Tracey, R (On the Application Of) v Cambridge University Hospitals NHS Foundation Trust & Ors

A decision to place a DNACPR notice engages Article 8 because it directly affects how a person manages the end of life, including autonomy, integrity, dignity and quality of life. The patient should ordinarily be involved before the decision is made. Convincing reasons are required to exclude them. Likely physical or psychological harm may justify non-consultation; mere distress or a clinician’s view that CPR would be futile is insufficient. Later consultation cannot cure a failure in the process leading to an earlier notice. Article 8 does not generally require a second medical opinion. A DNACPR policy must be accessible and clear, but Article 8 does not require a single mandatory national policy. Local policies based on adequate professional guidance may suffice.

Mrs Janet Tracey, a patient with terminal cancer who had suffered serious injuries in a road accident, had a DNACPR notice placed on her hospital notes without adequate consultation. It was later cancelled, and a second notice was made after discussions with her family. Her husband challenged the Trust’s procedures and the Secretary of State’s reliance on local policies.

The High Court conducted a fact-finding hearing, reported at [2012] EWHC 3670, and later ordered that the judicial review should not proceed because it had become academic, at [2012] EWHC 3860. An earlier appeal was allowed and the proceedings retained for determination, at [2014] EWCA Civ 33. The central questions were whether Article 8 was engaged, what procedural safeguards it required, whether the Trust’s policy was accessible and clear, and whether national guidance was legally required.

Disposition. The court granted a declaration that the Trust violated Mrs Tracey’s Article 8 rights by failing to involve her before the first DNACPR notice was made. The remaining relief against the Trust and all relief against the Secretary of State were refused.

1. Article 8. A DNACPR decision concerns how a patient passes the closing days and moments of life and therefore engages private life, autonomy, integrity, dignity and quality of life. The court relied on Pretty v UK (2002) 35 EHRR 1, Tysiac v Poland (2007) 45 EHRR 42 and Glass v UK (2004) 39 EHRR 15. Article 8 does not impose a positive obligation to provide access to resuscitation. The challenge concerned the fairness of the procedure leading to the decision.
2. Consultation. There is a presumption in favour of involving a patient in a DNACPR decision, and convincing reasons are required to exclude the patient. Consultation may be inappropriate where it is likely to cause physical or psychological harm. Mere distress is insufficient, and the clinician’s view that CPR would be futile does not by itself remove the patient’s entitlement to know that the decision has been made. The relevant process is the process leading to the particular notice. Later consultation and the making of a second notice did not cure the failure concerning the first notice.
3. Second opinion. The issue did not arise on the facts because there was no disagreement between the treating clinicians or between doctor and patient. Nevertheless, the court held that Article 8 does not generally require a second medical opinion. The second-opinion observation in R (Burke) v General Medical Council [2005] EWCA Civ 1003 was not part of that decision’s ratio.
4. Policies and national guidance. Article 8(2) requires a policy governing DNACPR decisions to be accessible and sufficiently clear and precise. The Trust’s earlier failure to disseminate its policy to patients was deficient, but its revised leaflet and UFTO guidance cured the accessibility problem; the alleged inconsistency in the policy was unfounded. Sections 1 and 1B(1) of the National Health Service Act 2006 did not require a single mandatory national DNACPR policy. Local policies supported by the Joint Statement were sufficient.

Longmore LJ and Ryder LJ additionally considered that the duty to consult also exists at common law. Ryder LJ emphasised that consultation is integral to respect for patient dignity and should begin early in the clinical relationship where practicable.

• High Court (Administrative Court) — Nicola Davies J conducted a fact-finding hearing, reported at [2012] EWHC 3670, and subsequently ordered that the judicial review should not proceed because it had become academic, at [2012] EWHC 3860.
• Court of Appeal — An earlier appeal against the academic-order decision was allowed and the judicial review proceedings were retained for determination, at [2014] EWCA Civ 33.
• Court of Appeal (Civil Division) — The present court granted a declaration against the Trust for breach of Article 8, refused the remaining relief against the Trust, and refused relief against the Secretary of State.