The peculiar exceptionalism surrounding cardiopulmonary resuscitation

Recent decisions about 'do not attempt cardiopulmonary resuscitation' (DNACPR) orders have highlighted the peculiar exceptionalism around cardiopulmonary resuscitation (CPR).

What other intervention with such a low success rate, invasive nature, potential for causing suffering, and failure to improve the underlying medical condition(s) would not only not require consent, but require a quasi-consent process in order for doctors to decline to offer it when it is futile?

Imagine an operation that had the same characteristics as CPR. The law would rightly require that doctors carefully explain the harms and benefits of such a procedure carefully, otherwise the intervention would be deemed an assault (all the more so subsequent to the decisions in Chester v Afshar and Montgomery v Lanarkshire Health Board).

However, the conversation about CPR cannot as a matter of law result in the doctor being compelled to offer a medically contraindicated and futile procedure. It is merely required to ascertain the patient's wishes. They can be ignored. Further, the mere prospect of upsetting the patient (and family) unnecessarily is not enough for this discussion to be circumvented. There has to be the prospect of harm.

This is an unacceptable interference in the doctor-patient relationship, and undermines medical professionalism. It will relegate the discussion of CPR to a technical task defined by the courts, and has the potential for completely reversing the efforts being made to enable a comfortable natural death where appropriate.

Doctors like Knut cannot hold back the inevitable forces of nature. They cannot "play God" when the demise of a frail patient is imminent and thus CPR futile (and barbaric).

Fitness to plead

Fitness to plead

The press seem to be rather confused over the issue of fitness to plead, which has been thrust into the limelight with the decision by the DPP to decline to prosecute Lord Janner on the basis that it would not be in the public interest.

If Lord Janner is not fit to plead, then it is arguably still in the public interest for this to go to court, where a judge can rule on this issue. Thereafter the jury would determine whether he actually committed the acts in question. If the jury found that he had, then he coud be placed on the sex offender's register and receive the disposals available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Someone who is unfit to plead is also unfit to stand trial, and so cannot be convicted. It follows that the person cannot be sentenced. There are a number of capacities required to be fit to plead, which revolve around being able to participate properly in the judicial process. 

The DPP has clarified that the medical opinions suggest that Lord Janner's health is so poor that it would be unjust to subject him to any punishment or disposal. The result of a trial of the facts would be an absolute discharge. The medical experts have been instructed both by the defence and the police/Crown Prosecution Service. The fact that Lord Janner is still eligible to sit in the House of Lords is irrelevant. There are no mental state criteria defined for suitability to sit in the House of Lords. Peers can be suspended, but removing them involves an act of Parliament.