearly not have the level of competence required to consent to CPR, nor would consent have usually been given in advance by the patient. For the provision of CPR to be lawful, therefore, there needs to be some kind of legal justification for providing it without consent. The standard legal grounds for providing medical treatment without consent in common law systems generally depends upon a judgement that the provision of treatment is in the patient’s best interests.27,28 Thus, in the absence of a patient’s valid anticipatory refusal of consent, the provision of CPR is lawful whenever there are reasonable grounds for believing that it is in the patient’s best interests. While considerable latitude will be provided for clinicians making this assessment, often in less than ideal circumstances, the issue of whether further treatment is in the patient’s best interests is crucial.15 It is therefore concerning that current CPR policies do not allow clinicians to consider whether CPR is appropriate at time of arrest. This approach can lead to CPR being used, to borrow T.S. Eliot’s words, “not for the good that it will do, but that nothing may be left undone on the margin of the impossible”.29 Such an approach is legally inappropriate; the provision of CPR without consent in circumstances where its provision cannot be reasonably be regarded as in the patient’s best interests, is unlawful.15 There is, however, a difficult practical balance that exists at time of arrest between initiating CPR without delay or interruption for it to be effective for those whom CPR is in their best interests, and recognising as quickly as possible those patients for who CPR is not appropriate. Indeed, the rapid initiation of both CPR and defibrillation are two events which are important links in what is known as the ‘chain of survival’; the sequence of events that are critically important in determining a successful outcome for a victim of a cardiac arrest.30 The initiation of CPR, at least in the first instance, in circumstances in which health practitioners are not sure whether or not CPR is in the best interests of the patients, is thus a sensible approach and one supported by the law. However, as it was concluded in the New Zealand context: “There is no justification for pressing ahead with CPR where a [Not-for-CPR] order has not been made but all involved are agreed that further treatment is not in a patient’s best interests.”15 It is interesting to note the thoughtful joint statement on these issues in 2007 by the British Medical Association, Resuscitation Council (UK) and Royal College of Nursing.31 While a ‘presumption’
170
S. McLennan / Resuscitation 83 (2012) 168–170
in favour of CPR when no advance decision has been made is advocated, it is also stated that: “There will be some patients for whom attempting CPR is clearly inappropriate; for example a patient in the final stages of a terminal illness where death is imminent and unavoidable and CPR would not be successful, but for whom no formal DNAR decision has been made. In such circumstances, healthcare workers who make a considered decision not to commence CPR should be supported by their senior colleagues and employers.” The problem, however, is that health practitioners are currently unable to make such a ‘considered decision’ at time of arrest under many hospital policies, which require CPR to be attempted on all patients having a cardiac arrest unless a Not-for-CPR order is in place. One reason we see ‘slow codes’ occurring. Hospital policies should be modified to allow clinicians to consider whether CPR is appropriate at time of arrest. Such a change may require ALS training to include a stronger emphasis on early recognition of patients for whom CPR is not in their best interests. Common law systems can differ in important respects and one must always look at issues within the context of the broader legal system. However, as this argument is based on considerations that are generally shared by all common law systems, it is one that should be considered by other countries in the common law tradition. Conflict of interest statement No conflicts of interest to disclose. Acknowledgements This article includes work that has been adapted from the author’s dissertation that was submitted for a Master of Bioethics and Health Law at the University of Otago. References 1. McLennan S. The development of CPR. NZ Med J 2008;121. URL: http://www.nzma.org.nz/journal/121-1284/3312/ [accessed 13.06.11]. 2. Eisenberg MS, Mengert TJ. Cardiac resuscitation. NEJM 2001;344:1304–13. 3. Faber-Langendoen K. Resuscitation of patients with metastatic cancer: is transient benefit still futile? Arch Intern Med 1991;151:235–9. 4. Blackhall LJ. Must we always use CPR? NEJM 1987;317:1281–5. 5. Talbott JH. Introduction. In: Jude JR, Elam JO, editors. Fundamentals of cardiopulmonary resuscitation. Philadelphia: F.A. Davis Company; 1965. p. 1–3.
6. Jude JR, Elam JO. Fundamentals of cardiopulmonary resuscitation. Philadelphia: F.A. Davis Company; 1965. 7. Hermreck AS. The history of cardiopulmonary resuscitation. Am J Surg 1988;156:430–6. 8. Burns JP, Edwards J, Johnson J, et al. Do-not-resuscitate order after 25 years. Crit Care Med 2003;31:1543–50. 9. Symmers WS. Not allowed to die. BMJ 1968;1:442. 10. National Conference on Cardiopulmonary Resuscitation and Emergency Cardiac Care. Standards and guidelines for cardiopulmonary resuscitation and emergency cardiac care: medicolegal considerations and recommendations. JAMA 1974;227:837–68. 11. Clinical Care Committee of the Massachusetts General Hospital. Optimum care for hopelessly ill patients: a report of the Clinical Care Committee of the Massachusetts General Hospital. NEJM 1976;295:362–4. 12. Rabkin MT, Gillerman G, Rice NR. Orders not to resuscitate. NEJM 1976;295:362–4. 13. Fried C. Terminating life support: out of the closet! NEJM 1976;295:390–1. 14. Swig L, Cooke M, Osmond D, et al. Physician responses to a hospital policy allowing them to not offer cardiopulmonary resuscitation. J Am Geriatr Soc 1996;44:1215–9. 15. McLennan S, Paterson R, Skegg PDG, Aickin R. The use of CPR in New Zealand: is it always lawful? NZ Med J 2011;124. URL: http://www.nzma.org.nz/journal/1241328/4511/ [accessed 13.06.11]. 16. Ditillo BA. Should there be a choice for cardiopulmonary resuscitation when death is expected? Revisiting an old idea whose time is yet to come. J Palliat Med 2002;5:107–16. 17. American Heart Association and the International Liaison Committee on Resuscitation. Guidelines 2000 for cardiopulmonary resuscitation and emergency cardiovascular care: international consensus on science. Part 2: ethical aspects of CPR and ECC. Circulation 2000;102:S12–21. 18. Gazelle G. The slow code: should anyone rush to its defence? NEJM 1998;338:467–9. 19. Emergency Cardiac Care Committee and Subcommittees of the American Heart Association. Guidelines for cardiopulmonary resuscitation and emergency cardiac care. JAMA 1992;268:2135–302. 20. Fowler MD. Slow code, partial code, limited code. Heart Lung 1989;18:533–4. 21. Neher JO. The “slow code”: a hidden conflict. J Fam Pract 1988;27:429–30. 22. Goldenring J. “Code” or “no code” decisions. NEJM 1979;300:1058. 23. Corley MC. Moral distress of critical care nurses. Am J Crit Care 1995;4:280–5. 24. Muller JH. Shades of blue: the negotiation of limited codes by medical residents. Soc Sci Med 1992;34:885–98. 25. Trandel-Korenchuk D, Rhodes AM, Trandel-Korenchuk K. Nursing and the law. 5th ed. Aspen Publishers; 1997. 26. Skegg PDG. Consent to treatment: introduction. In: Skegg PDG, Paterson R, editors. Medical law in New Zealand. Wellington: Thomson Brookers; 2006. p. 145–69. 27. White SM, Seer J. Consent: the law and ethical considerations. Anaesth Intens Care Med 2008;10:111–4. 28. Kopelman LM. The best interests standard for incompetent or incapacitated persons of all ages. J Law Med Ethics 2007;35:187–96. 29. Eliot TS. The family reunion. In: Collected plays. London: Faber and Faber; 1962. pp. 55–122. 30. Rea TD, Bobrow BJ, Edelson DP, et al. Part 4: CPR overview: 2010 American heart association guidelines for cardiopulmonary resuscitation and emergency cardiovascular care. Circulation 2010;122:S676–84. 31. British Medical Association, Resuscitation Council & Royal College of Nursing. Decisions relating to cardiopulmonary resuscitation: A Joint statement from the British Medical Association, the Resuscitation Council (UK) and Royal College of Nursing; 2007.
Contents lists available at SciVerse ScienceDirect
Resuscitation journal homepage: www.elsevier.com/locate/resuscitation
Commentary and concepts
CPR policies and the patient’s best interests夽 Stuart McLennan Institute for Biomedical Ethics, Universität Basel, Missionstrasse 24, CH-4055 Basel, Switzerland
a r t i c l e
i n f o
Article history: Received 2 July 2011 Received in revised form 23 September 2011 Accepted 19 October 2011
Keywords: CPR Patient best interests Policies Common law
a b s t r a c t Standard hospital CPR policies in many countries require CPR to be attempted on all patients having a cardiac arrest unless a Not-for-CPR order is in place. It has recently been shown that this approach is legally inappropriate in New Zealand. It appears that this argument may also potentially apply in other common law countries given the role that ‘best interests’ has in these jurisdictions in providing treatment to patients lacking decision-making capacity. Not-for-CPR orders provide an important and transparent mechanism for making advanced decisions regarding resuscitation. However, advanced planning is not always possible and it is legally inappropriate to require CPR to be performed when it is not in the patient’s best interests. Notwithstanding the difficult practical balance that exists at the time of arrest between initiating CPR without delay or interruption for it to be effective for those whom CPR is in their best interests, and recognising as quickly as possible those patients for who CPR is not appropriate, it is argued that policies should be modified to allow clinicians to consider whether CPR is appropriate at time of arrest. Such a change may require ALS training to include a stronger emphasis on early recognition of patients for whom CPR is not in their best interests. © 2011 Elsevier Ireland Ltd. All rights reserved.
1. The changing use of CPR By the early 1960s various elements of resuscitation had been brought together to create cardiopulmonary resuscitation (CPR).1 Once CPR became available, decisions had to be made about when it should be attempted. A review of the changed patterns of use is informative. Initially CPR was used very selectively in a hospital setting at the discretion of the doctor and generally on patients with acute illnesses whose cardiac arrests resulted from reversible conditions; those who had “hearts too good to die”.2 This selective use of CPR was linked to the fact that training in its use was fairly restricted, being provided mainly for those practitioners (cardiologists, surgeons and anaesthetists) whose patients were most likely to have reversible causes of cardiac arrest.3,4 As the introduction to a monograph on CPR in 1965 stated: “Resuscitation of the dying patient with irreparable damage to the heart, lungs, brain, or any other vital system of the body has no medical, ethical, or moral justification. The techniques described in this monograph are designed to resuscitate the victims of acute insult, whether it be from drowning, electrical shock, untoward effect of drugs, anaesthetic accident, heart block, acute myocardial infarction or surgery.”5
夽 A Spanish translated version of the abstract of this article appears as Appendix in the final online version at doi:10.1016/j.resuscitation.2011.10.007. E-mail address: [email protected] 0300-9572/$ – see front matter © 2011 Elsevier Ireland Ltd. All rights reserved. doi:10.1016/j.resuscitation.2011.10.007
Later in the same volume, two of the founders of CPR spelt out principles for its use. The first was as follows: “1. The patient must be salvable. Cardiopulmonary resuscitation is indicated for the patient who, at the time of cardiopulmonary arrest, is not in the terminal stage of an incurable disease. Resuscitative measures on terminal patients will, at best, return them to the dying state. The physician should concentrate on resuscitating patients who were in good health preceding the arrest, and who are likely to resume a normal existence.”6 The use of CPR expanded rapidly, however, to the point where it was begun promptly on all patients having a cardiac arrest in hospital, regardless of the underlying illness.4 A number of reasons why CPR became the required default position for all patients having a cardiac arrest have been suggested in the literature. One writer states that these changes were instituted “to improve the chances of a response to cardiopulmonary resuscitation, and to ensure good neurologic function in patients who did respond”.4 Another suggests that the “ever-present legal threat for failure to resuscitate” was also an important factor.7 It has also been suggested that the increased demands that morality was seen to place on the medical profession to combat sudden cardiac death subsequent to the development of CPR may have been an important factor as well – that they could not now sit idly by and allow any patient having a cardiac arrest to simply die when there was the slightest chance they could now prevent death by using CPR.1 However, problems resulted from the use of CPR on all hospital patients who were having a cardiac arrest.4,8 It has been said that “far more often than not CPR transiently restored physiologic
S. McLennan / Resuscitation 83 (2012) 168–170
stability but prolonged patient suffering”.8 By the late 1960s reports of this phenomenon were appearing in the medical literature, describing the agony that many patients experienced from CPR that only prolonged their dying.9 Consequently, many practitioners did not commence CPR, or performed less than a full attempt, when they considered CPR inappropriate.8 In response, institutions began to develop their own means of indicating that CPR was not to be used on a particular patient if they had a cardiac arrest. As it has been noted: “At some institutions, these decisions were concealed as purple dots on the medical record or written as cryptic initials in the patient’s chart, whereas at other institutions, they were simply communicated as verbal orders passed on from shift to shift...”8 Given the greater emphasis on patient autonomy and participation in decision-making that now existed, these developments did not pass without controversy.3 There was concern about the lack of patient involvement in decisions to withhold CPR and about the lack of documentation of these decisions. There was felt to be a failure “to provide sufficient rationale and accountability for what did transpire”.8 It was in this context that a more formal process began to emerge in the early 1970s, with guidelines recommending that advanced decisions not to perform CPR should be formally documented in the medical record.10 The first hospital policies on Do Not Resuscitate (DNR) orders were subsequently reported in the medical literature in 1976.11–13 While there were initially only patientinitiated DNR orders, policies evolved over time and by the late 1980s many hospital policies allowed doctors to make medically initiated DNR orders for patients if, in their judgement, it would be futile to attempt CPR if a cardiac arrest occurred.14 While these changes led to modifications of CPR policies, CPR has remained the required default position for all patients having a cardiac arrest. Hospital policies in many countries now generally require CPR to be attempted on all patients having a cardiac arrest unless a DNR order is in place.15 A distinction should be made here, however, between “Not-for-CPR” orders and “Not-forResuscitation” orders, as resuscitation includes more interventions than simply CPR. In light of this, a number of policies refer to Notfor-CPR orders rather than DNR orders. 2. The use of CPR and the common law After examining the changing application of CPR in the hospital setting since its development, we can see that the switch from using CPR very selectively at the discretion of the doctor, to CPR being required to be performed on all patients having a cardiac arrest, was a significant change and one that created problems with CPR being clearly inadvisable for a number of patients having a cardiac arrest within the hospital. Not-for-CPR orders were developed in an attempt to address this issue, by providing a mechanism for making advanced decisions regarding resuscitation in a transparent manner. CPR, however, has remained the required default position for all patients having a cardiac arrest in-hospital, regardless of their underlying illness, giving clinicians no other option at time of arrest but to perform CPR if there is no Not-for-CPR order in place. It is perhaps therefore not surprising that ‘slow codes’, the delayed or token efforts to provide CPR, involving a deliberate decision not to aggressively attempt to prevent the patient having a cardiac arrest from dying, have remained an issue.16–22 Slow codes now tend to occur where there is no Not-for-CPR order in place, and thus where CPR is required to be performed, but where the health practitioners see attempting CPR on the patient having the cardiac arrest as clearly inappropriate and futile. This situation can cause health practitioners, what has been termed,
169
‘moral distress’.23 In such a situation, health practitioners may view a slow code as, “the only way of gaining some control over the situation and escaping in some way from participating in a perceived immoral act.”16 Thus, a slow code may provide health practitioners, as Muller suggests, an adaptive response to what they see as an untenable requirement of their job.24 Indeed, it has been recently argued in New Zealand that this requirement of current CPR policies, to attempt CPR on all patients having a cardiac arrest unless a Not-for-CPR order in place, is actually legally inappropriate.15 While certain aspects of New Zealand’s medico-legal system are unique among common law systems (i.e. non-fault compensation system), the major criticism of this approach was based on considerations that are generally shared by all common law systems and therefore potentially has wider relevance. An important aspect of the common law is the right of individuals to have their bodily integrity respected.25 One of the consequences of this is that the provision of medical treatment without consent or some other legal justification can incur various forms of liability, including criminal (assault) and tortious (battery).26 A patient having a cardiac arrest will clearly not have the level of competence required to consent to CPR, nor would consent have usually been given in advance by the patient. For the provision of CPR to be lawful, therefore, there needs to be some kind of legal justification for providing it without consent. The standard legal grounds for providing medical treatment without consent in common law systems generally depends upon a judgement that the provision of treatment is in the patient’s best interests.27,28 Thus, in the absence of a patient’s valid anticipatory refusal of consent, the provision of CPR is lawful whenever there are reasonable grounds for believing that it is in the patient’s best interests. While considerable latitude will be provided for clinicians making this assessment, often in less than ideal circumstances, the issue of whether further treatment is in the patient’s best interests is crucial.15 It is therefore concerning that current CPR policies do not allow clinicians to consider whether CPR is appropriate at time of arrest. This approach can lead to CPR being used, to borrow T.S. Eliot’s words, “not for the good that it will do, but that nothing may be left undone on the margin of the impossible”.29 Such an approach is legally inappropriate; the provision of CPR without consent in circumstances where its provision cannot be reasonably be regarded as in the patient’s best interests, is unlawful.15 There is, however, a difficult practical balance that exists at time of arrest between initiating CPR without delay or interruption for it to be effective for those whom CPR is in their best interests, and recognising as quickly as possible those patients for who CPR is not appropriate. Indeed, the rapid initiation of both CPR and defibrillation are two events which are important links in what is known as the ‘chain of survival’; the sequence of events that are critically important in determining a successful outcome for a victim of a cardiac arrest.30 The initiation of CPR, at least in the first instance, in circumstances in which health practitioners are not sure whether or not CPR is in the best interests of the patients, is thus a sensible approach and one supported by the law. However, as it was concluded in the New Zealand context: “There is no justification for pressing ahead with CPR where a [Not-for-CPR] order has not been made but all involved are agreed that further treatment is not in a patient’s best interests.”15 It is interesting to note the thoughtful joint statement on these issues in 2007 by the British Medical Association, Resuscitation Council (UK) and Royal College of Nursing.31 While a ‘presumption’
170
S. McLennan / Resuscitation 83 (2012) 168–170
in favour of CPR when no advance decision has been made is advocated, it is also stated that: “There will be some patients for whom attempting CPR is clearly inappropriate; for example a patient in the final stages of a terminal illness where death is imminent and unavoidable and CPR would not be successful, but for whom no formal DNAR decision has been made. In such circumstances, healthcare workers who make a considered decision not to commence CPR should be supported by their senior colleagues and employers.” The problem, however, is that health practitioners are currently unable to make such a ‘considered decision’ at time of arrest under many hospital policies, which require CPR to be attempted on all patients having a cardiac arrest unless a Not-for-CPR order is in place. One reason we see ‘slow codes’ occurring. Hospital policies should be modified to allow clinicians to consider whether CPR is appropriate at time of arrest. Such a change may require ALS training to include a stronger emphasis on early recognition of patients for whom CPR is not in their best interests. Common law systems can differ in important respects and one must always look at issues within the context of the broader legal system. However, as this argument is based on considerations that are generally shared by all common law systems, it is one that should be considered by other countries in the common law tradition. Conflict of interest statement No conflicts of interest to disclose. Acknowledgements This article includes work that has been adapted from the author’s dissertation that was submitted for a Master of Bioethics and Health Law at the University of Otago. References 1. McLennan S. The development of CPR. NZ Med J 2008;121. URL: http://www.nzma.org.nz/journal/121-1284/3312/ [accessed 13.06.11]. 2. Eisenberg MS, Mengert TJ. Cardiac resuscitation. NEJM 2001;344:1304–13. 3. Faber-Langendoen K. Resuscitation of patients with metastatic cancer: is transient benefit still futile? Arch Intern Med 1991;151:235–9. 4. Blackhall LJ. Must we always use CPR? NEJM 1987;317:1281–5. 5. Talbott JH. Introduction. In: Jude JR, Elam JO, editors. Fundamentals of cardiopulmonary resuscitation. Philadelphia: F.A. Davis Company; 1965. p. 1–3.
6. Jude JR, Elam JO. Fundamentals of cardiopulmonary resuscitation. Philadelphia: F.A. Davis Company; 1965. 7. Hermreck AS. The history of cardiopulmonary resuscitation. Am J Surg 1988;156:430–6. 8. Burns JP, Edwards J, Johnson J, et al. Do-not-resuscitate order after 25 years. Crit Care Med 2003;31:1543–50. 9. Symmers WS. Not allowed to die. BMJ 1968;1:442. 10. National Conference on Cardiopulmonary Resuscitation and Emergency Cardiac Care. Standards and guidelines for cardiopulmonary resuscitation and emergency cardiac care: medicolegal considerations and recommendations. JAMA 1974;227:837–68. 11. Clinical Care Committee of the Massachusetts General Hospital. Optimum care for hopelessly ill patients: a report of the Clinical Care Committee of the Massachusetts General Hospital. NEJM 1976;295:362–4. 12. Rabkin MT, Gillerman G, Rice NR. Orders not to resuscitate. NEJM 1976;295:362–4. 13. Fried C. Terminating life support: out of the closet! NEJM 1976;295:390–1. 14. Swig L, Cooke M, Osmond D, et al. Physician responses to a hospital policy allowing them to not offer cardiopulmonary resuscitation. J Am Geriatr Soc 1996;44:1215–9. 15. McLennan S, Paterson R, Skegg PDG, Aickin R. The use of CPR in New Zealand: is it always lawful? NZ Med J 2011;124. URL: http://www.nzma.org.nz/journal/1241328/4511/ [accessed 13.06.11]. 16. Ditillo BA. Should there be a choice for cardiopulmonary resuscitation when death is expected? Revisiting an old idea whose time is yet to come. J Palliat Med 2002;5:107–16. 17. American Heart Association and the International Liaison Committee on Resuscitation. Guidelines 2000 for cardiopulmonary resuscitation and emergency cardiovascular care: international consensus on science. Part 2: ethical aspects of CPR and ECC. Circulation 2000;102:S12–21. 18. Gazelle G. The slow code: should anyone rush to its defence? NEJM 1998;338:467–9. 19. Emergency Cardiac Care Committee and Subcommittees of the American Heart Association. Guidelines for cardiopulmonary resuscitation and emergency cardiac care. JAMA 1992;268:2135–302. 20. Fowler MD. Slow code, partial code, limited code. Heart Lung 1989;18:533–4. 21. Neher JO. The “slow code”: a hidden conflict. J Fam Pract 1988;27:429–30. 22. Goldenring J. “Code” or “no code” decisions. NEJM 1979;300:1058. 23. Corley MC. Moral distress of critical care nurses. Am J Crit Care 1995;4:280–5. 24. Muller JH. Shades of blue: the negotiation of limited codes by medical residents. Soc Sci Med 1992;34:885–98. 25. Trandel-Korenchuk D, Rhodes AM, Trandel-Korenchuk K. Nursing and the law. 5th ed. Aspen Publishers; 1997. 26. Skegg PDG. Consent to treatment: introduction. In: Skegg PDG, Paterson R, editors. Medical law in New Zealand. Wellington: Thomson Brookers; 2006. p. 145–69. 27. White SM, Seer J. Consent: the law and ethical considerations. Anaesth Intens Care Med 2008;10:111–4. 28. Kopelman LM. The best interests standard for incompetent or incapacitated persons of all ages. J Law Med Ethics 2007;35:187–96. 29. Eliot TS. The family reunion. In: Collected plays. London: Faber and Faber; 1962. pp. 55–122. 30. Rea TD, Bobrow BJ, Edelson DP, et al. Part 4: CPR overview: 2010 American heart association guidelines for cardiopulmonary resuscitation and emergency cardiovascular care. Circulation 2010;122:S676–84. 31. British Medical Association, Resuscitation Council & Royal College of Nursing. Decisions relating to cardiopulmonary resuscitation: A Joint statement from the British Medical Association, the Resuscitation Council (UK) and Royal College of Nursing; 2007.