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

A judicial review claim should not be treated as academic merely because a DNACPR notice has been revoked and the patient’s death was not caused by it. Non-trivial distress caused by the notice may constitute a real consequence. Whether failures to explain the policy, consult the patient or offer a second opinion made the decision an unjustified interference with Article 8 rights under the European Convention of Human Rights are arguable questions of law. Expert evidence is neither admissible nor appropriate on those questions. A challenge to the Secretary of State’s failure to issue a national policy was likewise not so unarguable as to be struck out.

Janet Tracey was treated at Addenbrooke’s Hospital, where two DNACPR notices were placed on her medical notes. The first was imposed without direct consultation and was later cancelled; the second was placed after discussions with members of her family. She died shortly afterwards.

Her husband, personally and on behalf of her estate, sought judicial review of the Hospital’s policy and the Secretary of State’s failure to promulgate a national policy. Following a fact-finding hearing, Davies J ordered that there be no further hearing, treating one issue as academic and declining to conduct a wider inquiry: [2012] EWHC 3670 (Admin). The central issue on appeal was whether the focused Article 8 and national-policy claims were sufficiently arguable to require a substantive hearing.

1. Appeal allowed. Longmore LJ held that the order preventing any further hearing of the judicial review application was not justified. Ryder LJ and the Master of the Rolls agreed. The application was to proceed in a more limited form.
2. The first DNACPR notice had caused real distress to Mrs Tracey and her family. Its later cancellation did not make the claim academic, and the absence of causation of death did not dispose of the claim. The issues concerning explanation, consultation and a second opinion were matters of general importance.
3. Whether the absence of explanation or consultation, or the failure to offer a second opinion, made the placing of a DNACPR notice an unlawful and unjustified breach of Article 8 of the European Convention of Human Rights was a question of law. Expert evidence was neither admissible nor appropriate for determining that issue.
4. The original grounds were overly broad and did not sufficiently recognise the settled principle, supported by R (Burke) v General Medical Council [2006] QB 273 and Aintree University Hospitals NHS Trust v James [2013] 3 W.L.R. 1299, that a patient or family cannot require a doctor to administer treatment which the doctor does not consider clinically indicated. That principle did not make the focused Article 8 process challenge unarguable.
5. The challenge to the Secretary of State’s failure to promulgate a national DNACPR policy had permission and was not so unarguable as to warrant being struck out. If the Hospital were found to have breached Article 8 by failing to consult, that failure might support the case for a national policy.
6. Given the public resources already expended, the groundwork completed and the likelihood of a further appeal, the judicial review application was properly retained in the Court of Appeal, if possible with the same constitution. The court made no final determination on the merits of the Article 8 claims.

• Court of Appeal (Civil Division) allowed the appeal, set aside the order that there be no further hearing and directed that the judicial review application proceed: [2014] EWCA Civ 33.
• High Court of Justice, Queen’s Bench Division, Administrative Court ordered, after a fact-finding hearing, that there be no further hearing of the judicial review application: [2012] EWHC 3670 (Admin).