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Second letter sent to government challenging lack of DNR clarity

A second letter has been sent to the government challenging their failure to act despite widespread issues with how do not resuscitate (DNR) decisions are being made.

Posted on 18 May 2020

The letter follows an initial pre-action protocol letter sent by Kate Masters to the Secretary of State for Health and Social Care on 6 May 2020 challenging the government for failing to use their emergency powers to ensure patients and their families understand how decisions are made about DNR orders in light of the current coronavirus pandemic.
Kate has now sent a second pre-action protocol letter to the Secretary of State after receiving an unsatisfactory response to her first letter. The second letter aims to clarify the issues raised in the first letter and provide further supporting evidence.
In her initial letter Kate raised her concerns that due to the current coronavirus pandemic DNR notices are reportedly being imposed in blanket ways and with great confusion in the general public. In addition, she is greatly concerned about her own position due to her ongoing health problems and serious conditions affecting her family members and feels at significant risk of  DNR decisions being made without proper process.
Kate urged the government to use emergency powers contained in s. 253 of the NHS Act 2006 to ensure that patients’ Article 8 rights in relation to DNRs are protected. Article 8 ECHR, the right to respect for your private life, requires that the law in relation to the imposition of DNRs is sufficient clear and certain. The decision to impose a DNR must be taken by reference to clear and accessible criteria and information must be addressed to patients so they can know in advance how decisions will be made.
In her second letter Kate reiterates that she believes that the Article 8 rights of patients are being systematically violated as a consequence of the Secretary of State’s continued delegation of resuscitation policies to a local level at a time of a national healthcare emergency. She argues that individual NHS trusts are already overburdened and that the challenge of ensuring compliance with the Article 8 rights of patients during this crisis is much bigger than the remit and powers of one local healthcare body.
She argues that the Secretary of State in their response to her first letter misunderstands and fails to address aspects of the case including: no reference to the current coronavirus emergency; claims that differences in approach to DNRs are down to inconsistent decision-making rather than systematic breaches of Article 8; and that decisions on DNRs are not a matter for the Secretary of State. Kate challenges these points including that although individual DNR decisions are not a matter for the Secretary of State, systematic breaches of Article 8 are a matter for him.
Kate said:
“I am very disappointed by the Secretary of State’s response to my initial letter. I feel it is clear that the health service needs some national guidance on DNRs to ensure that patients’ rights are protected. Not only that but I remain greatly concerned about my own situation and that of my family’s due to ongoing health problems – I want to make sure that what happened to my mum does not happen to anyone else. Now is the time for the government to be taking the burden off local NHS Trusts and other health bodies where they can and easing the concerns of patients, not digging in their heels.”
Kate is the daughter of the late David Tracey, who brought a successful judicial review in 2014 establishing a violation of his late wife’s Article 8 rights in relation to an imposed DNR order. This case established that that there is a legal duty to consult with and inform patients if a DNR order is placed on their records except in very narrow circumstances.

“This case is about alleged systematic breaches of patients’ human rights through the way in which do not resuscitate decisions are being taken, and our client believes that the Secretary of State has a duty to take action to prevent these widespread violations and ensure her own rights are protected. This is not about the government getting involved in individual decision-making, it is about ensuring that patients and families across the country know in advance how do not resuscitate decisions will be taken, what their rights are, how resources are taken into account and, for example, that consent is not required.  Our client has presented a solution, including the possibility of accessible information on the NHS website and it is hoped that her further letter will this time elicit a positive response and court action can be avoided.”

Merry Varney, solicitor from law firm Leigh Day added