The practical relevance and importance of Tracey, R (on the application of) v Cambridge University Hospitals NHS Foundation Trust & Ors  EWCA Civ 822 is evident from the statement of Lord Dyson MR:
“DNACPR [Do Not Attempt Cardio-Pulmonary Resuscitation] orders are likely to affect most of the population directly or indirectly. According to evidence that we have been shown, 68% of the population die in hospital and 80% of these die with DNACPR notices in place. In other words, in relation to more than 50% of the population, a decision is taken in advance of their deaths that, if they are subject to a cardio-pulmonary arrest, they will not receive cardiopulmonary resuscitation (“CPR”)” [para.2].
He further explained the nature of CPR:
“CPR was introduced in the 1960s as a treatment that for some people may re-start their heart when they suffer a sudden cardiac arrest due to a heart rhythm disturbance, usually triggered by a “heart attack” (myocardial infarction) from which they would otherwise have been expected to make a good recovery.
It is a violent and invasive physical treatment used to attempt to maintain the circulation and breathing of a person whose heartbeat and/or breathing has stopped and to re-start the heart if possible. It involves repeated forceful compression of the bare chest to a depth of 5-6 cm at a compression rate of 100-120 per minute, attempted inflation of the lungs by forcing air or oxygen into the lungs often through a tube inserted into a patient’s windpipe, the injection of drugs into veins or into bones and the delivery of high-voltage electric shocks (defibrillation) across the bare chest.
In his witness statement . . . . the chairman of the Resuscitation Council (UK), states that, in contrast to the relatively good outcomes from sudden cardiac arrest due to heart attack, in people whose heartbeat and breathing stop because of other serious health problems (including advanced cancer), the chance of CPR being successful and allowing recovery to hospital discharge is very much lower . . . . the likelihood of a cancer patient on a critical care unit having a successful CPR has been reported at only 2.2% . . . .even this rare success would be limited to those few people without advanced cancer and without severe disease of any major organs, “[para 10].
Against this background, the court considered the circumstances surrounding the wife of the appellant: she was diagnosed with lung cancer and had a nine-month life expectancy but subsequently sustained a serious cervical fracture and was placed on a ventilator in a critical condition on 19 February 2011. Initially, her medical team placed a DNACPR notice in her notes. She was subsequently successfully weaned from the ventilator and her condition appeared to improve; and following objections raised by her daughter the notice was removed. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March 2011.
Permission to apply for the judicial review was granted by Eady J; but since there was a dispute regarding some of the material facts Ouseley J ordered a fact-finding hearing and this was conducted by Nicola Davies J, who delivered judgment on 19 December 2012,  EWHC 3670. She ordered that there should be no further hearing of the judicial review proceedings, concluding that the public interest would not be served by embarking on a “wide-ranging inquiry” based upon the limited findings of causal fact which she had made:  EWHC 3860. However, on 24 January 2014 the court allowed an appeal against this order in the judgment given by Longmore LJ, who noted inter alia that “in the light of the very considerable public resources already expended, [the case] should be retained in this court since there is a great danger that any decision at first instance would itself be appealed”:  EWCA Civ 33. The court’s decision on the judicial review application is therefore a decision of the Court of Appeal; and any further appeal lies to the Supreme Court.
The claim against the Trust as advanced to the Court of Appeal was that it breached Mrs Tracey’s rights under Article 8 ECHR (private and family like) because in imposing the first notice, it failed (i) adequately to consult Mrs Tracey or members of her family; (ii) to notify her of the decision to impose the notice; (iii) to offer her a second opinion; (iv) to make its DNACPR policy available to her; and (v) to have a policy which was clear and unambiguous.
The claim against the Secretary of State as advanced to the Court of Appeal was that he breached Mrs Tracey’s Article 8 rights by failing to publish national guidance to ensure (i) that the process of making DNACPR decisions is sufficiently clear, accessible and foreseeable and (ii) that persons in Mrs Tracey’s position have the right to be involved in discussions and decisions about DNACPR and to be given information to enable them so to be involved, including the right to seek a second opinion.
Court of Appeal’s decision
The overall judgement of Lord Dyson [para 88] was to grant a declaration against the Trust that it had violated Mrs Tracey’s Article 8 right to respect for private life in failing to involve her in the process which led to the first notice. However, he refused the other relief claimed against the Trust  and also that claimed against the Secretary of State. Longmore and Ryder LJJ concurred.
Lord Justice Longmore agreed in particular that Mrs Tracey’s Article 8 rights were engaged by the decision to introduce a DNACPR notice onto her notes since it was a decision affecting her private life. Furthermore, he did not consider that the common law was any different in relation to a doctor’s duty to consult his or her patient in relation to decisions to treat or not to treat, citing R (Burke) v GMC  QB 273, paras 50-55 of which did not depend on Article 8 considerations [para 89].
Lord Justice Ryder noted:
“In the context of the court’s decision, it may be helpful to re-consider the oft-repeated GMC guidance that was endorsed by Lord Phillips of Worth Matravers MR in R (Burke) v General Medical Council  QB 273 at  which he summarised as follows:
i) The doctor, exercising his professional clinical judgment, decides what treatment options are clinically indicated;
ii) The doctor offers those treatment options to the patient, explaining the risks, benefits and side effects of the same;
iii) The patient then decides whether he wishes to accept any of the treatment options and, if so, which one;
iv) If the patient chooses one of the options offered, the doctor will provide it;
v) If the patient refuses all of the options he may do so for reasons which are irrational or for no reason at all or he may inform the doctor that he wishes to have a form of treatment that the doctor has not offered;
vi) If, after discussion with the patient, the doctor decides that the form of treatment requested is not clinically indicated he is not required to provide it although he should offer to arrange a second opinion.
That guidance was predicated on the assumption that in the usual case the relationship between doctor and patient usually begins with diagnosis and advice (see ).
The duty to consult which this court has described involves a discussion, where practicable, about the patient’s wishes and feelings that is better undertaken at the earliest stages of the clinical relationship so that decisions can be reviewed as circumstances change. That involves an acknowledgement that the duty to consult is integral to the respect for the dignity of the patient,” [paras 98 and 99].
Lord Justice Longmore observed that
“as a matter of fact in relation to the first DNACPR notice, Mrs Tracey had expressed sufficiently clearly a wish to be consulted and that in those circumstances Dr Lavinio ought not to have signed a DNACPR notice without consulting her unless (as my Lord says in paragraphs 53-56) he thought that she would be distressed by being consulted and that that might cause her harm” [para.90].
However “[the court] heard no argument on the question whether the fact that Dr Lavinio’s failure to consult Mrs Tracey was a one-off lapse which did not itself engage Article 8”. He noted that in relation to Article 2 ECHR (right to life), one-off acts by hospital staff did not necessarily (or even usually) lead to the conclusion that a patient’s rights had been violated. Nevertheless, it was submitted for the appellant that this proposition did not apply to Article 8 and counsel for the Hospital Trust did not argue to the contrary.
He further commented on the potential impact of the judgment in the light of the
“well-balanced and powerful intervention by the Resuscitation Council, in which its chairman, Dr Pitcher, has expressed the fear that a judgment which states (or implies) that there is a presumption that, save in exceptional cases, every DNACPR decision must be made after consultation with the patient would seriously hamper the ability of health care professionals to provide individualised and compassionate care for vulnerable people towards the end of their lives” [para 92].
Dr Pitcher made the further point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR and that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.
Longmore LJ considered these concerns to be entirely understandable and hoped that the formulation that the clinician has a duty to consult the patient in relation to DNACPR “unless he or she thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm” will go some substantial way to meeting those concerns” [para 93].
The Independent reported “the British Medical Association said it was committed to updating its guidelines in line with the law, and the General Medical Council said it would be checking if its current guidance needed updating in light of the ruling.”
UK Human Rights Blog has a report of the case by Rosalind English of 1 Crown Office Row, Do Not Resuscitate notices: Patients’ rights under Article 8
 The BBC notes [though not part of judgement] that CPR may result in: broken ribs, other fractures, ruptured spleen, brain damage.
 Lord Dyson expressed the view that although the Mrs Tracey was not offered the opportunity to obtain a second opinion by the Trust when it imposed the first or the second notice, the possibility was not sufficient for the issue to arise on the facts of this case. It would only arise if there were a disagreement between patient and doctor or if there were a disagreement between the treating doctors themselves, [para. 60]. He further accepted the submission that there is no obligation to offer to arrange a second opinion in a case, such as that of Mrs Tracey, where the patient is being advised and treated by a multi-disciplinary team all of whom take the view that a DNACPR notice is appropriate, [para.65].
 Lord Dyson did not accept the submission that the Secretary of State is in breach of section 1B(1) of the 2006 Act in failing to issue a national DNACPR policy. The obligation is to “have regard” to the Constitution, which does not prescribe the means by which its objective of patient involvement is to be achieved: “the decision to commend the Joint Statement was sufficient to discharge the statutory obligation,”[para. 83].
This is such a difficult area and one – which the court managed to do- that needs to stand back from before delivering a judgement. Yes the trust got it wrong by not discussing the matter with the family, but clearly the ‘medical’ judgment itself was not criticized. Having previously worked in prison medical care I was faced on several occasions with life-endangered situations, and others when the person had clearly died some time before. In all situations we ‘had’ to attempt resuscitation. I do not argue that the order was wrong with regard to recent and sudden cessation of breathing; however, when the person was clearly in a state of onset of rigor mortis the whole procedure was wrong and lacked respect for the deceased.
The balance in this case was to ensure that communication was paramount but that medical science was respected.
Pingback: Religion and law round up – 22nd June | Law & Religion UK