Can a verbal refusal of CPR be legally binding?

mike stone 18/05/20 Dignity Champions forum

Mike’s Cheeky Blog: because I was told

I am currently in disagreement with someone who knows a lot about the law, about something which is significant in a fundamental legal sense in the context of the Mental Capacity Act (MCA), and which has consequences for, to use my phrase here, ‘how the MCA can be explained or taught to normal people, who are not ‘legal nerds’’.

It amounts to a difference of opinion, about the legal effect of sections 24 – 26 of the Mental Capacity Act (MCA).

I claim the MCA did not make verbal-refusals of life-sustaining treatments ‘not legally binding’ PROVIDED THE SITUATION IS ONE OF ‘ONGOING CONTACT’.

The other person claims a verbal refusal cannot be ‘legally binding’ in any situation.

The PDF explains it properly, but [using rather ‘legalistic’ terminology here {there are real-world examples in the PDF, if people have trouble with ‘P’ and ‘R’}] this is where we disagree:

P and R are talking to each other in an isolated location, R is capable of performing CPR, P discusses CPR with R and makes it crystal clear that there are no circumstances under which he (P) would accept attempted CPR. R has decided he has no reason to doubt P’s mental capacity to make a refusal of CPR. P then produces an ADRT refusing CPR, and asks R to witness the ADRT. It is not possible for any other person to witness P’s signature on the ADRT, because only P and R are present.

P then has a cardiopulmonary arrest, before R has witnessed the ADRT (it is irrelevant whether or not P has signed the ADRT [but of course R cannot be refusing to witness the ADRT because he thinks P lacks mental capacity] – the dispute I am engaged in, can most easily be investigated by thinking about the signature of R).


The other person and I, both agree about what should happen when P arrests.

We both agree that R should NOT attempt CPR in the situation I have described.


Our disagreement, is this:

I believe that in this situation, what matters is that R understands that P has while capacitous forbidden CPR in the circumstances of the arrest, and that R is simply following P’s decision. As P and R were ‘in a situation of ongoing contact until the arrest occurred’ R cannot ponder whether P had retracted his refusal, because if that had happened P would have informed R verbally. For me there is no best-interests decision-making involved here.

The person I am in disagreement with, insists that because there is not a valid ADRT refusing CPR (and we both agree that for the purposes of MCA 24 – 26 there is definitely not a valid ADRT), R must make a best-interests decision to withhold CPR (he argues that because of the depth of understanding imparted by the conversation about CPR, it would be unreasonable to the point of perverseness for R to decide that attempted CPR would be in P’s best interests).

We cannot both be correct: the law is sharply divided into what I will here call ‘informed consent territory’ and ‘best-interests territory’ - and the legal descriptions of the two are completely different.

So – which of us is right?

IF I ACCEPT THE OTHER PERSON’S POSITION, then I arrive at a weird conclusion, of R being able to decide which part of the law applies to him [something I consider to be bonkers!] - here is the logic which arrives at that:

Clearly P cannot force R to witness the ADRT.

P can only ask R to witness the ADRT.

The purpose (see the PDF) of the witness signature, is to confirm that it was indeed P who had signed the document.

I argue, that in my scenario, it is irrelevant whether or not R has witnessed the ADRT when viewed from the perspective of both P and R. From their positions, R must not attempt CPR, because while capacitous P clearly refused CPR.

The other person, argues that the law says if the ADRT is not witnessed, then when P arrests R is bound by best-interests decision-making – but that if the ADRT has been witnessed, R is bound by the law of patient self-determination.

If that is true – it means that R can decide ‘which law applies to him when P arrests’ by choosing to either witness the ADRT (which then means R must respect the patient autonomy concept of the MCA) or to not witness the ADRT (which means that R must apply the best-interests concept of the MCA).

I have noticed that laws can be somewhat strange: but surely NOT to the extent, that people can choose for themselves, which law will apply to them!


In the scenario I presented, where a relative is R, the whole point from R’s perspective amounts to ‘dad has explained to me that he doesn’t want CPR under any circumstances – it is dad’s life, his choice to make, and what I need to do is to ensure that dad’s decision is followed’.

I think most laypeople could understand ‘my dad told me his decision, it was his decision to make, and obviously it was my duty to respect my dad’s decision’ (setting aside the fact that I consider it to legally correct anyway).

I’m not sure how easy it would be to explain to a normal person the consequence of the other person’s position: it amounts to ‘your dad’s refusal of CPR is not legally-binding on you, so you have to make a decision – but in this situation, you must decide that not attempting CPR is the legally-correct decision’.

I suspect many relatives, would have trouble getting their heads around that one.

I imagine, the conversation would go like this, with T as the person explaining the interpretation which I consider flawed, and L being a family-carer during end-of-life:

L: ‘You agree that dad ‘has got all his marbles’ and can make his own decisions?’

T: ‘Yes’.

L: ‘So, if dad tells me he is refusing CPR, surely the decision has been made, and I simply follow it’.

T: ‘No. If the decision is written down as a valid Advance Decision, then it is your dad’s decision and it would be legally-binding on you’. But if he has only told you his decision verbally, you have to decide whether to attempt CPR or not. Although, because you have absolutely no reason to doubt that you understand what he decided, and you have no reason at all to believe your dad has changed his mind, when you decide if you should attempt CPR, you must decide to not attempt CPR’.

L: ‘What! So – because my dad made his decision crystal clear to me, and it was his decision to make, but he did not write it down, the decision is mine to make but I must withhold CPR as he told me to!’.

T: ‘Yes – you’ve got it’.

L: ‘How is the decision mine to make, if I must decide not to attempt CPR!’.

FOR CLARITY: I am saying that the verbal refusal of CPR from P to R, is legally-binding on R. I am NOT saying that it is legally-binding on anyone other than R.

If a father says to his daughter, when the father feels some sort of ‘heart pain’ at home, ‘I’ve got a pain in my chest. I think my heart might be about to stop. If my heart stops, I definitely do not want anybody to try and get my heart beating again, full stop – if my heart has stopped beating, leave me alone to die’ then that is a legally-binding instruction to the daughter.

If they call 999, and the father is still alert when the 999 paramedics arrive, and the father repeats his instruction to the paramedics, then his verbal instruction is also legally-binding on the paramedics.

But it is more complicated, if they call 999 to try and find out why the father has got a chest pain, and if when the paramedics arrive the father is in cardiopulmonary arrest. In that situation the daughter is legally-bound to not attempt CPR because of her dad’s verbal instruction to her, and more widely to try and ensure that nobody attempts CPR, but her dad’s verbal instruction to her is NOT ‘legally-binding on’ the paramedics, who therefore are legally ‘in best-interests territory’.

Which leads to the problem I have always been bothered by: if the daughter knows that if she involves 999 to find out if her dad has arrested, then the paramedics would probably attempt CPR if he was in arrest, she has a very awkward decision to make about whether or not to call 999 before her dad is dead.

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Christopher Beesley-Reynolds 18/05/20

I would not like to be the one that stands up in a Coroners court and say, they asked me not to, so I didn't.

Jan Charles 18/05/20

Doesn't this demonstrate the importance of a living will.


mike stone 24/07/20

I am continuing, in essence from the first PDF in this thread: "discussions with" the lawyer. Two things, here.

Suppose we consider a capacitous patient, who has a rapidly-deteriorating condition. The doctors know that the patient will die within an hour or so if untreated: crucially for this thought experiment, the patient will remain alert and mentally-capable until his heart eventually stops. Clearly, until his heart stops, the patient can verbally refuse treatments which would keep him alive. But the lawyer insists that to legally forbid CPR, the patient must create a written ADRT. That looks too odd, to me, to be correct: the doctors having no legal right to stop the patient deteriorating to the point-of-death, but then when his heart finally stops being able to decide whether to try and restart it (being "suddenly allowed to make a best-interests decision") is very peculiar.

Somewhat less relevant to the real world - because this is now clearly historical - I suggested that an argument (which I would not believe myself) could be proposed which stems from the wording of the MCA where it refers to "acts done" and "decisions made". The argument is based on:

1. Apparently legally only attorneys, deputies and judges "can make decisions" under the MCA

2. Until it was withdrawn, PD9E required doctors to take to court the withdrawal of CANH

3. It is clearly very common for doctors to be faced with life-threatening situations when patients are unconscious.

It COULD be argued - largely on the basis of 2 and the idea that the "most-urgent issue" was to establish the legal protection for intervention without consent (for "an act done") that the MCA only intended to allow doctors and others to provide emergency life-sustaining interventions. And that for the withdrawal or withholding of life-sustaining treatment, the MCA intended that only suitably-empowered welfare attorneys and judges could make such decisions.

Clearly the argument, collapsed when PD9E was withdrawn: but I have seen less coherent arguments put forward by barristers (notably by a barrister who told the Supreme Court that appointing a welfare attorney is equivalent to wtiting an ADRT (which is clearly utter nonsense!)).

If section 4(9) of the Act had said something like 'then puts into effect the best-interests determination' instead of using acts done and decisions made, then the argument I have presented would not have been possible.

mike stone 15/08/20

I have decided it is time to publish an ‘open letter’ to the British Medical Association, which I wrote about a month ago (it has been sitting in my computer): this thread seems the right place for it. The title of the piece is ‘An open letter to the BMA: would the BMA prefer cooperation and collaboration between doctors and relatives, or does it wish for increasing division and conflict between relatives and doctors?’ and it features a criticism of the BMA/RCP guidance about Clinically Assisted Nutrition and Hydration (CANH). The letter is to the BMA, and not to the RCP (which I will, however, point at the letter) because I ‘apply’ the mindset of the CANH guidance to end-of-life at home [and to CPR decision-making at home].

Central to my objections, is this part of the letter (this is easier to read in the PDF – which uses highlighting and different fonts):

The above is a mixture of what the MCA actually says:

The MCA does not identify a particular individual as having legal responsibility for decision-making,

[AND] what would clearly be most convenient for clinicians:

Nevertheless, in practice, this will fall to the individual with overall clinical responsibility for the patient’s care, as part of their duty of care to ensure that the care being delivered to the patient is in their best interests.

[AND] and what is not actually stated in the MCA, but must be logically true:

The MCA does not identify a particular individual as having legal responsibility for decision-making, focusing instead on collaborative decision-making.

As it happens, I think that the historical concept of ‘duty of care’ no longer exists legally: I cannot see how the situation is not, post-MCA, a ‘duty of clinical competence’ and a requirement to comply with the MCA.

But – why does the BMA, think that close family and friends, do not have a personal ‘duty’ to ensure that the clinicians do not do something which is not in their loved-one’s best interests? If when the clinicians are not ‘the decision-maker’ (because an attorney is) the clinicians can still form a view of best interests, why do you believe that even if [incorrectly!] the senior clinician is regarded as ‘the decision-maker’ (when there is not a suitably-empowered attorney), the family and friends cannot form a view as to best interests – and, if they disagree with the senior clinician, seek a view from the court?

Before the Supreme Court elaboration of the withdrawal of PD9E, back in Aintree Lady Hale had written in paragraph 47:

Third, if the clinical team are unable to reach agreement with the family or others about whether particular treatments will be in the best interests of the patient, they may of course bring the question to court in advance of those treatments being needed.

When I read that, Lady Hale is saying ‘if the best-interests opinions of BOTH the laypeople and professionals involved ARE IN CONSENSUS’ then …

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