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'Do Not Resuscitate' notices – Court of Appeal ruling on duty to consult

Tracey v Cambridge University NHS Foundation Trust and another [2014] EWCA Civ 822. In a widely publicised judgment, the Court of Appeal ruled in the case of that a 'Do Not Attempt Cardio-Pulmonary Tracey v Cambridge University NHS Foundation Trust and another [2014] EWCA Civ 822. In a widely publicised judgment, the Court of Appeal ruled in the case of that a 'Do Not Attempt Cardio-Pulmonary Resuscitation' (DNACPR) notice was placed on a patient's notes in breach of her rights under Article 8 of the European Convention on Human Rights due to a failure to consult with her.

Mrs Tracey was diagnosed with lung cancer with an estimated life expectancy of nine months. Two weeks after her diagnosis, she was involved in a serious road accident and sustained a cervical fracture. She was admitted to hospital where she was placed on a ventilator.   It was recorded in Mrs Tracey's notes that doctors understood that she wished to receive full active treatment and that she had a "clear wish" to be involved in discussions. Mrs Tracey's daughter had been present during a meeting in which Mrs Tracey had, in response to being told that tough decisions needed to be made, written a note saying "please do not exclude me". Two DNACPR notices were subsequently placed in Mrs Tracey's notes. The Court of Appeal was concerned with the circumstances in which the first notice was imposed.

An earlier fact finding hearing (conducted to resolve the factual disputes in the claim) had heard that the first notice had been placed on Mrs Tracey's records in advance of her being weaned of the ventilator. The judge at the fact finding hearing found that the notice had been imposed without any discussion or consultation with Mrs Tracey or her family.  The primary issues before the Court of Appeal were (1) whether the placing of a DNACPR notice engages Article 8, and if so, (2) whether in failing to discuss the notice with Mrs Tracey and her family, the Trust had acted in breach of her rights under Article 8.

In relation to the first issue, the Court interpreted recent Strasbourg cases as supporting the conclusion that Article 8 is engaged in a case concerning DNACPR notices.   It held that the decision to introduce a DNACPR note on Mrs Tracey's notes was a decision affecting her private rights and so Article 8 was engaged.

Having concluded that Article 8 was engaged, the Court went on to consider whether aspects of the procedure which led to the making of the DNACPR notice resulted in a breach of Mrs Tracey's rights under Article 8.  It determined that there should be a presumption in favour of patient involvement in DNACPR decisions and there would need to be convincing reasons not to involve a patient in such decisions.  The Court accepted that it would be inappropriate to consult with a patient where it is considered likely to cause physical or psychological harm, but stressed that doctors should be wary of excluding patients merely on the basis that it would cause them mere 'distress'.  Many patients would find such conversations distressing, but that is not sufficient reason to not include them in the decision making process.  The Court held that, in placing the first DNACPR notice in Mrs Tracey's notes, the Trust had acted in breach of her rights under Article 8 as they had not demonstrated any convincing reasons as to why she was not consulted.

It is also worth noting that Lord Justice Longmore did not consider the position under Article 8 to be any different to the position in common law, where R (Burke) v GMC [2005] EWCA Civ 1003 confirms that a doctor has a duty to consult his or her patient in relation to a decision to treat or not to treat.

It will be interesting to see what impact this judgment has in future cases concerning decisions to withhold life saving treatment.  The Court did however distinguish DNACPR decisions from other decisions to withhold life saving treatment on the basis that 'they are taken in advance and therefore present an opportunity for discussion with patients and their family members.'  It should also be noted that this case did not concern the substantive decision to withhold CPR, but rather the process by which the DNACPR notice was imposed.

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