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Leigh Day serve judicial review and human rights challenge to use of Do Not Resuscitate Orders

DNR orders challenge

Janet Tracey

30 August 2011

Frances Swaine and Merry Varney are instructed by David Tracey, whose wife, Janet Tracey, sadly died in Addenbrooke’s Hospital on 7 March 2011.

Following her admission to Addenbrooke’s, a ‘Do Not Attempt Cardio Pulmonary Resuscitation Order’ (known as a DNACPR or DNR) was placed on Janet’s medical notes. Janet was unaware of the DNACPR and when she became aware of it several days later, she clearly stated it was against her wishes and that she wanted to be resuscitated. As a result the DNACPR was cancelled. Several days later however a further DNACPR was entered onto her records.

We have issued a judicial review and human rights claim against the NHS Trust responsible for Addenbrooke’s and against the Secretary of State for Health seeking Declarations from the Court that the Trust’s policy on the use of DNACPR is unlawful, and for the Secretary of State for Health to issue national guidance for patients and their families to know their rights concerning the use of DNACPRs.

The use of DNACPRs affect thousands of people and Leigh Day & Co are greatly concerned about the lack of clear and robust local policies, and the absence of national guidance for patients and their families. Information provided by the Trust in pre-action correspondence confirmed the significant wider public impact of this case stating that 68% of the population die in hospital and 80% of these individuals die with a DNACPR in place.

Janet Tracey

Janet, a wife, mother and grandmother, was diagnosed with lung cancer in early February 2011. She was due to start chemotherapy but tragically was involved in a road traffic accident days before and was admitted to Addenbrooke’s hospital on 19 February 2011. Throughout her admission in hospital Janet remained fully competent and able to state her wishes.

On 27 February 2011 a DNACPR was placed on her file. On 2 March 2011 Janet and one of her daughters told hospital staff that this was against her wishes as Janet felt it was not her time. Mr Tracey, along with another of his daughters, contacted the Patient Advisory & Liaison Service the following day to raise concerns about the use of the DNACPR for his wife.

However on 5 March 2011 a second DNACPR was placed on Janet’s file and on 7 March 2011 Janet sadly passed away.

Trust policy

It is our case that the Trust’s policy is confusing and inaccessible, which in Janet’s case led to DNACPRs being implemented without her knowledge or consent and further led to her family being left in dispute with the hospital. We consider this violated her human rights, as protected by the Human Rights Act 1998.

The current policy suggests on the one hand that the rights of the patients are “absolute” yet goes on to state that the final decision is for the clinician to make. The policy confusingly, and very worryingly, states that the views of patient’s relatives will be taken into account, which appears to apply even if a patient has fully capacity.

In any event, no summary or guidance on the policy was provided to the family.  The claim recently served on the Trust seeks to rectify this position.

National policy

Currently the Secretary of State for Health believes that how DNACPRs should be used is a matter for local Trusts, and endorses various guidance drafted by third parties, which is aimed at medical professionals. There is no standard guidance for patients and the current position means that a patient in one area may be treated differently to a patient within another area concerning provision of life sustaining treatment.

NHS Scotland has indeed recognised the need for a consistent approach and issued a universal policy, together with a patient information factsheet. Together with our client, we are seeking the same protection of patients’ rights from the Secretary of State for Health.

Mr Tracey said:

    “My wife cared for the elderly all her life and her treatment in Addenbrook’s caused unnecessary suffering to her, our daughters and me. She would have taken great pride in seeking a change to the system which would mean future patients and their families are not forced to endure the same experience and I hope that, together with Fran and Merry, we can bring a positive result from her tragic death.”

For more information please contact Merry Varney on 0207 650 1338.

Information was correct at time of publishing. See terms and conditions for further details.

Information was correct at time of publishing. See terms and conditions for further details.

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  • Human rights

  • Specialist Area

  • Right to life/Right to death
  • Medical treatment and prescribing decisions

  • Related Media Coverage

  • BBC News 27 August 2011
  • The Telegraph 27 August 2011
  • The Guardian 26 August 2011