The judgment makes law existing doctors’ guidelines which recommend consultation and involvement in DNACPR decisions; it does not however give patients the right to have CPR, but that they should always be consulted.
The ruling follows a widely publicised test case brought by the family of Janet Tracey, who were distressed when a DNR notice was placed on her notes without consultation or discussion at Adenbrooke’s Hospital in Cambridge.
In the judgement, the Master of the Rolls, Lord Dyson, said the hospital trust violated Mrs Tracey’s right to respect for her private life under Article 8 of the European Convention of Human Rights.
He said: “A Do Not Attempt Cardiac Pulmonary Resuscitation 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.”
He went on to warn that “doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement is likely to distress them,” although if there is a risk of ‘psychological harm’, then there is no obligation to consult. It has been acknowledged that there is a grey area between ‘distress’ and ‘psychological harm’.
Mrs Tracey had been diagnosed with terminal lung cancer just two weeks before she was admitted to Adenbrooke’s Hospital with a broken neck following a serious car crash.
Her husband and daughters unaware that a ‘do not resuscitate’ notice was recorded in her hospital notes.
It was initially cancelled after the family complained that Janet had expressed a wish to be involved in decisions about her care, although a second notice was later put in place; this time in agreement with the patient and family, two days before Mrs Tracey died at the age of 63.
Since her death, Janet’s husband, David, has fought for a full judicial review to seek clarity over DNR notices and consent.
Speaking after the judgement, he said: “We’re all so pleased that the Court has agreed that imposing a ‘do not resuscitate’ order on Janet without consulting with her was unlawful.”
A spokesman for Cambridge University Hospitals NHS foundation trust (CUH), which includes Addenbrooke’s Hospital, said it was “considering the implications of this judgment and the next steps very carefully”.
Dr Keith McNeil, the head of the trust, emphasised that the ruling hinges on a specific point of law:
“There was no criticism of our clinical care. It is a fact of life that every day people die in hospitals. From my own experience as a specialist hospital doctor, the most important thing is that these patients are treated with the utmost respect and dignity.”
Commenting on the judgment, the Resuscitation Council said that the ruling “emphasises the importance of clinicians documenting clearly their reasons, should they decide not to discuss a DNACPR decision with a patient or explain it to them.”
Palliative care sector response
The National Council for Palliative Care (NCPC) has also responded to the ruling.
Claire Henry, Chief Executive of the organisation, said that the judgement underlines why it is so important to involve people in decision making at the end of life:
“We welcome the emphasis that the Court of Appeal has placed on involving people in decisions about their care. Although discussions on such sensitive issues are rarely easy, it is usually much better to involve and consult people than to exclude them for fear of causing upset.
“This ruling also underlines why we need a national conversation on dying, so that members of the public and healthcare professionals alike become more comfortable in talking openly about dying, death and bereavement and become better equipped to make difficult decisions about care and support at the end of life.”
Dr Ros Taylor, CEO at the Hospice of St Francis, also welcomed the ruling, but warns of the complex nature of this decision making:
“We should welcome the ruling that we should respect the rights of patients to be involved in decisions (including CPR) if we have established that they want to do so.
“However we shouldn’t underestimate the complexity and sensitivity of these conversations and the risk is that the legal obligation to discuss CPR may lead to dangerous shortcuts to discuss only this treatment, rather than the wider discussion re future direction of care and preferences as part of an advance care planning process.”
Sarah Russell, Director of Education & Research, Hospice of St Francis and Peace Hospice Care added:
“This ruling highlights the importance of shared decision making and continuous sensitive dialogues with people as they approach the end of their lives. It also demonstrates how informed consent about care, treatment and decisions is situated not only within legal frameworks but also in the individual experience of people and their families as they prepare, plan and live with dying and life shortening illnesses.
“As a society we should continue to debate these issues. Supporting and educating health and social care professionals in these discussions including advance care planning and good end of life care is essential to keep the person at the centre of care.”
You can read the full judgment online.