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DNR was placed on patient 'without prior consultation'

Lawyers for the family of Janet Tracey have welcomed the findings of a High Court hearing

Posted on 19 December 2012

Lawyers for the family of Janet Tracey have welcomed the findings of a High Court hearing, which have confirmed that a Do Not Resuscitate (DNR) order was placed on her medical records, potentially withholding life-sustaining treatment, without any prior consultation and without telling Mrs Tracey the decision had been made.

The High Court judgment given today is in the factual hearing surrounding the death of Mrs Tracey whose family claim that a Do Not Resuscitate (DNR) order was twice placed in her medical records without her knowledge or consent.

Mrs Justice Nicola Davies DBE found that despite Mrs Tracey expressing a clear wish to be involved in her care and treatment, including in any difficult decisions, she was not consulted prior to the imposition of a first DNR in her medical records.

Her family’s lawyers argue that she was entitled to know that those treating her were considering withholding resuscitation from her and to provide for her views.

The judgment also found there was no written information provided either to the patient or to family, in advance, as to how a serious medical treatment decision such as DNR was to be taken. This would have allowed Mrs Tracey and her family to understand what a DNR decision is, how it is made, when it applied and crucially their rights in the decision making process – including, their right to be consulted.

The findings of the factual hearing, which was held in November this year, determined that the policy which was in place at the hospital was not complied with in a number of respects, including not speaking to the patient, not recording the time on the DNR and not recording any discussion or lack thereof with the patient on the DNR.

The factual hearing saw witnesses, including the doctors involved, cross-examined due to major factual discrepancies between the family of Janet Tracey and the staff from Cambridge University Hospitals NHS Foundation Trust.

Janet Tracey’s case hit the headlines in 2011 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.

A full judicial review hearing is listed for February 2013 in the High Court, which will seek to clarify whether there is a legal duty on clinicians to inform patients with capacity whether a DNR has been placed on their notes, whether there is a legal right to be consulted prior to a DNR decision and finally whether there is a right to know how to challenge a disputed DNR decision.

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, who is representing the Tracey family said: “We are of the very strong view that the first DNR order placed on Mrs Tracey was unlawful as it was imposed without Mrs Tracey being told of the decision, let alone consulted, despite her clear wishes. This central fact, found by the Judge, is similar to many other stories we have heard from patients and their families across the country.

“This further demonstrates the need for a clear policy, accessible to patients and their families, which must not only be robust but also complied with in every instance, not just for the patient’s benefit but also for the clinician, tasked with such a decision. We will be bringing a judicial review in February to ensure that the lack of consistency across the NHS of a clear procedure on DNR orders is highlighted and rectified.”

A statement from the family read: “We are pleased that the judgment has highlighted the fact that Janet was not consulted before the Do Not Resuscitate order was placed on her records. “We now look forward to February when the issue of whether this is legal will be decided and the question of why there is no consistent policy across the NHS as to when and how doctors place these kind of orders on patient’s records will be dealt with by the Courts through judicial review."