R (on the application of Tracey) v Cambridge University Hospital NHS Foundation and Others  EWHC 3670 (Admin); (2013) PLLR 010
Healthcare - Fact determination - Resuscitation Orders
The Court held that medical staff had explained the effect of ‘Do Not Resuscitate Orders' to the family of a patient in such a way that they could have expected to have been understood.
19 December 2012
(1) The Claimant made this claim challenging:
(a) the first defendant's failure to lawfully treat his wife (Janet Tracey);
(b) the first defendant's failure to treat Janet Tracey in a manner that respected her rights under Articles 2, 3 and 8 ECHR and failed to respect the Claimant's rights under Article 8 ECHR; and,
(c) the second defendant's failure to effectively provide clear policy or guidance on the use of ‘Do Not Attempt Cardio-Pulmonary Resuscitation' orders (‘DNACPR'). This failure was alleged to breach the rights and legitimate expectations of both patients and families.
(2) The Court ordered this hearing to establish the facts relating to this case, the grounds of challenge were therefore not considered.
(3) Mrs Tracey was admitted to hospital on 19 February 2011. The dispute as to the facts concerned the use of DNACPR orders. Under section 37 of the Mental Capacity Act 2005, the imposition of DNACPR is ‘serious medical treatment'. The first defendant had a policy entitled ‘Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) policy' which had been published in December 2009.
(4) The Claimant contended that there was no national guidance or standard protocol in relation to DNACPRs, and no clear local policy and, as such, the interference with the Claimant and Mrs Tracey's rights had ‘not been in accordance with law'.
(5) It was accepted by the parties that Mrs Tracey had mental capacity, although questions arose as to her willingness to discuss her prognosis with doctors.
(6) There was a dispute between the parties as to whether or not Mrs Tracey had agreed to a DNACPR notice being placed on her file. A DNACPR notice had been placed on Mrs Tracey's file, but was subsequently cancelled, citing patient and family wishes. The first defendant alleged that later, after numerous discussions, regarding the notice and the policy, a second DNACPR notice had been placed on Mrs Tracey's file.
(7) Mrs Tracey's family did not accept this version of events, and denied having agreed to the DNACPR Notice being used. The family felt that the notes of the doctors who discussed the DNACPR notice with them were misrepresentative and they had remained opposed to the notice. The Claimant accepted, however, that the imposition of a DNACPR notice was ultimately a clinical decision.
(8) HELD: The Court found that there had been unanimity amongst those treating Mrs Tracey: a DNACPR order was appropriate. The Court determined, in relation to the first DNACPR notice, the relevant doctor had taken a medical decision that he believed he had conveyed to Mrs Tracey's family members. Nonetheless, as there was no evidence to the contrary, the Court could not accept that a doctor had spoken to Mrs Tracey regarding the first DNACPR notice before it had been placed on her file. The Court also accepted that Mrs Tracey had not been willing to discuss her prognosis.
(9) In relation to the second DNACPR notice, contrary to the Claimant's allegations, the Court was satisfied that the family had been advised in such terms as were capable of being understood prior to the order being given.
 - Unanimity.
 - Medical decision.
 - Not discussed with patient.
 - Unwilling discuss prognosis.
- Advice second DNACPR.
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