An issue of life or death…

R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust

Trusts and clinicians must take careful note of the Court of Appeal’s decision on 17 June 2014 about consulting patients when taking decisions involving life sustaining treatment. The conclusion was that there is a duty to consult a patient in relation to DNACPR (Do Not Attempt Cardiopulmonary Resuscitation) unless the clinician thinks that consultation is likely to cause physical or psychological harm to the patient; this is more than just causing distress.

The case, R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust, was about consultation obligations specifically in relation to DNACPR decisions. That will be the focus of this Newsflash but there are wider potential implications for all decisions about life sustaining treatment.

The context

Important points to note are:

  • There were two DNACPR decisions, only the first was the subject of complaint
  • At the relevant time the patient, Mrs Tracey, had the capacity to make decisions about her treatment and wanted to be involved in decisions
  • The decision covers issues about both professional practice in relation to individual patients but also about policies and record keeping
  • DNACPR orders are decisions made in advance of the actual need for treatment occurring. It is in that context that the obligation to consult was discussed by the Court. Actual resuscitation will, of course, only arise when the patient almost certainly lacks capacity to make decisions and there is no time to consult. The judgment should not be read as requiring actual treatment in the absence of discussion if the clinical decision is resuscitation is not appropriate
  • The decision does NOT require clinicians to provide treatment they consider to be inappropriate but underlines the patient’s potential access to a second opinion.

The decision

The judgment is based on the application of Article 8 ECHR. This is important because public bodies, which includes all NHS bodies, are required by the Human Rights Act 1998 to act in accordance with the ECHR.

Click here to see a copy of the case[1].

Article 8 requires respect for private and family life. The leading judgment, with which the other two judges agreed, said: “A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.”

Article 8 was held to be engaged whenever a DNACPR order is in contemplation. The Court distinguished DNACPR from other life-saving treatment because DNACPR decisions are taken in advance and therefore present an opportunity for discussion with patients and their family members. Therefore, the decision stops short of saying all life-saving treatment decisions engage Article 8 but clearly there are other situations where the same reasoning could be applied to other types of decision and Trusts and clinicians need to take note accordingly.

The judgment was that there is a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient.

If the clinician forms the view that involving the patient is likely to cause physical or psychological harm then it would be inappropriate to involve the patient but it was said clinicians should be wary of being too ready to exclude patients from the process on the grounds that their involvement is likely to only cause distress. The Court recognised this can be a difficult decision and said it would be slow to find such decisions violate Article 8 if conscientiously taken.

However, and importantly, the Court rejected the argument that there was no need to involve the patient if CPR is considered to be futile. It is important for patients to know such an important clinical decision has been made and, further, the patient may want to have a second opinion.

The Court also held that there is no obligation under Article 8 to offer to arrange for a second opinion, especially where a MDT is involved and the whole team take the view a DNACPR order is appropriate. That does not mean a patient cannot ask for a second opinion. On this point regard should be had to professional guidance and the NHS Constitution.

Of importance to Trusts is a suggestion by the Court that merely having a policy on-line and primarily directed to clinicians may not make it sufficiently “accessible” to comply with Article 8. The Court approved of a leaflet the Trust had produced and was distributing to patients entitled “Talking to your doctor about treatments: a guide to patients” that summarised the DNACPR policy, plus some additional, patient/family orientated information on the Trust website.

The Court rejected the need for a national policy from the Secretary of State.

What does it mean?

The decision imposes an obligation on clinicians to discuss DNACPR decisions with patients unless to do so would cause the patient physical or psychological harm.

Failure to do so will be a breach of Article 8 ECHR. That could be a matter of professional misconduct and would mean that the Trust would be acting unlawfully and subject to potential regulatory censure and/or a claim for damages.

There is nothing in the judgment that requires a clinician to force a discussion or explanation on a patient who does not want to engage with the topic but, in that situation, it would be important to discuss the matter with the family etc (subject to confidentiality issues). This is in fact what happened when a second DNACPR decision was made for Mrs Tracey, about which there was no complaint.

The judgment does not directly deal with the position of patients who lack capacity. The Mental Capacity Act 2005 (MCA) requires decisions for those who lack capacity to make the decision for themselves to be made in the individual’s best interests.  When deciding best interests a clinician is required to take in to account “if practicable and appropriate to consult them” the views of anyone, amongst others, engaged in caring for the individual or interested in their welfare. If there is no one else to consult then an Independent Mental Capacity Advocate (IMCA) must be appointed for  decisions about serious medical treatment (s37 MCA). Clearly, the Court considered a DNACPR decision to be one about serious medical treatment.

However, although the requirement would be to appoint an IMCA, under s37(4) MCA if the need for the treatment, or withholding it, is urgent then it can be provided without an IMCA.

In other words, if you cannot talk to the patient then talk to the family. Confidentiality may, occasionally, be an issue but do not let it become an artificial barrier to discussion or, worse, an excuse.

What must you do?

It is essential that careful attention is paid to this judgment and that its requirements are implemented. Failure will result in breaches of Article 8 ECHR giving rise to possible criticism, censure, complaints and/or claims.

Our experience has been if patients or families find that a DNACPR has been made without discussion that often leads to anger even fear about clinician’s intentions and can undermine any trust in the treatment actually being provided.

Clinicians

  • Discuss DNACPR issues with patients before making a final decision, if they are willing and able to discuss them. Note: this obligation to discuss is NOT a reason for putting off or failing to consider or make DNACPR decisions in order to avoid a discussion
  • Inform the patient of the final decision and consider offering a second opinion if the decision is to not resuscitate even thought the patient wants resuscitation
  • If the patient agrees involve or inform family members
  • If the patient lacks the capacity to be involved than consult family member or other people concerned with the patient’s welfare. If there is no one else to consult appoint an IMCA but do not delay urgent decisions if the IMCA is not yet available
  • Record discussions and decisions in the clinical records, including efforts to discuss that have been declined and/or reasons for not discussing the issue on the basis of likely harm. Note: a significant part of the facts underpinning the      judgment relate to the lack of notes to support the clinician’s recollection of the circumstances in which the 1st DNACPR decision was made
  • Complete any form for DNACPR decisions. Note: unless the form itself allows for detailed recording of the process leading to the decision good clinical notes need to be made in addition to completing the form
  • Make sure you know the Trust’s policy on resuscitation and involving patients
  • Review professional guidance, including the Resuscitation Council (UK)/BMA/RCN Joint Statement[2], and the Mental Capacity Act Code of Practice[3]
  • Consider carefully how patients/families are involved in all decisions about treatment especially those about potentially life saving treatment
  • Consider broader use of Advance Decisions by patients refusing treatment in circumstances where likely treatment options can be anticipated in advance.

Trusts

  • Review your Resuscitation Policy to ensure it covers the need to discuss/consult
  • Review processes for informing patients of the policy on resuscitation and other important treatments
  • Ensure clinicians are aware of their responsibilities to consult/inform. It may be necessary to consider training and support for what are often difficult conversations
  • Ensure that appropriate actions are in fact being taken, possibly by including the issue in regular audits of medical records.

Please contact Stephen Evans for further information.

 References

1 – http://www.bailii.org/ew/cases/EWCA/Civ/2014/33.html

2 – https://www.resus.org.uk/pages/statMain.htm#Regina

3 – http://www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act