Tracey, R (on the application of) v Cambridge University Hospitals NHS Foundation Trust

A court should not use judicial review to conduct a wide-ranging inquiry into national or local clinical policy where the factual findings are limited and do not require that inquiry for resolution of the claimant’s case. This is particularly so in difficult and sensitive areas involving medical and ethical judgment. A possible wider public interest cannot, by itself, justify continuing proceedings that would be inappropriate or disproportionate. A short-lived failure to consult before imposing a do-not-attempt-cardiopulmonary-resuscitation notice may arguably breach Article 8, but limited or absent causative effect and the restricted factual basis may make a further substantive hearing inappropriate.

The claimant challenged the imposition of two DNACPR notices concerning Janet Tracey. A factual hearing had established that the first notice was imposed without consulting Mrs Tracey, although her daughter was consulted, and that the notice was cancelled after three to four days without being acted upon. The second notice was imposed after consultation with family members, but not with Mrs Tracey.

The claimant sought a further hearing on the lawfulness of the Trust’s policy, the adequacy of national guidance, patient and family involvement, and the availability of second opinions under Articles 2, 3 and 8. The Secretary of State also sought judgment. The central issue was whether a substantive legal hearing remained appropriate and proportionate on the facts found.

1. The substantive hearing was refused. The failure to consult Mrs Tracey before the first DNACPR notice could amount to a breach of her Article 8 rights. However, the notice remained in force for only three to four days, was never acted upon, and had minimal, if any, causative effect.
2. The further hearing sought would have required an inquiry into the process for imposing DNACPR notices, the role and weight of clinical judgment, and the adequacy of local and national policy. That inquiry extended far beyond the limited findings of causative fact.
3. Following the caution in R (Burke) v General Medical Council (Official Solicitors and ors intervening) [2005] EWCA Civ 1003, the court should not formulate general policy or practice guidance, particularly on ethical and clinical questions, without a factual context requiring determination and a sufficient evidential basis.
4. The wider public interest in the issues did not justify proceeding. The proposed inquiry would be neither appropriate nor proportionate. The earlier case-management orders did not require a substantive hearing without first considering whether it remained appropriate in light of the facts found.
5. Judgment was not entered for the Secretary of State because the ruling declining a substantive hearing was the more significant basis for disposing of the position against him. Costs were left for further submissions. Permission to appeal was refused because there was no real prospect of success and no wider public interest in the particular circumstances.

• High Court (Administrative Court): Eady J granted permission on 18 November 2011. Ouseley J varied the case-management directions on 9 March 2012 to provide for a factual hearing and a possible further hearing on the legal issues. Mrs Justice Nicola Davies declined to order the further substantive hearing and refused permission to appeal.