Appeal judges to rule on resuscitation orders

The Court of Appeal is ruling today on accusations that the Government and health chiefs are failing to tackle widespread confusion and uncertainty over the imposition of “do not resuscitate” orders on seriously ill patients.

Three appeal judges are being asked to intervene by David Tracey, who says his late wife was subjected to an unlawful DNR order at Addenbrooke’s Hospital, Cambridge.

The hospital is accused of breaching the human rights of terminally ill Janet Tracey, 63, because it did not consult her before the order was placed on her records.

Such notices are intended to ensure that a patient dies in a dignified and peaceful manner, but they have become the subject of controversy.

Philip Havers QC, for Mr Tracey and his family, said the orders were routinely used in a manner which did not reflect existing health service guidance and policy, which was itself inadequate.

In different parts of the country there were often no policies at all, or they did not take into account the views of patients and were capable of being confusing and contradictory, he said, and t hey were also contrary to Article 8 of the European Convention on Human Rights, which safeguards respect for patients’ private lives.

Mr Havers said Health Secretary Jeremy Hunt “must step in and himself issue national guidance addressed to all parts of the NHS in order to comply with Article 8 on a patient-by-patient basis”.

Patients were entitled, as a minimum, to be “notified, involved and have the right to seek a second opinion” before DNR orders were made, he said at a recent hearing.

Mrs Tracey, a care home manager, died following a transfer to Addenbrooke’s after breaking her neck in a car crash on February 19, 2011 – two weeks after being diagnosed with terminal lung cancer.

A DNR notice was placed on her records, but it was cancelled five days later after it was challenged by her family.

A second notice two days before Mrs Tracey’s death on March 7, 2011 was put in place with the agreement of her family.

Her widowed husband decided to mount a legal challenge against the first notice, with the support of the Equality and Human Rights Commission (EHRC).

Mr Tracey, 66, a retired engineer, described the appeal as an “opportunity to remedy the current lack of information, making a real difference to other families while recognising the wrong done to Janet”.

His solicitor Merry Varney from the law firm Leigh Day, said: “Currently trusts across England decide their own policies as to how these decisions are made, and many I have seen are confusing and very few include any information for patients and their families.

“This case highlights the distress caused when a patient or their family discover a DNR decision has been made.

“I believe that in this day and age of patient choice and transparency, it cannot be right that a competent patient should have this kind of unwelcome surprise and we hope this case will bring clarity for patients and families across the country.”

EHRC chief legal officer Rebecca Hilsenrath said: “Human rights laws exist to protect everyone. Being consulted, where possible, on whether our life is worth living is a fundamental right we should all expect.”

In 2012, High Court judge Mrs Justice Nicola Davies ruled the failure to inform or involve Mrs Tracey in the making of the first DNR order had ”minimal causative effect” because it had been cancelled.

The judge halted Mr Tracey’s application for judicial review against Cambridge University Hospitals NHS Foundation Trust and the Health Secretary.

The trust emphasised the High Court had found that Addenbrooke’s doctors acted “professionally and in the best interest of Mrs Tracey”.

But last year the appeal court decided there should be a full hearing because points raised in relation to consultation with patients and the right to a second opinion were “matters of some general importance”.

Mrs Tracey’s daughter, Kate Masters, 47, said: “The situation really has to change so that no other families are left like mine are. How someone’s end of life is handled really does live with the family forever.

“At the moment, the policy on managing resuscitation is down to each trust – including each ambulance trust. The end result is that nobody gets any clear information when it comes to patient level. And that can be heartbreaking.”

Lord Pannick QC, for the trust, said there had been no Article 8 breach.

He told Lord Dyson, Master of the Rolls, who sat with Lord Justice Longmore and Lord Justice Ryder, there was no duty to consult with a patient on DNR “where it would obviously be inappropriate to do so”.

In the case of Mrs Tracey, doctors had “on the harsh medical facts” decided that resuscitation would be “futile and achieve absolutely nothing”.

There was a “general desirability” to consult, but a “caring doctor” might well have spared Mrs Tracey “a discussion which was going to cause her distress for no good reason”.