Lawyer calls for end to the 'unlawful' imposition of Do Not Resuscitate orders on patients without consultation

A leading lawyer has called for the ‘unlawful practice’ of not consulting families when do not resuscitate orders are placed on patients’ medical records to stop as an audit has found that thousands had been imposed without consent of families.

The Royal College of Physicians conducted an audit of 9,000 dying patients. It found that one in five families were not informed of the plans - equivalent to 40,000 patients a year.

The results reported in the Daily Telegraph estimated that 200,000 patients each year are issued with a do not attempt cardiopulmonary resuscitation (CPR). In 16% of cases the study found there was no record of a conversation with the patient about the order.

Professor Sam Ahmedzai Chairman of the audit said: "When a decision has been taken, it is unforgivable not to have a conversation with the patient - if they are conscious and able - or with the family.

Merry Varney from the human rights team at Leigh Day represented Janet Tracey in the landmark ruling at the Court of Appeal in June 2014 which concerned the rights of capacitated patients to be informed and consulted about DNACPR orders.

Leigh Day argued successfully that doctors at Addenbrooke's Hospital had acted unlawfully when they placed a DNACPR order on the medical records of Mrs Tracey without consulting or informing her.

The Court found Article 8 imposed a legal duty to consult with a patient before placing a DNACPR order on medical records. Following reports on today’s Royal College of Physicians audit,

Ms Varney said: “These figures suggest widespread unlawful practice in relation to how do not resuscitate orders are imposed on patients.

“The Court has made it very clear that unless there are exceptional or compelling reasons, patients must be consulted about do not resuscitate decisions and informed about any do not resuscitate order before it is imposed. Failure to do so is likely to breach a patient's human rights and for families, discovering a DNR has been imposed on a loved one can be completely devastating. This unlawful practice must end.”

In November 2015 the High Court ruled in the case of 28-year-old Carl Winspear that families and carers for patients without mental capacity should be consulted before a DNACPR is placed on the patient’s medical records. Carl Winspear died shortly after 11.00 pm on the 3 January 2011 after being admitted to Sunderland Royal Hospital with a chest infection.

Carl had been born with cerebral palsy, epilepsy, spinal deformities and other associated health conditions. Despite these disabilities his mother Elaine Winspear described Carl as living an enjoyable life, receiving full time care from his family.

However, a DNACPR order was placed in his medical records without his mother’s knowledge.

The judgment, handed down in November 2015 found that the decision to impose a DNACPR order on a man with cerebral palsy, without the knowledge of his family, was a violation of his Article 8 rights, under the Human Rights Act.

In his conclusions Mr Justice Blake stated:

“There is nothing in the case of Tracey or the Strasbourg case law to suggest that the concept of human dignity applies any the less in the case of a patient without capacity. I accept the claimant’s case that the core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity.”

Prof Ahmedzai told BBC Radio 4's Today programme that more needed to be done to inform patients' families about the decision: "We have to confess that actually we are not as good at this as we should be."