Doctors acted unlawfully in failing to involve a patient in their decision to place a ‘Do Not Resuscitate’ (DNR) order on her medical notes, the Court of Appeal has ruled.
Medical staff have a legal duty to consult and involve patients in such a decision, it found today.
The case, Tracey v Cambridgeshire NHS Foundation Hospital Trust , followed the death of a terminally ill woman at Addenbrooke’s Hospital.
Janet Tracey, who died three years ago, was suffering from terminal lung cancer when she was admitted to hospital after a car crash.
A DNR was put on her notes but removed after her family complained. The note was reinstated two days before her death following the involvement of her family.
The lead judge, master of the rolls Lord Dyson said: ‘A Do Not Attempt Cardiac Pulmonary Resuscitation decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement.’
He added that there had to be a ‘convincing reason’ not to involve the patient and that by failing to consult Tracey, the hospital had breached her human rights.
The court held that causing potential distress to a patient was not a good enough reason not to consult, although a patient’s human rights were unlikely to be breached if doctors decided not to consult because they believed this would cause physical or psychological harm.
The court also found that the use of DNR notices in the absence of a clear and accessible policy would not comply with human rights law, as this would undermine the right of patients to be consulted. Policies should be directed at patients and copies automatically given to them and their families, it said.
A Cambridge University Hospitals foundation trust statement said: ‘The Trust is considering the implications of this judgment and the next steps very carefully. The Trust is pleased that the court recognised the work that CUH has undertaken in implementing the Universal Form of Treatment Options (UFTO).
‘Developed and evaluated with patients, nurses and clinicians, UFTO is a new approach to documenting cardiopulmonary resuscitation (CPR) and other treatment decisions. It was introduced across the Trust at the end of April this year.’
The Equality and Human Rights Commission, which intervened in the case, welcomed the ruling.
The commission told the court that patients must be told: if doctors consider that CPR should not be carried out on the grounds that it would not work; they have the right to a second opinion; and that where they do not have the capacity, their family or advocate should be consulted.
The commission said that being able to make a decision about whether a life is worth living is a fundamental right protected under Article 8 of the Human Rights Act.
Rebecca Hilsenrath, chief legal officer for the EHRC said: ‘Human rights are for everybody and we are pleased that the court has confirmed that there is no doubt that patients are covered by Article 8 of the Human Rights Act when it comes to decisions about managing the final stages of life.’
She said the commission remains concerned about the lack of clear directions to medical professionals about how properly to involve patients and their families in making these decisions and will continue to put the case for ‘accessible and consistent’ guidance.