Tracey, R (on the application of) v Cambridge University Hospital NHS Foundation & Ors

The judgment determined disputed facts concerning two DNACPR notices. It found that the first notice was imposed without effective consultation with the patient and without reliable evidence that she agreed to it. The second notice followed detailed discussions with family members and was approved by the responsible consultant after the patient declined to engage in further discussion. The court recorded that DNACPR decisions are ultimately clinical decisions requiring consideration of the patient’s condition, wishes and, where appropriate, family views. The substantive legal questions, including the requirements imposed by Articles 2, 3 and 8 ECHR, were left for a later stage.

The claimant sought judicial review and relief under section 7 of the Human Rights Act 1998 concerning the treatment of his late wife, Janet Tracey, and the making of two DNACPR notices during her admission to Addenbrooke’s Hospital after a serious road accident. She had terminal lung cancer, severe respiratory problems and a cervical fracture. The first notice was made on 27 February 2011 and cancelled on 2 March. A second notice was made on 5 March, shortly before her death.

Permission had been granted. On 9 March 2012, Ouseley J directed that the disputed factual issues be determined first. The court therefore considered whether Mrs Tracey had capacity, what discussions had taken place, what her wishes were, the involvement of her family and clinicians, and whether the notices complied with the Trust policy. The legal consequences of those findings were reserved.

1. Factual issues determined. Mrs Tracey had mental capacity at all material times. She was capable of deciding whether to discuss DNACPR, whether to object to a notice and whether to give directions about consultation with her family.
2. First notice. The first DNACPR notice was imposed on 27 February 2011 because the clinicians considered CPR futile and reintubation inappropriate. The court found that Mrs Tracey had not been consulted and that there was no reliable evidence that she had agreed to the notice. The discussion with her daughter did not establish informed agreement to the wider consequences of DNACPR. The notice recorded discussions with a daughter and Dr Ford, but was not timed and did not record the patient’s wishes.
3. Cancellation. The first notice was cancelled on 2 March 2011 after objections were raised by the family and Mrs Tracey was recorded as wishing to be resuscitated. The cancellation itself was not timed, contrary to the instructions on the form.
4. Second notice. By 5 March 2011 Mrs Tracey’s condition had deteriorated relentlessly and her prognosis was days to short weeks. She did not wish to engage in further discussion about resuscitation, while her family did not wish to involve her in such discussions. Dr Simons discussed the prognosis, CPR and palliative care with the family. The court accepted that the family agreed that resuscitation was not in Mrs Tracey’s best interests. Dr Koh then considered the records and obtained Mr Kirkpatrick’s approval. The ultimate decision was Mr Kirkpatrick’s, although he did not sign the form before Mrs Tracey died.
5. Legal issues reserved. The court did not determine whether the factual findings established breaches of domestic law or Articles 2, 3 or 8 ECHR, nor finally whether the second notice complied with the Trust policy. Those matters required a further substantive hearing.

This was a first-instance judicial review claim. On 9 March 2012, Ouseley J directed that the disputed factual issues be determined before any substantive hearing on the legal issues.