Today’s question comes from a person who works:

… for a Hospital in the Home (HITH)/virtual care service in NSW, where patients remain admitted as inpatients under the hospital but receive care in the community/home environment.

I’ve been told that a hospital “Not For Resuscitation” (NFR) order or resuscitation plan does not automatically continue once the patient is physically at home, even if they are still technically admitted under HITH.

I’m wondering what the legal position actually is in NSW regarding this.

For example:

– Patient is admitted in hospital

– Valid NFR/resuscitation plan completed during admission

– Patient transfers to HITH/home as continuation of same inpatient episode

– No new community-specific directive or paperwork completed

– Patient deteriorates at home

– Nurse performs CPR because they’re told the hospital NFR may not apply in the community

– Poor outcome occurs

From a legal/risk perspective, would clinicians generally be in more trouble for:

1. Following the existing inpatient NFR while the patient is under HITH care at home, or

2. Disregarding it and performing CPR despite the documented NFR?

It’s really impossible to answer this question without knowing the details of the patient’s condition and their decision.  It may be the case ‘that a hospital “Not For Resuscitation” (NFR) order or resuscitation plan does not … continue once the patient is physically at home’ but equally it may be the case that it does. It really depends on the patient’s intention or the other reasoning behind the decision.

An NFR order may be in place because, after discussion with their treating team, the patient has made the decision to refuse that treatment. In that case, if the patient indicated they did not want to be resuscitated because they had entered hospital with a poor prognosis, but by good luck and good management they had significantly improved and are now going home with a much better outlook, then it may well be that they no longer want that NFR order to apply.

If, on the other hand, they had entered the hospital with a poor prognosis and are now going home because their prognosis remains poor but there is no good reason to stay in hospital because all the care that the hospital can provide can be provided at home where they will be more comfortable and release an acute care bed, then there may be no reason to think that the NFR order no longer applies.

The only question is ‘does this still reflect the patient’s wishes?’.

Alternatively, an NFR order can be made where in the opinion of the treating team the treatment would be futile – there is no legal obligation to provide futile treatment. If that is the bases for the order, then the question is ‘does this still reflect the assessment of the patient’s condition and the likely benefit of the proposed treatment?’

If the answer to either question is ‘yes’ then the NFR order should stand.

There is no particular legislation governing advance care directives in NSW. The issue is what is the patient’s decision where the patient is capable of making a decision and where they are not, what is the substitute decision maker’s decision.  

I would think it is inexcusable where the ‘patient transfers to HITH/home as continuation of same inpatient episode’ that consideration is not given to whether the treatment decisions made in the hospital, including the NFR order, are to continue.  Just as one would need to review the medications and consider are they all appropriate in the new circumstances, so to the NFR order. 

As for the question:

From a legal/risk perspective, would clinicians generally be in more trouble for:

1. Following the existing inpatient NFR while the patient is under HITH care at home, or

2. Disregarding it and performing CPR despite the documented NFR?

I think the answer depends on their reasoning at the time.  Prima facie I would assume that the NFR order continues to apply but a practitioner may know that the patient has changed their mind or the fact that they are being sent home indicates that their condition was not as bad as thought and the treatment is no longer considered futile.  

But simply disregarding it because ‘I was told ‘does not automatically continue’’ can hardly be justified.  If a practitioner or health manager believes the NFR order does not ‘automatically’ continue then that must alert them to ask whether it continues in this case.  Just as it does not ‘automatically’ continue it does not ‘automatically’ cease to apply.  

Conclusion

The obligation is to treat the patient in the patient’s best interests and in accordance with their wishes.  If it is thought that the transfer to the Hospital-in-the-Home is a clinically significant change of circumstances then all of the patient’s treatment needs to be reviewed along with any NFR order or consent refusal.  If it’s not clinically significant then there is no legal reason to think that earlier decisions including NFR do not apply. But good practice would say ask the patient what they want. And if the order is made on the basis that resuscitation would be futile, confirm that is still the opinion of the treating team.

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.