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Legal challenge to continue in DNR case following COA judgment

Court of Appeal rules that legal challenge against Do Not Resuscitate Orders can continue

Janet Tracey with her husband David

24 January 2014

In a ruling handed down today (24 January 2014) in the Court of Appeal, three Senior Judges have overturned an earlier ruling and agreed that legal action into the use of Do Not Resuscitate orders by a Hospital Trust, and across the NHS, should continue.

The verdict is the latest milestone in the case of Janet Tracey, a care home manager who died following the imposition of two DNR orders in her medical records, which her family claimed were without her knowledge or consent.

The case went to a factual hearing in November 2012 due to major discrepancies between the family of Janet Tracey and the staff from Cambridge University Hospitals NHS Foundation Trust.

Following the November 2012 hearing the judge in that case, Mrs Justice Nicola Davies, concluded that that the case should not go forward to judicial review. It was this decision that was overturned today in the Court of Appeal.

In his summing up of today’s verdict, Lord Justice Longmore said that the submissions made on behalf of David Tracey could not be “dismissed out of hand at this stage” (Para 16) and that “the points on consultation and a second opinion are, moreover, matters of some general importance.” (para 17)

He also made clear that the consequences following the imposition of the first DNR were not of ‘minimal causative effect’, as had been stated by Mrs Justice Nicola Davies.

Lord Justice Longmore stated: “…it cannot be right to call the distress suffered by Mrs Tracey and her family [following the first DNR order] as “trifling”. “ (Para 17)

Janet’s husband David Tracey has fought for a full judicial review 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.

He is also seeking to establish that there should be national guidance for patients and their families about how these decisions are made.

The Court of Appeal will now be asked whether a lack of consultation with a patient and their family or a lack of explanation is in breach of Article 8 of the Human Rights Act, which provides that: “Everyone has the right to respect for his private and family life.”

The judicial review hearing, expected later this year, will also tackle the secretary of state for Health on the lack of a nationwide policy of when and how DNR orders are applied.

Janet 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.

As Mr Tracey has always alleged, Mrs Justice Nicola Davies found that Janet was not informed of, nor consulted about, a DNR order being placed on her records on Sunday 27 February 2011. This was despite a Consultant giving evidence that he had discussed it with Mrs Tracey.

When Janet 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.

Further distress was caused by the manner in which the DNR was imposed as it was suggested by the hospital that the family had “either asked for it to be so placed or had, at least, agreed to it.” (para 17)

Janet died on 7 March 2011.

Merry Varney a solicitor in the human rights team at Leigh Day, who is representing David Tracey, said:

“We are very pleased that this case can now go forward as it 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 taken.

“Patients and their families should know in advance how these decisions are made, the weight given to the patient’s views, and what to do in the event of a disagreement.

“Neither we, nor our client, have ever suggested or argued for a right for any patient to demand CPR. This case simply concerns the right to know how a decision to withhold potentially life saving treatment can be made, including whether as a matter of law a patient has the right to be informed of any such decision and/or consulted before the decision is made.

“The current lack of information available to patients and their families leaves patients vulnerable to an inappropriate DNR. It also could potentially lead to a family member agreeing to a DNR on the patient’s behalf, which seems perverse considering the laws regarding euthanasia and the concerns often tabled in such debates of the risk of abuse from inheritance hungry relatives.”

David Tracey said: “I am very pleased with this result which means that the case now has the opportunity to remedy the current lack of information, making a real difference to other families while recognising the wrong done to Janet.” 

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