A judicial review will examine whether the lack of a national policy on ‘do not resuscitate’ notices is illegal, following a Court of Appeal ruling.
The judicial review application was brought by bereaved husband David Tracey against Cambridge University Hospitals Foundation Trust and health secretary Jeremy Hunt after a ‘do not resuscitate’ notice was placed on his wife’s medical record, without her or her family knowing.
If the review is successful then it could result in a nationwide change in policy. Currently, the policy on such notices is decided by individual trusts.
Mr Tracey’s 63-year-old wife Janet was admitted into Addenbrooke’s Hospital in 2011 with a broken neck after a road accident, two weeks after she was diagnosed with terminal lung cancer.
Eight days after Mrs Tracey was admitted a doctor placed a ‘do not resuscitate’ notice on her medical record, without having consulted her or her family.
The doctor who placed the notice was under the impression that Mrs Tracey’s daughter had agreed to the notice after speaking with her.
The notice was removed after the family protested. A second notice was placed on her record three days later after talks with the family but not the patient, because she was felt to be too ill to discuss the issue. Mrs Tracey died the next day.
At an earlier High Court hearing Mrs Justice Nicola Davies said that a judicial review into the legality of a national policy relating to the notices would not be “appropriate nor proportionate”.
In his appeal Mr Tracey’s lawyer argued patients were given insufficient information about the notices to make informed decisions. Mr Tracey’s case against against the health secretary calls for a national policy on the placing of notices rather than the British Medical Association making recommendations to trusts.
The secretary of state’s lawyer said that it was not unlawful for there to be no national policy and that it was enough to encourage hospital trusts to follow BMA recommendations, which were frequently revised and updated.
He also argued that there was no connection between the facts of the case and any failure on the part of the secretary of state to have a national policy.
The judicial review hearing is expected later this year.
The BMA began a review looking into its guidance at the beginning of last year, although it is not known when it will report. Tony Calland, chair of its medical ethics committee, said the review “will take into account the latest position on the Tracey judicial review”.