9 March 2012
A year after her death, the family of Janet Tracey have welcomed the decision at the High Court today that witnesses can be called and cross-examined in their dispute with a hospital trust over who gave permission for a Do Not Resuscitate (DNR) order to be placed on Mrs Tracey’s records.
The verdict was unusual in that it will allow witnesses to be called and cross examined in a judicial review due to major factual discrepancies between the family of Janet Tracey and the Cambridge University Hospitals NHS Foundation Trust. The Court must decide who is to be believed before considering the wider legal position on DNR orders.
Janet Tracey’s case hit the headlines last year after her husband, David Tracey, announced he was taking legal action alleging that a DNR order was included in her notes without her knowledge and cancelled when she objected, only for it to reappear in her notes a week later, two days before she died.
Mrs Tracey was diagnosed with terminal Lung Cancer in February 2011. Later that same month she was in a car crash as she drove to Harlow. She was taken to hospital in Welwyn with a neck fracture and transferred later the same day to Addenbrooke's hospital in Cambridge.
Mr Tracey alleges that on Sunday 27 February a DNR Order was placed on his wife’s records without her knowledge and without the consent of any family member. However the Trust wholly dispute this.
When Mrs Tracey found out a DNR order had been placed on her file the family claim she was distressed and she asked for it to be removed which it was.
However, on Saturday 5th March, a second DNR order was included in Mrs Tracey’s notes, which also included the phrase: "The patient does not want to discuss resuscitation". It continued that three of the four daughters had agreed to it. Both these claims the family dispute.
The family maintains that consent was not obtained from Janet and that it was only Janet who could consent. Janet died on 7 March 2011.
Today’s case management hearing was held prior to a factual dispute hearing, expected later this year, after which a full judicial review hearing which will seek to clarify whether there is a legal duty to inform patients with capacity whether a DNR has been placed on their notes and whether they have any right to be consulted about it.
The judicial review will challenge the Trust on its policies as well as tackling the secretary of state for Health on the lack of a nationwide policy of when and how DNR orders are applied.
Merry Varney from the human rights team at law firm Leigh day & Co, who is representing the Tracey family said:
“This case underlines the importance of a transparent, accessible and consistent policy regarding a patient’s right to know when a decision not to resuscitate them is made and to know how their views are taken into account and where necessary, how to challenge a decision they disagree with.
“In this case we claim neither family member nor patient were consulted on whether a DNR order was placed on Mrs Tracey’s medical records.
“However the hospital claim they had the permission of a family member. The wider issue for society is that unless specifically authorised by the patient, it cannot be right that a family member can agree to a DNR and seems perverse considering the laws regarding euthanasia and the concerns often tabled in such debates of the risk of abuse from inheritance hungry relatives.
“We are not suggesting in this case that every patient has the right to demand CPR but I do believe that in this day and age of patient choice and transparency, a competent patient must surely know when a decision to withhold potentially life sustaining treatment has been made.”
David Tracey said: "Following the first anniversary of Janet's death I am pleased that progress is being made to clarify how DNRs can be used for patients and their families."
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