The recent decision at the Court of Appeal on DNR/DNACPR orders

The recent decision at the Court of Appeal on 'do not attempt resuscitation' orders

The Court of Appeal have ruled that Janet Tracey had her Article 8 rights infringed by Cambridge University Hospitals NHS Foundation Trust when they failed to consult with her and inform her of a decision to designate her as not for attempted cardio-pulmonary resuscitation (DNAR [do not attempt resuscitation] order). 

It has been recommended for some years now that good medical practice requires that doctors discuss such decisions with patients and families. As the court in this instance restated, there can be no legal requirement to provide a patient treatment that is not medically indicated, although the clinician should refer the patient for a second opinion if necessary.

This decision now imposes a legal duty to consult and inform patients about these decisions - not as one BBC newsreader stated that doctors have to get permission for DNAR orders. There are circumstances where doctors can omit this discussion, where they think this will harm the patient. This exemption is in some ways curious, given the particular facts of this case. It states in para 19:

'Dr Simons said that Mrs Tracey did not wish to engage in discussions about her care and prognosis. Every time she initiated a discussion about resuscitation, Mrs Tracey would either say that she did not wish to discuss the issue or that she would speak to her family about it.'

Further at para 25 & 26

'He submits that, if Mrs Tracey did not wish to discuss her prognosis with Dr Simons (described by one of her daughters, Kate Masters, as “sympathetic and a good communicator”) there is every reason to think that she was not willing to discuss it with any other doctor. Indeed, according to the evidence of Mr Tracey (para 57 of the judgment), Mrs Tracey felt “badgered” by the attempts of the doctors to discuss her end of life treatment with her.

Lord Pannick also draws attention to passages at paras 4, 9, 11, 13 and 14 of the witness statement of Dr Simons. For example, at para 11 she says:

“Mrs Tracey did not wish to engage in discussion relating to her care and prognosis. On occasions when I attempted to initiate discussions with Mrs Tracey regarding her treatment and her future she did not want to discuss these issues with me.”'

This decision will result in much more "badgering" of patients in the end stages of life - unless ample use is made of the exemption in para 93 that the doctor:

“thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm”

The courts have been very reluctant in the past intervene in the clinician-patient relationship. I fear this decision may prove why this was a wise policy. Further, this decision is likely to legitimise and perpetuate misconceptions about CPR and the effect of DNAR orders.