Winspear v City Hospitals Sunderland NHS Foundation Trust

A do-not-attempt-cardiopulmonary-resuscitation decision engages the patient’s rights under Article 8 ECHR. Before such a notice is placed on the medical records, the patient should ordinarily be involved in the decision-making process. Where the patient lacks capacity, the decision-maker must comply with the consultation requirements in Mental Capacity Act 2005, section 4(7). Consultation with a carer or person interested in the patient’s welfare may be omitted only where it is not practicable or appropriate, or another compelling reason justifies proceeding without it. A clinical judgment that CPR would be futile does not by itself remove the procedural duty to consult. A later consultation or cancellation of the notice does not cure the earlier breach.

The claimant, acting personally and on behalf of her deceased son’s estate, challenged a DNACPR notice placed on her son’s medical records while he lacked capacity. The notice was made at 3.00 am, without consulting her, although she had cared for him throughout his life. It was cancelled after she attended the hospital later that morning. The claim alleged breach of the procedural obligations arising under Article 8 ECHR and the Mental Capacity Act 2005. The central issues were whether the principles in Regina (Tracey) v Cambridge University Hospital NHS Foundation Trust applied to an incapacitated adult, whether section 4(7) required prior consultation, and whether section 5 supplied a defence.

1. The claim succeeded. The court granted a declaration that the defendant had breached the procedural duty under Article 8 ECHR.

2. A DNACPR decision is a significant medical decision within the ambit of Article 8(1). The principles stated in Regina (Tracey) v Cambridge University Hospital NHS Foundation Trust apply where the patient lacks capacity. Prior consultation is required unless there is a convincing or compelling reason to proceed without it.

3. For an incapacitated patient, section 4(7) of the Mental Capacity Act 2005 requires the decision-maker, where practicable and appropriate, to take into account the views of persons caring for the patient or interested in the patient’s welfare. The claimant fell within that category. Her lack of formal authority to consent or refuse treatment did not remove her entitlement to be consulted.

4. The duty to consult is distinct from the clinical judgment as to whether CPR is medically indicated. The patient or carer has no veto over the treatment decision, but consultation enables relevant information about the patient’s wishes, beliefs, values, dignity and best interests to inform the process. A belief that CPR would be futile is not, by itself, a sufficient reason to dispense with consultation.

5. Section 5 protects a decision-maker only where the decision has been made in accordance with the procedural requirements of section 4, or where there was a compliant reason not to consult. Dr Swarbrick’s reasons addressed the clinical judgment and the timing of the decision, but did not establish that consultation was impracticable or inappropriate. The absence of recorded consideration of section 4(7) further undermined the decision.

6. The later discussion with the claimant and cancellation of the notice did not cure the prior procedural breach. It was practicable and appropriate to attempt contact before the notice was placed on the records.

7. The claimant had no personal damages claim. Following the approach in Glass v United Kingdom, the relevant Article 8 right was that of the patient. A declaration was sufficient satisfaction, particularly because the decision was made in good faith, pre-dated the clarification in Tracey, lasted only 9–10 hours and did not affect the patient’s treatment or death.