Failing to consult patients before imposing a ‘do not resuscitate’ notice can be unlawful

The Queen on the application of David Tracey (personally and on behalf of the estate of Janet Tracey (Deceased)) v Cambridge University Hospitals NHS Foundation Trust and Others [2014] EWCA Civ 82 (17 June 2014)

Summary

This case concerns a patient's right to be consulted by clinicians prior to the imposition of a Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notice on her file. The Court of Appeal accepted that this decision engages the rights contained in article 8 of the European Convention on Human Rights (the Convention). In these circumstances, article 8 creates a presumption that patients will be consulted before a DNACPR decision, unless there is a convincing reason to justify exclusion. The Court made a declaration that in failing to consult the Appellant prior to imposing a DNACPR notice, without an appropriate justification, the Cambridge University Hospitals NHS Foundation Trust (the Trust) breached article 8 of the Convention.

Facts

The appeal was brought on behalf of Mrs Janet Tracey, a deceased patient, against both the Trust and the Secretary of State for Health.

On 5 February 2011, Mrs Tracey was diagnosed with lung cancer with an estimated life expectancy of nine months. On 19 February 2011, Mrs Tracey sustained a cervical fracture after a road accident and was admitted to hospital. After assessing her condition, Mrs Tracy's clinicians completed a DNACPR notice (the first notice). This notice was imposed on 27 February without consulting Mrs Tracey or her family. When one of Mrs Tracey's daughters discovered the first notice, she immediately registered her objections and it was removed on 2 March.

On 3 March, Mrs Tracey's health deteriorated and she informed her doctors she did not wish to discuss resuscitation. On 5 March it was agreed by the family that a second DNACPR notice (the second notice) should be completed that day. On 7 March, Mrs Tracey passed away.

The claim advanced against the Trust was that it breached Mrs Tracey's rights under article 8 of the Convention by failing to:

• ·         adequately consult Mrs Tracey or her family before imposing the first notice;
• ·         offer a second opinion; and
• ·          have an accessible and unambiguous DNACPR policy.

Further, the appellant sought a declaration stating the Secretary of State breached Mrs Tracey's article 8 rights by failing to publish national guidance on the imposition of DNACPR notices.

Decision

Was article 8 engaged?

The Court agreed with the appellant that article 8 of the Convention, relating to an individual's right to respect for his or her private life, is engaged by a DNACPR decision. It held that such a decision directly affects a patient's personal autonomy, dignity and quality of life. Consequently, the decision making process must afford due respect to the interests safeguarded by article 8. However the Court was careful to note that it was not determining the full reach of article 8 in relation to the withholding of medical treatment.

Obligation to involve a patient in a DNACPR decision

The Court held that article 8 creates a presumption favouring patient involvement in DNACPR decisions. However, this presumption may be rebutted where there are convincing reasons justifying a patient's exclusion. While the Court was hesitant to provide general guidance as to circumstances in which it would be appropriate to not consult a patient, it did give some direction for clinicians. Where a clinician concludes consultation would cause a patient physical or psychological harm, this would be a convincing reason for exclusion. Conversely, circumstances in which a clinician considers that the patient may find the discussion distressing but will not suffer harm are unlikely to justify exclusion of the patient from the process. Similarly, a clinician's view that CPR would be futile was not considered an appropriate justification to exclude consultation.

Breach of the duty to consult

The Court found that by failing to consult Mrs Tracey in discussions prior to imposing the first DNACPR notice the Trust breached article 8 of the Convention and therefore acted unlawfully.

The Trust submitted the clinician was entitled to exercise clinical judgment not to consult Mrs Tracey as he concluded (i) CPR would be futile and (ii) the discussion would cause her distress. As stated above, the futility argument was wholly rejected. Additionally, the Court was unable to consider the merits of the second point as the relevant clinician gave no evidence of the level of distress this discussion would have caused and whether it would amount to physical or psychological harm.

Secondly, the Court rejected the Trust's submission that the question of breach must be answered by looking to the decision making process "as a whole," rather than just the first notice. It was argued that, as the first notice was cancelled immediately after the objection and the second notice was imposed only after consultation and agreement by the family, there was proper respect for article 8. The Court did not accept the decision "as a whole" extended beyond the decision to impose the first notice.

Second medical opinion

In cases where there is a multi-disciplinary team, the Court found that article 8 does not impose a duty on clinicians to offer to arrange a second medical opinion. If this were the case, it would be an unacceptable intrusion into the realm of clinical judgment.

Availability of sufficiently clear and precise policy

The Court accepted that article 8 requires the Trust to have a DNACPR policy that is both sufficiently accessible to the person affected and precise enough to be understood. The Trust's policy was sufficiently precise. However, as it was only available on-line and was not provided directly to Mrs Tracey it was held not to be sufficiently accessible.

In April 2014, the Trust changed its processes to ensure the DNACPR policy is issued directly to patients. Consequently, the Court felt no need to make a declaration in this regard.

Mandatory national DNACPR policy

The appellant submitted that article 8 requires the Secretary of State to issue mandatory national guidance on DNACPR decisions and sought a declaration to that effect. The Court rejected this and held that the formulation of a unified national policy was unwarranted and would represent an unjustified intrusion into government healthcare policy. The Court further emphasised that a clinician's decision to consult a patient in individual cases may be fraught with difficultly regardless of whether the policy is developed at a local or national level.  As such, the Court refused the relief claimed against the Secretary of State.

Conclusion

The Court granted a declaration against the Trust that it violated Mrs Tracey's article 8 right to respect for private life in failing to involve her in the process which led to the first notice.  

Commentary

This judgment has left some uncertainty as to the circumstances in which clinicians can make a lawful decision not to discuss DNACPR notices with patients. The Court failed to specify the circumstances that would amount to physical or psychological harm sufficient to justify such a decision. Whilst it urged clinicians to err on the side of consultation, it accepted that a decision not to consult, when conscientiously taken, would not readily be held to violate article 8 of the Convention.

In light of this uncertainty, it is important both patients and their family are made aware of the DNACPR policies as soon as possible so their wishes can be respected.

The decision can be found here.

Vanessa Reinehr is a winter clerk at DLA Piper Australia.