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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

19 MAR 2014

R (on the application of David Tracey) (Appellant) v Cambridge University Hospitals NHS Trust (Respondent) [2014] EWCA Civ 33

The placing of a Do Not Resuscitate notice on a patient's medical notes without consulting them or explaining the policy in relation to such notices could involve a breach of Article 8 ECHR and should be subject to a substantive judicial review hearing.

24 January 2014

Court of Appeal

Lord Dyson MR, Longmore and Ryder LJJ

(i)        This appeal concerned an application for judicial review in relation to the respondent's oversight of the placing of Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) Notices on the medical notes of the appellant's wife, who subsequently died.

(ii)      At the initial fact-finding hearing the judge in the court below ordered that there should be no further substantive hearing of the initial judicial review hearing. The judge held that it was an academic question whether the failure to consult Mrs Tracey, or to explain to her the hospital's policy in relation to DNACPR notices before placing one of these notices on her notes had breached her rights under Article 8 ECHR. The notice had not caused any harm before it was revoked. The judge also concluded that the court did not have enough evidence to deal with the other grounds of review in the case, which involved a "difficult and sensitive area of law, medicine and procedure" and that the public interest would not be served by embarking on a more wide-ranging inquiry based on the limited findings of fact she had made.

(ii)      Longmore LJ (with whom the rest of the court agreed) held: (1) The question as to whether the failure to consult Mrs Tracey or explain the policy to her before putting a DNACPR notice in her notes breached her rights under Article 8 ECHR was not an academic one. Mrs Tracey and her family had suffered distress in relation to the notice, in particular because she wrongly thought that her family had either asked for or agreed to the notice being so placed. The points raised on consultation and a possible duty to seek a second opinion are also of general importance. (2) There is no need for a wide-ranging review requiring expert evidence. The question whether the absence of explanation or consultation means that the DNACPR notice was an unjustified breach of Article 8 is a question of law, on which expert evidence would be neither admissible or appropriate. (3) Thus the order that there be no further application should be revoked and the judicial review application allowed to proceed to substantive hearing.

 

Appeal allowed; judicial review to proceed in the Court of Appeal.

Key paragraphs

[1] - Introduction

[2] - [8] - Factual outline

[9] - [11] - Subsequent judgment

[12] - [15] - The submissions

[16] - [22] - Conclusion

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