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Landmark judgment in resuscitation case

Court of Appeal finds that doctors acted unlawfully when they placed a do not resuscitate order on Janet Tracey without consultation

Janet and David Tracey

17 June 2014

The Court of Appeal in a landmark judgment handed down today (Tuesday 17 June 2014) has found that an NHS Trust had a legal duty to tell a patient, with mental capacity, that a Do Not Attempt Cardiac Pulmonary Resuscitation (DNACPR) order had been placed on her medical records.

Today’s judgment, from three Court of Appeal judges, follows a hearing in May 2014. It now means that all NHS Trusts have a legal duty to consult with and inform patients if a DNACPR order is placed on their records.

The court found that doctors at Addenbrooke's Hospital had acted unlawfully when they placed a DNACPR order on the medical records of Janet Tracey, a care home manager who died following the imposition of two DNACPR orders in her medical records.

In the judgment, Lord Dyson, the Master of the Rolls, said: A “DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient.” (Para. 53)

He went on to warn that “doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement is likely to distress them.” (Para. 54)

Lord Justice Ryder concluded: “The duty to consult … involves a discussion, where practicable, about the patient’s wishes and feelings that is better undertaken at the earliest stages of the clinical relationship so that decisions can be reviewed as circumstances change. That involves an acknowledgement that the duty to consult is integral to the respect for the dignity of the patient.” (Para. 99)

The judgment points out that DNACPR orders are likely to affect most of the population directly or indirectly.

“According to evidence that we have been shown, 68% of the population die in hospital and 80% of these die with DNACPR notices in place. In other words, in relation to more than 50% of the population, a decision is taken in advance of their deaths that, if they are subject to a cardio-pulmonary arrest, they will not receive cardiac pulmonary resuscitation (“CPR”).” (Para. 2)

The Court of Appeal retained the matter for themselves after overruling a decision by Mrs Justice Nicola Davies in 2012 who had stopped the case in the High Court before any legal arguments were heard. Janet Tracey had been 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 then transferred to Addenbrooke's hospital in Cambridge.

She died in Addenbrooke's hospital on 7 March 2011.

Since her death, Janet’s husband, David, has fought for a full judicial review to seek to clarify whether there is a legal duty to inform patients with capacity whether a DNACPR order has been placed on their notes and whether they have any right to be consulted about it.

He brought the case after alleging that Janet had two DNACPR orders imposed on her without informing her and without consulting her. In November 2012 due to major discrepancies between the family of Janet Tracey and the staff from Cambridge University Hospitals NHS Foundation Trust, the High Court held a fact finding hearing.

After the hearing, and despite a Consultant giving evidence to the contrary, the Court found that on 27 February 2011 a DNACPR order was imposed on Janet without informing her or discussing it with her. Nicola Davies J however declined to hear legal arguments as to whether this was a breach of Janet's human rights.

When overturning this decision, the Court of Appeal recognised the distress caused to Janet and her family by discovering a DNACPR had been placed on her medical records without her knowledge.

Lawyers Leigh Day, on behalf of the Tracey family, argued that the imposition of a DNACPR order on a patient with capacity, without first informing them or giving them any opportunity to express their views was a breach under Article 8 of the Human Rights Act, which provides that: “Everyone has the right to respect for their private and family life".

Merry Varney from the Human Rights team at Leigh Day, who is representing David Tracey, said:

“We are delighted that the Court has recognised the wrong done to Janet by excluding her from the decision making process that led to the DNACPR order being placed on her records. “It is notable that the Court sought to underline that the duty to consult is an integral part of respecting a patient’s dignity.

“The Judgment sends a clear message to all NHS Trusts, regulatory bodies and healthcare professionals that patients have a legal right to be informed and consulted in relation to decisions to withhold resuscitation.

“The belief such information would cause distress is no longer a sufficient reason not to inform and consult with a patient. There must now be convincing reasons to displace this right.”

“The Court’s ruling should now bring an end to the unwelcome surprises that not only Janet and her family endured, but also others across the country have suffered, when they discover a decision has been made to withhold resuscitation without any information or consultation.”

Speaking after the judgment David Tracey said:

“We’re all so pleased that the Court has agreed that imposing a do not resuscitate order on Janet without consulting with her was unlawful. “It feels as though the wrong done to Janet has been recognised by the Court and the fact that her death has led to greater clarity in the law gives us all some small comfort.

“We hope that the strong message to all doctors, that there is a legal duty to consult with patients before imposing a DNR, will prevent any other patient and their family going through our experience.”

Leigh Day would like to thank the Legal Aid Agency for providing the funding to David Tracey so he could take his case through the Courts, despite well funded opposition, which has clarified the law for the majority of patients who should now, by law, be consulted before a do not resuscitate order is placed on their records.

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