Paramedics and relatives, the MCA and CPR

mike stone 24/12/20 Dignity Champions forum

I have been discussing the Mental Capacity Act (MCA) and its concept of Best Interests for about a decade: it still seems to be the same discussion, although more people are now aware of the MCA. Someone sent me this in an e-mail recently:

'I wonder if you’d accept that the person making the decision is a key factor, in that if a relative or stranger uses or fails to use a defibrillator in the street they are certainly understood or even praised, and never risk retribution, whereas the ambulance person is expected to make decisions in a defensible way in a situation that is sometimes clear-cut but often confused and highly emotional? More is expected of the barrister who’s ‘got his papers’ than of the bloke in the pub or similar who holds forth on legal subjects?'

It is certainly true that professionals are judged by higher standards than relatives and family-carers: I recently pointed out in an e-mail that a relative could perform CPR (cardiopulmonary resuscitation) so badly that the CPR itself killed the patient, and would probably not be blamed at all - but a paramedic who did that, might even end up in jail. And clinicians are expected to know of the MCA - lay people usually are not. I think, however, that some lay people - for example the family-carers of a person who is living with severe dementia - could reasonably be expected to know about the MCA.

Even some professionals are 'excused ignorance' of the MCA. The MCA in effect provides a legal defence against intervention-without-consent, if section 4 is complied with: and the defence prima facie cannot be claimed by a person who is unaware of section 4 of the MCA. Discussing that, a lawyer pointed to a court case when (from memory) two police officers had intervened to prevent someone from drowning. Subsequently it was claimed that the police officers had committed an assault, because by their own admission they knew nothing of the MCA. The court found in their favour, and I think the reasoning amounted to 'they could not have been expected to apply MCA section 4 (in practice that equates to the police officers could not be expected to have an understanding of the factors in MCA 4(6) for the person who was drowning) and even if aware of the MCA their actions (saving the life of the drowning person) would have been the same'.

End-of-Life (EoL) at home, can be very confused and confusing for many reasons: notably issues around communication, and 'sudden [unanticipated] events'. Those factors make it clear that what the NHS likes to imply 'is the solution', ACP (Advance Care Planning), is helpful and 'sometimes works' - but that in many situations ACP cannot work.

In fact, I recently contributed to a paper which discussed a scenario when ACP could not be the solution, because it would be unreasonable to expect ACP to be in place:

The relative - the patient's wife - in our paper is not aware of the MCA. But, it is possible to have a similar scenario where the family-carer is aware of the MCA. Then the questions change: it is no longer 'are the relatives forgiven for not understanding the MCA' and it becomes 'if the relative claims to be aware of the MCA, and claims to have complied with section 4(9), is the relative able to claim the legal protections of the MCA in an identical way that professionals can?'. So far as I can see - and the lawyer I was discussing this with agrees with me - the answer is 'yes - a normal family-carer can claim the protections offered by the MCA'.

I wanted to be clear on that - so I was explicit in my e-mails with the lawyer (we were also discussing a very 'legally nerdy' and little-known issue around the meaning of 'decision' in an MCA context - which can be ignored here):

I sent to the lawyer:

'In reality, I am not very bothered about how judges view the Act. My main issue, is an acceptance that family carers who claim to have complied with 4(9) can then claim identical s5 legal protections as a clinician who claims to have complied with 4(9). Even with your weird distinctions around 'decisions', that seems to still be true for me, because you only have attorney/deputy/court in one group, so everyone else seems to be in the same (different) group.'

The lawyer sent back (as part of a wider reply):

'Yes, family members can certainly claim to be able to benefit from the s.5 defence (with s.4(9) as the underpinning) if they have carried out an act in connection with care or treatment in relation to the person ...'

The lawyer continued, with what I have already pointed out above (the clinician has to be aware of and then apply the MCA - but relatives are not expected to be aware of the MCA in many situations).

In practice (even if this is less obvious from the wording of sections 4 and 5) the MCA provides a legal defence (perhaps we could instead write 'a legal justification') for both action and inaction: compliance with section 4 provides legal protection for both the attempting of, and the witholding of, a treatment.

It is not entirely obvious, 'what the precise question to be answered is' when forming a best-interests decision - unless the intervention is potentially life-sustaining. For life-sustaining treatments, Mr Justice Charles (in the Briggs ruling, which was about CANH withdrawal) has clearly explained what the question is. At least, if the patient, to use my phrase here, goes very quickly from capacitous to essentially unconscious. For CPR (so we are assuming it is the arrest itself which removes the patient's mental capacity) the question and answer (I am using the term 'understands' here: exactly how certain that understanding must be, is a tricky aspect which I will not discuss here but I have discussed that in an earlier piece) are:

'If we understand the decision the patient would have made about CPR then we must attempt or withhold CPR as the patient would have decided [in this particular situation], and if we do not understand what the patient would have decided then we must attempt CPR [to try and preserve life].'

I wrote 'we' although in reality the MCA says 'I' - section 4 of the MCA is framed in terms of an individual making a best-interests decision.

In the recent paper I contributed to, I wrote in my section of the paper:

'From my family carer perspective, this situation has to change. And, the direction of change must be one which improves the support given to patients, by promoting integration between everyone, lay and professional, involved in supporting patients. This ‘model’ requires ‘us and us’ as opposed to ‘us and them’: it emphasises teamwork between family carers and the clinicians who are in regular and ongoing contact with the patient, and it replaces ‘multidisciplinary team thinking’, with genuine professional-lay integration.

Anyone can listen to a patient—provided you are present to listen: if only a relative is present, only the relative can listen. Often it will require a clinician, such as a 999 paramedic, to confirm that a patient is in cardiopulmonary arrest, but the family carer who called 999, is the person most likely to know if the patient would have wanted CPR. Put simply, the clinicians are the experts in the clinical aspects, and the family and friends are the experts in ‘the patient as an individual’.'

I am at loggerheads with some people, about the logical consequences of the above: notably about, for EoL at Home:

The patient might have recently expressed a decision, when only a relative was present to listen;

The family-carer who called 999 is the person more likely to understand if the patient would want CPR (i.e. a relative might understand if the loved-one in arrest would want to be resuscitated - the paramedic cannot understand that as the paramedic does not know the patient);

The best-interests question and answer, hinges on the person making a best-interests decision understanding what the patient would have decided.

When I join-the-dots, it seems to me that in many cases the family-carer or relative who called 999, understands what the decision about CPR should be, much better than an attending paramedic does. But some people, think all of this amounts to 'the paramedic makes 'the decision about CPR' after listening to the relative/s'. I don't - for me, decisions should normally be made by the person best-equipped to consider the decision.

In reality, we need to consider many issues - and my sugestion to resolve the problem can be found here:

Overall, and expressed loosely, I want the paramedics and relatives to get their heads together and with luck to all agree: in which case we should only say 'the relatives and the paramedics JOINTLY DECIDED about whether or not to attempt CPR'.


End-of-Life-at-Home can be very challenging indeed: things can happen and change very quickly and unexpectedly, relatives who understand their dying loved-one and who are present to listen usually lack clinical expertise, and paramedics who can be summoned and can provide clinical expertise lack any understanding of the patient as an individual. I want relatives to feel able to summon 999 paramedics, so that the clinical expertise of paramedics can be utilised. But if relatives believe that once summoned 'paramedics will take control' as opposed to helping, in some situations relatives will be forced to consider whether 'it is too risky to summon paramedics'. Paramedics want to help, and they should not be asked [by their own guidance] to make decisions which logically require a depth of understanding [of the patient's individuality] which they could never reasonably acquire during an emergency. Professional guidance, should not require levels of 'certainty' which are impossible to achieve in real-world situations.

We need a mindset change, which fully respects the clinical expertise of paramedics and also fully respects the understanding of the patient possessed by relatives: and which respects the problems of decision-making during emergencies. We are not there yet, but as one of my contacts wrote recently:

'I think we have made so much progress - [but there is still] much more to do'

Post a reply

mike stone 01/01/21

This was sent to me, seemingly as a 'defence of' the position that in the end 'the CPR decision' will be made by the clinicians (in our scenarios 999 paramedics). I cannot agree with this, when it goes beyond 'the paramedic MUST COMPLY WITH the MCA' and then asserts 'so the paramedic has 'ultimate responsibility''.

'Whilst I completely agree that it would be good for as many people as possible to become familiar with the MCA, it is simply not the case that the family member is going to be in the same position as the paramedic when it comes to ultimate responsibility for carrying out/not carrying out CPR, and it is important to be clear that the paramedics’ duties in discharging this responsibility are imposed upon them whether or not they consider the family member is aware of the MCA.'

My problem, is the use of 'ultimate responsibility for carrying out/not carrying out CPR'. CPR is not brain surgery: a relative might be capable of carrying out CPR but be totally ignorant of the MCA, or a relative might be perfectly aware of the MCA but unable to perform CPR. A relative might be a welfare attorney who has legal authority over any best-interests CPR decision [whether or not the attorney could him/herself attempt CPR].

And - a relative might be aware of the MCA and also able to attempt CPR. In which case, there ISN'T an 'ultimate responsibilty' present: both the paramedic, and that relative, should be trying to apply the MCA. The somewhat weird (it requires contortions to set up the scenario) thought-experiment which best illustrates this, would involve paramedics saying 'we are not going to attempt CPR - it might work, but we don't think it would be in his best interests' and a relative promptly saying 'well I think CPR is in his best interests' and the relative then attempting CPR. I repeat: compliance with section 4 of the MCA provides a legal defence for an individual's actions [and inactions] - the defence does NOT hinge on a particular action (CPR or DNACPR) being 'the correct decision'. If both a clinician and a relative could attempt CPR, and each of them could personally claim compliance with 4(9), and one decides withholding CPR would be in the patient's best interests, that doesn't stop the other from attempting CPR if the other believes CPR would be in the patient's best interests. For best-interests decisions about CPR, it is only a suitably-empowered welfare attorney who has authority over other people (sections 6(6) and 6(7)): and even that authority is framed in terms of the removal of the legal defence otherwise provided by section 5 of the MCA.

So far as I can see, a relative cannot legally prevent a paramedic from attempting CPR, and a paramedic cannot legally prevent a relative from attempting CPR.

And it IS significant whether a relative who DOES NOT INVOLVE 999 (because the relative is trying to prevent CPR from being attempted) is aware of the MCA (despite the rather complex 'no Good Samaritan Law issue') - compliance with 4(9) provides a defence (ignorance of the MCA if you are attempting preservation of life, in reality will not get anyone, professional or layperson, into much trouble, unless an ADRT or LPA(welfare attorney) is involved).

So, I would rewrite what was sent to me.

Instead of what was sent to me:

'Whilst I completely agree that it would be good for as many people as possible to become familiar with the MCA, it is simply not the case that the family member is going to be in the same position as the paramedic when it comes to ultimate responsibility for carrying out/not carrying out CPR, and it is important to be clear that the paramedics’ duties in discharging this responsibility are imposed upon them whether or not they consider the family member is aware of the MCA.'

I would write:

'Whilst I completely agree that it would be good for as many people as possible to become familiar with the MCA, it is simply not the case that the family member is going to be in the same position as the paramedic when it comes to a professional responsibility to apply the MCA correctly, and it is important to be clear that the paramedics’ duties in discharging this responsibility are imposed upon them whether or not they consider the family member is aware of the MCA.'

In the recent paper I contributed to to, the scenario being discussed involves a wife who calls 999 and her husband's heart stops while the paramedics are en route. When the paramedics start CPR, the wife tells them:

'As the other member of the ambulance crew commenced resuscitation (CPR), the patient’s wife angrily stated that her husband would not wish for this, nor did she or any member of her family. She reiterated that the 999 call was due to a seizure, and had it been for the purpose of providing resuscitation, she would not have called the emergency services and all agreed that this was not the wish of the patient.'

In the scenario we presented in our paper, the wife is powerless to prevent the paramedics from attempting CPR. But, in this social-media age, such relatives can 'spread the word' that relatives cannot stop paramedics from attempting CPR ONCE PARAMEDICS ARE INVOLVED. Combine an increasing public understanding of that, with an increasing public understanding of the MCA, and we could in the future find ourselves in a world where relatives think very hard before phoning 999 if they know their loved-one would not want CPR, but they are not quite sure if their loved-one's heart has stopped or not. That is a serious problem, because that is very difficult world for both relatives and paramedics. We already have the problem of 'different starting points' to come to terms with: a relative will often start with certainty that their loved-one definitely would never want CPR, while suddenly-involved 999 paramedics need to somehow be convinced of that [and during a situation when there is almost no time for discussion: see the footnote].

I should declare a personal interest. Shortly before my own mum died, I had become certain that my mum would not want CPR (see the URL below). My mum then became comatose, and I asked the GP what the GP wanted me to do when my mum died. The GP did not say 'call 999' - but if the GP had said 'call 999' then I would have said 'I am not going to call 999'.


The court cases which express a decision about CPR, often involve a patient in a comatose state. The judges ask the clinicians about clinical prognoses, and they ask the family and friends [and sometimes the clinicians] about the patient's 'individuality'. The judges apply section 4 of the MCA, by considering things when the have the time for quite detailed and extensive discussions. I think, from memory, that some judges state 'the clinical team believes that DNACPR would be in the patient's best interests, but the family believes that CPR would be in the patient's best interests'. The judge will then rule, about whether CPR or DNACPR would be in the patient's best interests should the patient arrest.

Somehow, there is a concept or assumption within contemporary 'NHS Protocol' of a 999 paramedic being able to similarly 'work-through MCA section 4' when arriving at a home and finding a person in cardiopulmonary arrest: this is so unreasonable conceptually, as to be totally absurd. No document, such as for example the ReSPECT form, is adequate to allow a suddenly-introduced clinician faced with a person in arrest, to form a deeply-considered (or 'properly understood') best-interests decision. Despite the fact that legally the clinician must apply the MCA, and that in theory the clinician's legal defence for withholding potentially-successful CPR must be a best-interests defence, what I have just asserted must logically be true. This 'paradox' is something I have been analysing and writing about for mamy years - and resolving it is far from easy!