Family that accused hospital of putting a “do not resuscitate” notice in patient’s notes was in denial, says judge

BMJ 2012; 345 doi: (Published 20 December 2012) Cite this as: BMJ 2012;345:e8635
  1. Clare Dyer
  1. 1BMJ

A terminally ill patient’s family who took legal action over two “do not resuscitate” (DNR) notices in her medical notes was “in denial” about her prognosis and was protecting her by not discussing it, a High Court judge has ruled.

Janet Tracey’s husband, David, claimed that the two notices were put in his wife’s notes without her knowledge and without the agreement of her daughters, in breach of the policy of Cambridge University Hospitals NHS Foundation Trust and in violation of her human rights.1

The trust denied that the DNR notices were made without consultation, and Mrs Justice Nicola Davies was asked to resolve a factual conflict between the family and the trust’s doctors before the court went on to consider whether the trust acted lawfully, in a hearing set for next February. The judge is expected to decide on 21 December whether that hearing will go ahead.

Janet Tracey, 63, was admitted to Addenbrooke’s Hospital in Cambridge on 19 February 2011 after a head-on collision in which she fractured her neck. Around two weeks before, she had been given a diagnosis of terminal lung cancer and a prognosis of nine months’ survival.

She was transferred to the neurocritical care unit and put on a ventilator. Investigations showed that she was in the advanced stages of terminal cancer, with breathing difficulties caused by smoking and her cancer, exacerbated by pneumonia.

The judge said that she was at first given aggressive treatment, but her condition deteriorated and a DNR notice was put in her records on 27 February. As far as that notice was concerned, the judge was “unable to accept” that Janet Tracey had been consulted beforehand, and she said that Alison Noeland, the daughter to whom the consultant in intensive care medicine spoke and who, he believed, had agreed to the DNR notice, did not fully understand the situation.

After a nurse mentioned DNR, Noeland told the judge that she researched it on the internet and was “horrified,” because “it was against Mum’s wishes and those of the family.” She asked for the DNR notice to be cancelled, which was done.

In the meantime her mother had improved and had been successfully weaned off the ventilator. Within days, however, her condition had deteriorated again. By 4 March the picture was of “unrelenting deterioration,” said the judge, but Janet Tracey did not wish to discuss her prognosis.

The judge accepted the evidence of the consultant neurosurgeon Peter Kirkpatrick, junior doctor Natasha Simons, and nurse Luke Williams that Tracey herself would not engage in discussions but that her daughters had been consulted and were aware of the situation by the time another DNR notice was placed in her records on 5 March.

Kirkpatrick told the judge that the family was “beyond denial” and that in 20 years he had never come across anything like the situation. The family members would not allow themselves to have the discussion with Tracey, but between themselves they would not make a decision, he said. But he believed that resuscitating a wife and mother who was dying was “unthinkable.”

Guidance from the BMA, the Resuscitation Council UK, and the Royal College of Nursing says that a decision not to attempt resuscitation was a clinical one. Patients may not demand treatment that doctors believed was not clinically indicated.

If doctors believed that treatment would be futile, and the patient had not expressed a wish to discuss cardiopulmonary resuscitation, the guidance says that “it is not necessary or appropriate to initiate discussion with the patient to explore their wishes regarding CPR. Careful consideration should be given as to whether or not to inform the patient of the decision.”2


Cite this as: BMJ 2012;345:e8635