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Doctors now have legal duty to consult and inform patients about Do Not Resuscitate orders

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Clearer guidance about when and how Do Not Resuscitate orders can be placed on a patient's medical records have emerged following a landmark judgement by the Master of the Rolls, Lord Dyson in the Court of Appeal.

The widely reported case involved 63-year-old Janet Tracey, ill with terminal lung cancer, who died in hospital in Cambridge three years ago. Her family say she and they were not consulted when a DNR notice was put on her records. Addenbrooke's Hospital maintained doctors acted in Mrs Tracey's best interests.

Mrs Tracey's husband and daughters were distressed when a DNR notice was put on her hospital records apparently without her knowledge or consent and without the family being informed or consulted. It was cancelled after the family complained, though a second was later put in place after talks with the family two days before Mrs Tracey died.

No-one suggested resuscitation should be performed when she died, but the family challenged the lawfulness of the DNR policy at Addenbrooke's Hospital, claiming the first notice breached Janet Tracey's human rights. In what is a landmark judgement, the Court found that Addenbrooke's Hospital had indeed acted unlawfully and the NHS Trust had violated Mrs Tracey's right to respect for her private life under Article 8 of the European Convention of Human Rights.

Master of the Rolls, Lord Dyson said in the ruling:

"As a Do Not Attempt Cardiac Pulmonary Resuscitation decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There needs to be convincing reasons not to involve the patient in that decision."

Previous advisory guidelines about this issue varied regionally from Trust to Trust. There were no nationally consistent guidelines and it was merely 'suggested' that doctors consult patients and their family in decisions about DNR orders. Many doctors did not do so because they genuinely believed being involved in such a momentous decision would cause the patient and their family great distress. That is no longer a sufficient reason not to inform and consult with the patient.

Andrea Rusbridge, a partner in Shoosmiths's medical negligence team commented:

"It's important to be clear here that the ruling does not give patients the automatic right to have Cardiac Pulmonary Resuscitation (CPR). There is no such thing in law as a 'right' to any form of medical treatment. It does send a clear message to all NHS Trusts and healthcare professionals that patients do have a legal right to be informed and consulted about decisions to withhold such resuscitation and that clarification is to be welcomed."

She added:

"It's important that patients are treated with the utmost respect and dignity and consultation (now a legal obligation) has always been best practice. It might be also worth reflecting however, that it is equally important where a DNR is agreed and in place, that it is not ignored as this could mean someone continues to suffer unnecessarily."

Additional information on the Janet Tracey case can be viewed on the Independent website.

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