The Court of Appeal has declared that hospital doctors have a positive duty to consult with patients before imposing a Do Not Attempt CPR (DNACPR) order and that failure to do so is in breach of a patient’s article 8 right to respect for a private life.

The decision may have implications for those trusts which do not presently offer patient information leaflets on the subject and which do not ensure their clinicians consult with the patient prior to imposing the order.

Engagement of Article 8

In R (Tracey) -v- Cambridge University Hospitals NHS Foundation Trust & Others [2014] EWCA Civ 822, the Court of Appeal heard and accepted arguments on behalf of a deceased patient’s husband that a doctor’s failure to consult the patient prior to imposing a DNACPR order breached her Article 8 right. The argument made was that ‘a decision relating to a DNACPR order concerns the patient’s personal autonomy, integrity, dignity and quality of life’ and that ‘the decision-making process which leads to measures of interference with an individual’s right to private life must be fair and such as to afford due respect to the interests safeguarded by article 8.’ 

However, the court also accepted the argument made on behalf of the Secretary of State for Health, that ‘there is no positive article 8 obligation to ensure access to resuscitation.’

In the leading judgment, the Master of the Rolls, Lord Justice Longmore, said at paragraphs 53 and 54 ‘… it is right to say that, since a DNACPR order is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement… There can be little doubt that 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.”  The court found that the risk to the patient must be more than the risk of causing distress.

The court rejected the argument, made on behalf of the foundation trust, that it is also inappropriate to involve the patient if the clinician is of the view that the CPR would be futile. On the contrary, involving the patient if the clinician believes the treatment would be futile, affords the patient an opportunity to ask for a second opinion.

Imposition of national policy

The court also considered whether the Secretary of State for Health was in breach of his duty contained in Section 1B(1) of the NHS Act 2006, to have regard to the NHS Constitution in exercising his functions in relation to the health service by his failure to impose a nationally applicable policy on DNACPR which is clear and directed at patients. The argument made on behalf of the patient’s husband was that this failure breached the state’s positive obligation to secure effective respect for the patient’s private life. The court rejected this argument and found that a health service circular, issued in 2000 (which commended a 1999 joint statement on decisions relating to cardiopulmonary resuscitation - issued jointly by the BMA, the Resuscitation Council (UK) and the RCN), discharged the duty… notwithstanding that the circular was directed at NHS trust chief executives, rather than patients.

In this regard, the Court went onto accept that political decisions to allow the NHS to be run on locally formed policies and local decision making was legitimate and to say otherwise would be an unjustifiable intrusion into government policy unless it could be shown to be unlawful.

Conclusion

The Resuscitation Council (UK) has confirmed it will be revising its joint statement on decisions relating to cardiopulmonary resuscitation following the judgment and it will be published shortly.  In the meantime, the council’s statement is accessible here.

Paragraph four of the statement reminds clinicians of the importance of making anticipatory decisions bearing in mind the likely prognosis for the particular patient following CPR. Clinicians should be able to identify those for whom CPR would be ineffective and be able to discuss the balance of risks and benefits to those for whom a best interests decision is needed.