Nurses Defence ServiceWe have represented a surprising number of nurses facing fitness to practice (FTP) proceedings brought by the Nursing and Midwifery Council (NMC) after allegations had been brought concerning their failure to carry out CPR.

These cases have included nurses working in the NHS and in care homes. Most employers have procedures in place setting out the actions to be taken when a patient or resident appears to have died, and when CPR should be used. In the cases below none of the nurses concerned had been subject to prior disciplinary action by their employers or subject to prior Fitness to Practice proceedings brought by the NMC.

Case study 1: In this first case the Registrant nurse had in excess of twenty five years experience in both the private and public sector. When working a night shift and carrying out a spontaneous check she had discovered that a resident showed no signs of life. When giving evidence at the subsequent NMC Fitness to Practice hearing she stated that although she was aware of the employer’s policy that she had not followed it. She was also aware of how to carry out CPR but surprisingly stated that in fact she had never carried it out during her extensive career. Her explanation for her inaction was that as it was clear that the resident had died by virtue of her body appearing cold to the touch thus CPR was of no use  adding in her view that carrying out CPR would not have been treating the dead person with the dignity she deserved. The NMC by way of response correctly pointed out that it was a fundamental duty of a nurse to carry out CPR unless a “do not attempt resuscitation” (DNAR) was in place and that it was not her decision to determine death, as this was the responsibility of a doctor. The NMC imposed a sanction on her because she had failed to carry out CPR, and they were not prepared to consider the mitigation offered that CPR would have served no purpose in the circumstances, or that the preservation of dignity was an important factor in her defence. However the NMC pointed out if there had been a DNAR in place that of course would have been persuasive in terms of her inaction.

Case study 2: In this case the Registrant nurse stated that although she was aware of the employers policy concerning CPR that she has failed to carry it out in that she had directed a Healthcare Assistant to perform it whilst she had telephoned for an ambulance. She had offered in mitigation that she was overweight, found it difficult to bend and as required place the resident on the floor and did not think she had sufficient energy to perform such a task.  The NMC, although accepting that it would have been difficult for her to perform the task, nevertheless found that she was guilty of misconduct because she failed to follow the employer’s policy by not carrying out CPR personally, and by her delegating the task to a more junior member of staff. Unfortunately the resident concerned failed to recover despite the efforts made by the Healthcare Assistant and by the paramedics who subsequently attended. The NMC imposed a sanction on the grounds that she had failed to carry out the duties of a registered nurse finding that delegating of such serious duties was inappropriate. 

Case study 3: In this case the registrant nurse had only been working for her employer for six months. It was her first post in the UK, and she had only been qualified in total for two years. She had not carried out CPR when discovering overnight that a resident appeared to have died. In mitigation she stated that she was in shock upon discovering the resident, had spent some time in looking for the written guidance about what actions to take in such circumstances, and that she was also waiting for a call back from her on-call manager. There was a twenty minute delay before the ambulance service was called and upon arrival the paramedics were unable to revive the resident. The NMC imposed a sanction because of her failure to carry out the CPR policy, adding that she should have made herself aware of it prior to the incident in question, and that her previous training in any event should have made her aware of what to do in such a situation.

In all these three cases there was no consideration of the health of the resident at the material time and of whether it was in their best interest for CPR to be attempted.

Guidance on the issue of CPR was developed jointly in 2016 by the Resuscitation Council, the British Medical Association and the Royal College of Nursing. The NMC policy was restated but slightly amended on 30 March 2020. The NMC confirmed that it remained a supportive of this guidance adding the following “While the NMC guidance recommends that: where no explicit decision about CPR has been considered and recorded in advance there should be an initial presumption in favour of CPR“, the guidance clarified: “ ‘…an initial presumption in favour of CPR’ …does not mean indiscriminate application of CPR that is of no benefit and not in a person’s best interests.” 

In the above case studies the NMC did not address either of these points although it is accepted that they all were determined prior to 2020. The NMC do not go on to clarify what they mean by “in a person’s best interests”. Nor do they explain what is meant by “indiscriminate application of CPR that is of no benefit”. They may possibly mean, as they  set out below in a situation when rigor mortis is apparent but then give no other examples of when this may apply. It appears to me that the only other way of being sure that CPR is of no benefit is by trying it and finding that it is unsuccessful. This is somewhat of a circular argument somewhat inevitably leading one back to the situation where CPR remains the default position.

“Section 8 of the guidance states that: “…there will be cases where healthcare professionals discover patients with features of irreversible death – for example, rigor mortis. In such circumstances, any healthcare professional who makes a carefully considered decision not to start CPR should be supported by their senior colleagues, employers and professional bodies.” In Case Study 1 there were early signs of rigor mortis but unfortunately, and in my experience it is typical of organisations when there is a death to seek to blame an individual nurse, and the NMC are generally not supportive of an individual nurse who makes a decision not to carry out CPR and thus nurses acting in this way are found to have been acting outside of the relevant guidance. 

The NMC add “In both of the situations described above, where a decision is taken not to start CPR in the absence of a prior decision not to attempt resuscitation, the NMC fully supports Nurses and Midwives, and Nursing Associates in England, to use their professional judgement to decide what action should be taken in the best interests of the person in their care. All our registrants must uphold the standards in the Code, which are useful to support decision making”. In my experience the NMC are here simply paying lip service and in practice are unlikely to support the evidence of a nurse unless their employer offers support for their decision-making.

The NMC adds “A key issue is the way professionals evidence how they have used their professional judgement to make this important decision. Whenever professionals make a decision, in this or any other situation, it is incumbent upon them to be able to explain how they applied their professional judgement to support it. This should include being able to articulate the rationale for their decision and demonstrate what evidence they used. In order that their decision making process can be understood by others who have a legitimate interest, they should then formally record their decision making process, the action they chose to take, and the outcome.” In my view even if the nurse has complied with the above they will not escape sanction unless their employer stands by them.

Of course that still leaves the answers unclear as to whether it is in the patients interest in any event for CPR to be carried out. DNAR provides some certainty but in all other cases there does not seem to be an accepted analysis or guidance as to how one decides this dilemma.  Another issue which warrants consideration is that unfortunately CPR does not work most of the time. Only 10% of patients who undergo CPR will survive until discharge from hospital. I am unaware of any nurse who has escaped NMC sanctions when they have failed to carry out CPR. 

Conclusion: In my opinion the NMC when properly  considering such cases should take into account the health condition of the patient/resident, the experience of the nurse carrying out CPR, take into account the undoubted shock that nurses and other staff experience  upon finding apparent death, and they should not use the opinion of the employer as a default position in order to determine guilt. The best advice to nurses in the absence of the above being the normal process of investigation adopted by the NMC is to carry out CPR without question.

DW (May 2020)

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Nurses Defence Service - Legal Services for UK Nurses