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Do Not Resuscitate case goes to the Court of Appeal

Do Not Resuscitate case goes to the Court of Appeal as family fight for a consistent policy across the UK

Janet and Dave Tracey

6 May 2014

A two-day hearing begins today (Tuesday 6th May 2014) at the Court of Appeal into whether it was lawful of doctors at Addenbrooke's Hospital to place a Do Not Resuscitate (DNR) order on the records of a woman without informing her and whether more generally there should be national guidance available to patients and their families to explain how DNR decisions are made.

It is the latest legal milestone in the case of Janet Tracey, a care home manager who died following the imposition of two DNR orders in her medical records.

Mrs Justice Nicola Davies in late 2012 stopped the case before any legal arguments were heard, but in 2013 the Court of Appeal overturned that decision, and due to the wider public interest in the case, decided to retain the matter for themselves rather than send it back to the High Court.

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 and transferred to Addenbrooke's hospital in Cambridge.

She died in Addenbrooke's on 7 March 2011.

Since her death, Janet’s husband, Dave, has fought for a full judicial review to 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.

He brought the case after alleging that Janet had two DNR orders imposed on her without infomring 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 DNR 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 DNR had been placed on her medical records without her knowledge.

Mr Tracey will now have his questions as to whether it is lawful under Article 8 of the Human Rights Act, which provides that: “Everyone has the right to respect for his private and family life", for doctors to impose a DNR order on a patient with capacity, without first informing them or giving them any opportunity for express their views.

The hearing will also tackle the Secretary of State for Health on the lack of a nationwide policy giving information to patients and families about when and how DNR decisions are made.

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

“This case is not about the right to demand to be resuscitated; this case is about whether a patient with capacity has the right to know how DNR decisions are made and the right to know and be consulted before a DNR order is made.

"Currently Trusts across England decide their own policies as to how these decisions are made, and many I have seen are confusing and very few include any information for patients and their families.

"This case highlights the distress caused when a patient or their family discover a DNR decision has been made. I believe that in this day and age of patient choice and transparency, it cannot be right that a competent patient should have this kind of unwelcome surprise and we hope this case will bring clarity for patients and families across the country."

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