An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.

Mr Robert Wheeler, director, department of clinical law

As you will know, following the Court of Appeal’s judgement in Tracey v Cambridge NHSFT & Ors [201] EWCA Civ 822, the court found that:

the clinician has a 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 physical or psychological harm".

Given the importance of this case, it is laid out below for you to read. Please bear in mind that the patient must be consulted; this requirement could be met by the provision of a printed sheet, such as appears at the end of this bulletin.

On 5 February 2011, Mrs Tracey was diagnosed with lung cancer with an estimated life expectancy of nine months. On 19 February, she sustained a serious cervical fracture after a major road accident. She was admitted to the Hospital and transferred to the neurocritical care unit under the care of a consultant neurosurgeon. Because she had chronic respiratory problems she was placed on a ventilator, but did not respond to treatment for her chest infection. On 23 and 25 February, efforts were made to wean her from the ventilator, but these were unsuccessful. On 26 February, her treatment was reviewed by a consultant intensivist and on 27 February by a consultant oncologist.

The intensivist and oncologist decided that Mrs Tracey should be taken off the ventilator. The question arose as to what would happen if she suffered a cardiorespiratory arrest. On 27 February, a DNACPR notice was completed. Mrs Tracey was successfully weaned from the ventilator and her condition appeared to improve. The circumstances in which this DNACPR notice came to be completed and placed in her notes lie at the heart of these proceedings. When one of her daughters discovered that the notice had been made, she was horrified and registered her objections. As a result, the notice was removed and cancelled on 2 March. Mrs Tracey’s condition deteriorated and she died at 10.38am on 7 March.

The claim against the Trust was that it, amongst other things, breached Mrs Tracey’s rights because in imposing the notice, it failed to:

adequately consult Mrs Tracey or members of her family
notify her of the decision to impose the notice
offer her a second opinion.

The court found that Mrs Tracey did wish to be consulted about any DNACPR notice that the clinicians were contemplating completing and placing in her notes. Was it inappropriate to consult in relation to the notice on the facts of this case? The Trust submitted that the intensivist was entitled in the exercise of his clinical judgment to decide not to consult Mrs Tracey on the grounds that:

he believed that CPR would be futile
he knew that it would cause her distress to be involved in a discussion as to whether she should be resuscitated in the event of a cardiorespiratory arrest.

Further, the Trust submitted that it was inappropriate to involve the patient if the clinician formed the view that CPR would be futile, even if he considered that involvement was unlikely to cause the patient harm. The court rejected this submission for two reasons. First, a decision to deprive the patient of potentially life-saving treatment is of a different order of significance for the patient from a decision to deprive him or her of other kinds of treatment. It calls for particularly convincing justification. The presumption should be that the patient is entitled to know that such an important clinical decision has been taken. The fact that the clinician considers that CPR will not work means that the patient cannot require him to provide it. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told that the clinician has made a DNACPR decision, he will be deprived of the opportunity of seeking a second opinion, which may be desirable form the patient’s perspective.

In terms of avoiding distress to a patient, the court made two findings that clinicians may not agree with. Firstly, that a belief that it would cause distress to the patient to discuss the issue is unlikely to be sufficient, without more, to make it inappropriate to involve her. The distress must be likely to cause the patient a degree of harm. It was accepted that if the intensivist 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. In that event, the court would have concluded that the clinician was entitled to decide that it was inappropriate to involve her in the process. The difficulty in this case is that the intensivist gave no such evidence.

The court therefore found that the Trust had violated Mrs Tracey’s right to respect for her private life in failing to involve her in the process which led to the DNACPR notice. The court was nevertheless concerned by a ‘well-balanced and powerful representation from the Resuscitation Council (RC), expressing the fear that a judgment which states (or implies) that there is a presumption that, save in exceptional cases, every DNACPR decision must be made after consultation with the patient would seriously hamper the ability of health care professionals to provide individualised and compassionate care for vulnerable people towards the end of their lives’. The RC made the further point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR and that a judgment requiring consultation with a patient save in exceptional circumstances would be likely to reverse that process. In suggesting the following formulation, the court hoped that the RC concerns would be largely met:

The clinician has a 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 physical or psychological harm".

It must be emphasised that the court is insisting only that we consult before making this decision. Explicitly, the court leaves the decision whether the DNACPR should be imposed to the doctor.

Our obligation to engage or consult with the patient may be met in a variety of ways. Oral discussion is one; but if you feel that the patient in front of you would find a written note of explanation more helpful, allowing them more time to consider their response (and subsequent questions) than an oral approach, then the following note, signed by the consultant in charge of the patient’s care might be appropriate.

It should also be noted that the decision in Tracey did not specify consultation with the relatives, in circumstances when the patient lacked capacity. However, given the lower likelihood of causing harm or distress to adults accompanying the patient, consulting them before coming to your decision over whether or not to order DNACPR is plainly good practice.

Here is a suggested patient information leaflet, to be handed to competent patients who you feel may prefer a written approach to the subject of DNACPR orders. Clearly, this can be modified according to departmental requirements, as long as the fundamental offer further to consult on an order, is conserved. The words in this leaflet are a draft. If you have suggestions for their improvement, please let me know and I’ll resend an amended form.

Hospital, department, patient ID
Date & Time

Dear Mrs/Mr ...

You will understand that some patients may unexpectedly become very seriously ill whilst in hospital. Sometimes, doctors will need to decide quickly whether their patient will be helped by ‘resuscitation’ of their heart and lungs. Resuscitation involves pressing on the chest to try and restore the heartbeat, so is sometimes used if a person’s heart beat stops.

If you would like your nurse or doctor to discuss this further with you; and particularly if you have already decided what you would like to happen to you if your heart should stop; please let us know, and we will sit down and talk about it.

Consultant in charge of case to sign (not a photocopy of signature).

Robert Wheeler
Department of clinical law

How do we deal with patient consultations over DNACPR