The Court of Appeal have held that the rights of a woman who died following a DNR notice being put in her medical records without her being consulted were breached. The case highlights the legal duty that hospitals have to consult patients before making DNR decisions.
Mrs Tracey who sadly died in 2011 was admitted to hospital with a serious cervical fracture sustained in a car accident shortly after being diagnosed with terminal lung cancer. Whilst in intensive care her medical team first applied a DNR notice to her notes without attempting to consult her or her family. A second notice was later applied following consultation with Mrs Tracey's family. The case of brought by Mrs Tracey's family who sought a declaration that Mrs Tracey's Article 8 right to family life had been breached by the first notice.
The judgement,Tracey v Cambridgeshire NHS Foundation Hospital Trust  EWCA civ 822, highlighted that almost 7 out of 10 people die in hospital and 80% of these do so with a DNR in place. This is therefore an issue which will affect a large proportion of the population. Cardiopulmonary resuscitation is often a violent process and the law does make clear that the final word on such decisions lies with medical staff but there has been a lack of clarity on how far they must go to consult the patient and/or the family.
The British Medical Association, Royal College of Nursing and the Resuscitation Council began a review of their guidance for this area in advance on the judgment, which is currently awaited,
The NHS Trust had tried to argue that whilst there was a 'general desirability' to consult that a 'caring doctor' would have wanted to spare Mrs Tracey distress from discussing a DNR notice. In rejecting this argument Lord Dyson stated:
"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." It was also felt that there should be a presumption in favour of consultation and a need for convincing reasons not to consult. The court felt that such reasons were not present in Mrs Tracey's case though they also rejected the family's request for a national DNR policy.
The decision to place a DNR notice in a family member's medical notes will always be a harrowing one and the distress can be compounded where the person lacks capacity to be consulted about such important decisions. Authorities are under a duty in such circumstances to consult with family in order to determine what is in a patient's best interests. Our specialist team can offer advice and assistance in relation to all aspects of such decisions.
By Emma McClure, civil liberties team