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Has the Law on Do Not Resuscitate (DNR) Orders been Clarified?

About The Author

Helen Morse (Writer)

Helen is studying Law (European & International) LLB at the University of Sheffield, now entering her final year having spent an Erasmus year at the University of Vienna, Austria. Helen is interested in international and commercial law. Outside of law, Helene is a keen sports woman, playing at county level.

On 17 June 2014, the Court of Appeal ruled in Tracey v Cambridge University Hospital NHS Foundation Trust [2014] that there is a legal duty on medical practitioners to involve and consult patients when placing a ‘Do Not Resuscitate’ (DNR) order on their medical files.

Giving the leading judgment, Lord Dyson stated that a ‘convincing reason’ would be needed in order for a practitioner to not involve a patient. This might be where the doctors felt that consultation on the use of a DNR notice would cause a patient physical or psychiatric harm, though it was added that causing mere distress to a patient is not a sufficient reason to exclude them.

Without such a reason, Lord Dyson cautioned that there could be a violation of the patient’s right to respect for private and family life under Article 8 of the European Convention of Human Rights (ECHR), which applies to public health care bodies in the UK by virtue of Section 6 of the Human Rights Act (HRA) 1998.

This decision has been welcomed by some for finally clarifying the law on how DNR decisions should be made. Speaking after the judgment, the appellant’s solicitor said that, ‘the court’s ruling should now bring an end to the unwelcome surprises' that come with discovering a decision to not resuscitate has been made without any consultation with the patient. Indeed, the decision looks set to heavily influence national guidance on the use of DNR notices, which is currently under review by the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing.

What is a DNR Order? 

A DNR order on a patient’s medical record (otherwise known as a ‘Do Not Attempt Cardio-Pulmonary Resuscitation’ (DNACPR) notice) means doctors are not required to resuscitate if the patient’s heart stops beating. Cardio-pulmonary resuscitation can be a violent process often causing broken ribs, other fractures, a ruptured spleen or even brain damage. Therefore, DNR orders are designed to prevent unnecessary suffering for the patient when the benefits of resuscitation are outweighed by the burdens.

Tracey v Cambridge University Hospital

The Facts

Janet Tracey, aged 63, died in March 2011 after a serious car crash in which her neck was broken. Not long before the accident she had been diagnosed with terminal lung cancer, so a DNR order had been placed on her medical records, but without any consultation with Janet or her family. Distressed by this, the family complained and the orderwas removed. However, after continued involvement from Janet’s husband and daughters over the days following the accident, a second DNR order was put in place. Sadly, Janet Tracey died two days later at Addenbrooke’s Hospital in Cambridge.

David Tracey, Janet’s husband, sought judicial review against two public body actions: the doctors’ initial decision to place a DNR notice on Janet’s records without consultation, and the government's failure to provide clear national guidance on the use of DNR orders.

The Judgments

The Court of Appeal in Tracey held that ‘there should be a presumption in favour of patient involvement’ and that, by failing to consult the patient, the hospital had breached her human rights. However, on the second issue, it was stated that the absence of a national DNR policy was not a violation of the ECHR. Despite recognising the desirability of a consistent approach towards decision-making on DNR orders, Lord Dyson felt that ‘the decision will be difficult and sometimes controversial regardless of whether the DNACPR policy is formulated at a local level or nationally’.

Has Clarity been Found?

The decision in Tracey has reinforced the importance of Article 8 of the ECHR and the patient’s right to exercise their autonomy when making decisions about the final stages of life. The decision is in line with the dicta from the European Court of Human Rights (ECtHR) in Pretty v United Kingdom. In Pretty, even though it was held that UK law criminalising assisted suicide was not a breach of the ECHR, it was stressed repeatedly that the notion of personal autonomy is an important principle underlying the interpretation of the ECHR and its guarantees.

Nonetheless, there still remain a number of grey areas regarding the decision-making process behind the placing of DNR notices on patients’ medical records. As recognised by Daniel Sokol, barrister and medical ethicist, the most problematic area is the distinction between causing actual psychiatric harm by involving patients as opposed to causing meredistress for them. Sokol argued that 'clinicians may attempt to justify their decision not to involve patients by claiming that disclosure would probably lead to psychiatric harm'. Whilst the medical profession is bound to act in the ‘best interests’ for their patients, the fine line between distress and psychiatric harm leaves a small lacuna for doctors to exercise their subjective judgment, which could lead to inconsistency.

In addition, ostensibly, the Tracey decision appears to put the autonomy of the patient first, and rightly so, but the court has still ultimately prioritised the professional judgment of medical practitioners. This is highlighted by Lord Dyson’s comments that the court should be very slow to find a doctor’s decision to exclude the patient as violating the patient’s rights under the ECHR. He concurred with the ECtHR’s opinion in Tysiac v Poland [2007] that the degree of patient involvement required by the ECHR depends on ‘the particular circumstances of the case and notably the nature of the decisions to be taken’. This gives an explanation for why the court isreluctant to give general guidance on when it would be inappropriate to consult a patient on a DNR decision. Nevertheless, this lack of guidance from the court only adds to the air of uncertainty surrounding when a particular doctor will or will not consult their patient.

However, as with many legal cases involving the medical profession that are absent of clear and strict rules, the court has clearly shown appreciation for the fact that difficult and sensitive decisions often have to be made by medical staff. As stated by Lord Phillips in Burke v General Medical Council [2005], the courts ‘should not be used as a general advice centre’, as there is a danger that they may ‘enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice’. So, even though the Tracey decision arguably comes at the cost of certainty, the court’s conservatism is necessary for the freedom of the medical profession to make conscientious judgment calls on the best course for their patient in the circumstances.

Conclusion  

The case is important in confirming that under Article 8 of the ECHR everyone has the right to be involved in managing their medical treatment and clinicians are under a legal duty to ensure this happens. However, the decision has still failed to answer when exactly it is inappropriate to consult patients on the use of DNR orders, as the court has been careful not to intrude into the judgment of clinicians. This highlights why new clear, professional guidance on taking decisions on the use of DNR notices cannot come soon enough from the medical regulatory bodies. In spite of this, the court was right not to impose a legal standard on when it is, and is not, appropriate to involve the patient on the use of a DNR order. It is very important, for clear policy reasons, that the law respects the discretion of our medical workers to react conscientiously to the situation and patient before them.

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Tagged: Human Rights, Medical Law & Ethics

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