Appeal Court will decide whether a patient has right to be consulted before a “do not attempt resuscitation” note is put in notes

Three judges of the Court of Appeal for England and Wales are to decide whether a patient has a right in law to be consulted before a “do not attempt cardiopulmonary resuscitation” direction is placed in the patient’s medical notes.

The judges, headed by the master of the rolls, John Dyson, ruled that a judicial review hearing into the issue should go ahead, overturning a ruling by a High Court judge throwing it out as academic.1

The decision means that the court will hear arguments by David Tracey, whose wife, Janet, died after two “do not attempt cardiopulmonary resuscitation” (DNACPR) notes had been put in her records, that Cambridge University Hospitals NHS trust breached her human rights in failing to consult her before writing the first note and failing to explain its policy on resuscitation.

The appeal court decided to hear the case itself, rather than taking the usual step of sending it back to the High Court, because any judgment there was likely to be appealed. No date has yet been set.

Tracey’s counsel, Philip Havers QC, will also argue that the health secretary for England, who is a party to the case, should have a national policy on DNACPR rather than leave it to the BMA to make recommendations and to encourage each NHS trust to have its own policy. He contends that the policy should include the right to a second opinion if the patient disagreed.

Janet Tracey was given a diagnosis of lung cancer on 5 February 2011 and a prognosis of nine months to live, but on 19 February she was admitted to hospital with a cervical fracture after a major road crash. She was placed on a ventilator, and attempts to wean her off it were unsuccessful.

After speaking to one of her daughters, who said that her mother would want “full active treatment,” and an oncologist, an intensive care specialist wrote the DNACPR note. In the event, she was successfully weaned from the ventilator, and the note was cancelled on 2 March after the family discovered it and objected.

Her condition deteriorated, and a second DNACPR note was written, to which the High Court found that members of the family had agreed, although Mrs Tracey did not want to discuss resuscitation. She died on 7 March, aged 63.

The appeal court judge Andrew Longmore said the issue was not academic. Mrs Tracey was distressed to discover the note was in her records partly because she thought her family had agreed to it. In addition, the points on consultation and a second opinion were “matters of some general importance,” he said.