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17 June 2014, 13:16
The human rights of a 63-year-old terminally-ill patient at a hospital in Cambridge were violated because she was not consulted before a ``do not resuscitate'' (DNR) was placed on her records, the Court of Appeal has ruled.
Three appeal judges were asked to intervene by David Tracey, who said his late wife Janet was subjected to an unlawful DNR notice at Addenbrooke's Hospital.
Such notices are intended to ensure that a patient dies in a dignified and peaceful manner, but they have become the subject of controversy.
The Government and health chiefs were accused in court of failing to tackle widespread confusion and uncertainty over the imposition of notices on seriously ill patients.
Lord Dyson, Master of the Rolls, who sat with Lord Justice Longmore and Lord Justice Ryder, declared that the hospital trust ``violated Mrs Tracey's Article 8 right (under the European Convention of Human Rights) to respect for private life in failing to involve her in the process which first led to the notice''.
But the judges rejected complaints that the Government had infringed her rights in her last days by failing to promulgate national guidance on DNR notices.
A spokesman for Cambridge University Hospitals NHS Foundation Trust (CUH) said: ``The Trust is considering the implications of this judgment and the next steps very carefully.
CUH chief executive Dr Keith McNeil said the ruling ``hinges on a specific point of law. There was no criticism of our clinical care.
``Medical staff use a combination of their compassion, experience and judgment at these difficult times to try and find the right pathway for each individual patient, and provide the support needed for everybody involved.''
An emotional Mr Tracey said outside court that the ruling was ``a good result'', adding: ``Patient care has got to come first, and this will bring more care to people.''
Merry Varney from law firm Leigh Day, who acted for the Tracey family, welcomed the ``strong message'' she said was being sent out by the ruling, and added: ``My client and his family are delighted that the court has recognised the need for doctors to consult patients on decisions to deny resuscitation.
``The Court of Appeal has confirmed that the way in which Janet Tracey was treated at Addenbrooke's Hospital was wrong and that she should not have been excluded from the decision-making process to place a 'do not resuscitate' order on her records, especially as she had stated a clear wish to be involved in her treatment.
``It is notable that the court sought to underline that the duty to consult is an integral part of respecting a patient's dignity and that the presumption should be that patients are informed and consulted before 'do not resuscitate' decisions are made.''
The appeal court ruled that patients should be ``consulted and involved in the decision-making process'' before DNR notices are placed on their records, unless a clinician considers that the consultation is likely to cause the patient physical or psychological harm.
Philip Havers QC, for Mr Tracey and his family, told the appeal judges at a two-day hearing in May that DNR notices orders were routinely used in a manner which did not reflect existing health service guidance and policy, which was itself inadequate.
Mr Havers said in different parts of the country there were often no policies at all, or they did not take into account the views of patients and were capable of being confusing and contradictory, he said, and they were also contrary to Article 8 of the European Convention on Human Rights, which safeguards respect for patients' private lives.
Mr Havers said Health Secretary Jeremy Hunt ``must step in and himself issue national guidance addressed to all parts of the NHS in order to comply with Article 8 on a patient-by-patient basis''.
Patients are entitled, as a minimum, to be ``notified, involved and have the right to seek a second opinion'' before DNR orders are made, he said at a recent hearing.
Mrs Tracey, a care home manager, died following a transfer to Addenbrooke's after breaking her neck in a car crash on February 19 2011 - two weeks after being diagnosed with terminal lung cancer.
A DNR notice was first placed on Mrs Tracey's records, but it was cancelled five days later after it was challenged by her family.
A second notice two days before Mrs Tracey's death on March 7 2011 was put in place with the agreement of her family.
Her widowed husband decided to mount a legal challenge against the first notice, with the support of the Equality and Human Rights Commission (EHRC).