DNR notice violated human rights

Somerset County Gazette: David Tracey with his wife Janet, who he says was subjected to an unlawful do not resuscitate order David Tracey with his wife Janet, who he says was subjected to an unlawful do not resuscitate order

The widower of a terminally ill hospital patient has won a landmark ruling that her human rights were violated because she was not consulted before a "do not resuscitate'' (DNR) notice was placed on her records.

The Court of Appeal was asked to intervene by David Tracey, who said his wife Janet, 63, was subjected to an unlawful DNR notice at Addenbrooke's Hospital, Cambridge.

Such notices are intended to ensure that a patient dies in a dignified and peaceful manner, but they have become the subject of controversy.

The Government and health chiefs were accused in court of failing to tackle widespread confusion and uncertainty over the imposition of notices on seriously ill patients.

Mrs Tracey, a care home manager, died following a transfer to Addenbrooke's after breaking her neck in a car crash on February 19, 2011 - two weeks after being diagnosed with terminal lung cancer.

Lord Dyson, Master of the Rolls, who sat with Lord Justice Longmore and Lord Justice Ryder, said the hospital trust violated Mrs Tracey's right to respect for her private life under Article 8 of the European Convention of Human Rights because it did not involve her before issuing the original DNR notice on February 27, 2011.

The judges unanimously agreed that patients should be "consulted and involved in the decision-making process" - unless a clinician considers consultation is likely to cause the patient physical or psychological harm.

They cautioned against not involving patients just because they were distressed.

However the judges rejected complaints that the Health Secretary infringed Mrs Tracey's rights in her last days by failing to promulgate appropriate national guidance on DNR notices.

Lord Dyson described how one of Mrs Tracey's daughters, Alison Noeland, was "horrified" and registered her objections when she discovered the first notice had been issued, and it was removed and cancelled on March 2, 2011.

Three days later it was agreed with members of the family that a second notice should be placed on Mrs Tracey's notes. She died soon after at 10.38am on March 7.

A spokesman for Cambridge University Hospitals NHS Foundation Trust (CUH) said: "The trust is considering the implications of this judgment and the next steps very carefully.

CUH chief executive Dr Keith McNeil said: " Today's ruling hinges on a specific point of law. There was no criticism of our clinical care.

"It is a fact of life that every day people die in hospitals. From my own experience as a specialist hospital doctor, the most important thing is that these patients are treated with the utmost respect and dignity.

"End-of-life situations involve doctors and nurses having emotionally challenging but necessary conversations with patients and their families about what happens in the final stages of their care.

"Medical staff use a combination of their compassion, experience and judgment at these difficult times to try and find the right pathway for each individual patient, and provide the support needed for everybody involved."

An emotional Mr Tracey, 66, a retired engineer who launched his claimed to put right "a wrong done to Janet", said outside court that the ruling was "a good result".

Asked if it would help other families, he said: "I hope it will. Patient care has got to come first, and this will bring more care to people."

Merry Varney from law firm Leigh Day, who acted for the Tracey family, welcomed the "strong message" she said was sent out by the ruling.

She said: "My client and his family are delighted that the court has recognised the need for doctors to consult patients on decisions to deny resuscitation.

"The Court of Appeal has confirmed that the way in which Janet Tracey was treated at Addenbrooke's Hospital was wrong and that she should not have been excluded from the decision-making process to place a do not resuscitate order on her records, especially as she had stated a clear wish to be involved in her treatment.

"Janet, a care home manager, would have been horrified if one of her residents had been treated in this way and she would have fought, as her husband has, to ensure that patients have a legal right to be informed and consulted in relation to decisions to withhold resuscitation.

"My client and his family welcome the strong message delivered by the Court of Appeal today, which should now bring to an end the unwelcome surprise that Janet suffered and that many other patients and families have suffered, when they discover a do not resuscitate order has been imposed without information or consultation."

Philip Havers QC, for Mr Tracey and his family, told the appeal judges at a two-day hearing in May that DNR notices were routinely used in a manner which did not reflect existing health service guidance and policy, which was itself inadequate.

Mr Havers said in different parts of the country there were often no policies at all, or they did not take into account the views of patients and were capable of being confusing and contradictory, and they were also contrary to Article 8 of the European Convention on Human Rights, which safeguards respect for patients' private lives.

Mr Havers said Health Secretary Jeremy Hunt "must step in and himself issue national guidance addressed to all parts of the NHS in order to comply with Article 8 on a patient-by-patient basis".

Rejecting that submission, Lord Dyson said "a great deal of debate in this area in recent years has concentrated minds".

The CUH trust recently amended its policy, "no doubt taking account of the debate and this litigation".

The judge added: "No doubt all NHS trusts will take note of this litigation and take account of the outcome of the appeal and what is said in this judgment.

"That is a reasonable way for policies to develop. It is not self-evident that a central mandatory policy would necessarily be more effective. The real difficulty facing clinicians in individual cases would remain whichever course was adopted."

The judge stressed the widespread importance of the case as DNR orders were likely at some time to affect most of the population "directly or indirectly".

In the case of half the population, "a decision is taken in advance of their deaths that, if they are subject to a cardio-pulmonary arrest, they will not receive cardiopulmonary resuscitation (CPR)".

He ruled Article 8 was engaged because a decision regarding "how to pass the closing days and moments of one's life and how one manages one's death touches in the most immediate and obvious way a patient's personal autonomy, integrity, dignity and quality of life".

The judge said the court should be slow to give general guidance on the circumstances in which it was not appropriate to consult a patient in relation to a DNR decision.

"But I think it is right to say that, since a (DNR) decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient."

There could be little doubt that it was "inappropriate" - and therefore not required by Article 8 - to involve a patient if it was likely to cause them to suffer physical or psychological harm.

DNR notices involved "sensitive decisions sometimes made in very stressful circumstances", but doctors should be wary of being too ready to exclude patients from the process just because it was likely to cause distress.

The judge said: "It follows that in my view there was a breach of the Article 8 procedural obligation to involve Mrs Tracey before the first notice was completed and placed in her notes.

"The trust has not demonstrated that there were convincing reasons in this case not to consult her before this step was taken."

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