A correspondent has drawn my attention to a ‘Report to Prevent Future Deaths’ issued by a coroner in the United Kingdom.  This report is made ‘under paragraph 7, Schedule 5, of the Coroners and Justice Act 2009 and regulations 28 and 29 of the Coroners (Investigations) Regulations 2013’.  This ‘Report’ has far less detail than one would expect in detailed inquest findings. The report is directed to an individual or organisation noting the coroner’s concerns and inviting a response. Both the report and any reply may be published online.

The report that my correspondent has drawn my attention to is the report into the death of ‘Kathleen Mary GREGORY aged 74’.   In the report the coroner notes the circumstances of Ms Gregory’s death as follows:

On the 29th November 2023 at around 13:30 hours, Kathleen Mary GREGORY was found collapsed in bed by staff at her care home.  She appeared to be choking on food which had earlier been left for her by staff for lunch.  Staff sat Mrs. Gregory upright and checked to see if there were any obstructions in her upper airway.  None could be observed.  A paramedic who had been attending the care home was called to assist.  Upon his arrival Mrs. Gregory had no pulse and did not appear to be breathing and he verified her death at 13:45 hours.  A subsequent Post-mortem examination confirmed that Mrs. Gregory had died due to asphyxia caused by food which had become lodged at the larynx in her airway.

Police enquiries revealed no suspicious circumstances or third party involvement in the death.

The coroner raised matters of concern with Beccles Medical Centre. The coroner said:

During the course of the Inquest the Court heard evidence that the paramedic employed by Beccles Medical Centre who attended Mrs. GREGORY on the 29thNovember 2023 interpreted a Recommended Summary Care Plan for Emergency Care and Treatment (ReSPECT) in place at the time as meaning that resuscitation attempts should not be attempted in circumstances where an un-natural event such as choking was taking place.

I am concerned that such an approach does not appear to be consistent with the terms of a ReSPECT Form and its application in circumstances of an event such as choking where an adverse outcome may be reversable.

ReSPECT is a process sponsored by the Resuscitation Council UK:

The ReSPECT process creates personalised recommendations for a person’s clinical care and treatment in a future emergency in which they are unable to make or express choices.

These recommendations are created through conversations between a person, their families, and their health and care professionals to understand what matters to them and what is realistic in terms of their care and treatment.

It is not an advanced care directive rather it creates: 

… a summary of personalised recommendations for a person’s clinical care in a future emergency in which they are not able to make decisions or to express wishes. Such emergencies may include death or cardiac arrest, but are not limited to those events. The process is intended to respect both patient preferences and clinical judgement. The agreed realistic clinical recommendations that are recorded include a recommendation on whether or not CPR should be attempted if the person’s heart and breathing stop.

A specimen ReSPECT plan shows that there are options for a practitioner to sign off that ‘CPR attempts recommend’ or ‘CPR attempts NOT recommended’ (emphasis in original).  The plan has a space to record ‘other relevant care planning documents and where to find them (e.g. Advance or Anticipatory Care Plan; Advance Decision to Refuse Treatment or Advance Directive; Emergency plan for the carer)’.

In the case of Ms Gregory we don’t know what was in the ReSPECT plan nor whether there were any ‘other relevant care planning documents’.  

In its response Beccles Medical Centre said 

This case, I would agree, shows a reversible cause at the stage at which the patient was choking and had a pulse (was conscious). As per United Kingdom (UK) resuscitation guidance, one would attempt five back-blows followed by five abdominal thrusts (if the initial intervention was ineffective), in order to try and dislodge the obstruction. At the point at which the patient became pulseless/unresponsive (which as noted in the report was the case when the paramedic was notified of the incident) the patient by definition had gone into cardiac arrest and as per UK resuscitation guidelines one would then commence CPR at this point (ALS/backslaps).

In terms of our RESPECT form conversations with patients, these would involve a discussion around what you (the patient) would like us to do in the event that your heart were to stop beating and you were to go into cardiac arrest. In the case of this particular patient, I feel that the window of reversibility had been lost at the point that they became unresponsive/pulseless since as per UK resuscitation guidelines the opportunity for interventions to dislodge the obstruction had passed. Consequently, CPR was then indicated, something which the patient had expressed on their RESPECT form that they didn’t want to occur…

In summary, my opinion in regards to this particular scenario, would be that at the point at which the patient was choking and pulsed, they were reversible. However, from the point at which the patient became pulseless and was in cardiac arrest, any reversibility had gone and the RESPECT form would therefore become relevant.

Discussion

Where a person, suffering a terminal illness, indicates that they do not want ongoing treatment and want to allow the illness, does that refusal of future treatment apply if they suffer an emergency unrelated to the illness eg a traumatic injury or as in this case, choking? Does the prior refusal of treatment in the context of and in anticipation of the expected progression of their illness apply when a completely different event arises?  

The answer to that must depend on the way in which the decision is being expressed.  If for example a person with a cancer has refused ongoing chemo and radiotherapy with an expectation that they will die, that refusal would not seem to cover the need for treatment in the event of choking or a traumatic injury with life threatening blood loss. They are just not the same thing.

On the other hand, a person who is approaching the end of their life, with numerous co-morbidities may indicate that they don’t want CPR or, in the case of ReSPECT, after consultation with their health care team CPR is not recommended.  That does not mean that they would not accept treatment for choking in the form of backslaps or even the use of Magill forceps to remove a foreign body.  But if they don’t want CPR they don’t want CPR and it really doesn’t matter what event led to the cardiac arrest.  No CPR is No CPR – the patient may not want the indignity of the intervention, the pain of fractured ribs, the inevitable transport to hospital particularly given poor likelihood of a successful outcome.

The problem with such a short document, such as the published Report to Prevent Future Deaths is that it does not give the reasons for the coroner’s concerns.   The coroner does not explain why he thinks the ReSPECT process, where a person discusses with their health care providers their understanding of their health position and identifies what is important to them, would not apply if something unpredicted occurs.  A person who is coming to the end of their life, or living a life of little value to them, may well indicate that their values focus on comfort rather than prolonging life – and the fact that they have a cardiac arrest caused by an unexpected event rather than their underlying pathology seems irrelevant.   There is no explanation as to why the coroner thinks an approach that looks (from a distance) like ‘if no CPR is recommended then we will not commence CPR’ ‘does not appear to be consistent with the terms of a ReSPECT Form’ (as least the sample form available online).  The coroner thought that ‘an event such as choking’ was an event ‘where an adverse outcome may be reversable’ but as Beccles argue, when their paramedic got there, she was not choking, she was in cardiac arrest.

There is little we can draw from this here in Australia.  The process in the Coroners and Justice Act 2009 (UK) is not the same as that adopted (as far as I know) in any Australian jurisdiction.  Here coroners can make recommendations to prevent future deaths but would normally do so after an inquest and their findings would have more details to identify the issues and the coroner’s concerns (see https://coroners.nsw.gov.au/coronial-findings-search.html).  The UK coroner was not making a formal recommendation but asking Beccles to comment. Perhaps that will be incorporated into published inquest findings in the future?  In any event a coroner cannot determine legal rights or responsibilities. One can anticipate that at best the coroner may make some recommendations regarding the ReSPECT paperwork or process, none of which will be binding here. 

For what it’s worth (and it’s not worth much) I would agree with Beccles – from there this does not look like a case of ‘do we treat for choking or not?’  It was a case of ‘do we administer CPR or not?’  And if CPR was not recommended, and she was in cardiac arrest, then withholding CPR would seem to be consistent to a prior decision that CPR was not recommended.  

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.