Do Not Resuscitate Notices – Duty to Consult

It has long been the case that best practice is to involve patients and their families when DNR Notices are considered. However such Notices are often placed in a patient’s medical records without consultation with the patient or the family and on the basis of ‘best interests’.

The recent Court of Appeal decision in the case of Tracey v. Cambridgeshire NHS Foundation Hospital Trust means that it is now a legal requirement to involve patients and their families when DNRs are considered.

Mrs Janet Tracey (“Mrs Tracey”) was diagnosed with terminal lung cancer at the beginning of February 2011. A couple of weeks after her diagnosis, she was involved in a serious road traffic accident and sustained a cervical fracture .She was admitted to Addenbrooke’s Hospital. She developed a chest infection and pneumonia and required ventilation. Her treating doctors considered that cardio-pulmonary resuscitation would not be appropriate and not in Mrs Tracey’s best interests.

It was alleged that her treating doctors placed a DNR Notice in her medical records without consulting with Mrs Tracey or her family.

A fact finding hearing was held in the initial proceedings after it became clear that there was an irreconcilable factual dispute between Mrs Tracey’s family and the treating doctors over the circumstances in which two ‘Do Not Attempt Cardio-Pulmonary Resuscitation Notices (“DNACPR”) had been placed in Mrs Tracey’s notes and what prior consultation had taken place.

The Court concluded in that factual investigation that the Consultant who completed the first DNACPR Notice believed that Mrs Tracey’s daughter had agreed to the Notice but had not spoken to Mrs Tracey. It was not disputed that after the family complained, the first Notice was removed and when it became apparent that Mrs Tracey strongly objected. As regards the second Notice, it was the case that although the family did not wish to discuss the issue with Mrs Tracey, all members of the family who were present understood and agreed with the doctors that it was the appropriate course and in Mrs Tracey’s best interests.

A second DNR Notice was reinstated before Mrs Tracey passed away two days later.

Mr Tracey’s husband Mr David Tracey (“Mr Tracey”) acting personally and on behalf of the estate of his deceased wife sought clarification of the use of DNRs, decision making in resuscitation options and a patient’s right to be consulted about DNA Notices put in medical notes.

The action which progressed to the Court of Appeal was brought against (1) Cambridge University Hospital NHS Foundation Trust in respect of ‘Do Not Attempt Cardio-Pulmonary Resuscitation Notices (“DNACPR”) put on Mrs Tracey’s medical notes at Adenbrooke’s Hospital and (2) the Secretary of State for Health for failing to instate a national policy in relation to DNACPR Notices.

Three judges delivered the Court of Appeal judgement. Lord Dyson ruled that doctors should involve patients when considering the use of a DNR Notice and confirmed that there had to be a convincing reason not to presume that patient involvement was needed. By failing to do this the hospital had breached Mrs Tracey’s human rights. The presumption is in favour of patient involvement. Distress should not be a reason not to involve a patient.

Lord Justice Ryder concluded that the duty to consult is integral to respect for the dignity of the patient.

Comment

A decision about whether a life is worth living is a fundamental right protected under Article 8 of the Human Rights Act 1998. This covers respect for private and family life and extends to personal autonomy relating to decisions about life or death. Such decisions should, where possible, rest with patients rather than be taken by doctors alone.

CPR involves life-saving treatment and as a DNRCPR potentially involves withholding life-saving treatment, patients are entitled to know when doctors consider that CPR will not work .If they are not informed they are also deprived of an opportunity to seek a second opinion.

The case emphasises the universality of human rights although a patient’s human rights are unlikely to be breached if doctors decide not to consult because they believe this would cause serious physical or psychological harm.

The Equality and Human Rights Commission and The Resuscitation Council (UK) were given permission by the Court to intervene in the case. The Commission stressed to the Court that where patients do not have capacity, their family or advocate should be consulted. The Resuscitation Council explained the range of complex circumstances in which decisions about whether or not to attempt cardiopulmonary resuscitation are made.

It is important that there is now clear direction to medical professionals about how to properly involve patients and their families in making decisions, which have such profound implications.

If you have any questions regarding this article then please do not hesitate in contacting Julia Appleton at the details below.

Julia Appleton
julia.appleton@rlb-law.com
t: 020 7227 6758
July 2014
© RadcliffesLeBrasseur


Footnotes

R (David Tracey) v (1) Cambridge University Hospitals NHS Foundation Trust (2) Secretary of State for Health [2014] EWCA Civ 822


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.