Family of woman who had DNR order put in her notes without her knowledge is refused right to challenge its legality

BMJ 2012; 345 doi: (Published 27 December 2012) Cite this as: BMJ 2012;345:e8689
  1. Clare Dyer
  1. 1BMJ

The family of a woman who had a “do not resuscitate” notice placed in her medical notes without her knowledge has been refused permission to challenge the lawfulness of the decision in the High Court.

Mrs Justice Nicola Davies held that the DNR notice in 63 year old Janet Tracey’s notes had had “minimal causative effect” because it was cancelled five days later without being put into effect, after her family discovered it.

A new notice placed in her records three days later and two days before she died followed consultation with the family members, although they had been unwilling to discuss it with her, the judge decided after a fact finding hearing.1

Tracey was admitted to Addenbrooke’s Hospital in Cambridge after a head-on car collision in which she fractured her neck. Around two weeks earlier she had been given a diagnosis of terminal lung cancer.

Her husband, David, launched proceedings against Cambridge University Hospitals NHS Foundation Trust, claiming that the trust had breached its own policy on DNR notices and violated her human rights.

He also named the health secretary as a defendant, with the aim of forcing the government to introduce a nationwide police on DNR notices. Current guidance from the BMA, the Resuscitation Council UK, and the Royal College of Nursing says that doctors need not discuss DNR decisions with the patient or family if the clinicians believed that attempts to resuscitate would be futile.2

Tracey’s family hoped that the case would clarify whether a patient with full mental capacity had a right to be informed before a DNR notice was drawn up and whether the family had a right to be consulted.

But the judge said that it would be neither “appropriate nor proportionate” for the case to go ahead, in the light of the limited factual findings.

Philip Havers QC, for the family, said that the issue was not academic but of real concern to patients, their families, and doctors. For the trust, Edward Faulkes QC agreed that there was a public interest in the issue but argued that it did not justify the court’s involvement in rewriting policy.

Giving her judgment, the judge said that going ahead with a hearing would involve the court in grappling with issues of policy and clinical decision making on the basis of limited evidence, which would not serve the public interest.

She refused David Tracey permission to appeal, but it remains open to him to ask the Court of Appeal to consider his case.

His solicitor, Merry Varney of the law firm Leigh Day & Co, said, “We are astounded and disappointed by this decision to dispense with the legal hearing. While the judge found that a DNR order was placed on the file of our client’s late wife—a woman with full mental capacity who had expressed a wish to be kept informed—without her knowledge or without any consultation with her, the judge further found that it is neither appropriate nor proportionate to look further at the legal issues that arise from this.

“We shall be seeking an appeal and remain confident that the lawfulness of imposing such an order on a patient is a matter the court should consider.”


Cite this as: BMJ 2012;345:e8689