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Do Not Resuscitate orders: Doctors have legal duty to consult, rules Court of Appeal
Do Not Resuscitate orders: Doctors must consult patients before putting notice on medical records, Court of Appeal rules
(about 1 hour later)
The human rights of a 63-year-old terminally-ill hospital patient were violated because she was not consulted before a "do not resuscitate" (DNR) was placed on her records, the Court of Appeal has ruled.
Medical staff are now legally obliged to consult with patients if they wish to put a Do Not Resuscitate (DNR) order on their notes, the Court of Appeal in England has ruled in a landmark judgement.
Three appeal judges were asked to intervene by David Tracey, who said his late wife Janet was subjected to an unlawful DNR notice at Addenbrooke's Hospital, Cambridge.
The ruling came after three appeal judges were asked to intervene by David Tracey, who said his late wife Janet 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.
Such notices are intended to ensure that a patient dies in a dignified and peaceful manner, but they have become increasingly controversial.
An emotional Mr Tracey said outside court that the ruling was "a good result".
Guidelines already in place advised patients and families are involved in such decisions, but it will now be a legal requirement after the ruling.
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 she was diagnosed with terminal lung cancer.
A DNR notice was placed on her records, but it was cancelled five days later after it was challenged by her family. A second notice two days before Mrs Tracey's death on March 7, 2011 was put in place – this time after speaking with her family.
Her widowed husband decided to mount a legal challenge against the first notice, with the support of the Equality and Human Rights Commission (EHRC).
Widower David Tracey stands outside the Court of Appeal in London, after three appeal judges ruled that the human rights of his late wife were violated because she was not consulted before a 'do not resuscitate' order (DNR) was placed on her records
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.
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.
Lord Dyson, Master of the Rolls, who sat with Lord Justice Longmore and Lord Justice Ryder, declared that the hospital trust "violated Mrs Tracey's Article 8 right (under the European Convention of Human Rights) to respect for private life in failing to involve her in the process which first led to the notice".
Lord Dyson, Master of the Rolls, who sat with Lord Justice Longmore and Lord Justice Ryder, declared that the hospital trust "violated Mrs Tracey's Article 8 right (under the European Convention of Human Rights) to respect for private life in failing to involve her in the process which first led to the notice".
But the judges rejected complaints that the Government had infringed her rights in her last days by failing to promulgate national guidance on DNR notices.
In his ruling, Lord Dyson said DNR orders were likely to affect most of the population "directly or indirectly".
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.
He said: "A decision as to 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.
Widower David Tracey stands outside the Court of Appeal in London, after three appeal judges ruled that the human rights of his late wife were violated because she was not consulted before a 'do not resuscitate' order (DNR) was placed on her records 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.
"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."
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."
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.
"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.
Additional reporting by PA
"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 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 being sent out by today's 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.
"It is notable that the court sought to underline that the duty to consult is an integral part of respecting a patient's dignity and that the presumption should be that patients are informed and consulted before 'do not resuscitate' decisions are made.
"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."
Today, the appeal court ruled that patients should be "consulted and involved in the decision-making process" before DNR notices are placed on their records, unless a clinician considers that the consultation is likely to cause the patient physical or psychological harm.
Philip Havers QC, for Mr Tracey and his family, told the appeal judges at a two-day hearing in May that DNR notices orders 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, he said, 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".
Patients are entitled, as a minimum, to be "notified, involved and have the right to seek a second opinion" before DNR orders are made, he said at a recent hearing.
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.
A DNR notice was first placed on Mrs Tracey's records, but it was cancelled five days later after it was challenged by her family.
A second notice two days before Mrs Tracey's death on March 7 2011 was put in place with the agreement of her family.
Her widowed husband decided to mount a legal challenge against the first notice, with the support of the Equality and Human Rights Commission (EHRC).
Mr Tracey, 66, a retired engineer, described the appeal as an "opportunity to remedy the current lack of information, making a real difference to other families while recognising the wrong done to Janet".
In 2012, High Court judge Mrs Justice Nicola Davies ruled that the failure to inform or involve Mrs Tracey in the making of the first DNR order had "minimal causative effect" because it had been cancelled.
The judge halted Mr Tracey's application for judicial review against the hospital trust and the Health Secretary.
The trust emphasised that the High Court had found that Addenbrooke's doctors acted "professionally and in the best interest of Mrs Tracey".
But last year the appeal court decided there should be a full hearing because points raised in relation to consultation with patients and the right to a second opinion were "matters of some general importance".
Lord Pannick QC, for the trust, said there had been no Article 8 breach.
He argued that there was no duty to consult with a patient on DNR "where it would obviously be inappropriate to do so".
In the case of Mrs Tracey, doctors had "on the harsh medical facts" decided that resuscitation would be "futile and achieve absolutely nothing".
There was a "general desirability" to consult, but a "caring doctor" might well have spared Mrs Tracey "a discussion which was going to cause her distress for no good reason".
