Stethoscope - Health & Social Care Law

Health and social care law: Do not resuscitate case

John Boyle, a solicitor in our Clinical Negligence team considers the recent judgment concerning the obligation on medical professionals to consult with patients when putting a Do Not Attempt Resuscitation Order in place.

We welcome John’s piece to our blog and should you have any concerns about this type of issue, or any matter relating to medical negligence, or medical treatment, please do not hesitate to contact John.

A case brought by the family of a woman who died after doctors had imposed a “Do Not Resuscitate Order” (DNARO) has succeeded in the Court of Appeal.

Janet Tracey had terminal lung cancer and was admitted to hospital following a road traffic accident. The Hospital Trust placed a Do Not Attempt Cardio-Pulmonary Resuscitation notice on her medical records file. That notice was cancelled after three days when her family expressed concerns about it as they had not been consulted. Three days later, her condition deteriorated and another notice was imposed after consultation with her family. Mrs Tracey died two days later.

An application for Judicial Review was brought by Mrs Tracey’s family against the Hospital Trust and the Secretary of State for Health alleging that her right to respect to private and family life (protected by Article 8 of the European Convention of Human Rights/the Human Rights Act 1998) had been violated by the failure to consult prior to imposing the DNARO. Article 8 protects personal autonomy relating to decisions about life and death.

The Court of Appeal unanimously found in the family’s favour. Giving the leading Judgment the Master of the Rolls Lord Dyson found that Article 8 was engaged and in Mrs Tracey’s case it had been breached. He said:

“A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.”

The Court went on to find Article 8 meant that there have to be convincing reasons not to involve a patient prior to imposing a DNARO, it was for Hospitals to show what these convincing reasons are for non-involvement in the decision making process. Concerns of doctors that having such conversations may cause distress to patients will not be a good reason for not involving them. The Court did find that there would be no obligation to consult if as a consequence the patient will suffer psychological or physical harm.

The Court further found the absence of clear and accessible policies concerning DNAROs could also breach Article 8. Policies should be directed towards patients and families with copies given to them automatically.

The case will have a major impact on how DNAROs are imposed by healthcare providers throughout the UK. It is anticipated that bodies such as the General Medical Council and the British Medical Association will now revisit the guidance given to doctors in this area.

Anyone seeking legal advice on these issues should contact one of our specialist Health and Social Care lawyers on 0800 316 8892.