Cardio-pulmonary resuscitation and article 8 rights

Merry Varney, a solicitor in the human rights department at Leigh Day, discusses the Court of Appeal’s landmark decision in Tracey, which explicitly found that decisions about a patient’s resuscitation status engage the right to respect for private life, protected by the Human Rights Act 1998.

Original news

Tracey v Cambridge University Hospital NHS Foundation Trust and another [2014] EWCA Civ 822, [2014] All ER (D) 138 (Jun)

The applicant’s wife had been in critical condition in hospital. A ‘do not attempt cardio-pulmonary resuscitation’ notice had been put on her patient record to the effect that cardio-pulmonary resuscitation was not to be performed if required. Neither the patient nor her family had agreed to such a notice. When the family objected, the notice was removed from the notes.

The family sought judicial review of the decision to place the notice on her file, contending that to have done so without adequate consultation with the patient and her family and without notifying any of them had been a breach of the patient’s rights under the European Convention on Human Rights, art 8 (ECHR).

The Court of Appeal, Civil Division, held that the NHS Trust had violated the patient’s rights under ECHR, art 8 by having failed to involve her in the process which had led to the first notice. In general, there was a presumption in favour of patient involvement in the decision, although there were certain limited circumstances where such involvement might not be required.

What is the background to and significance of the Court of Appeal’s judgment?

The case was brought by the husband of the late Janet Tracey, who died in Addenbrooke’s Hospital in March 2011. Janet was a manager of a care home, who had spent the past 20 years caring for the elderly. She was involved in a car accident in February 2011, shortly after having been diagnosed with terminal lung cancer. While ventilated, a consultant oncologist reviewed her condition and informed her she may no longer be able to receive chemotherapy. He told her there would be difficult decisions ahead and she wrote a note to him saying ‘Please don’t exclude me’.

Despite this, some hours later Dr Lavinio, a consultant anaesthetist intensive care specialist, completed a ‘Do Not Attempt Cardio Pulmonary Resuscitation’ (DNACPR) order without any consultation. He further did not inform her the DNACPR order had been completed. When she discovered, some days later, the DNACPR order had been made, Janet was distraught and it was later cancelled.

The judicial review claim brought sought a declaration that Janet’s ECHR, art 8 rights had been violated by the failure to involve her in the decision-making process that led to the DNACPR order being imposed, including failure to consult with her or inform her of the existence of the order and failure to explain how the decision making process works. In relation to the latter, due to the very sensitive nature of DNACPR decisions, it was submitted that the procedural obligation to ensure ECHR, art 8 rights are properly protected extended to requiring the Secretary of State to issue national guidance for patients so everyone understands how such decisions are made, and there is uniformity across the country.

After permission was granted, the court ordered there be two hearings, first a fact finding hearing (due to a factual dispute between the NHS Trust and the claimant and his family), followed by a legal issues hearing. In late 2012, having delivered a factual judgment, Mrs Justice Nicola Davies ordered there be no second hearing, effectively bringing the claim to an end without reaching any conclusion. The claimant successfully appealed this decision, and on ordering the case to proceed, decided to retain it in the Court of Appeal rather than remitting it to the High Court.

The Court of Appeal’s judgment, handed down on 17 June, is very significant as it is the first time a domestic court has explicitly found that decisions about a patient’s resuscitation status engage the right to respect for private life, protected by the Human Rights Act 1998. This important finding, which was opposed by the Secretary of State for Health throughout and only conceded by the defendant NHS Trust during the hearing, means patients have the benefit of the important safeguards enshrined in art 8 whenever a DNACPR is in contemplation.

What does this mean in terms of the level of consultation that ECHR, art 8 requires to be held with patients when considering a DNACPR order?

The Master of the Rolls, Lord Justice Longmore, at paras [29]–[44] of his judgment, examines the domestic and Strasbourg case law on ECHR, art 8. He concludes that DNACPR decisions concern a person’s private life and the fact that patients cannot demand resuscitation does not affect that.

He then turns to what this means in practice using the heading, ‘The clinicians’ obligation to involve the patient in a DNACPR decision’. At para [53] he concludes:

‘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. There need to be convincing reasons not to involve the patient.’

The judgment also makes it clear that patients not only have a right to be consulted in relation to a DNACPR order, but that also they have access to information which allows them to know and understand how DNACPR decisions are made. This is a clear application of the procedural guarantees that stem from ECHR, art 8 aimed at ensuring art 8 rights are not illusory.

Article 8 is of course a qualified right so understandably, and as accepted by the claimant throughout, there are circumstances in which the patient’s right to be involved in the DNACPR decision-making process can be lawfully infringed. The court found that in all circumstances there should be a presumption in favour of involving the patient and in terms of the threshold for lawful infringement, the court found that patients should only be excluded if there are ‘convincing reasons’ such as where the treating clinician believes consultation would cause physical or psychological harm. The fact it may distress a patient is no longer a sufficient justification to withhold information from a patient and exclude them from the process.

What actions will hospitals and others have to take in the light of this judgment?

There is now no doubt that, on the ground level, any healthcare professional contemplating a DNACPR order for a patient must—unless they genuinely believe it would cause actual harm, rather than distress—inform them that such an order may be appropriate, consult with them and ensure they know whether a DNACPR order, or similar direction to withhold cardio-pulmonary resuscitation, is on their medical notes. Failure to do so is likely to amount to a violation of the patient’s ECHR, art 8 rights.

For NHS Trusts, and other bodies responsible for patients in a setting where a DNACPR order may be made, the judgment makes clear that patients must have access to clear and accessible information explaining how DNACPR decisions are made and their rights to be involved in the process. Indeed, at para [87], the Master of the Rolls expressly refers to NHS Trusts taking note of the judgment and the outcome of this case.

To the extent the Secretary of State relied upon his commendation of the current professional guidance, a joint statement issued by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing, the Master of the Rolls stated that: ‘[i]f there are any ambiguities in the Joint Statement, they should be addressed’.

Merry Varney specialises in actions under the Human Rights Act 1998 and judicial review, with a particular interest in claims arising in a healthcare and social welfare context. She also specialises in inquests and equity claims. In Tracey, Merry Varney instructed counsel for the claimant.

Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Personal InjuryClick here for a free trial of Lexis®PSL.

Find our free personal injury magazine for download here.

Filed Under: Personal Injury

Relevant Articles
Area of Interest