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Landmark judgment on 'do not resuscitate' orders

Court of Appeal decision confirms the right of competent patients to be consulted on decisions about their end of life care and reinforces the need for advance decision making The family of Janet Tracey have won their claim against a Cambridge hospital that her rights were violated when an order not to attempt resuscitation was put on her medical records without her or her family being consulted. Tracey died following a transfer to Addenbrooke’s hospital in Cambridge after breaking her neck in a car crash in 2011. The accident occurred two weeks after she was diagnosed with terminal lung cancer. The Court of Appeal ruled that doctors acted unlawfully in by placing a Do Not Attempt Cardio Pulmonary Resuscitation (DNACPR) order on her records. Master of the Rolls Lord Dyson, said: “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 needs to be convincing reasons not to involve the patient.” The judgment confirms that NHS trusts have a legal duty to inform patients with mental capacity that a DNACPR order has been placed on their medical records and to involve them in the decision-making process. Merry Varney, a solicitor at Leigh Day who represented Janet Tracey’s widow, told SJ: “In explicate terms the Master of the Roles says that NHS trusts across the country must take note of this case and the outcome. “[We] made Freedom of Information Act requests to find out the nature of different DNR policies across the country. We found that few have patient information leaflets, or any sort of information available to patients explaining how these decisions are made. The judgment makes it clear that in order to comply with article 8 requirements; patients need to have access to this information. “There’s a lot of public ignorance out there so the onus is now on trusts and other regulatory bodies to do something about that ignorance, to make sure people are aware of what these decisions are, how the decisions are made and the rights to be involved.” Sarah Wootton, chief executive of the campaign group Dignity in Dying and sister charity, Compassion in Dying, welcomed the judgment: “This ruling recognises the importance of communication and the involvement of patients in clinical decision-making about end-of-life issues.  Communication is paramount, and doctors must raise these issues with competent patients and their families where appropriate, even if these conversations are distressing and difficult for doctors to introduce.” Figures provided by the defendant trust showed that 68 per cent of the population die in hospital, and of those 80 per cent have a DNACPR order on their medical files. Wootton said: “Given that the imposition of a DNACPR notice is something that will happen to many people, and that at the time it is discussed, the patient may not be able to give his or her views due to illness and incapacity, it is even more important that those wishes are set out in advance in an Advance Decision, or the patient appoints an LPA, so that the doctors have access to clear information about the patient's actual or likely wishes to inform their decision-making.” For Varney, it is important for patients to ensure their desires are known in advance such as via an Advance Decision to Refuse Treatment, or a Lasting Power of Attorney so that the doctors have access to clear information about the patient's wishes to inform their decision-making. “If you make an advanced decision that you don’t want resuscitation, ensure that it is communicated to any treating clinician so you don’t receive CPR when you don’t want it. It is important that this is promoted early on by those advising in the private client world,” she said. ‘Presumption of consultation’ Yogi Amin is a partner and national head of Public Law and Alice Cullingworth is a trainee solicitor at Irwin Mitchell “This judgment sends a clear message to healthcare professionals about when a patient must be informed and consulted about advance decisions to withhold CPR. “The three Court of Appeal judges agreed there is a presumption that a patient must be consulted in relation to a DNR notice unless to do so would cause distress and that distress might cause the patient harm. This presumption therefore places a duty on clinicians to consult the patient unless it will cause him or her harm. “Importantly, the fact that such a discussion will cause the patient distress is not enough to rebut the presumption. In most circumstances, patients will understandably feel considerable distress on being advised to agree to a DNR notice by their doctor. Only when the clinician decides that such distress will cause harm is there a sufficiently genuine and convincing reason not to consult the patient. “While this judgment provides an important safeguard for patients’ rights, the judges recognised that clinicians should not be unduly hampered when making practical and compassionate decisions regarding end of life care. Inappropriate attempts at CPR will not be in patients’ best interests and may violate doctors’ fundamental professional obligation to do no harm. Consequently, the judges acknowledged that any decision as to whether a DNR is appropriate for a patient must be made by clinicians on the individual facts of the case. Clearly, the nature of the decision making process is one that is ‘inherently fraught’ with difficulty. “Nonetheless, applying a DNR does mean that the patients human rights are engaged, in particular his rights under article 8 ECHR. This judgment carefully tips the balance towards the safeguarding of patients’ private life and dignity. In the majority of cases, notification and consultation with patients before a DNR notice is made will now be required. However, it will still be for clinicians to determine when they should not consult due to the physical or psychological harm it would likely cause to the patient. As Ryder LJ stated with a flourish: ‘the duty to consult is integral to the respect for the dignity of the patient’. “All health providers ought to now review their resuscitation policies in light of this judgement.”  

26 June 2014

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Court of Appeal decision confirms the right of competent patients to be consulted on decisions about their end of life care and reinforces the need for advance decision making

The family of Janet Tracey have won their claim against a Cambridge hospital that her rights were violated when an order not to attempt resuscitation was put on her medical records without her or her family being consulted.

Tracey died following a transfer to Addenbrooke’s hospital in Cambridge after breaking her neck in a car crash in 2011. The accident occurred two weeks after she was diagnosed with terminal lung cancer. The Court of Appeal ruled that doctors acted unlawfully in by placing a Do Not Attempt Cardio Pulmonary Resuscitation (DNACPR) order on her records.

Master of the Rolls Lord Dyson, said: “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 needs to be convincing reasons not to involve the patient.”

The judgment confirms that NHS trusts have a legal duty to inform patients with mental capacity that a DNACPR order has been placed on their medical records and to involve them in the decision-making process.

Merry Varney, a solicitor at Leigh Day who represented Janet Tracey’s widow, told SJ: “In explicate terms the Master of the Roles says that NHS trusts across the country must take note of this case and the outcome.

“[We] made Freedom of Information Act requests to find out the nature of different DNR policies across the country. We found that few have patient information leaflets, or any sort of information available to patients explaining how these decisions are made. The judgment makes it clear that in order to comply with article 8 requirements; patients need to have access to this information.

“There’s a lot of public ignorance out there so the onus is now on trusts and other regulatory bodies to do something about that ignorance, to make sure people are aware of what these decisions are, how the decisions are made and the rights to be involved.”

Sarah Wootton, chief executive of the campaign group Dignity in Dying and sister charity, Compassion in Dying, welcomed the judgment: “This ruling recognises the importance of communication and the involvement of patients in clinical decision-making about end-of-life issues.  Communication is paramount, and doctors must raise these issues with competent patients and their families where appropriate, even if these conversations are distressing and difficult for doctors to introduce.”

Figures provided by the defendant trust showed that 68 per cent of the population die in hospital, and of those 80 per cent have a DNACPR order on their medical files. Wootton said: “Given that the imposition of a DNACPR notice is something that will happen to many people, and that at the time it is discussed, the patient may not be able to give his or her views due to illness and incapacity, it is even more important that those wishes are set out in advance in an Advance Decision, or the patient appoints an LPA, so that the doctors have access to clear information about the patient's actual or likely wishes to inform their decision-making.”

For Varney, it is important for patients to ensure their desires are known in advance such as via an Advance Decision to Refuse Treatment, or a Lasting Power of Attorney so that the doctors have access to clear information about the patient's wishes to inform their decision-making. “If you make an advanced decision that you don’t want resuscitation, ensure that it is communicated to any treating clinician so you don’t receive CPR when you don’t want it. It is important that this is promoted early on by those advising in the private client world,” she said.

‘Presumption of consultation’

Yogi Amin is a partner and national head of Public Law and Alice Cullingworth is a trainee solicitor at Irwin Mitchell

“This judgment sends a clear message to healthcare professionals about when a patient must be informed and consulted about advance decisions to withhold CPR.

“The three Court of Appeal judges agreed there is a presumption that a patient must be consulted in relation to a DNR notice unless to do so would cause distress and that distress might cause the patient harm. This presumption therefore places a duty on clinicians to consult the patient unless it will cause him or her harm.

“Importantly, the fact that such a discussion will cause the patient distress is not enough to rebut the presumption. In most circumstances, patients will understandably feel considerable distress on being advised to agree to a DNR notice by their doctor. Only when the clinician decides that such distress will cause harm is there a sufficiently genuine and convincing reason not to consult the patient.

“While this judgment provides an important safeguard for patients’ rights, the judges recognised that clinicians should not be unduly hampered when making practical and compassionate decisions regarding end of life care. Inappropriate attempts at CPR will not be in patients’ best interests and may violate doctors’ fundamental professional obligation to do no harm. Consequently, the judges acknowledged that any decision as to whether a DNR is appropriate for a patient must be made by clinicians on the individual facts of the case. Clearly, the nature of the decision making process is one that is ‘inherently fraught’ with difficulty.

“Nonetheless, applying a DNR does mean that the patients human rights are engaged, in particular his rights under article 8 ECHR. This judgment carefully tips the balance towards the safeguarding of patients’ private life and dignity. In the majority of cases, notification and consultation with patients before a DNR notice is made will now be required. However, it will still be for clinicians to determine when they should not consult due to the physical or psychological harm it would likely cause to the patient. As Ryder LJ stated with a flourish: ‘the duty to consult is integral to the respect for the dignity of the patient’.

“All health providers ought to now review their resuscitation policies in light of this judgement.”

 

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