Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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On 17 June 2014 the Court of Appeal handed down the landmark judgment of R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust and Secretary of State for Health regarding consulting patients and their families when taking decisions regarding life sustaining treatment. As 80% of the population who die in hospital will have a DNACPR (Do Not Attempt Cardiopulmonary Resuscitation) notice in place, this judgment is of huge significance.
A failure to consider and implement the Court's requirements may result in complaints and claims being made against Trusts.
Mrs Tracey was diagnosed with terminal lung cancer on 5 February 2011 and was given an estimated life expectancy of 9 months. She was admitted to hospital after a major road traffic accident on 19 February 2011. On 27 February 2011 a DNACPR notice was completed without consultation with the family. Her doctor believed that he had discussed the notice with Mrs Tracey but there was no record of this in the medical notes. Mrs Tracey's daughter objected to the DNACPR and as a result the notice was removed. On 5 March 2011 following deterioration in Mrs Tracey's condition, it was agreed with members of the family that a second DNACPR notice should be put in place. Mrs Tracey's condition deteriorated further and she died on 7 March 2011.
The family brought a claim in relation to the first DNACPR notice against the Trust that it breached Mrs Tracey's rights under Article 8 ECHR because it failed:
1. Adequately to consult Mrs Tracey or her family members;
2. To notify her of the decision to impose the notice;
3. To offer her a second opinion;
4. To make its DNACPR policy available to her;
5. To have a policy that was clear and unambiguous.
The claim advanced against the Secretary of State was that the Secretary of State breached Mrs Tracey's Article 8 rights by failing to publish national guidance to ensure:
1. That the process of making DNACPR decisions is sufficiently clear, accessible and foreseeable;
2. That persons in the position of Mrs Tracey have the right:
a. to be involved in decisions about DNACPR; and
b. to be given information to enable them to be involved including the right to seek a second opinion.
There are four key areas to consider in relation to this judgment.
1. Decision making
2. Record Keeping
The Court did not give general guidance as to the circumstances which would amount to 'physical or psychological harm' to a patient which would mean that it would not be appropriate to consult a patient. They recognised that this may be a difficult decision and said that a Court would be very slow to find that such decisions, if conscientiously taken, would violate a patient’s rights under Article 8 of the Convention.
Following this Judgment the Resuscitation Council are reviewing The Joint Statement and it will be useful to consider this in due course. In relation to internal policies/guidance, the Trust in this case had taken significant steps to try and address any potential shortcomings in the availability of their policy including producing additional clear guidance and a patient-friendly leaflet. These steps are now those that should be taken by all healthcare organisations.
The Court accepted that there may be issues of patient confidentiality but was quick to say that this should not be an excuse for a failure to consult.
The Judgment raises questions about other forms of life-saving treatment. For now, the Court considered that DNACPR decisions should be distinguished from decisions to withhold life-saving treatment because they are taken in advance and therefore present an opportunity for discussion. However, this may be reviewed in due course.
If you need help with a review of your policy or other advice or training please contact us.
Joint Statement "Decisions relating to cardiopulmonary resuscitation" by the Royal College of Nursing, the Resuscitation Council and the BMA. 2007. (This is currently being reviewed.)