East Kent Hospitals University NHS Foundation Trust

4. Mrs D complains the Trust put a ‘do not attempt cardiopulmonary resuscitation’ (DNACPR) order in place on 24 October 2024 when she was not present and her husband was coerced into providing his consent. She complains the Trust did not rescind the DNACPR order when she and her husband subsequently asked, and of the graphic description given by the clinician when explaining their rationale for the decision.

5. Mrs D says due to the DNACPR decision and its retention, her husband was denied the opportunity to live, against his wishes, and his death on 31 October 2024 could have been avoided. She says the clinician’s comments caused significant upset. Mrs D tells us how she has suffered considerably with shock, trauma and a psychological fracture due to these events and following the loss of her beloved husband.

6. To resolve her complaint, Mrs D would like a formal finding of service failure against the Trust for procedural dishonesty, fraudulent misrepresentation to a competent patient, deliberate isolation tactics and breaching the Human Rights Act. She seeks the implementation of a law named after her husband, to mandate the Trust to wait until a designated family member or independent patient advocate is physically present prior to conducting DNACPR discussions with patients. Mrs D also seeks a mandatory directive forcing independent electronic telephone call log verification for all DNACPR matters, so other families do not have the experience she has.

DNACPR 9. We know how strongly Mrs D feels that she should have been present for the DNACPR discussion and that in her absence, her husband was coerced and pressured into signing his agreement to it. We also know how strongly she feels that the DNACPR order should have been rescinded when she and her husband subsequently asked.

10. Relevant information from the NHS website information on DNACPR is as follows:

‘A DNACPR decision is made by you and/or your doctor or healthcare team.’

and

‘DNACPR is a medical treatment decision that can be made by your doctor even if you do not agree. You must be told that a DNACPR form will be/has been completed for you, but a doctor does not need your consent. Your doctor makes the final decision. Doctors do not have to give you treatment if they think it will not work. The law does not require your consent to a DNACPR.’

and

‘You cannot demand CPR. The law does not require your consent to a DNACPR. The law does provide you with the right to be involved in, and informed of, a doctor's DNACPR decision.’

11. We do not underestimate how difficult the issue of considering and discussing DNACPR can be, for everyone involved. We understand how distressing Mrs D found the circumstance as she was not present for the initial discussion, and particularly as she disagreed with the clinical view on DNACPR.

12. As the above NHS website information explains, it remains that a DNACPR decision is one made between the patient and/or the doctor. By Mrs D’s own account, she explains the discussion was held with her husband which is in line with expected practice. She also told us her husband signed the DNACPR order in agreement. This would provide further evidence that the clinical responsibility to include the patient in the decision was fulfilled.

13. There is no stipulation or requirement in the guidance or standards that we would measure the Trust against, that says relatives must be involved in these discussions before the decision can be made.

14. We know Mrs D believes her husband was coerced. Regrettably, we would not be able to find any independent evidence to enable us to reach agreement with this claim. As we have explained in prior communication with Mrs D, any complaint about communication can be very difficult for us to reach an independent view upon. This is because we are never present ourselves to directly witness conversations, to hear the exact language used or to gain our own interpretation of the tone or manner of the way a specific discussion has been held.

15. There is also the issue of perception, in that different parties present at the same conversation can perceive what and how things have been said very differently. We do not consider we could find sufficient independent evidence to challenge or criticise the Trust, to the extent that we would ever find indications of service failure here.

16. We also know how strongly Mrs D feels that the DNACPR order should have been revoked when she and her husband subsequently requested this. As per the above NHS website information, putting a DNACPR order in place is a clinical decision that can be made by a doctor even if the patient, or indeed a relative, may disagree. We are left without any indication of wrongdoing in that the DNACPR was a clinically led decision, at both the point it was implemented and when it was retained.

Clinical description 17. Mrs D complains about the graphic description given by the clinician when explaining the rationale for the DNACPR decision. We were very sorry to hear of this experience and recognise it has clearly caused Mrs D considerable distress.

18. In the Trust’s response to the complaint, the clinician in question asked for his apologies to be passed to Mrs D for the distress his graphic descriptions caused her. The Trust said the clinician’s aim was to explain the reasons behind the DNACPR decision, and he was very sorry if his explanation was upsetting or seemed too detailed as this was not his intention.

19. The Trust explained the clinician had undertaken a personal reflection on his approach to DNACPR and will use this reflection to consider the sensitivity required with his discussions with families going forward.

20. The Trust has clearly acknowledged it got this wrong and it has sincerely apologised to Mrs D for the distress and upset caused. It also explained the actions since taken to learn and ensure the same does not happen again.

21. NHS Complaint Standards say organisations should openly identify instances when things have gone wrong, or where services have had an unfair impact, and take responsibility for these. They say organisations should explain why things went wrong, give meaningful and sincere apologies and explanations that openly reflect the impact on the people concerned, and identify suitable ways to put things right.

22. We consider the Trust’s response and the actions it has taken are in line with the NHS Complaint Standards, in giving a fair and accountable response and promoting a learning culture. In our view, the response is proportionate to what went wrong and the actions already taken go far enough to remedy the impact, of the distress caused to Mrs D. We do not find there is anything left for us to remedy.

Outcomes sought 23. We recognise the clear and specific outcomes Mrs D has come to us seeking and understand how important these are for her to achieve. Irrespective of our views on the above substantive elements of Mrs D’s complaint, unfortunately even purely based on the outcomes she seeks unfortunately these alone would mean we would not consider her complaint further. This is because we would not be able to achieve these outcomes.

24. Whilst Ombudsman investigation can reach formal findings of service failure, we would not do so for the specific reasons Mrs D seeks: procedural dishonesty, fraudulent misrepresentation to a competent patient, deliberate isolation tactics and breaching the Human Rights Act. These are not the type of determinations our process would comment upon or conclude.

25. We also do not have the power to recommend the implementation of law as Mrs D seek, nor to instruct mandatory directives in the manner suggested. Regrettably, even solely on the basis of the outcomes sought, for this reason alone we would not consider Mrs D’s complaint further.

1. We have carefully considered Mrs D’s complaint. We have decided we would not find sufficient independent evidence to indicate that coercion occurred in the manner it is alleged. We also would not see any indication of service failure with the DNACPR being a clinically led decision, both when it was implemented and when it remained in place.

2. We are assured by the response already given to the way the clinician explained the rationale for the DNACPR order and consider the stated actions since taken mean this matter has already been remedied. For these reasons, we have decided not to investigate further. We wish to add that unfortunately we could in any event, never achieve any of the outcomes Mrs D seeks. This would otherwise be an additional reason why we would not investigate further.

3. We know how important this complaint is to Mrs D and how much she has been affected by these events. We thank her for sharing the details of her complaint with us and hope this statement clearly explains our decision.