Elaine Winspear v City Hospitals Sunderland NHS Foundation Trust
Carl Winspear was twenty-eight years old when he died shortly after 11.00 pm on the 3 January 2011. He had suffered all his life from cerebral palsy, epilepsy, spinal deformities and other associated health conditions. At the time of his death and all other relevant times he lacked capacity within the meaning of the MCA 2005. Carl had been unwell for a few days beforehand and suffered from chest infections. He was admitted to his local hospital on 2 January 2011 around 3.00 pm. His mother, Elaine, stayed with Carl from his arrival at the hospital until about 9.00pm. When she left she had no particular concern for his future. Before she went to bed that night she contacted the hospital around 10.00pm and was told that Carl was the same.
In the middle of the night, a specialist registrar placed on Carl's clinical record a notice to the effect that cardio-pulmonary resuscitation should not be attempted (DNACPR). This was done without consultation with Ms Winspear or any other family member or person representing Carl's interests. The registrar recorded in Carl's medical record "DNAR. Speak to family in the morning." The printed DNACPR notice itself was not fully filled in; the sections dealing with the date of order, with whom the decision was discussed and the counter signature by the consultant were not completed. The decision was to last 48 hours.
The registrar made the decision regarding the placement of the DNACPR notice on clinical grounds as a result of information he had about Carl's condition. He noted that Carl had cerebral palsy, limited communication and was bed-bound. He had pyrexia and hypoxia on arrival at A&E; he had a severally deformed spine (kyphosis); it was considered that he was likely to be suffering pneumonia and was in a frail state. He concluded that CPR would be inappropriate in the event of a cardiac arrest because Carl's severe kyphosis and contractures in his arm made effective performance of it impossible.
In a subsequent witness statement the registrar explained that that he did not want to inflict on Carl a treatment that was distressing, painful, undignified and futile because it had no chance of success. The doctor did not think that there was an imminent risk of cardiac or respiratory collapse but made the decision that he did to avoid the possibility of the nursing staff being obliged to administer CPR, even if the chance of it needing to be administered was remote.
The registrar did not discuss matters with Carl's mother:
"firstly because I did not think that the deceased was at high risk of unexpected deterioration over the next five hours and in my view was, although unwell, in a stable condition. Secondly because the decision was not based on a judgement about his quality of life at the time but rather the futility and ineffectiveness of CPR as a intervention in his case. In these circumstances I did not think that it was necessary or appropriate to call his next of kin at that time. It is correct that the form was not fully completed. My intention was that the missing part would be completed the following morning after discussion with the next of kin."
Carl's condition was reviewed by the registrar and a consultant at 8.30 am shortly before the registrar went off night duty. No further completion or variation of the DNACPR notice occurred. The medical notes of that meeting set out five items for the treatment plan of which point four reads "speak to family later re res(uscitation) status."
Ms Winspear contacted the hospital at 11.00am and was told again that Carl was stable and was on his oxygen. Shortly after this call she received a further call and was told that the doctors wanted to speak to her before visiting hours had started. She did not have the impression that this meeting was urgent because of a deterioration in Carl's health. She arrived later that morning and had a conversation with a Dr Farrer, a consultant cardiologist and Clinical Director of the directorate of emergency care of the hospital. The precise terms of that conversation were a matter of dispute, there is no doubt that the question of cardiopulmonary resuscitation arose in the course of it. Ms Winspear expressed her strong disagreement with the suggestion that if Carl stopped breathing resuscitation should not be attempted. Although he was severely disabled she did not want him treated differently from any other patient and considered he enjoyed a reasonable quality of life at home with her. Following Ms Winspear's discussion with Dr Farrer, the DNACPR notice was cancelled. Carl was moved to an intensive care unit later that day, where he died in the evening.
In December 2011 the claimant issued proceedings by way of a Part 7 claim form for a declaration under the HRA. She argued that placing the DNACPR notice on Carl's medical record from 3.00 am until it was cancelled sometime after 12.30 without any consultation with a person who had been caring for or representing his interests was a procedural failure and has resulted in Carl's right to respect for private life under Article 8(1) of the European Convention on Human Rights (ECHR) being interfered with without justification. The proceedings were stayed pending the determination by the Court of Appeal of the Tracey case, and then restored for trial.
The Court of Appeal in Tracey made clear that, absent convincing reasons to the contrary, an adult patient with capacity has to be involved in the process that leads to the completion of a DNACPR notice, and that the very decision to complete a notice (whether or not it actually had any material difference to the treatment given) represented an interference with the patient's private life under Article 8 ECHR.
The issue for Blake J was the extent to which the principles in Tracey could be read across to a case of an adult patient without capacity; this then led him into a detailed consideration of the role of s.4(7) MCA 2005.
Blake J's decision
As Blake J noted: "[t]here is nothing in the case of Tracey or the Strasbourg case law to suggest that the concept of human dignity applies any the less in the case of a patient without capacity" (paragraph 45). He therefore accepted 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.
Blake J also accepted the Trust's submission that the practical exigencies relating to communication differ if the patient who is being treated by a doctor cannot communicate his wishes and beliefs. However,
"46.[…] [i]n my view, those considerations go to the question whether there is a convincing reason to proceed to implement a DNACPR decision without prior consultation. In the case of persons who lack capacity, the MCA spells out when and with whom a decision taker must consult; if it is not 'practicable or appropriate' to consult a person identified in s.4 (7) before the decision is made or acted on, then there would be a convincing reason to proceed without consultation.
47.If, on the other hand, 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. It would not meet the requirements of s.4(7) MCA; it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2) for two reasons:-
- a decision that is not taken 'in accordance with law' cannot justify an interference with the right to respect afforded under Article 8(1);
- if consultation was appropriate and practicable there is no convincing reason to depart from it as an important part of the procedural obligations inherent in Article 8.48. 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.
On the facts of the case before him, Blake J was not satisfied that it was other than practicable and appropriate to have attempted to contact Ms Winspear before the DNACPR notice was affixed to Carl's records. He was therefore satisfied that there was was a breach of the s.4(7) MCA 2005, such that no s.5(2) MCA 2005 defence existed to this claim, and also that there was a violation of the procedural duty under Article 8(2) ECHR. Blake J granted her a declaration reflecting the procedural breach of Article 8(2) ECHR, a declaration alone (on the facts of this case) representing just satisfaction.
This decision is significant, firstly, for confirming that the principles set down in Tracey apply across the board. It is likely to mean that the most recent iteration of the guidance on Decisions Relating to Cardiopulmonary Resuscitation (updated after Tracey) will need to be modified further so as to make express reference to the procedural requirements of s.4(7) MCA 2005 when it comes to decisions made in the context of those who do not have capacity to participate in the discussions relating to DNACPR notices.
The decision is also significant far beyond the (narrow, but important) context of DNACPR notices. The question of what, precisely, the impact of a failure to comply with s.4(7) MCA 2005 means in relation had been touched upon previously but not conclusively determined by the Court of Appeal in ZH v Cmr of the Police for the Metropolis  EWCA Civ 3021 (at paragraph 41, not 51 as noted by Blake J). Blake J has made clear that:
- Section 4(7) imposes a duty to consult those identified in the section unless it is not practicable and appropriate to do so (i.e. active steps must be taken to consult, rather than simply passively taking into account views that the decision-maker may be aware of);
- A failure to comply with that duty will mean that the decision-maker cannot then rely upon s.5 MCA in any claim brought for breaches of the ECHR (or, logically, at common law, for instance for trespass to the person where a procedure is carried out upon them).