Jan 24 2014
The family of a terminally-ill woman who was not consulted before a ''do not resuscitate'' (DNR) notice was placed on her medical records have won a ruling that their legal action can continue.
In 2012, High Court judge Mrs Justice Nicola Davies said the failure to inform or involve 63-year-old Janet Tracey had ''minimal causative effect'', as the notice was cancelled five days later when her family objected.
She found that a second notice, which followed three days afterwards and two days before Mrs Tracey's death at Addenbrooke's Hospital in March 2011, was put in place with the agreement of her family, who were unwilling to speak to her about it.
The judge, who was determining disputed issues of fact, said there should be no further hearing of husband David Tracey's application for judicial review.
But today, the Court of Appeal said the judge's order was not, in the circumstances, justified, and will determine the legal issues raised by the claim against Cambridge University Hospitals NHS Foundation Trust and the Health Secretary at a two-day hearing in mid-March.
Mrs Tracey, a care home manager, died following a transfer to Addenbrooke's after breaking her neck in a car crash on February 19 2011 - two weeks after being diagnosed with terminal lung cancer.
The first notice, on February 27, was cancelled on March 2, while a second was imposed on March 5, two days before she died.
Mr Tracey, a retired engineer, has said his wife believed she was being ''badgered'' into making a decision about resuscitation options.
But the Trust says the claims are unsound and unfair, and that cardiopulmonary resuscitation would have been wholly inappropriate and not in the best interests of Mrs Tracey, who also had pneumonia and required ventilation.
Their position is that the decision to impose a DNR is ultimately a matter of clinical judgment, where appropriate weight should be given to the views of the patient and family.
Mr Tracey said: " I am very pleased with this result, which means that the case now has the opportunity to remedy the current lack of information, making a real difference to other families while recognising the wrong done to Janet."
His legal firm, Leigh Day, said t he Court of Appeal would now be asked whether a lack of consultation with a patient and their family or a lack of explanation is in breach of Article 8 of the Human Rights Act, which provides that: "Everyone has the right to respect for his private and family life."
It will also tackle the Health Secretary on the lack of a nationwide policy of when and how DNR orders are applied.
Merry Varney, a solicitor in the human rights team at Leigh Day, said: " We are very pleased that this case can now go forward as it underlines the importance of a transparent, accessible and consistent policy regarding a patient's right to know when a decision not to resuscitate them is taken.
"Patients and their families should know in advance how these decisions are made, the weight given to the patient's views, and what to do in the event of a di sagreement.
"Neither we, nor our client, have ever suggested or argued for a right for any patient to demand CPR. This case simply concerns the right to know how a decision to withhold potentially life-saving treatment can be made, including whether as a matter of law a patient has the right to be informed of any such decision and/or consulted before the decision is made.
"The current lack of information available to patients and their families leaves patients vulnerable to an inappropriate DNR.
"It also could potentially lead to a family member agreeing to a DNR on the patient's behalf, which seems perverse considering the laws regarding euthanasia and the concerns often tabled in such debates of the risk of abuse from inheritance-hungry relatives."