Advance directives and DNACPR

Contents

Overview

Advance care planning allows patients to express their wishes about future treatment before they lose capacity to do so. ICU clinicians must understand the legal status of advance directives, the limits of family authority, and the distinction between a DNACPR decision and a broader limitation of treatment.

Legal Framework

The Mental Capacity Act 2005 (MCA) governs decision-making for patients who lack capacity in England and Wales. Its key principles are:

  1. A person is presumed to have capacity unless assessed otherwise.
  2. Every practicable step must be taken to support capacity before concluding it is absent.
  3. A person can make an unwise decision; that does not indicate lack of capacity.
  4. Decisions for incapacitous patients must be made in their best interests.
  5. The least restrictive option consistent with best interests should be chosen.

Capacity is decision-specific and time-specific. A patient may have capacity for some decisions but not others, and capacity may fluctuate.

Advance Decision to Refuse Treatment

An Advance Decision to Refuse Treatment (ADRT) is a legally binding document under the MCA. It allows a person with capacity to refuse a specific treatment in the event that they later lack capacity.

Requirements for validity:

  • Must be made by an adult (18 or over) with capacity
  • Must specify the treatment being refused and the circumstances in which the refusal applies
  • Must be current — no evidence that the person changed their mind while retaining capacity

Additional requirements when refusing life-sustaining treatment:

  • Must be in writing
  • Must be signed by the person making it
  • Must be witnessed
  • Must clearly state that the refusal applies even if life is at risk

If a valid and applicable ADRT exists, it is legally binding. Clinicians must not provide the refused treatment, even if it would otherwise be in the patient's best interests. An ADRT cannot be used to demand treatment, only to refuse it.

An ADRT is not applicable if the treatment or circumstances differ from those specified, if the person created a Lasting Power of Attorney after the ADRT that covers the same decision, or if the person has done anything clearly inconsistent with the ADRT since making it.

Advance Statement

An advance statement is a non-binding expression of a patient's values, preferences, and wishes. It may include preferences about place of care, religious observance, personal values, or treatment preferences. It must be considered in best interests decision-making, but it is not legally binding and cannot override a clinical decision. Its importance lies in giving the clinical team and family a better understanding of what the patient would have wanted.

Lasting Power of Attorney

A Health and Welfare Lasting Power of Attorney (LPA) authorises a named attorney to make health and welfare decisions on behalf of the donor when they lack capacity. To make decisions about life-sustaining treatment, the LPA must specifically state that the attorney has this authority.

An attorney holding a valid registered LPA with authority over life-sustaining treatment can make decisions about withholding or withdrawing treatment. If an attorney refuses treatment that the clinical team believes is in the patient's best interests, or consents to treatment the team believes is not, this may need to be escalated to the Court of Protection.

Attorneys may not demand treatment — their authority extends only to refusing or consenting, within a best interests framework.

DNACPR

A do not attempt cardiopulmonary resuscitation (DNACPR) order is a clinical decision that CPR will not be attempted in the event of cardiorespiratory arrest. It is not a decision to withdraw other treatment, not a ceiling of care, and does not preclude appropriate medical treatment, antibiotics, fluids, or symptom relief.

A DNACPR decision is made by the responsible clinician, who must consider:

  • Whether CPR is clinically futile
  • The likely burden vs benefit to the patient
  • The patient's previously expressed wishes

If a patient has capacity, they must be informed of a DNACPR decision and their views must be sought. The DNACPR cannot be imposed on a capacitous patient who wants CPR attempted, unless it is clinically futile — but clinicians are not obliged to provide futile treatment. The distinction between declining a treatment that is not in the patient's interests and simply not offering it is ethically important.

Family members must be informed where possible but cannot override a clinical DNACPR decision unless they hold a valid H&W LPA covering life-sustaining treatment.

ReSPECT

The Recommended Summary Plan for Emergency Care and Treatment (ReSPECT) is a structured, nationally recognised form that integrates DNACPR into a broader emergency care plan. It records the patient's priorities, clinical recommendations for emergency interventions, and the agreed care plan.

ReSPECT travels with the patient across care settings — between hospital, community, and home — and is intended to provide clear guidance to emergency responders and new clinical teams. It replaces earlier documents such as DNAR forms in many NHS trusts.

Managing Conflict

Conflict most commonly arises when family members request continued aggressive treatment contrary to the clinical team's assessment, or when family members object to a DNACPR decision.

The first step is to ensure good communication: explanation of prognosis, clarification that DNACPR does not mean withdrawal of other care, and genuine engagement with family concerns. Additional time, repeat meetings, and involvement of senior colleagues often resolve conflict.

If resolution is not possible, a clinical ethics consultation can provide guidance. The Court of Protection can issue a declaration where there is genuine legal uncertainty about the lawfulness of a proposed action. Legal challenge of a clinical DNACPR decision is uncommon but possible.

Viva Questions

What is the difference between an advance decision to refuse treatment and an advance statement?

An ADRT is a legally binding document under the Mental Capacity Act 2005 that specifies a treatment a patient wishes to refuse in defined future circumstances. If it is valid, applicable, and — when life-sustaining treatment is refused — in writing, witnessed, and states that the refusal applies even if life is at risk, clinicians must respect it. Providing the refused treatment could constitute assault. An advance statement, by contrast, is not legally binding. It records the patient's values, preferences, and wishes in a narrative way, and must be taken into account in best interests decision-making, but it does not override clinical judgement or family views in the same way. An advance statement might express a preference for a particular place of death or a wish to avoid certain procedures, and should inform but not determine the care plan. The key distinction is legal enforceability — an ADRT binds; an advance statement guides.

A patient's family insists on full resuscitation against the clinical team's recommendation. How do you approach this?

The starting point is good communication. I would meet with the family to understand their concerns, explore their understanding of the patient's prognosis, and clarify what CPR involves and what outcomes are realistic in this clinical context. Many families reconsider when they understand that CPR in a frail or terminally ill patient carries a very low success rate and may cause significant harm. I would seek to understand whether the patient had ever expressed wishes about end-of-life care. If a valid ADRT refusing CPR exists, that settles the matter legally. If the family holds a Health and Welfare LPA covering life-sustaining treatment, I would need to engage with the attorney's decision — but an attorney cannot demand clinically futile treatment. If the clinical team concludes that CPR is not in the patient's best interests, the team is not legally obliged to provide it. The DNACPR decision remains a clinical one. I would document the conversations carefully, involve a senior colleague and potentially a clinical ethics committee, and only consider Court of Protection involvement if conflict persists and the situation is urgent.

What makes an ADRT legally binding?

An ADRT must be made by an adult aged 18 or over who had mental capacity at the time of making it. It must clearly specify the treatment being refused and the circumstances in which the refusal applies. The patient must not have subsequently indicated a change of mind while retaining capacity, and must not have created a Health and Welfare LPA after the ADRT that delegates authority over the same decision to an attorney. For an ADRT that refuses life-sustaining treatment specifically, additional requirements apply: it must be in writing, signed by the maker, witnessed, and must clearly state that the refusal applies even if life is at risk. If these criteria are all met and the ADRT applies to the current situation, it is legally binding. If there is uncertainty about validity or applicability, the clinical team should document their uncertainty and seek urgent senior guidance or legal advice. In genuine doubt, it may be appropriate to provide treatment while the legal position is clarified, though this requires careful case-by-case judgement.