R (Tracey) v Cambridge University Hospitals NHS Foundation Trust & Ors  EWCA Civ 822 (Court of Appeal (Lord Dyson MR, Longmore and Ryder LJJ)
This decision did not concern an incapacitated patient, but is likely to be of relevance to readers insofar as it relates to serious medical treatment decisions at the end of life.
Mrs Tracey had been made the subject of a DNACPR notice shortly after admission to hospital following a car accident. She was suffering from terminal cancer and had a life expectancy of around nine months, leaving aside the effects of the accident. The first DNACPR notice was lifted after Mrs Tracey’s family objected to it. Subsequently, at a point when Mrs Tracey lacked capacity to make her own decisions, a second DNACPR notice was imposed. Mrs Tracey died after a further deterioration in her condition. The claim brought by her family against the Trust was that it breached Mrs Tracey's rights under Article 8 of the European Convention on Human Rights (‘the Convention’) because in imposing the first notice, it failed (i) adequately to consult Mrs Tracey or members of her family; (ii) to notify her of the decision to impose the notice; (iii) to offer her a second opinion; (iv) to make its DNACPR policy available to her; and (v) to have a policy which was clear and unambiguous. The claim against the Secretary of State was that he breached Mrs Tracey's Article 8 rights by failing to publish national guidance to ensure (i) that the process of making DNACPR decisions is sufficiently clear, accessible and foreseeable and (ii) that persons in the position of Mrs Tracey have the right (a) to be involved in discussions and decisions about DNACPR and (b) to be given information to enable them so to be involved, including the right to seek a second opinion.
The claim against the Secretary of State was dismissed, the court stating that ‘to hold that Article 8 requires the formulation of a unified policy at national level, rather than having individual policies at local level, is unwarranted and would represent an unjustified intrusion into government healthcare policy.’
The claim against the Trust succeeded but to a relatively limited extent. The Court of Appeal held that there had been an unlawful failure to involve Mrs Tracey in the decision to impose the first DNACPR notice, in breach of Article 8 ECHR for the following reasons:
- Since 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.
- It is inappropriate (and therefore not a requirement of Article 8) to involve the patient in the process if the clinician considers that to do so is likely to cause her to suffer physical or psychological harm. Merely causing distress, however, would not be sufficient to obviate the need to involve the patient.
- Where the clinician’s decision is that attempting CPR is futile, there is an obligation to tell the patient that this is the decision. The patient may then be able to seek a second opinion (although if the patient’s multi-disciplinary team all agree that attempting CPR would be futile, the team is not obliged to arrange for a further opinion).
In view of the above, and where the court found that the Trust’s doctor had not in fact consulted Mrs Tracey about the first DNACPR notice, there was a breach of Article 8.
This decision is of significance in the context of mental capacity because the duties of consultation and ‘involvement’ that apply in respect of a capacitated patient such as Mrs Tracey must surely also apply to an incapacitated patient, albeit that such consultation will take place within the framework of s.4 MCA 2005. It also seems likely that the Court of Appeal’s decision will lead to a renewed focus on consulting patients about their future wishes for end of life care, which may gradually result in better evidence about P’s likely wishes when decisions come to be made on his or her behalf. If consulting a patient about a DNACPR notice, why not also explain other possible treatments at the end of life, and that it is possible to make an advance decision to refuse treatment, or at least to set out in writing one’s views, values, beliefs and wishes?