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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tracey, R (on the application of) v Cambridge University Hospital NHS Foundation & Ors [2012] EWHC 3670 (Admin) (19 December 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/3670.html Cite as: [2012] EWHC 3670 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of David  Tracey |
Claimant |
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| - and |
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| Cambridge University Hospital NHS Foundation Trust |
First Defendant |
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| Secretary of State for Health |
Second Defendant |
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| Equality and Human Rights Commission |
Interested Party |
____________________
(instructed by Leigh Day & Co) for the Claimant
Lord Faulks QC and Mr Simon Murray (instructed by Kennedys) for the First Defendant
Mr Vikram Sachdeva (instructed by DWP/DH Legal Services) for the Second Defendant
Mr David Wolfe QC (instructed by EHRC) for the Interested Party
Hearing dates: 5 to 9, 13 & 14 November 2012
____________________
Crown Copyright ©
Mrs Justice Nicola Davies:
i) the failure by the first defendant to treat the claimant's late wife, Janetii) the failure by the first defendant to treat Janet
iii) the failure by the first defendant to have in place and to operate lawfully an appropriate policy on the use of Do Not Attempt Cardio-Pulmonary Resuscitation orders ("a DNACPR");
iv) the failure by the second defendant effectively to promulgate any clear policy or guidance on the use of DNACPRs, which is accessible to patients and their families, and which properly informs them of their rights and legitimate expectations in respect of the use of DNACPRs by hospitals such as that operated by the first defendant.
Tracey was admitted to Addenbrooke's Hospital on 19 February 2011 following a serious road traffic accident in which she sustained a cervical fracture. Approximately 1-2 weeks prior to this admission, Mrs Tracey had been diagnosed with terminal lung cancer. During the admission to Addenbrooke's hospital, Mrs Tracey's clinical condition deteriorated. A DNACPR Notice was placed on Mrs Tracey's medical records on 27 February 2011, it was cancelled on 2 March 2011. A second DNACPR Notice dated 5 March 2011 was placed on Mrs Tracey's records. Mrs Tracey died on 7 March 2011.
Tracey, permission to apply was granted. On 9 March 2012, Ouseley J. ordered that the matter be listed for a hearing to determine the disputed issues of fact surrounding the circumstances in which the two DNACPR notices were placed in the medical records of Mrs Tracey. The second defendant was excused attendance for the hearing on the disputed issues of fact. 44 questions to be determined by the Court have been agreed between the claimant and the first defendant. Whether a substantive hearing upon the legal issues will follow is dependent upon the factual findings of the Court and further submissions from all parties.
Law and context to the factual dispute
Claimant's case
Tracey and the claimant's Convention rights is not "in accordance with law".
"treatment which involves providing, withdrawing or withholding treatment in circumstances where:
(a) in a case where a single treatment is being proposed there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail for him,
(b) in a case where there is a choice of treatments, a decision as to which one to use is finely balanced, or
(c) what is proposed would be likely to involve serious consequences for the patient."
Mental Capacity
Tracey. The entries in the medical records are clear, it is accepted by the claimant and the first defendant that Mrs Tracey possessed mental capacity to make decisions at all material times prior to her death.
Tracey made an advance decision to refuse specified treatment, to refuse life-sustaining treatment or to request treatment within the meaning of the MCA 2005.
i) Articles 2 and 8 ECHR require that in order for the imposition of a DNACPR in respect of a patient, to be lawful, the imposition of that order must be preceded by effective and informed involvement of the patient and, where appropriate, the patient's near relatives/next of kin;ii) Because of the significant consequences of the DNACPR order, Articles 2 and 8 require that the decision whether or not to impose a DNACPR order in respect of a patient require there to be 'clear and accessible' criteria which are communicated to those who are affected (patient and where appropriate relatives), and thus, 'known in advance' so that persons affected can, if so minded, challenge such opinion, or at least seek a second opinion.
iii) The absence of effective and informed involvement with the patient and relatives, and the absence of 'clear and accessible' criteria 'known in advance' for the imposition of a DNACPR order, mean that the imposition of the two DNACPR's in the present case resulted in a violation of Articles 2 and/or 3 and/or 8 ECHR.
Tracey and, more specifically, as regards the DNACPR orders.
Trust Policy
"6 When to consider a DNACPR order
A DNACPR decision should only be made after appropriate consultation and consideration of all aspects of the patient's condition. Decisions must be taken in the best interests of the patient, following assessment that should include likely clinical outcome and the patient's known or ascertainable wishes.
6.1 DNACPR decisions for adults
It is appropriate to consider implementing a DNACPR order where:
- the patient's condition indicates that effective CPR is unlikely to be successful
- CPR is not in accord with the recorded, sustained wishes of a patient who is mentally competent
- CPR is not in accordance with a valid applicable advance directive (anticipatory refusal or living will). For further information please refer to the Trust's advance statements, advance decisions and lasting powers of attorney in relation to future medical treatment policy
- successful CPR is likely to be followed by a length and quality of life which it would not be in the best interests of the patient to sustain.
7 Discussing DNACPR decisions with patients and relatives
7.1 Patient rights
The rights of the patient are absolute to any decision making regarding resuscitation. The patient's rights must be respected, and where clinically possible, patients should be consulted regarding DNACPR decisions. Ideally, patients should be consulted in advance as to who they want, or do not want, to be involved in decision making if they become incapacitated.
7.3 Discussion with relatives
Any discussion with relatives or close friends (if appropriate and with due regard to patient confidentiality) may be valuable in assisting with the decision. However, the final decision rests with the clinician relatives cannot determine a patient's best interests, nor give consent to, nor refuse treatment on a patient's behalf unless acting under an LPA (see above). They should be assured however that their views will be taken into account.
8 Who can implement a DNACPR order
The overall decision for a patient's resuscitation status rests with the consultant in charge of the patient. When a consultant decision is likely to be delayed, a provisional decision can be made by an SpR (ST3 or above). The consultant must review this decision and countersign the proforma within 72 hours, otherwise the order is no longer valid and the patient will therefore be considered for full resuscitation.
9 Procedure for initiating a DNACPR order
Any decision regarding the implementation of a DNACPR order needs to be recorded in the patient's medical records and on the proforma by the most senior member of the medical team available (ST3 or above). This person now takes responsibility for ensuring that the decision is communicated to all relevant personnel.
When recording the decision the following must be noted:
- The reasons for initiation of the DNACPR order.
- The results of sensitive exploration of the patient's/relatives'/parents' wishes regarding resuscitation. If there has been no discussion with the patient because they have indicated a clear desire to avoid such discussion, this must also be documented.
- An indication of how often the decision will be reviewed or that review is not appropriate.
- The name and signature of the doctor responsible for the decision plus date and time of recording.
- The name and signature of the doctor responsible for the decision plus date and time of recording.
- The name and signature of the senior nurse in charge of the ward/patient as a record of communication plus date and time of recording.
- Within 72 hours of initiation of the DNACPR order, the name and signature of the consultant (if not initially completing the form) plus date and time of recording.
"
Tracey or her family.
Tracey's life, in particular the making of the DNACPR Notices, within this judgment I have set out the evidence of the family and the staff, medical and nursing, responsible for Mrs Tracey's care during this period and made findings of fact.
Evidence
Tracey had been married for 36 years. Mrs Tracey had two daughters from a previous relationship and two daughters with David Tracey, all four were brought up together. For the last twenty years of her life, Mrs Tracey had worked as a care home manager in a home for the elderly. On a date within the two weeks prior to 19 February 2011, Mrs Tracey and her husband had been told by an oncologist that she had developed lung cancer which was terminal, she had some 9 months to live. The oncologist told Mrs Tracey that chemotherapy was available, she could participate in a clinical trial relating to drugs aimed at preventing the reoccurrence of cancer. Mrs Tracey accepted this offer of treatment, she wanted to fight for her life and was not naοve as to what lay ahead by reason of her work.
Tracey was involved in a serious road accident. Later that day, she was transferred to Addenbrooke's Hospital, admitted to Ward A4, the following day she was transferred to the Neuro Critical Care Unit (NCCU).
Tracey's neurosurgical care. The neurosurgical unit at Addenbrooke's is a regional unit and a tertiary referral centre. It is one of the busiest in the country carrying out 3,000 operations per annum. The nature of the work, covering as it does a wide range of pathology, attracts a high rate of mortality and morbidity. Mr Kirkpatrick's own field is within the area of neurotrauma and neurovascular work, he sees some 400 patients a year with a mortality rate of between 10 to 20%. The reputation of the unit is for aggressive treatment. Clinicians working in it have published widely on the merits of the aggressive approach to patients which has led to an increase in the number of referral of clinically poor grade patients. Within the unit there has built up a culture of giving patients a chance they might not otherwise have, this encompasses a multi-disciplinary approach. Palliative care is provided to assist patients in their dying moments, in the majority of cases this relates to relatively acute injury.
Tracey was regularly visited by members of her family. As the claimant is self employed, he would generally visit his wife in the evening, arriving at about 5.00pm. Mrs Tracey's daughters, Alison Noeland (Alison) and Kate Masters (Kate), spent lengthy periods at the hospital and were the family members who were primarily responsible for interaction with the medical and nursing staff. Claire Tracey (Claire), the youngest daughter, was a frequent visitor to her mother's bedside. Helen Tracey was unable to visit with the same frequency but was kept informed of events by her sisters.
Tracey was engaged with issues of care during her stay in hospital, she would ask what was going on, being quite medically minded from her work she wanted to know about the drugs, the equipment and what the nurses were doing. Claire told the nurses that they must tell her mother what they were doing as she wanted to be informed. During her hospital stay, Mrs Tracey communicated with the staff by writing on a pad of paper or by whispering. Some of her notebook entries were produced by Alison, the majority of those produced were written between 5 March 2011 and 7 March 2011.
20 February 2011 to 25 February 2011
Tracey's presentation was clear cut in that she had sustained a high cervical neck fracture and required spinal/neurosurgical input, it soon became apparent that Mrs Tracey's pathology was more complicated. She was suffering from severe chronic respiratory problems which caused her to struggle with breathing, as a result Mrs Tracey was admitted to the NCCU and placed on a ventilator. Investigation revealed that effusions on her lungs were malignant and that she was in the advanced stages of terminal cancer. Damage caused to Mrs Tracey's lungs by smoking and her advanced cancer appeared to be the predominant cause of her breathing difficulties but they were exacerbated by pneumonia which had developed consequential to the road traffic accident.
Tracey's treatment involving the intensivists/anaesthetists, neurosurgeons, oncologists, the respiratory team and latterly the palliative care team. Daily discussions took place between the radiologists, NCCU and neurosurgeons regarding her management. As Mrs Tracey's respiratory problems were the aspect of her condition causing the greatest concern, the intensivists took the lead in Mrs Tracey's treatment. Her respiratory problems, advanced cancer and the fact that she was not responding to treatment for her chest infection were having a significant impact upon her clinical condition. On 23 and 25 February 2011 attempts were made to wean Mrs Tracey from the ventilator. Both attempts at extubation were unsuccessful, reintubation was required as Mrs Tracey struggled to breathe unassisted.
26 February 2011
Tracey was reviewed by Dr Lavinio, Consultant Anaesthetist and Consultant in Intensive Care Medicine. He noted that she was short of breath, anxious with sub-optimal pain control. Dr Lavinio's concern was that by reason of the two failed attempts at extubation, successfully weaning Mrs Tracey from the ventilator might not be possible. Her condition was deteriorating despite maximal medical treatment. Dr Lavinio believed that Mrs Tracey would derive little benefit from continued ventilation. The reversible causes of her respiratory failure had been dealt with. The clinicians had limited therapeutic options available to treat the underlying advanced lung cancer (expected to cause recurrent chest infections) and the recent spinal injury (associated with limited mobility).
Tracey intubated, order an ultrasound scan of her chest and possibly drain the effusion in order to assist extubation. Mrs Tracey's poor prognosis meant that the clinicians would be required to consider and plan for the possibility of deterioration, respiratory or cardiac arrest. In his witness statement, Dr Lavinio put it thus:
"Alongside considering initiating a DNACPR Notice I thought it would be appropriate to explore the option of setting a ceiling of treatment and to discuss the opportunity of issuing a "Do not re-intubate" Order in the event of a further failed extubation attempt. I requested further input from the oncology team to fully assess Mrs
Tracey's daughter confirmed her understanding that it was her mother's wish to receive full active treatment, agreed that her mother's comfort was the main priority and that withdrawal of treatment ie withdrawal from the ventilator, might be in Mrs Tracey's best interests if she failed to improve in the following days. Dr Lavinio raised these issues because he felt it would not have been in Mrs Tracey's best interests to be reintubated in the event of a further unsuccessful extubation attempt. Dr Lavinio's note in the medical records includes the following:
"After discussion with daughter I understand Janet's wish would be to receive full active treatment. However she agreed that the main priority is comfort andaggagrees that withdrawal of treatment might be in the patient's best interests.
PLAN Intubate and ventilate
- US chest +/- drain effusion
(this will not change prognosis but will make extubation easier)
- oncology input
- discussion with neurosurgical/NCCU/oncology team re one-way extubation."
27 February 2011
Tracey and advise on the prognosis and outcome of her cancer. The review took place on this day, Mrs Tracey was immobile and being ventilated. It was the opinion of Dr Ford that Mrs Tracey would never be fit enough to receive chemotherapy, the best case scenario was a life expectancy of a few months but Mrs Tracey's life expectancy was worse by reason of her chest infection/pneumonia, which was not responding to the treatment, and the fact that she was immobile by reason of her cervical fracture. Prior to and following the consultation, Dr Ford had discussions with Dr Lavinio. He recalled that Dr Lavinio being present for part of his discussion with Mrs Tracey.
Tracey had difficulty communicating with himself and Dr Lavinio due to her severe respiratory problems. His impression was that she felt she would have a good prognosis with chemotherapy. Dr Ford advised Mrs Tracey that she would never be well enough to receive it. He also advised that if she was successfully weaned from the ventilator, reintubation would be inappropriate in the event of recurrence of her respiratory problems unless there was an acutely reversibly pathology. Dr Lavinio gave similar advice. Dr Ford recalled that when discussing the issue of reintubation with Mrs Tracey, she used a pen and paper to indicate that she wished to be kept involved in any such discussions. Dr Ford's entry in the medical records fully reflects his assessment, advice and Mrs Tracey's "clear wish" to be involved in discussions.
Tracey but he thought he did not have such a discussion. Although Dr Lavinio and he discussed the fact that resuscitation was not appropriate in Mrs Tracey's case, the main focus of their discussions was her breathing difficulties and the appropriateness of reintubation. Both clinicians were of the view that it was inappropriate for Mrs Tracey to remain on full time ventilation, at some stage it would be necessary to withdraw ventilatory support.
"Consideration of the issue of resuscitation often follows discussions regarding reintubation. This is because if a decision is made not to reintubate a patient, the next logical step is to plan for what will happen if the patient suffers a respiratory arrest after they have been weaned from the ventilator. It is therefore common to consider the appropriateness of putting in place a DNACPR Notice if there is a possibility that the attempt to extubate a patient will fail. On those occasions where a patient is successfully resuscitated following a cardiac arrest or respiratory arrest they are normally ventilated immediately afterwards. If a decision has been made not to reintubate a patient, then it is also sensible to consider the appropriateness of the DNACPR Notice given resuscitation often leads to ventilation."
Tracey had a very poor prognosis and any attempts at resuscitation would be of no clinical benefit to her.
Tracey wrote a note stating "please do not exclude me" and "i will do my damdest".
"Reversible causes of respiratory failure
have been dealt with. I feel
that no further "optimisation" is possible.
PLAN: Extubate
Analgesia
Chest drain +/- pleurodesis and
Continue antibiotics
I believe that NIV could
be appropriate with light sedation
if Janet tolerates it.
Do not re-intubate
DNR
Daughter in picture."
Added to the note are the words:
"Alison (Kate)"
Tracey if extubation was unsuccessful, they discussed the issue of resuscitation. Dr Lavinio was also of the view that it was in Mrs Tracey's best interests not to be given CPR if she stopped breathing." Dr Lavinio described CPR thus:
"CPR is an invasive procedure which involves significant force being applied to a patient's body when chest compressions are performed. This commonly results in rib fractures. In patients with unstable spinal fractures there is a risk that the force applied in such a life or death situation can result in neurological damage (paraplegia or tetraplegia) despite the best attempts of protecting the spine (in line stabilisation). A tube will be placed down the patient's throat to force breathing. If the decision is taken to try and
Tracey. He explained to her that a DNACPR Notice meant that they would continue to provide her with full active treatment that was clinically appropriate and would be of benefit to her. At that time Mrs Tracey was able to communicate by nodding and shaking her head and by writing notes. Mrs Tracey understood what was being proposed and nodded to indicate agreement with it. Dr Lavinio made no entry in the medical records of any such conversation with Mrs Tracey.
Tracey had lost weight, she was frail, tired and was approaching the end of her life. Her oxygen level was deteriorating, the first organ to be affected would be the brain, followed by the heart. Dr Lavinio was attempting to protect Mrs Tracey from "an undignified act of violence". The clinicians had given her time to fight, he was impressed by how willing she had been to do so. The procedures had caused a lot of pain and shortness of breath. The clinicians wanted to reassure the family that they were not giving up on Mrs Tracey but they had limited scope in prolonging life. The burden of the decision was upon the doctors, not the family.
"As I have discussed the DNACPR with Mrs
The DNACPR Notice is reproduced at Appendix 1. The name and the signature of the nurse has been redacted from Appendices 1 and 2 as neither individual gave evidence nor played any part in these proceedings.
Tracey. On the reverse of the form is a requirement to identify those with whom the decision has been discussed, Dr Lavinio accepted that it was poor record keeping on his part. Had such a discussion taken place, it would also have been important to record it in the notes. In his oral evidence, Dr Lavinio said that there were a number of conversations, Mrs Tracey understood that she would not be reintubated or resuscitated. It is what the family referred to as letting Mrs Tracey "slip away". Dr Lavinio was challenged as to that, it being put to him that such would occur only in the event that Mrs Tracey was extubated. He said that if a clinician began to remove the tube and Mrs Tracey struggled, there would not be reintubation, she would be allowed to slip away. It would have been medically impossible to sustain life without mechanical re-entry. In allowing the patient to slip away, there would be no resuscitation, it would be protection of the patient from an undignified procedure.
Tracey, in respect of her stated wish for full active treatment as he said she received full active treatment to the end. He did accept that such a discussion and her agreement to DNACPR represented an important qualification of her earlier wish.
resuscitate if the heart stopped. Dr Lavinio said he did remember discussing the form in detail, the discussion was about the level of care for Mrs Tracey and Alison understood that all were doing their best for her mother.
Tracey was successfully weaned from the ventilator. The family spent Sunday afternoon with her reading the newspapers and ensuring that she had as nice a time as she could. To her family, Mrs Tracey made no mention of any conversation with Dr Lavinio regarding resuscitation nor did she exhibit any knowledge of the DNACPR Notice.
Tracey and her sisters, Alison was chatting to a nurse about her mother. The nurse said something like "don't worry about the DNR it doesn't affect other treatment." Alison said it meant nothing to her, she was relieved her mother had made it through the day, she did not think much about it at the time.
28 February 2011
Tracey was able to sit up in bed, eat and drink. Alison felt sufficiently comfortable about her mother's condition to return to Norway. By Monday evening, Alison said that her mother was "doing really well", she was chatty, happy, she just "needed to get back on her feet" even though Alison knew she was poorly.
Cancellation of first DNACPR Notice
Tracey's daughters. Alison said that was not true, she would never have agreed to the form "It was not my place to agree, it was mum's decision and it was not mum's wishes to be DNR." Her mother could not have been aware of the Notice because she would not have been so happy or "perky", she would have asked the family to get rid of it.
Tracey's clinical condition although her prognosis remained poor. She had a chest drain in situ, her breathing was easier and Mr Kirkpatrick's concern was that if she had improved and the family were uncomfortable with the Notice, then it should be removed. He authorised its removal pending discussions with the family. He felt strongly that a meeting should take place in which all the family were included, in particular, Mr Tracey. A note of a ward round by Mr Kirkpatrick on 4 March 2011 includes the entry: "PJK will meet the family c 16.00 today." Mr Kirkpatrick accepted that had the family not objected, the Notice would have remained in place.
"Her daughter Alison Noland (sic) has contacted Mikki, our CNP and expressed her objection against DNACPR.
I D/W patient & she is also against DNACPR & wants to be resuscitated in case of cardio-respiratory arrest.
I D/W P J K ? for resuscitation, DNACPR form to be removed."
"Cancelled
Ali Alavi
because of patient wish and her daughter wish."
"To Cancel a DNACPR
SpR (ST3 or above) or consultant
1. Draw a diagonal line across the proforma and write 'Cancelled' along it. Print your name then sign, date and time the cancellation.
2. Ensure a corresponding entry is made in the notes informing of the cancellation and the rationale for this decision "
Dr Alavi was of the required status, he did not date or time the cancellation.
2 March 2011
Tracey was transferred to Ward A5, the Palliative Care Team became involved in her care. Dr Summers, a Specialist Registrar in Palliative Care, saw her and noted at about 11.45:
"Mrs
Suggested Management
1) Palliative Care/Oncology/Primary team to explore issues around cancer care/chemo/resuscitation."
" I note Mrs
I note Mrs
I have spoken to Dr Ali who is happy to attend with myself to discuss DNACPR with Mr
Ward to contact 4404 when Mrs
I will attend and call Dr Ali. We can then discuss and give full information for Mr & Mrs
"We have asked her, her wishes and stated she may or may not survive CPR. Her lungs are weak. She feels adamant that this should be discussed with her husband
Until then she remains full resus.
MRS
She does understand that she is not fit for chemotherapy at present
Discuss all with Mr Kirkpatrick.
We will continue to support."
Tracey visited his wife. She was in tears and distressed and said that a doctor had told her about the DNR decision. Mr Tracey told his wife that neither he nor the girls would do that to her. Mrs Tracey said she was being "badgered" about making a resuscitation decision by everybody and it was becoming a nuisance. Mr Tracey said that his wife did not want to have the conversations on her own and did not want to be repeatedly told she was going to die in hospital. She just wanted to get out of the hospital and that is what "we focused on." On 2 March, Kate Masters recalled her father telephoning her, he spoke of the conversation with her mother. Mrs Tracey said that she had said "No" to the clinicians, she told them that she just wanted to get better and out of hospital, she wanted someone to speak to herself and her husband together about the DNACPR form. Mrs Tracey had been told that the family had agreed to the previous form. The family were distressed at this as they thought their mother would have thought that they were agreeing to let her die.
3 March 2011
Tracey was upset as she thought the family had agreed to it. Kate asked her mother if she would consent to a complaint being made about she was being treated. As a result Kate raised their concerns with Patient Advice and Liaison Service, a meeting took place between Kate, Mr Tracey and Helen Reeve, a Senior Clinical Nurse to discuss the family's concerns. A note of the meeting includes the following:
" They have concerns regarding the DNACPR & the way a doctor spoke to her yesterday asking her how long she thought she had to live. They are also concerned that her chest drain was not inserted sooner.
I have said that I will ask NCCU to speak to them regarding the issues in NCCU "
Tracey's clinical care commencing with her admission to hospital. Kate told Helen Reeve that no one should speak to Mrs Tracey without one of the family being present.
4 March 2011
Tracey was having a "rough night", it details shortness of breath, anxiety, pain, her frail cachetic condition and continues:
" I THINK WE SHOULD RE-ADDRESS THE PLAN FOR MRS
MAIN ISSUES:
- PERSISTENT ANXIETY
- SOB
- UNREALISTIC FAMILY EXPECTATIONS "
Tracey was reviewed by Dr Simons, known to the family as Dr Natasha, a Neurosurgical and Neuro Critical Care Senior House Officer. Dr Simons had been involved in the initial care of Mrs Tracey and appears to have been the doctor closest to the Tracey family.
Tracey for a number of days and was concerned at the deterioration. She made a note of a consultation with Mrs Tracey and her daughter which included the following:
"Asked to see as daughter anxious
Reports increased SOB
Imp very anxious patient and daughter? Bi basal effusions
Unrealistic expectations from patient & daughter about prognosis
Plan (abg if deteriorating please as currently for all treatment? Is this appropriate.)"
The note reflected Dr Simons' concern as to the appropriateness of escalating Mrs Tracey's care which would not alter her clinical outcome, she felt that Mrs Tracey's comfort should be the priority.
Tracey as "a very anxious patient", this made it difficult to engage with her in discussions relating to her care. Specifically, Dr Simons states:
"Mrs
12. On the occasions when I did ask Mrs
13. One of the aspects relating to Mrs
14. On the occasions when Mrs
Meeting, Mr Kirkpatrick and some family members
Tracey with end of life care. It was a difficult challenge for the staff, in 20 years Mr Kirkpatrick had never come across anything like the situation. He described the family as being "beyond denial". The difficulty was trying to get one member of the family to take charge. The staff felt that they were not getting very far in conversations with the daughters.
Tracey was not. It was Mr Kirkpatrick's understanding that Mr Tracey was unable to attend because of his own ill health. Had Mr Kirkpatrick had known it was work which prevented Mr Tracey attending, he said he would have been more forceful in obtaining Mr Tracey's attendance to the extent of picking up the phone and speaking to him.
Tracey had been very unwell for many months, he was surprised that it was only three weeks before that she had seen an oncologist.
Tracey was in the last phases of her life. The malignant disease was fast developing, her liver and bones were involved in the cancerous process, a CT of her chest had demonstrated a malignant collection of fluid. Mrs Tracey was distressed and in a lot of pain as a result of boney deposits. Ideally Mr Kirkpatrick would prefer Mrs Tracey to be at home in the final stage, Kate felt that this wasn't possible, the conversation moved towards a transfer to a hospice. In Mr Kirkpatrick's opinion there was no confusion as to what was being discussed, the information he was giving to Kate was well received, she asked pertinent questions.
Tracey should spend her last days. Kate told Mr Kirkpatrick that it was not possible for her mother to go home, she would have to speak to the family or her mother could go to a hospice in the short term. Kate wanted to get her mother out of hospital. Mr Kirkpatrick gave no sense of urgency.
"He asked Claire and I several times to agree to a DNACPR form and we said no. Mum had been asked about the DNACPR so I did not understand why he was asking us; she had already said no. It was not our decision to make, it was mum's and she had been clear. I would never have agreed to something she did not want and did not give this impression in the meeting I may have agreed that the description being given did not sound nice for mum but I never agreed to a DNACPR being imposed without mum agreeing I also certainly did not agree or suggest that I would discuss DNACPR with the rest of the family. There was nothing to discuss with them. Mum had said no."
5 March 2011
Second DNACPR Notice
Tracey. Dr Simons reviewed her and noted that she was continuing to deteriorate and had a very poor prognosis. She felt it was important to make Mrs Tracey as comfortable as possible and to consider how best to manage her symptoms. As part of the future management, it was necessary to consider the appropriateness of a DNACPR Notice given that Mrs Tracey did not have long to live. Dr Simons asked the family to attend the hospital that day as it was important to discuss with them Mrs Tracey's prognosis and ensure that adequate plans were in place to manage her care.
Tracey was not responding to treatment for her chest infection and was continuing to deteriorate. Dr Simons advised Kate that she felt Mrs Tracey would benefit from prioritising comfort and withdrawing drugs which would not result in clinical improvement. She discussed placing a DNACPR in Mrs Tracey's notes, stating that CPR would be futile and cause unnecessary suffering.
Tracey arrived around midday. Dr Simons' evidence was that she had similar conversations with each of the family members. During the discussions she confirmed that Mrs Tracey's prognosis was days to short weeks and spent a considerable amount of time discussing the proposed DNACPR Notice. It is undisputed that Dr Simons provided family members with an explanation as to what CPR would entail. Dr Simons stated that she explained the DNACPR Notice to the family, she was confident that the family were aware of what the Notice was as they asked a lot of questions about it and indicated that they felt it would be cruel to put Mrs Tracey through something so undignified. She believed that she had provided the family with a careful explanation because she was conscious that they had raised concerns regarding the first Notice and wanted to make it clear to them exactly what the Notice was and the consequence of it being placed in Mrs Tracey's notes. All of the family members to whom Dr Simons spoke in relation to the Notice were in agreement with it being completed and being placed in Mrs Tracey's notes. Had Mrs Tracey or her family objected to the DNACPR, Dr Simons would have sought advice from senior colleagues and left it to them to make the decision regarding DNACPR and to fill in the Notice.
Tracey had a very limited life expectancy. Dr Simons explained that she felt it was in Mrs Tracey's best interests to discontinue treatment and begin palliative care. There was discussion as to a suitable venue, Mrs Tracey had indicated she would like to go home but Mr Tracey and Alison felt this would not be possible as the bungalow was too small and Mr Tracey would not be able to cope.
Tracey was suitable for the Integrated Care Pathway for the dying patient, "ICP". Dr Simons said that she was aware from previous discussions with the family that their expectations were that Mrs Tracey would survive considerably longer than the prognosis given by clinicians and therefore she approached the issue of the ICP tactfully. She explained that it was about making Mrs Tracey comfortable in the final days of her life and gave an explanation of the drugs that would be given. Dr Simons says that she was certain that Mrs Tracey's family were aware that she was on the ICP as she recalled discussing the title of the document with the family. As the document has the words "dying" in it, the family wanted to ensure that Mrs Tracey would not see it. Dr Simons checked with the nursing staff as to whether Mrs Tracey looked at the notes at the foot of her bed and was advised that she did not. Dr Simons arranged for the ICP notes to be kept at the end of the bed. The family were initially reluctant for Mrs Tracey to be put on the ICP as they felt she had a much better prognosis than in fact she had, as a result, Dr Simons spent a considerable amount of time discussing the issue. Eventually they agreed on the basis that the purpose of the ICP was to ease Mrs Tracey's pain and distress.
Tracey going home, Alison thought there was too much equipment for the home. If her mother went to a hospice, Alison believed she could "get back on her feet" and live out her days.
Tracey remembered "bits and pieces" of the conversation with Dr Natasha, it was quite long. Claire found Dr Natasha to be very sympathetic, she had been there all the way through and knew the family's background. She remembered Dr Natasha raising resuscitation and asking if they needed to speak to their mother about DNACPR, Claire said she could not go to her mother, it would be too emotional. Alison said that CPR was not something they could agree to. Alison and Claire recalled Dr Natasha telling them that in the event that the family did not agree with such a form, she would go back to the medical team. Alison's last words to Dr Natasha were "if that's what you have to do, tell them you've discussed it with us and we cannot agree."
Tracey recalled arriving at the hospital between 12:00 and 12:30pm and speaking to Dr Natasha who said that they needed to make a resuscitation decision. She said that Janet's ribs could break and that she would be electrocuted and asked Mr Tracey if that is what he wanted to happen to his wife. He said "of course not" but "the decision was Janet's and Janet's alone." Mr Tracey said he did not agree to a DNACPR nor did Dr Natasha discuss ICP with him.
Tracey wanted. In speaking to the family, she emphasised that the doctors had to make a decision, she was involving them in it. Underlying Dr Simons' position was her knowledge that if Mrs Tracey were to be resuscitated, she would have to go to NCCU for reintubation, NCCU were unwilling to reintubate. She had no memory of telling the family that if they did not agree to the policy, it would have to go back to the medical team.
Tracey had agreed to a DNACPR Notice and to the ICP, she consulted a number of colleagues to confirm whether they were in agreement with her proposed plan for Mrs Tracey's management. The decision as to DNACPR was not one she could make herself. In NCCU she spoke with Dr Guptha, a Consultant Anaesthetist, who was in agreement with the plan for palliative care and the DNACPR Notice. Dr Simons also spoke to the Palliative Care Team and the Neurosurgeons, all of whom were in agreement. Dr Simons filled in the first three boxes on the Notice, namely "Reasons for initiation of DNACPR Order", discussion of the decision "Plan for Review." The Notice is reproduced at Appendix 2.
Tracey on 5 March, her condition had significantly deteriorated. It was not as it had been on 4 March, she was certain that Mrs Tracey was coming towards the end of her life. Dr Simons took it upon herself to raise the issue of resuscitation with the family as she felt it was very important. It was her impression as a result of speaking with Mrs Tracey, the family and the nursing staff that there was still a sense of denial regarding Mrs Tracey's prognosis and she thought it unfair for the family to be unaware of how long Mrs Tracey had left and what was in her best interests for this time.
Tracey and one was required. When speaking to the family she had the ICP in her hands, she ticked the relevant boxes when they were speaking and following her conversations with the family went back and filled in other parts of the form signing different pages. When she left the hospital Dr Simons believed that she had done her best for a patient she cared for and her family although it had been difficult.
Tracey's medical records. The note is wrongly dated 05/04/2011. Dr Simons said that 09.10 represented the start of the note which would have been completed over a period of time. I have reproduced the entirety of the note:
"05/04/2011 G.NATASHA (SHO Neurosurgery)
09.10
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1) Diagnosed with Metastatic Lung Ca 10/02
- sqaumous cell
- T4 NO3 MIB
- supraclavicular, mediastinal, hilar & coeliac lymphadenopathy.
- performance status 4, not appropriate for chemotherapy
2) RTA causing C2# 19/02 caused by 3rd party
- family would like the coroner to be notified of this when the time comes.
3) Pnuemonia chest drained 03/03
Fluid drained was parapnuemonic
- CXR & USS today confirms there is now
NO effusion
- Received 5/7 antibiotics on NCCU for pneumonia.
Then 9/7 antibiotics on the ward with NO clinical improvement.
IMP
1) Symptoms currently not being optimally treated and we should stop treatment of the pneumonia and begin palliative care.2) Prognosis days to short weeks discussed this with Mrs
3) Mrs
4) I feel as does Mr
Plan
1) Discussed case with Prof Gupta NCCU consultant who agrees with plan for palliative care.2) Syringe driver started with advice from Palliative care consultant Dr Lorraine Peterson. Mrs & Mr
3) PRNs SC prescribed.
4) Unnecessary medications stopped.
5) ICP paperwork doctors bits completed
- discussed with Mr- not for observations
- not for blood tests
- can eat & drink what she likes even if she aspirates
- Not for NG/TPN feedings
- Not for IV/SC fluids
6) Side room offered to Mrs
7) Mr
8) Asked nurses to initiate syringe driver, chase up Registrar signature of DNAR, complete nursing part of ICP & immediate provision of continuing care form.
9) Have completed Doctors part of Immediate Provision of Continuing care form.
10) Have left message on Mr Kirkpatrick's phone about all of the above.
11) Katrina F2 on long day aware of all the above & will handover to night doctors.
12) If Mrs
G. NATASHA
SHO
15 4654"
Tracey. As to her entry on the Notice "Patient does not want to discuss resuscitation" Dr Simons said that she had told Mrs Tracey she was concerned about her and it was important that she understood but Mrs Tracey declined to know more of the details. She was anxious, in a lot of pain and did not want to discuss these matters. Dr Simons asked Mrs Tracey if she would like to talk about her current condition and what Dr Simons felt should be done and Mrs Tracey said "No". Dr Simons did not pursue the matter with Mrs Tracey as it was causing her distress and was overly burdensome to talk to her about it.
Tracey's notes following discussion with the family. The member of staff wanted Mr Koh to complete the form. As Mr Koh had not been involved in Mrs Tracey's care, he said that before any form could be signed, he had to go through Mrs Tracey's medical records. He did not speak to her but saw her from outside the cubicle. In reading the notes Mr Koh appreciated that three days earlier Mrs Tracey had expressed a wish to be resuscitated. Having noted that entry, he read subsequent entries and observed that Mrs Tracey's condition was worsening, her oxygen saturation was low. Mr Koh noted that Mrs Tracey was unsuitable for chemotherapy and had a poor prognosis in view of her terminal lung cancer, serious unresolving infection and cervical fracture. By reason of the deterioration Mr Koh believed that he had to discuss Mrs Tracey with Mr Kirkpatrick before making a decision.
Tracey's notes given her very poor prognosis and the extremely low chance of CPR being successful. When he discussed the matter with Mr Kirkpatrick, he made reference to the details of the case and the note made by Dr Simons. Mr Kirkpatrick felt that the Notice was appropriate and approved it. Mr Kirkpatrick remembered the conversation with Dr Koh, he was expecting it as a result of his conversation with Kate Masters. It was Mr Kirkpatrick's understanding that the family now agreed to the DNR Notice being reactivated, the decision was appropriate.
Tracey died before this could take place.
6 March 2011
Tracey following her transfer to Ward A5. Nursing staff had attempted to speak with Mrs Tracey about her prognosis on a number of occasions but she was adamant that she did not want to discuss it. Mr Williams' thought that Mrs Tracey was not coming to terms with the fact that she had a very short time left to live nor did she want to think about it. Her expectation of the treatment which she was receiving was that it should resolve her symptoms which he thought was partly due to the fact that nursing staff could not explain to Mrs Tracey that her symptoms were not resolving because of her underlying medical problems which were worsening. It was difficult to have meaningful discussions with Mrs Tracey, her family were reluctant for any staff to speak to her about her prognosis as they felt she would not be able to cope with the information.
Tracey and members of her family fairly well but had not met or communicated with Alison Noeland prior to 6 March 2011. In the early hours of that day, Mr Williams was the Acting Nurse in Charge, Alison was staying with her mother. Mr Williams said that Alison was awake and alert but distressed, he suggested to one of his colleagues that he should speak to her. Alison was in the day room, he went in and asked her how she was. Mr Williams initiated a discussion by asking Alison what she knew about her mother's condition, she was aware that her mother did not have long to live. Alison confirmed that Mrs Tracey was not aware of how advanced her condition was and was not aware of the DNACPR Notice which had been put in place on 5 March 2011. Mr Williams explained to Alison that whilst the staff were content not to force the issue of Mrs Tracey's prognosis with her or the issue of the DNACPR Notice, they would be unable to withhold this information from her in the event that she changed her mind about wanting to know her prognosis and ask direct questions about it. Alison indicated Mrs Tracey would not be able to cope with hearing about her prognosis or the DNACPR Notice and that the family wanted to protect her from this information due to concerns about her fragile and anxious state. Mr Williams had not been involved in putting the Notice in place, however, when he spoke to Alison several hours after it had been done, she was aware of it and it was a part of their discussion. There was further conversation between them as to the family's presence on the ward and whether that was benefitting Mrs Tracey and the family.
Tracey was not willing to speak about such matters, that created difficulties. In cross-examination, Mr Havers QC criticised Mr Williams for having such a conversation in the early hours of the morning, Mr Williams did not accept the criticism and said that at no time was Alison reluctant to have the conversation with him. It was suggested to him that she was in a "frantic state" but he denied that.
"Had an extensive conversation with Janet's daughter Alison who is in attendance to clarify what the family's views/wishes & experience were so far and what their hopes/expectations are, as well as offer support & recommendations about Janet's care especially overnight. Alison confirmed that Janet is unaware of how advanced her condition is and of the DNACPR mandate, as ?? in denial & as a measure of protection by the family for her "fatigue/anxious state". I explained that this is acceptable at present, but that if Janet ask direct questions, we would be unable to withhold information or be dishonest (Alison understood) "
7 March 2011
Tracey's condition continued to deteriorate, she died at 10.38 on 7 March 2011. Alison and Claire were with their mother at this time. No CPR was given, none was sought.
The DNACPR Notice the evidence of Mr Peter Kirkpatrick
Tracey the clinicians were grappling with a clear cut conflict: the patient was in a miserable situation; she was in distress by reason of her breathing; dying from a terminal disease. The family could not understand the prognosis and wanted to protect Mrs Tracey. The difficulty for the clinicians was that the family were not allowing them to have a relevant discussion with Mrs Tracey but as between themselves, they would not make a decision. Mr Kirkpatrick said that normally a member of the family, it could be the son or daughter, would put his or her head above the parapet but within this family, no one was prepared to do that nor did they allow access to Mrs Tracey for such a discussion.
Tracey was dying; at some point there would be cessation of breathing; her heart would stop. What was contemplated was resuscitating a wife and mother who was in fact dying. As a clinician, Mr Kirkpatrick said that he found that unthinkable. He was content with the process of Mrs Tracey's death as it allowed her dignity. Had Mrs Tracey arrested in front of him, Mr Kirkpatrick would not have called an arrest team.
Conclusion
Tracey was from her earliest days in Addenbrooke's Hospital, the subject of multi-disciplinary assessment and treatment. A full assessment of her condition included the intervention of the oncologists. Her initial treatment was aggressive, in keeping with the culture of the NCCU. It was only when such an approach failed to achieve any significant improvement that the clinicians observing and assessing her deterioration moved finally to consider the issue of resuscitation and the appropriateness of a DNACPR. Amongst the clinicians responsible for the care of Mrs Tracey during the last period of her life, there was unanimity: a DNACPR Order was appropriate in order to protect her from an undignified and cruel procedure which was of no clinical benefit.
Tracey and her family were in denial as to her prognosis. The fact is clearly documented in the medical records. I find it is also reflected in the evidence of the family, in particular their stated belief that having been discharged from hospital, Mrs Tracey could "get back on her feet".
First DNACPR Notice
Tracey was not for reintubation, a view shared by Dr Ford. As a matter of clinical fact, if such a patient suffers an arrest having been weaned from the ventilator, the issue of resuscitation would arise. Thus, the need to consider the appropriateness of a DNACPR Notice represents a logical, clinical step following a decision not to reintubate (Dr Ford paragraph 31 above).
resuscitate Mrs Tracey. I do not believe that at the time of this conversation Alison fully appreciated the clinical implication of allowing her mother to "slip away". Given the circumstances in which she was given this information, her position can be understood.
i) The decision not to reintubate and thereafter not toii) He viewed the resuscitation decision, and with it the imposition of a DNACPR Notice, as a logical clinical step to be considered and resolved following a decision not to reintubate Mrs
iii) Dr Lavinio believed that he had conveyed the resuscitation issue including the use of the DNACPR Notice to Alison who understood and agreed with it.
i) The knowledge she had obtained from her research of the full nature and effect of a DNACPR Notice; andii) The improvement in her mother's condition.
Tracey, it is of note that:
i) Mrsii) Dr Lavinio's note in the medical records includes no reference to conversation with Mrs
iii) The NCCU care plan for 27/28 February 2011 reads "DNACPR patient not aware";
iv) Dr Alavi's note at 10:30 on 2 March 2011 records a discussion with the patient and that she "is against DNACPR and wants to be resuscitated."
v) Dr Summers' note at 11:45 on 2 March 2011 records "Mrs
Tracey. The tenor of entries prior to 4 March 2011 indicate that Mrs Tracey either did not agree or requested that any such discussion take place in the presence of her husband or daughters. If Dr Lavinio had such a conversation, it would have been of importance to note the same both on the DNACPR Notice and in the medical records. I am unable to accept that the absence of such a note is a result of no more than poor record keeping.
Tracey's view on the issue of resuscitation around the time of the first Notice, I am unable to accept Dr Lavinio's evidence that he spoke to Mrs Tracey about resuscitation prior to the implementation of the first DNACPR Notice.
Tracey's care on 27 February 2011. The Notice correctly records his (and Dr Ford's) view that "futility" was the reason for the initiation of the DNACPR Order. He correctly identifies two discussions: with a "daughter" (Alison) and Dr Ford. There was no requirement for a second clinician's signature on this Notice given that Dr Lavinio is a Consultant. Dr Lavinio dated but did not time the Notice.
Second DNACPR Notice
Tracey was one of unrelenting deterioration. The medical record at paragraph 60 above indicates that Mrs Tracey was approaching the terminal phase of her life. By this time the clinical deterioration of Mrs Tracey was such that treating clinicians had moved to consider how best to provide care for her in the terminal phase of her illness. Given the evidence, in particular of Dr Simons, I accept that her prognosis was not a matter which Mrs Tracey wished to discuss. Clinicians and nurses were concerned to discuss her care with Mrs Tracey and/or her family. The family were understandably protective of Mrs Tracey but that protectiveness, however well intentioned, created real difficulties for those responsible for her care in that it prevented discussion and had the potential to delay decision making which was becoming critical. Even on their own evidence, Alison and Claire were unwilling to discuss resuscitation with their mother on 5 March 2011.
Tracey, the response of her family and the difficulties which the same created for the treating clinicians was insightful, considered and compelling. Against such a background, his account of the meeting on 4 March 2011 rings true. The clinical account and advice which Mr Kirkpatrick gave to the Kate and Claire is at one with the clinical picture of Mrs Tracey as documented in the medical records and consistent with the belief of treating clinicians that DNACPR was not in the best interests of Mrs Tracey. Kate Masters spoke of his sincerity and his concern that the family should spend as much time as possible with Mrs Tracey who did not have long to live. As to Mr Kirkpatrick's evidence of the telephone conversation with Mr Koh the next day, I accept that Mr Kirkpatrick believed that, finally and as a result of the meeting, someone in the family had taken charge. It was a belief that had about it a reasonableness which underscores my assessment of the credibility of his evidence as to the meeting with Kate and Claire.
Tracey, a patient she "cared for". I have no difficulty understanding why this doctor was liked and trusted by the family. A reflection of the care which she brought to her work is demonstrated by the time which she spent with individual members of the Tracey family on 5 March 2011. She ensured that she spoke to all of them, she worked beyond her shift and completed detailed paperwork. Her concern was not only for Mrs Tracey, it was for the family who loved her. Dr Simons was aware that the family were in denial as to the true clinical picture, these were her efforts to put in place appropriate care for Mrs Tracey's final days. I regard the claimant's criticism that it was inappropriate for a junior doctor to embark upon such a course as misplaced. Dr Simons knew the clinical picture, her patient, she knew the family. She was well placed to offer informed advice and she did. The information and advice given by Dr Simons was at one with the view of more senior clinicians within the multi-disciplinary team. Her knowledge, advice and actions were set out in her entry in the medical records. The detail of this two page note is reflective of the care which she brought to this matter. It is of note that having obtained the agreement of the family, Dr Simons further discussed the matter with senior clinicians, paragraph 88 above.
Tracey was unaware of that fact. Alison Noeland knew because that had been the advice given by Dr Simons and accepted by the family on 5 March. It was also the advice given by Mr Kirkpatrick and accepted by Kate Masters the previous day. I am satisfied that in so advising the family members, Mr Kirkpatrick and Dr Simons did so in terms that were or should have been capable of being understood. I am unable to accept the claimant's contention that what occurred on 5 March 2011 as between Dr Simons and the family was acceptance by the family that this was a purely medical decision and it was not for them to "agree" to the DNACPR. Such a submission does not begin to address the detail of Dr Simons' written record or the reality of the evidence.
Tracey on the Notice. Dr Simons correctly recorded the clinical reasons for the Notice and the position of Mrs Tracey and her daughters. Mr Koh signed the Notice having discussed it with Mr Kirkpatrick. Mr Kirkpatrick had discussed the relevant issues with the family on the previous day. The decision was ultimately that of Mr Kirkpatrick, he approved the making of the DNACPR Order. Mr Kirkpatrick was unable to sign the Notice before the death of Mrs Tracey.
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References are to paragraph numbers in the judgment.
1. Did the Deceased have at the material times the capacity (within the meaning of the Mental Capacity Act 2005) to decide:
a. to engage in discussion with her treating clinicians regarding DNACPR;
b. whether to agree or object to a DNACPR notice being placed in her records;
c. whether to give directions as to consultation with family members regarding the placing of a DNACPR notice in her records?
Yes to a, b and c.
2. What written information regarding DNACPR notices and resuscitation decisions was provided to (a) the Deceased; and (b) her family members during the Deceased's admission to Addenbrookes in February/March 2011?
None to (a) and (b)
(paragraphs 13-15)
3. What information was available to (as distinct from necessarily provided to) the claimant and her family in February/March 2011 concerning DNACPR?
This issue is addressed in subsequent questions.
THE FIRST DNACPR NOTICE
4. What, if any, discussions did the Deceased's treating clinicians have with (a) the Deceased; and (b) with members of the Deceased's family regarding DNACPR generally prior to the point at which consideration was given to the placing of the first DNACPR notice in her medical records?
(a) Deceased none (paragraphs 40, 43, 114-116).
(b) Dr Lavinio and Alison Noeland (paragraphs 34, 37, 42, 43, 45, 109-113)
5. What, if any, views did the Deceased give to the healthcare team as to her wishes regarding (1) the DNACPR; and (2) consultation with her family prior to the point at which consideration was given to the placing of the first DNACPR notice in her medical records?
None to (1) and (2).
6. What factors were taken into account when arriving at the decision to place the first DNACPR notice in the Deceased's medical records?
The futility of the procedure: Dr Ford (paragraphs 28-31), Dr Lavinio (paragraphs 37-39, 41-42).
7. Was the Deceased consulted prior to the placing of the first DNACPR notice in her records?
No.
8. If so, what was the nature and extent of that consultation?
N/A
9. If not, why not?
N/A paragraphs 114-116
10. Was the Deceased made aware that the first DNACPR notice had been placed in her records (1) at the time; (2) subsequently?
(1) No
(2) The Deceased became aware on or around 2 March 2011.
11. If not, why was the Deceased not made aware?
N/A
12. If so, how was the Deceased made aware of the first DNACPR notice, by whom and when?
Clinicians told the Deceased, paragraph 56.
13. Were any members of the Deceased's family consulted prior to the placing of the first DNACPR notice in records?
Yes Q4
14. If so, by whom? And what form did the consultation take with the relevant family member(s)?
See Q4
15. If not, why was the Deceased's family not so consulted?
N/A
16. If the Deceased had the relevant mental capacity (see above), why were such family members consulted?
See Q4
17. If consultation did take place with a family member of members did that family member agree or disagree with the decision to place the first DNACPR notice in the Deceased's medical records?
See Q4
18. Was the Deceased's family made aware that the first DNACPR notice had been placed in the Deceased's records (1) at the time; (2) subsequently?
See Q4
19. If not, why not?
N/A
20. If so, by whom and when?
N/A
21. What, if any, steps were taken to record the placing of the first DNACPR notice in the Deceased's medical records, including the patient's wishes and the factors which were taken into account?
See Q4
22. Did such steps comply with the requirements of the first defendant's policy?
The Notice made no reference to the Deceased's wishes. The Notice was not timed.
23. Was a second opinion offered to the Deceased or her family as regards the placing of the first DNACPR notice upon her medical records? If not, why not?
No, it was not required.
24. What was the basis upon which the first DNACPR notice was cancelled?
Paragraphs 49-53
25. What, if any, discussions did the Deceased's treating clinicians have with (a) the Deceased; and (b) members of the Deceased's family regarding DNACPR generally prior to the point at which consideration was given to the placing of the second DNACPR notice in her medical records?
(a) The Deceased: paragraphs 56, 62
(b) Family: paragraph 58
26. What, if any, views did the Deceased give to the healthcare team as to her wishes regarding (1) DNACPR; and (2) consultation with her family prior to the point at which consideration was given to the placing of the second DNACPR notice in her medical records?
(1) See Q25
(2) See Q25
27. What factors were taken into account when arriving at the decision to place the second DNACPR notice in the Deceased's medical records?
The factors were identified on the Second DNACPR notice. Evidence of Mr Kirkpatrick (paragraphs 63-67, 103-106, 119) and Dr Simons (paragraphs 74-80, 86, 87, 89, 90, 91, 120).
28. Was the Deceased consulted prior to the placing of the second DNACPR notice in her records?
No. By 5 March 2011 the Deceased did not wish to engage in such discussion, her family did not wish to involve her in such discussions, paragraphs 63, 82, 83, 96.
29. If so, what was the nature and extent of that consultation?
N/A
30. If not, why not?
See Q28
31. Was the Deceased made aware that the second DNACPR notice had been placed in her records (1) at the time; (2) subsequently?
No
32. If not, why was the Deceased not made aware?
See Q28
33. If so, how was the Deceased made aware of the second DNACPR notice, by whom and when?
N/A
34. Were any members of the Deceased's family consulted prior to the placing of the second DNACPR notice in her medical records?
Yes
35. If so, whom? And what form did the consultation take with the relevant family member(s)?
Dr Kirkpatrick (paragraphs 63-67, 118)
Dr Simons (paragraphs 74-80, 86, 87, 90, 119, 120)
36. If not, why was the Deceased's family not so consulted?
N/A
37. If the Deceased had the relevant mental capacity (see above), why were such family members consulted?
See Q28
38. If consultation did take place with a family member or members did that family member agree or disagree with the decision to place the second DNACPR notice in the Deceased's medical records?
The family agreed, see Q35
39. Was the Deceased's family made aware that the second DNACPR notice had been placed in the Deceased's records (1) at the time; (2) subsequently>
Yes, see Q35
40. If not, why not?
N/A
41. If so, by whom and when?
See Q35
42. What, if any, steps were taken to record the placing of the second DNACPR notice in the Deceased's medical records, including the patient's wishes and the factors having been taken into account?
See Q35
43. Did such steps comply with the requirements of the first defendant's policy?
Paragraphs 92-95. Legal argument will be required at the second stage of this matter as to whether the form was "completed" by the appropriate clinician.
44. Was a second opinion offered to the Deceased or her family as regards the placing of the second DNACPR notice upon her medical records? If not, why not?
No, it was not required.