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.

The facts

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.

Claim against the Trust

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.

 Claim against the Secretary of State

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.

What did the Court of Appeal decide?

  • Mrs Tracey's Article 8 rights were engaged and the Trust violated that right by failing to involve her in the process which led to the first notice.
  • Even if the treating team believe that the treatment is futile there should be a presumption in favour of patient involvement and there needs to be convincing reasons not to involve the patient, as this gives the patient the possibility of seeking a second opinion. However this does not alter the position that clinicians cannot be forced to give CPR.
  • Doctors should be wary of excluding patient involvement on the grounds that it may distress them. Distress must be likely to cause the patient a degree of physical or psychological harm.
  • There was no obligation to arrange a second opinion in a case where the patient is being advised by a multidisciplinary team all of whom take the view that a DNACPR notice is appropriate. However a patient may ask for a second opinion.
  • The Secretary of State was not in breach of s1B(1) of the National Health Service Act 2006 by failing to issue a national DNACPR Policy, nor was there any violation of Article 8. The Court rejected the claim that there should be a mandatory national policy for all healthcare organisations in England. Local policies would, if properly written, satisfy the demands of Article 8.

What should you do?

There are four key areas to consider in relation to this judgment.

1.     Decision making

  • Consult where practicable with the patient to establish their wishes and feelings at the earliest possible opportunity unless such consultation is likely to cause physical or psychological harm to the patient.
  • Consultation should take place even if the treatment is considered by the treating team to be futile.
  • Involve family members if consent is given by the patient.
  • If the patient lacks capacity, involve the family or an Independent Mental Capacity Advocate (IMCA) but do not delay the decision making process.
  • Tell the patient your decision and consider whether to offer the patient a second opinion.

2.     Record Keeping

  • Keep a clear contemporaneous note of discussions with patients/family/IMCA. Record cogent reasons should the treating team decide not to consult with a patient.
  • If CPR is not considered to be in the patient's best interests, clearly document the rationale of the MDT.
  • Record whether a second opinion was requested/offered and supporting reasons.
  • Complete any relevant DNACPR form.

3.     Policies

  • Review the policy on resuscitation to ensure it reflects this Judgment.
  • Consider issuing guidance as to what will constitute 'physical or psychological harm' as opposed to 'distress' as this may cause a degree of confusion.
  • Inform clinical staff of the changes to the policy and ensure it is easily accessible to them.
  • Consider how to make the key parts of the policy available to patients in an accessible way, for example by summarising the contents in leaflet form.

4.     Training

  • Arrange training for clinicians to ensure they are aware of their obligations following this Judgment.
  • Consider whether clinicians need training to discuss these issues with patients and families in a sensitive manner.

The Future

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.

Relevant Links

R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust and Secretary of State for Health [2014] EWCA Civ 822

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.)

Treatment and care towards the end of life: good practice in decision making – GMC 2010

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