Shortly before Christmas the High Court stopped the high profile judicial review proceedings in the case of R(Tracey) v Cambridge University Hospitals NHS Trust & Secretary of State for Health, Equality and Human Rights Commission intervening  EWHC 3860 (Admin).
The Claimant, Mr Tracey, had brought a judicial review challenge to the use of ‘Do Not Attempt Cardio-Pulmonary Resuscitation’ (“DNACPR”) orders in the medical records of patients at Addenbrookes Hospital in Cambridge.
It was said by the Claimant and his family that two DNACPRs had been imposed on his late wife’s medical records without consultation with the deceased or her family and, without their consent as was, the Claimant contended, required by Articles 2, 3 and 8 of the ECHR.
The Hospital (represented by Lord Faulks QC and Simon Murray) contended that the Claimant was wrong both on the facts surrounding the placement of the DNACPRs and on the law.
The Claimant had also claimed against the Secretary of State for Health on the basis that the failure to have in place adequate national guidelines for the use of DNACPR notices was unlawful in public law and HRA terms.
In the event of a dispute as to the appropriate course of treatment of a person without mental capacity the court’s declaration can be sought to determine what is in the ‘best interests’ of the patient. Indeed that role is enshrined in section 26 of the Mental Capacity Act 2005. This judicio-clinical role relates though to a closely defined set of circumstances. However in number of high profile cases over the past decade enterprising Claimants have sought, principally via the HRA, to expand the role of the court into a broader category of clinical and even moral decision making.
The thrust of Mr Tracey’s case was similar in approach to the other high profile “medical” and ethical JR challenges over the past few years such as cases of R(Burke) v GMC  QB 273 (regarding the right to withdraw or refuse treatment) and AVS v An NHS Foundation Trust  2 FLR 1 (regarding the continuation of a treatment believed by clinicians not to be in the best interest of the patient).
In stopping Mr Tracey’s claim after a lengthy hearing to determine the disputed findings of fact the Judge declined to hold a substantive hearing to investigate either or both of the hospital’s, and the Secretary of State’s, non-resuscitation policies. The Judge made clear that in her view, following particularly the Court of Appeal’s decision in Burke, the court should not enunciate general propositions of principle outside the factual context in which the issues arose.
Again it was said that the court is and will be reluctant to address ethical issues unless an answer is required in the context of the facts of that particular case. Following the fact finding hearing in RM Tracey’s case there was no need for such considerations.
The Claimant has stated in the press that he intends to appeal the decision. Will the Court of Appeal be tempted by this undoubtedly interesting debate? Who knows, but for now the law is clear: judicial reviews in this field must not veer into the academic or the hypothetical: the court is still reluctant to give broad clinical and ethical guidance divorced from the facts before them. In the words of Lord Phillips MR in Burke ‘the court is not to be used as a general advice centre’.