R (on the application of DAVID TRACEY) (Appellant) v (1) CAMBRIDGE UNIVERSITY HOSPITAL NHS FOUNDATION TRUST (2) SECRETARY OF STATE FOR HEALTH (Respondents) & EQUALITY & HUMAN RIGHTS COMMISSION (Intervener) (2014)

This was a successful appeal against a previous order of Nicola Davies J that there be no further hearing of Mr. David Tracey’s (‘Mr. T’) application for judicial review. This application was brought against Cambridge University Hospitals NHS Foundation Trust and the Secretary of State, regarding the implementation of DNACPR (Do Not Attempt Cardio-Pulmonary Resuscitation) Notices on the notes of Mr. T’s wife (‘Mrs. T’).

Mrs. T was diagnosed with lung cancer with an estimated time to live of 9 months. She was later involved in a major road accident, and was placed on a ventilator after suffering from severe respiratory problems. Attempts to wean Mrs. T from her ventilator (‘extubation’) were unsuccessful, and reintubation had to be effected. After her treatment was reviewed by Dr Lavinio (a Consultant Anaesthetist Care Specialist), he declared that Mrs. T would benefit little from continued ventilation. If Mrs. T were to be extubated, he concluded that reintubation and resuscitation might not be in her best interests in the event of respiratory or cardiac arrest.

Dr Lavinio met with one of Mrs. T’s daughters (‘AN’) who said that Mrs. T wished to receive ‘full active treatment’.  Dr Lavinio then consulted the oncology team who thought, when taking into account Mrs. T’s life expectancy and current condition, that she would never be fit enough to receive chemotherapy. Both Dr Lavinio and the oncology team reasoned that it was inappropriate for Mrs. T to remain on full-time ventilation, and that they would eventually need to withdraw her ventilation support.

Following a discussion with doctors, AN appreciated that Mrs. T would be taken off the ventilator and would not be reintubated if extubation was unsuccessful. However, AN argued that no discussion had taken place regarding resuscitation. Dr Lavinio then made a made a note ordering for Mrs. T not to be resuscitated (a ‘DNR Notice’), whilst filling in a DNACPR Notice, and recording that the decision had been discussed with one of Mrs. T’s daughters and a member of the oncology team.

However when AN later privately researched about DNR, she immediately informed Peter Kirkpatrick (a consultant Neurosurgeon of the Neuro Critical Care Unit) of her strong reservations towards this approach. The DNR Notice was subsequently removed and cancelled. Mrs. T later informed Mr. T that she was being ‘badgered’ about making a decision regarding ‘resuscitation’, demanding that any further discussion should be with her and her husband or one of her children present.

Soon after, Dr Simons (a Neurological and Neuro-Critical SHO) observed that Mrs. T’s condition was deteriorating further, and sought to prioritise the need to make her as comfortable as possible. Having noted Mrs. T’s refusal to discuss resuscitation, Dr Simons spoke to another of Mrs. T’s daughters (‘K’), during which she apologized for the first DNACPR Notice. Dr Simon then claimed that following a meeting with Mrs. T’s third daughter (‘C’), AN and Mr. T, they all agreed that a DNACPR Notice should be placed on Mrs. T’s notes. An ‘Integrated Care Pathway’ for Mrs. T was also agreed in order to ease her pain and distress. After discussing with the Palliative Care Team and the Neurosurgeons, Dr Simons filled out another DNACPR Notice, which stated that Mrs. T did not want to discuss resuscitation but that it had been discussed with her three daughters. This was later approved by Mr. Kirkpatrick. After Mrs. T’s condition worsened further, she died, with no resuscitation suggested at the time and none given.

An initial application was brought against the NHS Trust and the Secretary of State, concerning the use of DNACPR Notices. Mr. T complained, in the initial application, that the Hospital’s DNR policy:

1.     did not enable them to challenge the imposition of the DNR Notice, or seek a second opinion, given the way in which it was communicated;

2.     was defective, as a result of the ambiguity surrounding with whom the final decision rested ; and

3.     breached Mrs. T’s Article 8 rights, due to Dr Lavinio’s failure to consult with her, before signing the first DNR Notice.

When considering whether a further substantive hearing of the initial judicial review application should have taken place, Nicola Davies J ordered that there should be no further hearing of Mr. T’s application. Regarding the first and second contentions, Davies J found that it was impossible for the court to determine them, given the need to resolve issues of policy and clinical decision-making with limited evidence and without a full appreciation of all the relevant considerations. The third submission was rejected on the basis that it was simply an ‘academic’ point, given that the imposition of the first Notice had not caused Mrs. T any harm prior to its revocation, and also because it was likely that Mrs. T would have declined to discuss the matter anyway.

The immediate proceedings concerned an appeal against the order of Nicola Davies J. The Court allowed this appeal and concluded that the judicial review application should proceed and should be retained in this court.

Mr. Philip Havers QC (for Mrs. T and Mrs. T’s estate), successfully argued that any decision to place a DNACPR Notice on a patient’s notes engaged Article 8 of the ECHR (‘[e]veryone has the right to respect for his private and family life’), because any medical decision relating to the end of a patient’s life related to his or her private life. Whilst he conceded that Article 2 rights could only be engaged by a failure of process or systematic failures on the part of a Hospital (Powell v UK), he emphasised that this principle did not apply to Article 8 claims. Mr. Havers suggested that Mrs. T’s rights were infringed by Dr Lavinio’s failure to consult Mrs. T when making the first DNACPR Notice, and by the failure of the Hospital to explain their policy on DNACPRs to Mrs. T before implementing one. Mr. Havers rejected any contention that these arguments were simply ‘academic’, as argued at first instance, because Mrs. T was undoubtedly distressed when she learnt that the first Notice had been placed on her notes. This was because she thought that her family had either initiated the placement of the Notice or agreed to this. Additionally, when the family were informed about this they were similarly distressed. The Court also agreed that the points regarding the explanation or consultation with the patient and the right to a second opinion were arguable, and dismissed any suggestion that Mr. Havers’ arguments were ‘academic’, or that the consequences of the first Notice had been ‘trifling’.

Regarding pragmatic considerations, at first instance the judge was faced with  ‘Grounds of Claim’ that comprised five separate declarations spanning issues across Articles 2, 3 and 8 of the ECHR. This had therefore required the court to conduct a complex and wide-ranging inquiry into a difficult and sensitive area of law, medicine and procedure.  Given that the way in which Mr. Havers focused his submissions solely to Article 8 considerations, the Court  no longer needed to conduct a ‘wide-ranging’ inquiry based upon limited findings of causal fact. The question before the Court was simply a question of law on which expert evidence was neither admissible nor appropriate, making judicial review feasible.

The Court furthermore rejected the ordering of no further hearing of the claim against the Secretary of State. Mr. Havers had argued that the Secretary of State should construct a national policy in relation to DNACPR Notices rather than leave it to the British Medical Association to make recommendations and encourage each NHS Trust to have its own policy. Mr. Havers drew upon the ‘Integrated Adult Policy’ issued by NHS Scotland as an example of a means of providing information about DNACPR Notices to patients; arguing that the English Secretary of State should have facilitated something similar. As the Court noted, nothing during the fact-finding hearing had undermined the strength of this claim against the Secretary of State. The Court also rejected the argument, submitted by Mr. Sachdeva (for the Secretary of State), that there was no causal link between the Hospital’s wrongdoing and the Secretary of State’s failure to implement a national policy. If the Court agreed that Dr Lavinio’s failure to consult Mrs. Tracey about resuscitation constituted a breach of Article 8 by the NHS Trust, it would not be unarguable to say that the failure might show that there should be some national policy promulgated by the Secretary of State.

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