|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Winspear v City Hospitals Sunderland NHS Foundation Trust  EWHC 3250 (QB) (13 November 2015)
Cite as:  QB 691, (2016) 149 BMLR 122,  COPLR 161,  WLR(D) 468,  EWHC 3250 (QB),  2 WLR 1089, 149 BMLR 122
[New search] [Context] [View without highlighting] [Printable RTF version] [View ICLR summary:  WLR(D) 468] [Buy ICLR report:  2 WLR 1089] [Buy ICLR report:  QB 691] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Elaine Winspear (Personally and on behalf of the estate of Carl Winspear, Deceased)
|- and -
|City Hospitals Sunderland NHS Foundation Trust
Angus McCullough QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 2 & 3 November 2015
Crown Copyright ©
The Honourable Mr Justice Blake:
Dr Swarbrick's decision
"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."
"Discussion [with] p[atien]t's mother, aunt & grandmother by Dr Farrer.
All feel that pt has got good quality of life. Goes to day centre 5 times/week. Has been unwell in the past but has always come round [therefore] they have expectations that pt will come round.
Explained by Dr Farrer that pt is not well at present.
Septic with chest infection & also has flu? Swine flue.
Also explained that pt is being currently actively treated but his current condition suggests that the chest inf[ection] & flu has affected his breathing & he is not getting enough O2 to his lungs.
Further deterioration means that this breathing might need to be supported by a ventilator however given his comorbidities he will not have the strength to come off ventilation on his own.
Also explained to family that DNAR form was signed by SpR over night.
Family completely disagrees [with] DNAR decision & feels that pt is entitled to for full level of care like any other.
Dr Farrer has explained that we will get ITU Consultant to [review] Carl & give his opinion whether ITU would be appropriate for him.
Family would also like to sit together & discuss amongst themselves re this. They would like to d/w [discuss with] ITU consultant once pt is reviewed by ITU."
The law relating to decisions to refuse treatment
i) Decisions involving the treatment of a patient with a terminal or possibly terminal illness gave rise to procedural obligations inherent in the notion of respect within the meaning of Article 8 although the decree of involvement turns on the circumstances of the case and the nature of the decisions to be taken ().
ii) Whilst decisions as to what treatment should or should not be given to a patient were ultimately a clinical judgement for the medical professional, there should be a presumption in favour of patient involvement in the decision making process and there needed to be convincing reasons not to involve a patient ( and );
iii) It is inappropriate to involve the patient personally in the process if the clinician considers that to do so is likely to cause the patient to suffer physical or psychological harm but the mere fact that the subject matter is likely to distress the patient will generally not be sufficient to justify excluding the patient from the decision-making process ().
iv) The fact that a physician considers that the treatment is futile is not a sufficient reason not to communicate the decision. (). Lord Dyson said"I would reject this submission for two reasons. First, a decision to deprive the patient of potentially life-saving treatment is of a different order of significance for the patient from a decision to deprive him or her of other kinds of treatment. It calls for particularly convincing justification. Prima facie, the patient is entitled to know that such an important clinical decision has been taken. The fact that the clinician considers that CPR will not work means that the patient cannot require him to provide it. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told that the clinician has made a DNACPR decision, he will be deprived of the opportunity of seeking a second opinion."
v) On the particular facts of the case, there was a breach of the procedural obligation in Article 8 by placing a DNACPR notice on the patient's files without involving the patient in the process ().
vi) The fact that a subsequent DNACPR was placed on file after the patient and her family were consulted does not mean that 'the decision making process as a whole' was compliant with Article 8 ().
"there was a breach of the Article 8 procedural obligation to involve Mrs Tracey before the first notice was completed and placed in her notes."
"95. The duty to consult is integral to the procedural obligation to ensure effective respect for the article 8 right, without which the safeguard may become illusory and the interest may not be reflected in the clinical judgment being exercised. That interest is the autonomy, integrity, dignity and quality of life of the patient. It is accordingly critical to good patient care. The duty to consult is of course part of a clinical process. That process is individual to each patient albeit that it is informed by good clinical practice.
96. The importance of the interest that is to be safeguarded by the duty may sometimes be obscured by the sensitivity of the decision to be made within the clinical process and the stress of the circumstance in which it is made. That is an issue which needs to be identified so that it can be properly considered on the facts of each case i.e. there should be a strategy to deal with discussions and decisions. That is a separate consideration from whether it is clinically inappropriate to enter into discussions about treatment with a patient who does not want to have those discussions. There should be convincing reasons not to involve a patient in treatment discussions and decisions, for example, when the clinician considers that it would likely cause the patient to suffer physical or psychological harm.
97. It is important not to elide the principle that a patient cannot direct a clinician to provide a certain form of treatment although she may refuse it, with the principle that a patient should be involved in her own care. In this case, the Trust published guidelines on 29 April 2014 entitled the 'Universal Form of Treatment Options (UFTO) Guidelines' which recognised a distinction between active and passive care informed by the patient's wishes. There is now an accessible policy which helpfully describes the patient's right to be consulted before a DNACPR decision is made.
98. In the context of this 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 can be 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."
i) Section 1(5) requires that a decision made for a person who lacks capacity must be made in his best interests.
ii) Before the decision is made s 1 (6) requires regard to be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights.
iii) A person making a decision in the patient's best interest needs to follow the steps set out in s.4 (3) to (7).
iv) This applies in particular where it relates to life sustaining treatment (see s.4(10)).
"must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) other factors that he would be likely to consider if he were able to do so."
Subsection (7) continues:
"He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6)."
Code of Practice
"5.39 How much someone can learn about a person's past and present views will depend on circumstances and the time available. 'Reasonably ascertainable' means considering all possible information in the time available. What is available in an emergency will be different to what is available in a non-emergency. But even in an emergency, there may still be an opportunity to try to communicate with the person or his friends, family or carers (see chapter 3 for guidance on helping communication. "
5.51 Decision-makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person – it is good practice to have a clear record of their reasons. It is also good practice to give careful consideration to the views of family carers, if it is possible to do so.
i) a decision that is not taken 'in accordance with law' cannot justify an interference with the right to respect afforded under Article 8(1) ;
ii) 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.
"The terminology not to attempt Cardio Pulmonary Resuscitation DNA CPR supersedes any other terminology which may be in use such as DNR DNAR or Not for CPR".
The specific language required by the policy makes clear that it is only CPR that is covered by the notice and not other means of resuscitation.
'When a clinical decision is made that CPR should not be attempted because it will not be successful and the patient has not expressed a wish to discuss CPR, it is not necessary or appropriate to initiate the discussion with the patient to explore their wishes".
I do not consider that this is compatible with Tracey.
"…the decision as to whether CPR is appropriate must be made on the basis of the patient's best interests. In order to assess best interests, the views of those close to the patient should be sought unless this is impossible"
i) Was flawed for not spelling out the necessity of consultation under s.4(7) MCA;
ii) Was not sufficiently accessible to the claimant;
iii) Should have been referred to in the consultation with Dr Farrer.
i) The decision was made before the clarification of the law in Tracey.
ii) The good faith of Dr Swarbrick's clinical judgment is not in dispute.
iii) Consultation was always foreseen as part of the treatment plan.
iv) The notice only subsisted for 9-10 hours.
v) The notice had no impact on Carl's actual treatment or the timing and manner of his death.