R (David Tracey) v Cambridge University Hospitals NHS Foundation Trust & Ors  EWCA Civ 33 (Court of Appeal) (Lord Dyson Mr, Longmore and Ryder LJJ)
Best interests – medical treatment
David Tracey, acting personally and on behalf of the estate of his deceased wife, Janet Tracey, brought an application for judicial review against (i) Cambridge University Hospitals NHS Foundation Trust in relation to the placing of two Do Not Attempt Cardio-Pulmonary Resuscitation (“DNACPR”) Notices on Mrs Tracey’s medical notes at Addenbrooke’s Hospital and (ii) the Secretary of State for Health for failing to promulgate a national policy in relation to DNACPR notices.
Mrs Tracey was diagnosed with lung cancer on 5 February 2011 and, at that time, it was estimated that she had approximately nine months to live. On 19 February 2011 she sustained a serious cervical fracture after a major road accident and was admitted to Addenbrooke’s Hospital. She also developed a chest infection and pneumonia and it was the view of her treating clinicians that it would not be appropriate for her to be resuscitated in the event of cardiac arrest. Mrs Tracey died on 7 March 2011 and no resuscitation was given.
There was a factual dispute between Mrs Tracey’s family and the responsible clinicians over the circumstances in which two DNACPR notices had been placed on Mrs Tracey’s notes and what prior consultation had taken place. Nicola Davies J conducted a 7-day fact-finding hearing to determine these issues. She found, amongst other things, that the doctor who completed the first DNACPR notice believed that Mrs Tracey’s daughter had agreed to the imposition of such a notice but rejected the doctor’s evidence that he spoke to Mrs Tracey about resuscitation before he signed the first notice. That first notice was subsequently withdrawn when it became apparent that Mrs Tracey strongly objected. Nicola Davies J found that Mrs Tracey did not herself wish to discuss the second DNACPR notice with professionals, nor did her daughters wish to discuss it with her, but all members of her family who were present or available understood and agreed with the responsible professionals that that it was the appropriate course.
Having made those findings of fact, Nicola Davies J held that no further substantive hearing of the original application for judicial review should take place. She ruled that any breach of Mrs Tracey’s Article 8 rights that arose because of the failure to consult with her about the first DNACPR notice was academic as any failure to follow policy or have the right policy did not cause Mrs Tracey's death. She also held that the determinations sought by Mr Tracey, including in relation to his allegations that the Hospital failed to communicate its DNR policy and that its policy was, in any event, defective and confusing, “would involve the court grappling with issues of policy and clinical decision-making upon the basis of limited evidence such that the court would not have a full appreciation of all relevant considerations, still less the implications resulting from such determinations.”
Mr Tracey appealed to the Court of Appeal and his appeal was allowed. Longmore LJ (with whom LJ Ryder and the Master of the Rolls agreed) held that the submissions made on behalf of Mr Tracey could not be dismissed out of hand and the judicial review application (which was substantially refocused before the Court of Appeal), should therefore go forward to a hearing. Longmore LJ said (at paragraphs 17-19):
“17. It does not appear that the judge thought that the points in relation to explanation or consultation with the patient or the right to a second opinion were themselves unarguable. She thought that in the light of her findings of fact they were ‘academic’ and that any failure to follow policy or have the right policy did not cause Mrs Tracey's death. I do not agree that the case can be disposed of in this way. It is not academic because there can be no doubt that … Mrs Tracey was distressed when she learnt that the first notice had been placed on her notes. Part of that distress was because she thought that her family had either asked for it to be so placed or had, at least, agreed to it. When that became plain, it distressed the family as well. In these circumstances, the judgment's reference to the absence of causation is, with respect, misplaced since there were consequences of the first notice. If those consequences had been ‘trifling’ the judge might have been correct to say the case should go no further but it cannot be right to call the distress suffered by Mrs Tracey and her family as ‘trifling.’ The points on consultation and a second opinion are, moreover, matters of some general importance.
18.The judge's fear of a wide ranging inquiry which might need expert evidence is likewise misplaced now that Mr Havers [acting for Mr Tracey] has confined his case …. The question whether the absence of explanation or consultation or the failure to offer a second opinion means that the placing of the first DNACPR Notice was unlawful as being an unjustified breach of Article 8 of the Convention is, of course, a question of law on which expert evidence would be neither admissible or appropriate.
19.Mr Havers has argued that the Hospital's policy, the relevant provisions of which were set out at paragraph 14 of the first judgment, was misleading and/or contradictory. I did not, for my part, altogether understand why this was so, but I would not wish here and now to rule out any argument to that effect.”
Longmore LJ held that it was also appropriate for the claim against the Secretary of State to be heard as permission had been granted and nothing emerged during the fact-finding hearing which impinged upon the strength or weakness of the claim. If the court was to conclude, for example, that the doctor’s failure to consult Mrs Tracey about the first DNACPR notice meant that the Hospital Trust was in breach of Article 8, it could be said that that failure might show there should be some national policy promulgated by the Secretary of State.
We note with interest that the important issues raised in this case about decisions not to attempt resuscitation will be the subject of a substantive judgment from the Court of Appeal in the not- too-distant future. Longmore LJ considered that the case should be retained by the Court in the light of the very considerable public resources already expended as, in his view, there was a great danger that any decision at first instance would itself be appealed.
Readers are likely to be particularly interested in the Court of Appeal’s adjudication upon the lawfulness of the DNR policy and whether Article 8 imposes a duty upon medical professionals to consult with a patient (or their family, if they are incapacitated) before imposing a DNACPR notice, bearing in mind the weight of judicial authority establishing that neither a patient nor their family can require a doctor to administer treatment which that doctor does not consider to be clinically indicated (see R (Burke v General Medical Council  QB 273 paras 50-55 per Lord Phillips and Aintree University Hospitals NHS Trust v James  3 WLR 1299 para 18 per Baroness Hale, cited by Longmore LJ at paragraph 11).