A review of the Court of Appeal decision holding a “Do not resuscitate” notice in conflict with ECHR article 8, and its impact on policy in Scotland.
In Tracey v Cambridge University Hospital NHS Trust Foundation Trust  EWCA Civ 822, the Court of Appeal held, in a significant judgment, that a patient’s right to respect for her private life (as enshrined in article 8 of the ECHR and protected by the Human Rights Act 1998) was engaged by a clinical decision not to attempt cardiopulmonary resuscitation (“CPR”). In the circumstances of this case, the patient’s article 8 rights had been violated by the failure to involve her in the process which led to a “Do not attempt cardiopulmonary resuscitation” (“DNACPR”) notice being completed and placed in her medical notes.
This article is concerned with the implications of this ruling from a Scottish perspective. It is therefore worth, at the outset, noting that the Scottish Government published a national policy in relation to DNACPR in May 2010. The policy explains (at p 6) that “CPR measures include external chest compression, artificial respiration and defibrillation. It does not refer to other aspects of care e.g. analgesia, antibiotics, suction, treatment of choking, treatment of anaphylaxis”.
Background to the Tracey case
A petition for judicial review was brought by Mr Tracey against the Cambridge University Hospitals NHS Foundation Trust and the Secretary of State for Health concerning the placement of a DNACPR notice on the medical records of his late wife, Janet Tracey. There was no complaint about the substantive decision to withhold CPR. The complaint was about the aspects of the procedure which led to the making of the decision, and aspects of the policy which governed the making of DNACPR decisions.
On 5 February 2011 Mrs Tracey was diagnosed with terminal lung cancer and her life expectancy was estimated at nine months. On 19 February 2011, she sustained a serious fracture to her spine in a road accident. She was admitted to Addenbrookes Hospital, for which the Trust is responsible. She was placed on a ventilator. On 25 February efforts were made to wean her from the ventilator but these were unsuccessful. She was reviewed by two consultants on 26 and 27 February. They decided that Mrs Tracey should be taken off the ventilator. On 27 February, a DNACPR notice was completed by one of the consultants. Mrs Tracey was successfully taken off the ventilator and her condition appeared to improve.
The circumstances in which the DNACPR notice was completed were central to the proceedings. When one of Mrs Tracey’s daughters learned that the DNACPR notice had been made she voiced her objections. As a result, on 2 March 2011, the DNACPR was cancelled.
The focus of Mr Tracey’s petition
The claim against the Trust was that it breached Mrs Tracey’s rights under article 8 of the ECHR by imposing the DNACPR notice. It was submitted that the Trust failed to:
(i) adequately consult Mrs Tracey or members of her family;
(ii) notify her of the decision to impose the notice;
(iii) offer her a second opinion;
(iv) make its DNACPR policy available to her;
(v) have a policy which was clear and unambiguous.
The claim against the Secretary of State was that he breached Mrs Tracey’s article 8 rights by failing to publish national guidance to ensure (i) that the process of making DNACPR decisions was sufficiently clear, accessible and foreseeable; and (ii) that persons in the position of Mrs Tracey had the right (a) to be involved in discussions and decisions about DNACPR; and (b) to be given information to enable them so to be involved, including the right to seek a second opinion.
The Trust’s position
On behalf of the Trust it was submitted that the doctor was entitled in the exercise of his clinical judgment to decide not to consult Mrs Tracey on the grounds that (i) he believed the treatment would be futile, and (ii) he knew it would cause her distress to be involved in the discussion. The Trust did not “seriously dispute” that article 8 was engaged.
The Trust also submitted that the question was whether Mrs Tracey had been involved in the decision-making process, seen as a whole, to a degree sufficient to provide the requisite degree of protection of her interests. Looked at as a whole, it was submitted, the clinicians were a dedicated medical team who showed proper respect for the article 8 rights of Mrs Tracey.
The Secretary of State’s position
It was submitted that the court should not hold that article 8 was engaged in situations where the ECtHR has not yet decided that it is engaged. Reliance was placed, inter alia, on the decision of the English Court of Appeal in R (on the application of Condliff) v North Staffordshire Primary Health Care Trust  EWCA Civ 910, a case which had considered whether article 8 was a relevant consideration in cases of medical treatment.
The court’s decision and its reasoning
Duty to consult
It was accepted that the tenor of the entries within the medical records indicated that Mrs Tracey either did not agree to the DNACPR notice or that she requested that any such discussion take place in the presence of her husband or daughters (judgment, para 22).
The court was “satisfied that Mrs Tracey did wish to be consulted about any DNACPR notice that the clinicians were contemplating completing and placing in her notes”, at least up until 27 February 2011 (para 28).
The court held that article 8 was engaged. In dealing with the case of Condliff, The Master of the Rolls added (at para 41): “I do not read Toulson LJ as saying that article 8 was not engaged…. It is clearly not the law that article 8 is never engaged in any case involving the provision or withholding of medical treatment.”
It was recognised by the court that “The question of the circumstances in which it is appropriate for a clinician to consult the patient about a DNACPR decision has been the subject of careful consideration by the medical profession for some time” (para 47). Reference was made to the joint statement, “Decisions relating to cardiopulmonary resuscitation”, by the Royal College of Nursing, the Resuscitation Council (UK) and the BMA.
It was also accepted that the Trust had a policy on DNACPR decisions, and the court’s view (at para 52) was that it should “be slow to give general guidance as to the circumstances in which it is not appropriate to consult a patient in relation to a DNACPR decision”, but (para 53) that “since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient”.
At para 54 the court went on to say that “There can be little doubt that it is inappropriate (and therefore not a requirement of article 8) to involve the patient in the process if the clinician considers that to do so is likely to cause her to suffer physical or psychological harm”; but that if “the clinician forms the view that the patient will not suffer harm if she is consulted, the fact that she may find the topic distressing is unlikely to make it inappropriate to involve her”.
The Master of the Rolls concluded his judgment by commenting that: “No doubt all NHS Trusts will take note of this litigation and take account of the outcome of the appeal and what is said in this judgment. That is a reasonable way for policies to develop” (para 87).
The futility argument made by the Trust
For two reasons, the court rejected the submission made on behalf of the Trust that it is inappropriate to involve a patient if the clinician forms the view that CPR would be futile, even if they consider that involvement is unlikely to cause the patient harm.
First, there is a significant difference between a decision to deprive the patient of potentially lifesaving treatment and one to deprive them of other kinds of treatment. The former “calls for particularly convincing justification” (para 55). The fact that the clinician considers that the CPR will not work means that the patient cannot require CPR to be provided. It does not mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told about the DNACPR decision, they will be deprived of seeking a second opinion.
The distress point made by the Trust
First, for concern about patient distress to be sufficient to make it inappropriate to involve her, “the distress must be likely to cause the patient a degree of harm” (para 56). The Master of the Rolls went on to say: “I accept at once that, if [the doctor] had given evidence that he did not discuss CPR with her because he thought that she would be distressed and that this might cause her harm, the court would have been most unlikely to interfere with his clinical judgment…. The difficulty in this case is that [the doctor] gave no such evidence.”
“Decision-making process as a whole”
The court did not accept this argument. It found that Mrs Tracey had not been sufficiently involved in the decision-making process which led to the imposition of the DNACPR notice, and concluded (at para 59) that “there was a breach of the article 8 procedural obligation to involve Mrs Tracey” before the DNACPR notice was completed and placed in her notes. The Trust had not demonstrated that there were convincing reasons in this case not to consult her before this step was taken.
Mr Tracey’s second opinion point
Reference was made to the joint statement. The Trust’s policy in force in 2011 did not contain any reference to the offer of a second opinion. The Master of the Rolls took the view that: “Without the benefit of full legal argument on the point, I would be reluctant to hold that a doctor is under a legal obligation to offer to arrange a second opinion in all circumstances” (para 63).
At para 64 he concluded: “More importantly, whether a doctor is under a legal obligation to offer to arrange for a second opinion or not, I can see no basis for holding that article 8 requires him to do so. I do not consider that the availability of a second opinion is one of the core procedural safeguards protected by article 8. Unlike the rights to notification and consultation, which respond directly to the value of patient autonomy, an interpretation of article 8 which includes the right to a second medical opinion would represent an unacceptable intrusion into the realm of clinical judgment.”
Availability of a sufficiently clear and precise policy
The court considered the terms of article 8(2) of the ECHR, which requires any interference with an individual’s rights under article 8(1) to be “in accordance with the law”, and referred to Lord Hope’s comments in Purdy v DPP  UKHL 45;  1 AC 345 that any interference with article 8(1) rights must be sufficiently accessible and precise to enable the affected individual to “understand its scope and foresee the consequences of his action”. The court went on to say (para 66): “The right to be consulted and notified about DNACPR decisions would be undermined if the patient was not aware of the criteria by which the clinician reached the decision to complete a DNACPR notice.”
Whilst the Trust’s policy was available online in 2011, it was intended to provide guidance to clinicians: it was not directed to patients and a copy was not provided to Mrs Tracey and her family. In 2011, the Trust did not comply with the joint statement. By May 2014, the Trust appeared to have recognised the lack of accessibility of its previous policy. Since April 2014, it has been issuing leaflets to patients. The Master of the Rolls found that this patient leaflet summarised the policy in a manner which “is sufficiently accessible for the purposes of article 8(2)” (para 69). From April 2014, updated guidance was on the Trust’s website entitled “Information for Patients, relatives and staff”. In short, the court held that the patient leaflet and the guidance on the website made good the previous shortcomings in the accessibility of the Trust’s policy.
The court did not uphold the appellant’s criticism of the policy as not being sufficiently clear (para 73).
Absence of mandatory national DNACPR policy
The court was not satisfied that the state breached article 8: “The Secretary of State would have been entitled to conclude that a central mandatory policy was the right solution. But I do not think that article 8 obliged him to take that course” (para 85).
The Scottish perspective
As a decision concerning the ECHR and the Human Rights Act 1998, there can be little doubt about its relevance and application in Scotland. The question is therefore whether the current Scottish national policy now reflects the law in this area. For the following reasons, it is considered that there are aspects of the Scottish national policy which may not be sufficiently in line with the ruling of the court in Tracey. To avoid violating a patient’s article 8 rights, healthcare providers are required to fulfil their duty to consult the patient in relation to DNACPR “unless he or she thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm” (Tracey at para 93).
Currently the national DNACPR policy provides: “Where a DNACPR decision is made on medical grounds because CPR will fail, opportunities to sensitively inform patients and relevant others should be actively sought unless it is judged that the burden of such a discussion would outweigh the possible benefit for the individual patient.”
Whilst it could be argued that this policy statement is not necessarily inconsistent with the principle laid down by the Master of the Rolls that “since a DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient”, the judgment handed down by the court makes it clear that failing to involve a patient in the DNACPR decision violates article 8 of the ECHR unless the clinician considers that the discussion would not only be distressing but actually harmful. The court also held that a DNACPR policy must be clear, unambiguous and “sufficiently accessible” to patients.
Currently, the national policy’s decision-making framework appears to provide guidance to medical professionals that where they are of the opinion that treatment is futile, a DNACPR notice “should be completed”. As discussed above, the court held that futility of the treatment of itself is not sufficient for the completion of the DNACRP notice: the patient must be consulted unless they are likely to suffer harm by such consultation.
Accordingly, this case is a useful bar by which the Scottish policy can be considered. In the absence of clear and ambiguous directions that a DNACPR notice will not be placed in a patient’s medical notes without first consulting the patient unless the medical professional thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm, the current policy may fall short of providing sufficient protection under article 8.
In practical terms, the decision clarifies that any healthcare professional who has responsibility for determining whether to complete a DNACPR notice has a duty to inform their patient about the notice prior to placing it in the medical records, unless that professional considers that the patient would be so distressed by the discussion that they are likely to suffer harm. Accordingly, where a genuine belief is held that a patient is likely to be harmed by being informed about a DNACPR notice, it is considered that the medical records ought to clearly document this and the reasons why.
Jennifer Nicholson is an advocate with Ampersand stable who has a particular interest in medical negligence and ethics. Many thanks to Isla Davie, advocate, Ampersand for her valuable contributions to this article.