The Right not to be Resuscitated? Do Not Attempt Resuscitation (DNAR) Orders and the Limits of the Legal Framework in Ireland
| Date | 01 January 2019 |
| Author |
49
e Right not to be Resuscitated? Do Not
Attempt Resuscitation (DNAR) Orders and the
Limits of the Legal Framework in Ireland
LUCY M. DAVIS*
Decisions to withdraw or withhold resuscitative measures from patients are
prevalent in Irish hospitals.1 In situations where resuscitation is to be withheld,
this decision can be recorded in the form of a Do Not Attempt Resuscitation
(DNAR) order. DNAR orders are written directives, placed on patient medical
les, that state that in the event of ‘cardiac or respiratory arrest’, life-saving
resuscitative measures including cardiopulmonary resuscitation (CPR) and electric
debrillation should not be performed on a patient.2 ese orders only pertain to
resuscitation.3 Despite their prevalence in Ireland, these orders are not currently
subject to any specic legislative framework.4 Instead, principles developed as
part of a broader legal framework guide their operation; in particular, the right of
patients to decline any medical treatment, even if it is potentially life preserving.5
However, this framework will be altered with the commencement of the Assisted
Decision-Making (Capacity) Act 2015 (‘Capacity Act’), which will for the rst
time legislate for ‘advance healthcare directives’ in Ireland and will create a structure
through which patients may decline CPR in advance.6
* LL.B. (UL), LL.M. (UL), doctoral candidate at the University of Limerick. e author would like
to acknowledge the integral guidance and support provided by Dr John Lombard and Dr Lydia
Bracken during the draing of this article. is research has been funded by the Irish Research
Council under the Government of Ireland Postgraduate Programme.
1 Niamh Collins, Dermot Phelan and Edmund Carton, ‘End of Life in ICU – Care of the dying
or ‘Pulling the Plug’?’ (2006) 99(4) Irish Medical Journal 112. It is reported in this article that
resuscitative measures equated to 96% of medical interventions being withdrawn in one Irish
intensive care unit (ICU).
2 National Consent Advisory Group, National Consent Policy (QPSD-D-026-1.2 uality and
Patient Safety Directorate, HSE May 2013; August 2017)
qid/other-quality-improvement-programmes/consent/national-consent-policy-august-2017.pdf>
accessed 9 April 2019 (‘HSE National Consent Policy’). See denitions of ‘CPR’ and ‘DNAR
Order’ at 12 and 14.
3 ibid 99.
4 Asim A. Sheikh, ‘Older People: Consent, Do Not Resuscitate Orders and Medical Research’ in
Eoin O’Dell (ed), Older People in Modern Ireland: Essays on Law and Policy (First Law 2006) 224.
5 Simon Mills and Andrea Mulligan, Medical Law in Ireland (3rd edn, Bloomsbury Professional
2017) 463.
6 Assisted Decision-Making (Capacity) Act 2015, Part 8. e impact of this Act upon DNAR orders
in Ireland is noted in M O’Reilly, Colm MP O’Tuathaigh and Kieran Doran, ‘Doctors’ attitudes
towards the introduction and clinical operation of do not resuscitate orders (DNRs) in Ireland’
(2018) 187(1) Irish Journal of Medical Science 25.
50 .
e focus of this article will be the operation of DNAR orders in Irish medical
practice and it will consider the adequacy of the Irish legal framework as a structure
to guide these decisions. In particular, this article will explore and evaluate the
current rights framework as a legal foundation upon which DNAR order decisions
may be based and will address the potential implications of the introduction of
the Capacity Act upon this legal framework. To address these matters, this article
is divided into four sections. e rst section will provide a brief snapshot of the
current operation of DNAR order decision-making in Irish hospitals as well as
healthcare facilities and will examine how these orders are currently implemented
in the absence of specic legal guidance. e second section will outline the rights
framework underpinning the application of these orders, in particular the right of a
patient to autonomy and bodily integrity as recognised by the Irish Courts and the
European Court of Human Rights (‘ECtHR’).7
e third section of this article will outline the relevant provisions of the Capacity
Act that will alter this framework, with a focus on Part 8 as it pertains to ‘advance
healthcare directives’. With due consideration for the impact of the Capacity
Act, the nal section will then consider the limitations of this transitioning legal
framework as a structure upon which to premise DNAR order decision-making
and will provide proposals for reform. It will be argued that this legal framework is
not sucient to clarify and guide the application of DNAR orders in Irish medical
practice and that there is a clear necessity for further legal guidance in this area,
which may be supplied by either legislative reform or a guidelines-based approach.
DNAR Orders in Context: Withholding Resuscitation in Irish
Medical Practice
Decisions to withhold resuscitation from patients occur frequently in Irish
hospitals and healthcare facilities.8 A number of studies have examined the current
operation of DNAR decisions in Irish medical practice. From this research,
there are a number of issues in Irish DNAR order practice that may be identied
which, for the purposes of this article, may be condensed to a single core practical
deciency: there is an absence of uniformity in Irish DNAR order practice. e
failure to homogenise the DNAR order decision-making process in Irish hospitals
and healthcare facilities has potential negative consequences for both patients and
practitioners alike.
In the absence of national standards governing DNAR orders in Ireland, individual
hospitals and healthcare facilities are responsible for developing internal guidelines
to guide resuscitation decisions made within their remit.9 It is argued that this is
7 See broader discussion of these rights in Mary Donnelly, ‘Legislating for incapacity: developing a
rights-based framework’ (2008) 30 Dublin University Law Journal 395.
8 See Collins (n 1).
9 Margaret O’Brien and Shaun T. O’Keee, ‘Resuscitation decisions in Irish long-stay units’ (2009)
178(4) Irish Journal of Medical Science 423.
e Right not to be Resuscitated? 51
problematic for three distinct reasons. Firstly, guidelines governing these orders in
Irish healthcare facilities are not universal, as there is no clearly dened standard
to be followed in developing DNAR orders in Ireland.10 In facilities where policies
do exist, the research indicates that both medical and nursing practitioners
demonstrate a poor knowledge of their existence.11
Secondly, where DNAR order policies are established, it is noted that there is
a ‘wide local variation’ between the practices in dierent medical facilities.12
erefore, in some cases, certain facilities have developed ‘alarming policies’ to
address resuscitation suppression in default of national standards.13 For example,
one study noted that there are some facilities that advocate for the complete
suppression of all resuscitative measures for patients over eighty years without
the requirement for a discussion, whilst other facilities have policies that require
resuscitation to be provided to all patients without individual assessment.14 e
development of such non-adaptive and rigid polices in the absence of a broader,
patient-focused approach is concerning, as these policies overlook the needs of
individual patients in favour of simplicity and procedural ease.
Finally, in the absence of a standardised approach to DNAR decisions, there is
inconsistency in relation to the degree to which DNAR orders are recorded in
dierent healthcare facilities and hospitals in Ireland.15 While research suggests
that certain Irish medical facilities record the majority of DNAR orders decisions16
this practice is not universal. Indeed, Robinson and O’Neill’s study noted that
approximately only half of the patients with DNAR orders had this decision
written down and the consultation with the patient was only documented in one
instance.17
10 Marcus W. Butler, N. Saaidin, A.A. Sheikh and J.S. Fennell, ‘Dissatisfaction with Do Not Attempt
Resuscitation orders: A nationwide study of Irish consultant physician practices’ (2006) 99(7)
Irish Medical Journal 208. 54% of consultants in this study reported the absence of a DNAR
policy in their hospital; See also, O’Brien and O’Keee (n 9) where 55% of nursing homes had
some form of CPR policy, but only 13% of these were documented.
11 Shane O’Hanlon, Marie O’Connor, Mike O’Connor and Catherine Peters, ‘Nurses’ attitudes
towards Do Not Attempt Resuscitation orders’ (2013) 1(1) Clinical Nursing Studies 43, 47;
Butler, Saaidin, Sheikh and Fennell (n 10).
12 O’Reilly, O’Tuathaigh and Doran (n 6).
13 O’Brien and O’Keee (n 9).
14 ibid 424.
15 J. McNamee and Shaun T. O’Keee, ‘Documentation of do-not-resuscitate orders in an Irish
hospital’ (2004) 173(2) Irish Journal of Medical Science 99; David J. Robinson and Desmond
O’Neill, ‘Communication and Documentation of Do-Not-Attempt-Resuscitation Orders in an
Irish Teaching Hospital’ (2005) 11(2) Medico-Legal Journal of Ireland 60; Niamh Collins, Brian
Marsh, Dermot Phelan and Charles Sprung, ‘End-of-life care in the intensive care unit: the Irish
Ethicus data’ (2006) 8(4) Critical Care and Resuscitation 315.
16 McNamee and O’Keee (n 15). e authors noted that 88.2% of the cases were recorded in this
study. However, the representativeness of this study may be queried, as the study population in
this research was 17 patients and this research was extracted from data from one hospital on one
particular day. See also Robinson and O’Neill (n 15).
17 Ro binson and O’Neill (n 15).
52 .
is failure to record DNAR order decisions has also been corroborated by
statistics obtained as part of the European Ethicus study on deaths in intensive care
units.18 is research noted that ‘No CPR’ was only clearly recorded in 31% of the
85 patients who had their life-preserving interventions restricted.19 Whilst there
may not be a single, universal reason behind this failure to document,20 the absence
of a consistent approach to keeping a record of resuscitation conversations and
decisions is concerning given the implications of a DNAR order on the life-saving
treatment that may be provided to a patient.
e absence of a clear national framework governing DNAR orders in Ireland is
problematic for both patients and practitioners involved in DNAR decisions. ere
is limited legal authority to support the use of DNAR orders in practice21 and this
lack of legal clarity results in fears of over and under-treatment of patients.22 As
poor outcome rates oen follow resuscitative measures, with an average successful
‘survival to discharge rate’ post-resuscitation in Ireland equating to approximately
18% of cases,23 it is concerning that inappropriate treatment may be supplied to
patients as a result of this legal uncertainty.
In considering the issues arising in current DNAR order practice in Ireland, it must
be noted that attempts were made to clarify the use of these orders through the
development of medical policy by the Health Service Executive.24 However, as
shall be discussed in section four, this policy is not widely known.25 Despite this,
18 Coll ins, Marsh, Phelan and Sprung (n 15).
19 ibid.
20 McNamee and O’Keee (n 15).
21 Only one case has arisen to-date to specically address the utilisation of DNAR orders in Ireland,
where the High Court granted a DNAR order on behalf of an incapacitated adult patient. See
Health Service Executive v JM (A Ward of Court) & ors [2017] IEHC 399. See also Deirdre
Madden, Medicine, Ethics and e Law (3rd edn, Bloomsbury Professional 2016) 586. However,
prior to this case the provision of ventilation measures to patients who were minors was considered
in In re SR [2012] IEHC 2, [2012] 1 IR 305 and An Irish Hospital v RF (A Minor) [2015] IEHC
22 e possibility of patients with a DNAR status being ‘under treated’ was highlighted in D Foley
and Conal Cunningham, ‘Not for Resuscitation: More Harm than Good?’ (2011) 104(9) Irish
Medical Journal 279. Alternatively, other studies have highlighted that DNAR orders may not be
utilised in some instances, even where they may be appropriate. See Shaun O’Keee, C. Redahan,
P. Keane and K. Daly, ‘Do not resuscitate orders in an Irish teaching hospital’ (1993) 86(2) Irish
Medical Journal 72; O’Keee and McNamee, (n 15).
23 See Neil Fennelly, Celine McPhillips and P Gilligan, ‘Arrest in Hospital: A Study of in Hospital
Cardiac Arrest Outcomes’ (2014) 107(4) Irish Medical Journal 105; Shaun O’Keee, C. Redahan,
P. Keane and K. Daly, ‘Age and Other Determinants of Survival Aer In-hospital Cardiopulmonary
Resuscitation’ (1991) 81(3) QJM: An International Journal of Medicine 1005.
24 Se e HSE National Consent Policy (n 2).
25 Helen O’Brien, Siobhán Scarlett, Anne Brady, Kieran Harkin, Rose Anne Kenny, and Jeanne
Moriarty ‘Do-not-attempt-resuscitation (DNAR) orders: understanding and interpretation of
their use in the hospitalised patient in Ireland. A brief report’ (2018) 44(3) Journal of Medical
Ethics 201. Authors identify that there is a lack of familiarity amongst medical professionals
in Ireland in relation to this policy and that there is an ongoing necessity for this policy to be
distributed to a more signicant degree.
e Right not to be Resuscitated? 53
the central values enunciated therein were premised upon broader principles that
had been developed previously by the Irish legal system as a part of the Irish rights
framework.26 In the absence of DNAR order-specic legislation, it is this broader
rights framework that currently governs the use of these orders in Ireland.
Guiding Irish DNAR Order Practice: e Rights-Based
Framework
In the absence of a specic legal framework to guide the use of Do Not Attempt
Resuscitation (DNAR) orders in Ireland27 decisions to decline or withhold
resuscitation are guided by the broader rights framework that has been developed
and applied by the courts in this jurisdiction. is rights framework is inuenced
by a ‘plurality of human rights sources’,28 including the common law, the Irish
Constitution and the European Convention on Human Rights (‘ECHR’).29
e framework recognises that a patient has a right to refuse life-saving medical
interventions and this right forms the basis for upholding DNAR orders.30 is
right is acknowledged by both the Irish Courts and the European Court of
Human Rights (‘ECtHR’)31 and is situated within a broader framework of rights
including the right to ‘autonomy’, ‘bodily integrity’, ‘privacy’, ‘dignity’ and ‘freedom
from inhuman or degrading treatment’.32 is section will focus on the rights to
autonomy and bodily integrity as two central rights underpinning decisions to
refuse life-saving resuscitation.33
e Right to Autonomy and DNAR orders
A patient’s decision to decline medical intervention, including potentially life-
saving measures such as CPR, is premised upon the principle of ‘autonomy’.34 Most
26 See HSE National Consent Policy (n 2). is policy outlines the law governing patient consent
and considers the application of these principles to DNAR orders. See discussion of policy in
Madden, (n 21) 586-587.
27 Sheikh, (n 4) 224.
28 Suzanne Kingston, ‘Two-Speed Rights Protection? Comparing the Impact of EU Human
Rights Law and ECHR in the Irish Courts’ in Suzanne Egan, Liam ornton and Judy Walsh
(eds), Ireland and the European Convention on Human Rights: 60 Years and Beyond (Bloomsbury
Professional 2014) 110.
29 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (‘ECHR’).
30 Mills and Mulligan (n 5) 463.
31 In Re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79 (SC); Pretty v United
Kingdom App No 2346/02 (ECHR, 29 April 2002).
32 Se e discussion of recognition of rights under Constitution and ECHR in Donnelly (n 7).
33 ese rights are ‘central’ to decisions to retract or decline medical intervention. See also Ash
Samanta and Jo Samanta, ‘e Human Rights Act 1998—why should it matter for medical
practice?’ (2005) 98(9) Journal of the Royal Society of Medicine 404, 405.
34 Kenneth Kearon, ‘Re A Ward of Court: Ethical Comment’ (1995) 1(2) Medico-Legal Journal of
Ireland 58.
54 .
oen equated with a patient’s exercise of control over his or her body,35 within
the Irish legal system, the right of individual autonomy has been recognised and
is safeguarded by the common law, Article 40.3.1 of the Irish Constitution and
is right was rst recognised by the Irish Courts and accorded constitutional
status in the 1995 decision of In Re a Ward of Court (withholding medical
treatment).37 is case involved a woman who had suered complications from
a surgery, which had resulted in her living in a ‘near persistent vegetative state’.38
An application was made to the High Court to decide whether the administration
of nourishment and uids via a gastronomy tube could be ceased.39 Although the
patient at the centre of this case was incapacitated, both the High Court and the
Supreme Court recognised the right of a patient with capacity to decline medical
treatment even if it would lead to their premature death.40
In their discussion of this right, the High Court and Supreme Court explored
Article 40.3.1 and identied a broad framework of interconnected rights.41 e
Court recognised that under Article 40.3 an individual patient has a ‘right to life’
that must be respected.42 However, this right is not unqualied43 and it was noted
that an individual patient also possesses a number of ‘personal rights’ under Article
40.3 that must be balanced against the ‘right to life’.44 In particular, the Court
recognised that an individual has a right to ‘autonomy or self-determination’ in
medical decision-making, upon which they are entitled to refuse life-sustaining
treatment.45
35 e principle of autonomy was neatly encapsulated by Cardozo J in Schloendor v New York
Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), who noted, ‘Every human being of adult years and
sound mind has a right to determine what shall be done with his own body.’
36 As shall be d iscussed, this right was rst recognised in Ireland in the case of In Re a Ward of Court
(withholding medical treatment) (No 2) [1996] 2 IR 79 (SC). See further Mary Donnelly, ‘e
Right to Autonomy in Irish Law’ (2008) 14(2) Medico-Legal Journal of Ireland 34. e ECHR
was incorporated into Irish law by virtue of the European Convention on Human Rights Act
2003. erefore, this places the Convention at a ‘sub-constitutional level’. See further discussion of
ECHR in Ireland in Gerard Hogan, ‘e Constitution and the Convention: Happily Married or
a Loveless Co-existence?’ in Suzanne Egan, Liam ornton and Judy Walsh (eds), Ireland and the
European Convention on Human Rights: 60 Years and Beyond (Bloomsbury Professional 2014) 76.
37 In Re a Ward of Court (n 31).
38 ibid 137 (Blayney J ).
39 ibid 80.
40 ibid 93 (Lynch J); 124 (Hamilton CJ); 129 (O’Flaherty J ); 142 (Blayney J); 156 (Denham J).
41 Mary Donnelly, ‘Treatment For A Mental Disorder: e Mental Health Act 2001, Consent And
e Role Of Rights’ (2005) 40(1) e Irish Jurist 220.
42 In Re a Ward of Court (n 31) 94 (Lynch J); 122–123 (Hamilton CJ); 131 (O’Flaherty J); 160
(Denham J) (SC).
43 ibid 94 (Lynch J); 124, 127 (Hamilton CJ); 131 (O’Flaherty J ); 161 (Denham J).
44 ibid 94 (Lynch J); 161 (Denham J). At 123 Hamilton CJ considered the courts’ role in
‘harmonising’ rights.
45 ibid 94 (Lynch J); 124-126 (Hamilton CJ); 132 (O’Flaherty J ); 160–161 (Denham J).
e Right not to be Resuscitated? 55
Following this judgment, the right of individuals to autonomy in relation to the
provision of medical care was reiterated by a number of cases.46 In particular, Laoy
J in Fitzpatrick and Another v K and Another47 noted that ‘it could not be argued
that a competent adult is not free to decline medical treatment’.48 In her discussion
of this right, Laoy J cited Denham J in In Re a Ward of Court as follows:
Medical treatment may not be given to an adult person of full capacity
without his or her consent … e consent which is given by an adult of full
capacity is a matter of choice. It is not necessarily a decision based on medical
considerations. us, medical treatment may be refused for other than
medical reasons, or reasons most citizens would regard as rational, but the
person of full age and capacity may make the decision for their own reasons.49
By recognising the right to autonomy, the Irish courts enabled patients to legally
elect to decline CPR, irrespective of motive,50 through the use of DNAR orders.
In addition to identifying a general right to decline treatment, the Irish courts
have also extended this right to include anticipatory medical decision-making.
Oen referred to as an ‘advance directive’ (‘AD’) or ‘living will’, the Irish courts
have recognised that a patient may execute a document in which they outline
their desires with regards to their prospective medical care and this would become
applicable if they subsequently become incompetent.51 In particular, in Goernor of
X Prison v P McD,52 Baker J noted that an individual is legally entitled to express
their desires in relation to their prosp ective care and this ‘ought to be … respected’
by those engaged in the treatment of the patient.53
us, under the right to autonomy, as recognised in Irish jurisprudence, the
decision of a patient to refuse resuscitation in an AD should be enforceable upon
46 S ee, for example, JM v Board of Management of St Vincent’s Hospital [2003] 1 IR 321 (HC);
Fitzpatrick and Another v K and Another [2008] IEHC 104.
47 Fitzpatrick (n 46).
48 ibid [22].
49 ibid , citing In Re a Ward of Court (n 31) 156 (Denham J).
50 See In Re a Ward of Court (n 31) 156 (Denham J) (SC); Fitzpatrick and Another v K and Another
(n 46) [50].
51 O’Flaherty J in In re a Ward of Court (n 31) 133 highlighted the possibility of an individual pre-
establishing their wishes and the subsequent decision of the Irish High Court in JM v Board
of Management of St Vincent’s Hospital (n 46) se emed to be a further indication of the court’s
willingness to uphold a pre-emptive decision by a patient with capacity to reject treatment. Se e
discussion in David Tomkin and Patrick Hanan, ‘Medical Treatment at Life’s End: e Need for
Legislation’ (1995) 1(1) Medico-Legal Journal of Ireland 3; Ciara Staunton, ‘ e Development
of Health Care Planning in Ireland’ (2009) 15(2) Medico-Le gal Journal of Ireland 74; Elizabeth
Campbell, ‘e Case for Living Wills in Ireland’ (2006) 12(1) Medico-Legal Journal of Ireland 5.
52 Goernor of X Prison v P McD [2015] IEHC 259.
53 ibid [126]. However, there is some broader criticism of this case by Humphreys J in the later case
of AB v CD [2016] IEHC 541 [15].
56 .
the occurrence of incapacity.54 As a patient will most likely be incapacitated
when resuscitation is required, the recognition of advance decision-making holds
particular importance for DNAR decisions. By permitting a patient to create a
written directive whilst they are still competent, a patient may record their decision
to refuse resuscitation and this directive should guide their treatment if they
subsequently succumb to cardio-respiratory arrest.55
However, despite permitting a patient to decline resuscitation through the use of a
DNAR order, this does not also imply that a patient in Ireland has a ‘right to die’.
e Irish courts have previously distinguished between the patient’s entitlement
to ‘let nature take its course’ and the taking of explicit action to ‘terminate life’.56
Although a patient is entitled to die naturally, the Irish Supreme Court in Fleming
v Ireland determined that a patient does not possess an entitlement to determine
the manner or timing of their death under the Irish Constitution.57
In addition to the Irish constitutional and common law framework, Article 8
(‘right to respect for private and family life’) of the ECHR may be relied upon to
implement a DNAR order.58 In Pretty v United Kingdom,59 the ECtH R determined
that a competent patient possesses a right to decline any medical intervention, even
if this decision may lead to their death.60 Analogous to the approach in Ireland,61
the ECtHR accepted a patient’s right to ‘personal autonomy’ and noted that
any medical intervention administered contrary to the wishes of a patient with
capacity could be regarded as an interference with their rights under Article 8 of
the Convention.62
e ECtHR has not specically applied the right to autonomy to DNAR order
decisions. However, the Court has indicated that the application of a DNAR order
to a patient le by a doctor would fall under Article 8. In the initial admissibility
hearing in Glass v United Kingdom, the Court held that the attachment of a
DNAR order to a patient le without notifying the patient and their family came
54 e decision in Goernor of X Prison v P McD (n 52) provides a legal basis for the use of ADs.
See Andrea Mulligan, ‘Self-Determination, Capacity And e Right To Die By Hunger Strike:
Governor of X Prison v P McD’ (2015) 54(2) e Irish Jurist 165. It must be noted that in
addition to this recognition of ADs under the right to autonomy, these directives shall be place d
on legislative footing with the introduction of the Assisted Decision-Making (Capacity) Act 2015.
See discussion in section three of this article.
55 Michael E. McBrien and Gary Heyburn, ‘ “Do not attempt resuscitation” orders in the peri-
operative period’ (2006) 61(7) Anaesthesia 625.
56 Fleming v Ireland [2013] IESC 19 [99]–[105]; Goernor of X Prison v P McD [2015] IEHC 259
[106]. See further discussion in Mulligan (n 54), 169–71 and Mills and Mulligan (n 5) 453.
57 Fleming v Ireland (n 56) [99], [104]–[105]. However, the right to die of natural causes remains in
Ireland, per the decision in In Re a Ward of Court (n 31).
58 Kevin Stewart, Claire Spice and GS Rai, ‘Where now with Do Not Attempt Resuscitation
decisions?’ (2003) 32(2) Age and Ageing 143, 143.
59 Pretty v UK (n 31).
60 ibid [63].
61 In Re a Ward of Court (n 31) 156.
62 Pretty v UK (n 31) paras 61–63.
e Right not to be Resuscitated? 57
within the realm of Article 8.63 Consequently, the decision of a patient to refuse
resuscitation and to implement a DNA R order would fall within the protection of
their ‘right to private and family life’ under Ar ticle 8 of the ECHR.
However, the right to autonomy under the ECHR must be distinguished from
the right to autonomy as recognised and enforced by the Irish courts in one
central respect; namely, this right under Ar ticle 8 does not extend to incompetent
patients.64 In contrast, under the Irish common law and constitutional framework,
the right to autonomy is applicable to both patients with and without capacity by
virtue of the right to equality in Article 40.1 of the Constitution.65 Hamilton CJ in
In Re a Ward of Court noted that the rights of a patient without competence should
be safeguarded equally to those of patients possessing competence and therefore,
the right to autonomy could not be diluted by incapacity.66 Accordingly, the
Court in this case held that where a patient is incapacitated, their right to decline
treatment must be exercised on their behalf in accordance with a ‘best interests’
standard.67 Under this ‘best interests’ test, the Court emphasised that there should
be a broad consideration of the rights of a patient in medical decision-making and
listed a number of rights which should be explored.68 In particular, in considering
the application of this rights framework to resuscitation decisions, an important
related right is that of bodily integrity.69
e Right to Bodily Integrity and DNAR Orders
e right to ‘bodily integrity’ can also arise in a decision to refuse resuscitation as
CPR, despite being potentially life-saving, is an invasive process that may result in
physical injury including ‘fractured ribs or sternum’.70 is right was rst recognised
63 Glass v United Kingdom App no 61827/00 (ECtHR , 18 March 2003). is matter was not,
however, addressed by the court in the full hearing in Glass v e United Kingdom App no
61827/00 (ECtHR, 09 March 2004).
64 e ECtHR in Pretty v United Kingdom (n 31) did not recognise any corresponding right for an
incompetent patient to refuse treatment under this article and in a more recent judgment, this
court noted that the exercise of a right to decline medical interventions under article 8 requires
the presence of the requisite individual capacity to make this decision. See Haas v Switzerland
App no 31322/07 (ECtHR, 20 January 2011). See further discussion in Isra Black, ‘Refusing Life-
Prolonging Medical Treatment and the ECHR’ (2018) Oxford Journal of Legal Studies
academic.oup.com/ojls/advance-article-abstract/doi/10.1093/ojls/gqy009/4985470> accessed 9
April 2019, 3.
65 In Re a Ward of Court (n 31) 126 (Hamilton CJ); 132 (O’Flaherty J); 159-160, 163 (Denham J ).
66 ibid 126 (Hamilton CJ ).
67 ibid 127–128 (Hamilton CJ); 132–133 (O’Flaherty J ); 135 (Egan J); 142-143 (Blayney J); 160,
166–167 (Denham J).
68 ibid 166–167 (Denham J). See discussion in John Healy, Medical Malpractice Law (Round Hal l
2009) 951.
69 Se e Samanta and Samanta (n 33).
70 Basario Davey, ‘Do-not-resuscitate decisions: Too many, too few, too late?’ (2001) 6(3) Mortality
247, 247–248.
58 .
in In Re a Ward of Court.71 In this case, Hamilton CJ held that a patient’s ‘right to
bodily integrity’ is interconnected with their right to life and as a result, this right
could not be lost, even upon the diminishment of a patient’s capacity.72 is right
was recognised in this case as being a core right underpinning the entitlement of a
patient to decline medical intervention.73 As a result, in subsequent jurispr udenc e,
the right to bodily integrity in medical decision-making was recognised as being a
‘fundamental’ patient right.74
Following In Re a Ward of Court, the strength of this right for patients with
capacity was most clearly highlighted in Health Service Executive v B.75 In this case,
the High Court prevented the performance of a caesarean section upon a pregnant
woman against her wishes, as it was held that this would be a severe infringement
of her ‘right to bodily integrity’.76 Notably, this decision was delivered in spite of
the constitutional provision for the rig ht to life of the unborn that existed under
Article 40.3.3° of the Irish Constitution.77
e physical impact of medical treatment upon an incapacitated patient’s body
was considered implicitly as part of the ‘best interests’ test in In Re SR (A Ward of
Court).78 In this case, a hospital caring for a minor patient applied to the court for a
judicial order that resuscitation would not have to be administered if the condition
of the child was to worsen.79 In applying the ‘best interests’ test in this case, Kearns
P considered the degree of intrusion that would result from resuscitative measures
if they were to be imposed by exploring the potential bodily ‘pain and suering’
that could result from delivering life-saving resuscitative measures to the child.80
71 In Re a Ward of Court (n 31). is right was previously recognised outside of the medical context
by the court in Ryan v Attorney General [1965] IR 294, 313–314. In this case, Kenny J noted that
‘one of the personal rights of the citizen protected by the general guarantee is the right to bodily
integrity’.
72 ibid 124–126 (Hamilton CJ ). See also judgment of O’Flaherty J 129–130 (SC).
73 ibid 129 (O’Flaherty J ); 156 (Denham J) (SC).
74 See discussion of this right in Goernor of X Prison v P McD [2015] IEHC 259; Health Service
Executive v MX [2011] IEHC 326; MX v Health Service Executive [2012] IEHC 491.
75 Health Service Executive v B [2016] IEHC 605.
76 ibid [17].
77 Health Service Executive v B (n 75) [19]–[23]. Although, it was subsequently questioned whether
this decision would be applied in another case if it arose. See further, Katherine Wade, ‘Caesarean
Section Refusal in the Irish Courts: Health Service Executive v B’ (2017) 25(3) Medical Law
Review 494.
78 In re SR [2012] IEHC 2; [2012] 1 IR 305.
79 ibid [1].
80 ibid [55]. Despite the strength of the right to bodily integrity in these cases, it must be noted that
there is also an indication from the Irish courts that the right to bodily integrity could be overtaken
where a patient is without capacity. See AB v CD [2016] IEHC 541 [7]–[8], where Humpreys J
held that there should be a presumption that a patient without capacity should be administered ‘all
treatment that is professiona lly recommended as prolonging life’. Although, it must be noted that
this decision was impacted by the status of the patient in this case, who was a prisoner at the time
of the judgment.
e Right not to be Resuscitated? 59
e protection aorded to patients’ bodily integrity in Irish DNAR decisions is
not limited to the protection aorded by the Irish Constitution. Article 8 of the
ECHR also safeguards a right to ‘physical integrity’. is right was rst identied in
X and Y v e Netherlands, where the ECtHR noted that the protection aorded
to an individual’s ‘private life’ under Article 8 covers both ‘the physical and moral
integrity of a person’.81 In Pretty v United Kingdom, this right was recognised as
arising in relation to the application of medical treatment82 and a violation of this
right was found in Glass v United Kingdom.83 In Glass, the ECtHR held that the
provision of ‘diamorphine’ to a minor patient was an infringement of his ‘right to
physical integrity’ under the ECHR, as this measure was contrary to the wishes of
his parents and in the absence of permission from the court.84
Unlike the right to autonomy under Article 8,85 the right to ‘physical integrity’
was highlighted by the decision in Storck v Germany,87 where the ECtHR found
a violation of this right under Article 888 without addressing whether or not the
patient possessed capacity.89 Instead, the court in this case held :
[E]ven a minor interference with the physical integrit y of an individua l must
be regarded as an interference with the right to respect for private life under
Article 8 if it is carried out against the individual’s will.90
DNAR Orders and the Assisted Decision-Making (Capacit y)
Act2015
As has been established in the preceding section, a legal foundation to support
the utilisation of DNAR orders in Ireland exists.91 is legal foundation is a
broader rights framework premised on the right of a patient to decline life-saving
81 X and Y v e Netherlands App no 8978/80 (ECtHR, 26 March 1985), para 22.
82 Pretty v UK (n 31), para 63.
83 Glass v e United Kingdom App No 61827/00 (ECHR , 09 March 2004).
84 ibid para 70.
85 Pretty v UK (n 31).
86 Donnelly (n 7).
87 Storck v Germany App no 61603/00 (ECtHR, 16 September 2005).
88 ibid , paras 147–153.
89 Mary Donnelly, ‘From Autonomy to Dignity: Treatment for Mental Disorders and the Focus for
Patient Rights’ (2008) 26 Law in Context: A Socio-Legal Journal 37, 56. Although it was assumed
by the court that the patient was competent, th is was not established as a prerequisite for her
refusal. See also Storck v Germany (n 87) para 76.
90 Storck v Germany (n 87) para 143.
91 e rights framework also includes other rights, including the rights to privacy and life. See In Re
a Ward of Court (n 31) where the right to decline medical treatment was recognized based on a
number of rights, including autonomy, bo dily integrity and privacy. See also recognition of the
60 .
resuscitation and incorporates a patient’s broader entitlements to ‘autonomy’
and ‘bodily integrity’. However, this legal foundation is currently in a period of
transition. It will be altered with the commencement of the Capacity Act.
Advance Healthcare Directives and DNAR orders
e Capacity Act will introduce a legislative basis for upholding ‘advance healthcare
directives’ (‘AHDs’) in Ireland, through which a patient in future may record
to decline resuscitation is subject to the caveat that there is currently no legislative
duty in Ireland to uphold an advance refusal.93 As a result, a patient is likely to be
incapacitated when a DNAR order is required, and their desires in relation to CP R
are only one of a number of factors that must be addressed as part of a broader ‘best
interests’ test under this framework .94 However, Irish DNAR decision-making will
be altered by the commencement of the Capacity Act, as this legislation will permit
a patient to refuse CPR by creating an ‘advance healthcare directive’95 and for the
rst time, the prospective decisions of patients will be legally binding on medical
practitioners.96 is legal recognition will, therefore, have an important impact on
DNAR order decision-making in Ireland.
Part 8 of the Capacity Act will govern AHDs. Upon commencement, this Part
will permit competent adult patients to dra an AHD, in which they may record
their desires with regard to prospective medical treatment and do cument the name
of an individual who they wish to act on their behalf as a ‘designated healthcare
representative’.97 Under these new provisions, a refusal of CPR expressed in an
AHD may only be implemented where the patient is incompetent and where it
is clear that the refusal of CPR is denitive and clearly applicable to the arising
circumstances.98 A failure to satisfy these requirements in exe cuting their AHD will
render the refusal of CPR contained therein inapplicable.99 Fur thermore, if the legal
status of the patient’s AHD is unclear and a medical practitioner is unable to verify
its applicability, then a refusal of CPR thereunder must also be ignored ‘in favour
of the preservation of the directive-maker’s life’.100 However, if these requirements
92 Capacity Act, pt 8.
93 Goernor of X Prison v P McD (n 52) [126] (Baker J), who noted that advance directives ‘ought to
be … respected’ (emphasis added).
94 See Denham J’s ‘best interests’ test in In Re a Ward of Court (n 31) 167.
95 Capacity Act, pt 8.
96 Hope Davidson, ‘e Assisted Decision-Making (Capacity) Act 2015: How will it Change
Healthcare Decision-Making for Pe ople with Dementia ?’ (2017) 23(2) Medico-Legal Journal of
Ireland 62.
97 Capacity Act, ss 82 and 84(1).
98 ibid s 84(2).
99 ibid s 85(2).
100 ibid s 85(5).
e Right not to be Resuscitated? 61
are met and the AHD is valid, a patient’s refusal of resuscitation would have the
same impact as a refusal made by the patient if they were competent.101
To develop an AHD under the Capacity Act, it must be noted that this legislation
establishes a number of ‘formalities’ that must be satised.102 In particular, any
AHD that is created under the Capacity Act must be ‘in writing’, must provide
details on the relevant patient and must be witnessed by two individuals, one of
which is not within the ‘immediate family’ of the patient.103 As a refusal of CPR
may inevitably lead to the death of the patient, a patient making such a signicant
decision is required to also satisfy the additional requirement of specically
documenting in their AHD that their wishes are to be followed ‘even if his or her
life is at risk’.104
Under this legislation, a patient may also elect to document a ‘designated
healthcare representative’ in their AHD, who may act on their behalf in relation
to any decision arising under their AHD.105 e duty of this ‘designated healthcare
representative’ is to guarantee that the patient’s refusal of CPR is upheld,106 and
they may be granted authority by a patient in their AHD to convey their ‘will and
preferences’ and to decline resuscitation on their behalf.107 Notably, in undertaking
this role, the representative must document any decision made by them on behalf
of the patient and their role automatically nishes if the patient regains the ability
to make their own decisions.108
One limitation of the Capacity Act is that it provides for a number of circumstances
in which a medical practitioner could possibly ignore a patient’s refusal of CPR
despite satisfying all of the above requirements. First, a refusal may be held
unenforceable if it is determined that their refusal was made subject to some form
of restraint or threat.109 Second, a refusal may be invalidated if it is proven that the
patient subsequently behaved in a manner that was ‘inconsistent’ with their wishes
as expressed in the AHD, such as if they later stated that they wanted to receive
capacity or, fourth, if the medical intervention to be applied is dierent to that
which they declined.111 Finally, the Capacity Act also broadly permits an AHD to
be invalidated if the specied conditions in which the AHD are to apply are either
‘absent or not materially the same’.112
101 ibid s 86(1).
102 Davidson (n 96).
103 Capacity Act, s 84(4), (5) and (6).
104 ibid s 85(3).
105 ibid s 87(1).
106 ibid s 88(1)(a).
107 ibid s 88(1)(b).
108 ibid s 88(3) and (6).
109 ibid s 85(1).
110 ibid s 85(1).
111 ibid s 85(2).
112 ibid s 85(2).
62 .
By providing circumstances in which an AHD may be overridden, it may be argued
that this Act seeks to protect the interests of patients. For example, section 85 will
safeguard against a refusal of life-saving treatment being forced upon a patient
upon admittance to a healthcare facility.113 Furthermore, it may be noted that
these grounds for overriding an AHD are more restricted than those expressed in
other jurisdictions.114 However, as this leg islation does not specify what is meant by
requirements such as ‘materia lly the same’,115 it is argued that these provisions aord
a breadth of exibility to medical practitioners in implementing CPR refusals that
could potentially undermine the benet of draing an AHD in the rst instance.116
If there is any uncertainty in relation to the enforceability of a patient’s refusal of
resuscitation or the actions of their representative, it is possible for the practitioner
to make an application to the High Court for guidance.117 However, it is noted that
this procedure may also potentially be employed to frustrate the potential benet
of draing a CPR refusal. Whilst an application is in process, the implementation
of an AHD is required to be suspended under the Act and any life-saving medical
treatment that is refused therein must be supplied in the intervening time if
required.118 Consequently, if the patient were to suer from cardiorespiratory arrest
during this period, CPR may be feasibly delivered to them contrary to their desires.
Furthermore, as the Capacity Act does not outline the basis upon which a court
application may be made, it is not clear whether an application is restricted to the
invalidation grounds specied in the Act, as discussed above.119 erefore, where it
is indicated that a patient may soon suer from an arrest, there may be a potential
113 ibid s 85(1), which requires an AHD to be created ‘voluntarily’.
114 See discussion in Mary Donnelly, ‘e Assisted Decision-Making (Capacity) Act 2015:
Implications for Healthcare Decision-Making’ (2016) 22(2) Medico -Legal Journal of Ireland 65.
115 It must be noted that some guidance is provided by the dra codes of practice published by the
Health Service Executive. See further, Advance Healthcare Directives Multidisciplinary Working
Group, ‘Dra Code of Practice on How to Make an Advance Healthcare Directive’ (Health
Service Executive 2017)
programmes/assisteddecisionmaking/howtomakeanadvancehealthcare directivecodedraftfor
consultation.pdf> accessed 9 April 2019 and Advance Healthcare Directives Multidisciplinary
Working Group, ‘Dra Code of Practice on Advance Healthcare Directives for Health and
Social Care Professionals’ (Health Service Executive 2018) .hse.ie/eng/about/
who/qid/other-quality-improvement-programmes/assisteddecisionmaking/healthand
socialcareprofessionalcodedraforconsultation.pdf> accessed 9 April 2019.
116 s 85 could also mean that an AHD is rendered inapplicable, despite the intentions of the patient
who followed all other requirements to execute this document. erefore, a patient who wishes
to employ an AHD to decline resuscitation may almost be required to outline every form of
resuscitative measure that they wish to decline and every scenario in which their AHD is to apply
in clear detail, in order to ensure that their refusal is implemented. However, this ‘discretion’
may also be benecial in ensuring AHDs are only applied when intended. See discussion in
Mary Donnelly, ‘Developing a Legal Framework for Advance Hea lthcare Planning: Comparing
England & Wales and Ireland’ (2017) 24(1) European Journal of Health Law 67.
117 Capacity Act, s 89(2). All other AHD applications that do not relate to life-saving treatment are
to be heard in the Circuit Court per s 89(1).
118 ibid s 89(3).
119 ibid s 85.
e Right not to be Resuscitated? 63
for abuse under this provision in that an appl ication could be lodged to the court in
order to temporarily suspend a refusal of resuscitation in an AHD.120
DNAR Orders and the Limits of the Irish Lega l Framework
e current broad rights framework enabling DNAR order decision making in
Ireland does not specically pertain to resuscitation. is section will review the
adequacy of the current rights framework and provisions of the Capacity Act in
the absence of further DNAR order specic guidance and will assess its limits. It
will be argued that this framework will not be sucient to suitably clarify the use
of these orders in Irish medical practice in cases involving either patients with or
without capacity, and that further reform of the law in this area is necessary.
e Limitations of the Irish Legal Framework
In exploring the Irish legal framework above, it may be argued that where a
patient clearly possesses capacity and wishes to decline resuscitation in advance,
the legal basis for DNAR orders structured upon this framework may be
relatively straightforward. is patient has a right to decline life-preserving
medical interventions, premised upon their ‘right to autonomy’.121 erefore, the
application of CPR contrary to their wishes would be a violation of this right and
their right to bodily integrity.122 Based on these rights, a patient with capacity
wishing to decline resuscitation may do so for whatever personal reason,123 with
the only limitation being that a measure of uncertainty remains as to whether
these orders would be enforced.124 e commencement of the Capacity Act will,
however, partially address this decit by establishing a framework for imp lementing
legally enforceable advance healthcare directives.125
However, as the Act was never intended to specically address DNAR decisions,
this legislation will not supplant the need for further legal regulations in relation
to DNAR orders for patients with capacity. In particular, the procedure to be
implemented to create an AHD to decline future resuscitation under the Act is
120 is potentially raises further concerns when one also considers the limited attention granted
by the Capacity Act to the potential liability of medical practitioners in relation to AHDs. See
Capacity Act, s 86.
121 In Re a Ward of Court (n 31).
122 ibid; Health Service Executive v B (n 75); Pretty v United Kingdom (n 31); Storck v Germany
(n87).
123 In Re a Ward of Court (n 31).
124 Goernor of X Prison v P McD (n 52) [126]. In this case, Baker J held that advance refusals ‘ought
to be … respected’. However, it is not clear whether they are legally binding or are a factor to be
considered as part of the broader assessment.
125 Capacity Act, pt 8. e potential impact of the Capacity Act on DNAR orders is highlighted in
McBrien and Heyburn, (n 55).
64 .
quite ‘formalised’. It imposes a number of requirements that must be satised for an
AHD to be executed and upheld.126 Furthermore, as there are a number of grounds
upon which an AHD may be invalidated,127 it is arguable that the execution of these
provisions may also require a patient to seek legal guidance in order to ensure that
their refusal of CPR is complied with. Given that the cohort of patients that tend
to be subject to DNAR order decisions are older individuals or patients suering
from serious medical conditions,128 placing sole reliance on the AHD procedure
under the Capacity Act as the only clear means through which an order to refuse
resuscitation may be implemented may ultimately prove to be untenable in practice.
As regards patients without capacity, the current legal framework is also insucient.
Although the Capacity Act will notably provide a structure through which p atients
with limited capacity may also execute an AHD, this legislation will not address
scenarios where a patient is incapacitated and is unable to create an AHD to
framework that once again comes to the foreground.130 is framework centralises
the role of medical practitioners and requires them to implement this test, as
the relatives of a patient do not have any legal authority in Ireland to make these
decisions.131 is may pose a notable challenge for practitioners in resuscitation
decisions, as the ‘best interests’ test is expansive132 and the actual application of this
test to medical decisions has been poorly dened in Irish jurisprudence.133 Whilst
126 Capacity Act, s 85. Se e Donnelly, (n 116). In considering these ‘formalities’, Donnelly notes that
the Capacity Act establishes more requirements to be satised in the AHD draing process than
comparable provisions in the Mental Capacity Act 2005 in England and Wales.
127 Capacity Act, s 85. See further discussion in section three.
128 See McNamee and O’Keee (n 15), for example, wherein 16 of the 17 patients who were recorded
as ‘not for resuscitation’ has a serious condition such as cancer and 82.4% were older than seventy
years of age.
129 e Capacity Act will introduce provisions to allow for ‘assisted decision-making’ and ‘co-
decision-making’. However, these provisions require the patient to possess a degree of capacity to
form their own medical decisions. See Capacity Act, pts 3 and 4. See discussion of these provisions
in Donnelly, (n 116).
130 In Re a Ward of Court (n 31) 127–128 (Hamilton CJ); 132–133 (O’Flaherty J); 135 (Eg an J)
142–143 (Blayney J); 160, 166–167 (Denham J) (SC). However, per Section 8 of the Capacity
Act, a ‘will and preferences’ test will be implemented where a de cision to withdraw treatment
is brought under the remit of the Act, such as where an incapacitated patient has availed of a
decision-making support, or an AHD or is subject to the jurisdiction of the court.
131 Per the decision in In Re a Ward of Court (n 31), the perspective of a patient’s family has a ‘special
place’ and should be given ‘considerable weight’. However, they may not make the choice on
behalf of the patient. See also 99 (Lynch J); 106 (Hamilton CJ); 134 (O’Flaherty J); 136 (EganJ);
164 (Denham J).
132 ibid. e ‘best interest’ test factors were set out by Denham J at 166–167.
133 e recent decision in HSE v JM, in which the High Court for the rst time specically addressed
the application of DNAR orders for adult patients, did not further clarif y the application of this
test to DNAR order decisions, as the ‘best interests’ test set out by Kelly J again set out a number
of factors to be considered, without clarifying the weight to be attributed to these factors. See
Health Service Executive v JM (A Ward of Court) & ors (n 21) [92]–[103]. For a broader critique
of the ‘best interests’ test see Donnelly (n 7) and Donnelly (n 36).
e Right not to be Resuscitated? 65
the HSE policy pertaining to DNAR order decisions does attempt to clarify this
process by detailing a number of principles to be applied to these decisions,134 this
policy also fails to outline a clear structure for implementing these principles, unlike
the comparable policy in England and Wa les.135 As a result, when a DNAR decision
is required on behalf of an incapacitated patient without an AHD, the approach
to be taken in reaching a decision to apply a DNAR order may prove dicult to
implement in a consistent manner.136 is may perhaps be further complicated by
a physician’s absence of knowledge of the patient who has been admitted into their
care in an emergency.
e Need for Reform
Considering these limitations as a whole, it is contended that the legal
framework in Ireland is not sucient to address the complexities of DNAR order
decisions without developing further legal provisions to regulate these orders.
Notwithstanding the commencement of the Capacity Act, there remains a gap
within the current legal framework in relation to the standardisation of DNAR
decisions in Ireland and the procedure to be implemented in applying these orders
on behalf of incapacitated patients.137 As a result, research continues to highlight
the negative impact that the absence of a uniform DNAR order system has upon
Irish medical practice and the continued need for further legal guidance is echoed
across a number of papers.138
To this end, reform of the Irish legal framework governing DNAR orders could
be undertaken in two distinct ways: a legislative approach or a policy approach.
In the case of the rst proposal, it is noted that the necessity for legal clarity in
this eld could be addressed by DNAR order specic legislation. is approach
has been adopted in the US State of Ohio, for example, where specic statutory
provisions and administrative rules have been in place since the 1990s.139 Unlike
134 HSE National Consent Policy (n 2) 100–103, 107.
135 British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing,
‘Decisions relating to cardiopulmonary resuscitation: Guidance from the British Me dical
Association, the Resuscitation Council (UK) and the Royal College of Nursing’ (British Medical
Association (BMA), the Royal College of Nursing (RCN) and the Resuscitation Council (UK)
2016) ting-to-cpr/> accessed 9 April 2019, 6.
136 Notably, the inconsistent application of the ‘best interests’ test in Ireland has been noted previously
in relation to other medical decisions in K Armstrong, Anthony Ryan, Colin Patrick Hawkes and
Anne Janvier, ‘L ife and death decisions for incompetent patients: determining best interests – the
Irish perspective’ (2011) 100(4) Acta Pædiatrica 519.
137 S ee discussion above in the sub-section entitled: ‘the limitations of the Irish legal framework for
DNAR order decisions.’
138 O’Reilly, O’Tuathaigh and Doran (n 6). See also Butler, Saaidin, Sheikh and Fennell (n 10) and
Jacinta Kelly, ‘Literature review: decision-making regarding slow resuscitation’ (2007) 16(11)
Journal of Clinical Nursing 1989. See the discussion in section one.
139 See Ohio Rev. Code Ann. §§ 2133.01–2133.26 and §§ 1337.11–1337.20 (West 2018) and Ohio
66 .
the Irish legal framework, this legislation provides a clear ‘protocol’, which is to be
implemented in DNAR decisions, and provides a number of standardised forms of
‘DNR identication’, which can be employed across the State.140 Notably, as a result
of the clarity aorded by this legislation, this model has proven quite successful
in this State to date, as there is clear evidence from this jurisdiction that Do Not
Resuscitate orders are being implemented in practice.141
In suggesting this approach, it must be noted that given the delay in the
commencement of the Capacity Act, the development of DNAR order specic
legislation in Ireland may prove to be a lengthy endeavour. Such a delay in addressing
the defects within the current legal framework governing DNAR orders wou ld not
be desirable, as the commencement of the Capacity Act will pose new challenges
for Irish DNAR order practice. In par ticular, as it will introduce for the rst time a
denitive means through which resuscitation can be prospectively refused (in the
form of an AHD), there is a present necessity for legal clarity.142
A second approach to address this gap in the law is the development of guidelines
addressing DNAR orders. is is the approach that has been adopted in England
and Wales, where legislation has been enacted to govern advance refusals143 and this
is supplemented by resuscitation policy.144 With the enactment of the Capacit y Act
and the attempted development of guidelines for DNAR order decision-making
by the Irish Health Service Executive (HSE) in their ‘National Consent Policy’,
a similar approach may be discerned from the current Irish legal framework.145
However, unlike Eng land and Wales, DNAR orders are not fully addressed by either
the Capacity Act146 or the HSE policy,147 and there remains a gap within the Irish
Admin. Code 3701-62 (2018). See further discussion of this law in eodore W. Vanden Bosch
Jr, ‘Ohio’s Do Not Resuscitate Law: A Guideline To Memorialize And Enforce An Individual’s
Final Decision’ (2002) 28 Ohio Northern University Law Review 463.
140 See, in particular, Ohio Admin. Code 3701-62-05 app. (2018) and Ohio Admin. Code 3701-62-
04 (2018).
141 Se e Yen-Yuan Chen, Nahida H. Gordon, Alfred F. Connors, Allan Garland, Shan-Chwen Chang
and Stuart J. Youngner ‘Two distinct Do-Not-Resuscitate protocols leaving less to the imagination:
an observational study using propensity score matching’ (2014) 12 BMC Medicine 146.
142 O’Reilly, O’Tuathaigh and Doran (n 6).
143 Mental Capacity Act 2005.
144 British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing,
(n 137).
145 HSE National Consent Policy (n 2).
146 e provisions of the Capacity Act were not developed to specically address DNAR order
decisions and therefore, with the exception of providing for advance healthcare directives in Part
8 of this Act, this legislation will not remedy that absence of a uniform system in Irish DNAR
order practice. See discussion above in the sub-section entitled: ‘the limitations of the Irish legal
framework for DNAR order decisions.’
147 A notable drawback of the HSE policy is that it seemed to be developed ba sed on the prem ise
that DNAR decisions were already being made in Irish hospitals. As a result, this policy does not
provide a standard form that could be implemented nationally, nor does it outline a decision-
making structure to be implemented in making these de cisions, as compared to the regime in
England and Wales. See HSE National Consent Policy (n 2) 100–103, 107.
e Right not to be Resuscitated? 67
legal system in relation to standardisation of the DNAR decision-making process.
erefore, if such an approach were to be adopted in Ireland, a more detailed set
of guidelines would have to be implemented on a national basis.148 Regardless of
which approach is chosen, it is evident from this discussion that reform in this area
is needed.
Conclusion
is article has sought to explore the legal framework underpinning the use of
DNAR orders in Ireland, to examine the operation of these orders in Irish medical
practice, and to assess whether there is a need for specic legal guidance to govern
these decisions. A number of central conclusions are made. First, there has been a
failure within the Irish framework to standardise and clarify the operation of DNAR
orders and it is evident from the medical research in this area that this has negative
implications for both patients and healthcare practitioners. Second, following an
exploration of the rights framework, it is clear that the Irish legal framework at
present is not sucient as a structure to guide and clarify the application of these
orders. ird, although the commencement of the Capacity Act will, to a certain
degree, address a portion of the uncertainty in this area by legislating for AHDs,
this legislation will not be sucient to address the numerous c omplexities entailed
in implementing DNAR decisions. Finally, due the continuing gap between the
legal framework and medical practice in this area, legal reform in relation to DNAR
orders remains essential. With the imp ending commencement of the Capacity Act,
this need is now even more pressing.
148 At present, the potential benet that could be garnered from the HSE National Consent Policy
has also been undermined by the poor awareness of this policy that currently exists. See discussion
in O’Brien, Scarlett, Brady, Harkin, Kenny, and Moriarty (n 25).
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