R (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014)  EWCA Civ 822 – read judgment
The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.
The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.
The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March.
CPR is a violent and invasive treatment which attempts to maintain the circulation and breathing of a person whose heartbeat and or breathing has stopped, and to restart the heart, if possible. In people whose heartbeat and breathing has stopped because of serious health problems (including cancer) the chance of CPR being successful has been shown to be lower than in healthy patients.
During her stay in hospital Mrs Tracey expressed strong views about her wish to be involved in decisions regarding her treatment. Her daughter was against the first DNACPR, although there was no direct evidence that Mrs Tracey herself either agreed to it or opposed it.
The appellant sought judicial review of the Trust on the basis that it had breached Mrs Tracey’s right under Article 8 of the Convention. It had done so because by imposing the first notice, its doctors had
- failed adequately to consult Mrs Tracey or members of her family
- not notified her of the decision to impose the notice
- not offered her a second opinion
- The Trust had not made its DNACPR policy available
- nor did it have in place a policy was clear and unambiguous.
In this appeal a further claim was brought against the Secretary of State in that he breached Mrs Tracey’s Article 8 rights by failing to publish guidance that ensured that DNACPR decisions were made in a sufficiently transparent manner involving the patient and family concerned.
The decision by Nicola Davies J that judicial review proceedings should not go ahead since they had become academic on Mrs Tracey’s death was reversed on the basis of public interest.
It was contended on behalf of the respondent that Mrs Tracey had no wish to engage in discussion relating to her care and prognosis. But the Master of the Rolls, giving judgment, was of the view that the passages in the evidence were too slender a foundation on which to base a finding that she did not wish to be involved in the decision to complete the first DNACPR.
Philip Havers QC submitted for the appellant that Article 8 is engaged by a DNACPR decision because it is a decision which concerns a patient’s personal autonomy, integrity, dignity and quality of life. The decision making process which leads to measures of interference with an individual’s right to private life must be fair and such as to afford due respect to the interests safeguarded by Article 8. This submission was approved by the Court:
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. If there were any doubt as to that, it has been settled by the decision in Pretty. [para 32]
The Court of Appeal’s decision
The Court upheld the appeal insofar as it related to the failure by the Trust to involve Mrs Tracey in the process which led to the first notice. This was a violation of her Article 8 rights. But the other relief claimed against the Trust and the relief claimed against the Secretary of State was refused.
Engagement of Article 8
In Glass v UK (2004) 39 EHRR 15, a case involving the insertion of a DNR notice in the patient’s notes, it was in dispute that article 8 was engaged. And in Tysiac v Poland (2007) 45 EHRR 42, a case where the applicant successfully argued that the refusal by the medical profession to allow her an abortion in response to her worries about the deterioration of her myopia on delivery, the Strasbourg Court also emphasised that “private life” is a broad term, encompassing, inter alia,
aspects of an individual’s physical and social identity including the right to personal autonomy, …Furthermore, while the Convention does not guarantee as such a right to any specific level of medical care, the Court has previously held that private life includes a person’s physical and psychological integrity and that the State is also under a positive obligation to secure to its citizens their right to effective respect for this integrity. [para 109]
The fact that the Strasbourg Court has invariably held that article 8 is engaged in abortion cases (RR v Poland (2011) 53 EHRR 31 is another example) supports the conclusion that it is engaged in a case concerning DNACPR notices. But there is a vital difference between prohibiting interference with an individual’s private and family life and imposing positive obligations on the state. There may be no reported case in which Strasbourg has upheld a claim by an individual complaining of the state’s non-provision of medical treatment, but in Condliff the UK courts proceeded on the basis that Article 8 was engaged. They found in the end they found that it had not been breached (see Adam Wagner’s post on that decision), but what is material for this case is that Article 8 was always in the frame.
Does failure to consult necessarily breach Article 8?
The appellant based his case against the Trust on the contention that clinicians should adopt measures to ensure that a patient of capacity who is in the position that Mrs Tracey was in at the time of the first notice is involved in the process which leads to the making of a DNACPR decision; and that if the patient is not willing or able to be involved, members of her family should be involved. The respondents submitted on the other hand that it was not appropriate to consult if the clinician forms the view that CPR would be futile or that it would cause harm or distress to the patient to be informed and involved in the process.
In Lord Dyson’s view, the court should be slow to give general guidance as to the circumstances in which it is not appropriate to consult a patient in relation to a DNACPR decision. The salutary words of the Master of the Rolls given in 2005 should be always borne in mind:
The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. (R (Burke) v General Medical Council  EWCA Civ 1003)
That said, since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. However distressing she may find the news, the patient is entitled to know that such an important clinical decision has been taken. The first notice was imposed without consultation. It was only fortuitous that it was cancelled after three days, and that the patient didn’t die during that time. This fortuity did not excuse the Trust of their Article 8 duty to respect the patient’s right to be consulted. It followed that there had been a breach of the article 8 procedural obligation to involve Mrs Tracey before the first notice was completed and placed in her notes.
The other claims against the Trust
But the Court was not willing to go so far as to say that there was a legal duty on the doctor to offer the patient a second medical opinion in cases where he does not think the treatment in question would do any good.
Nor did Lord Dyson see any basis for a declaration that the Trust should have an accessible policy including details of the patient’s right to be consulted prior to a DNACPR notice being placed in the notes. There was sufficient guidance for patients to understand what the policy on CPR was.
No requirement for a central mandatory policy on pre DNACPR consultation
As to the claim against the Secretary of State – that he had acted unlawfully by not issuing a mandatory policy on consultation prior to a DNACPR decision to all hospitals and doctors – this was untenable. To declare – as the Court was being asked to declare – that Article 8 requires the formulation of a unified policy at national level, rather than having individual policies at local level, was unwarranted and would represent an unjustified intrusion into government healthcare policy.
It is government policy to encourage decision-making at local level. That is a political decision which the court should respect unless it can be shown that it is unlawful.
It was 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.