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UK Courts Remind Clinicians – No Unilateral DNAR without Consultation

Carl Winspear

In 2014, the UK Court of Appeals handed down its judgment in Tracey v. Cambridge University Hospitals NHS Foundation Trust, clarifying that clinicians must consult with the patient before writing a DNAR order.  

A study earlier this year showed that most UK clinicians had never  heard of the case.  And practice regarding DNAR orders had not changed.

This month, a new case confirmed the holding in Tracey and extended it to require consultation with the family when the patient lacks capacity.

At 3:00 am on January 3, 2011, clinicians wrote a DNAR order for incapacitated Carl Winspear without consulting his mother or family.  The physician “did not want to inflict on Carl as treatment that was distressing, painful, undignified, and futile because it had no chance of success.”  When his mother learned about it, she had the DNAR order withdrawn at 12:30 pm the same day.

While Carl never coded during the 9 hours the DNAR order was in effect, the High Court held that the clinicians violated Carl’s rights under the European Convention on Human Rights.  “Ms. Winspear as carer does not have a veto over the treatment plan but she is entitled to be consulted . . . .”

“I accept the claimant’s case that the core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. The fact that there was no cardiac arrest before the notice was cancelled is not decisive, as its existence is itself an interference with private life; it is an important decision about medical treatment of a potentially life saving nature.”

“If . . . it is both practicable and appropriate to consult then in the absence of some other compelling reason against consultation, the decision to file the DNACPR notice on the patient’s medical records would be procedurally flawed.”

“The discharge of this procedural obligation is not a matter of challenging a clinical judgment as to the appropriate treatment for a patient. The formation of such a judgment is a necessary first step in the decision making process before a DNACPR notice is placed on file but not generally a sufficient one.”

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