Winspear v City Hospitals Sunderland NHSFT  EWHC 3250 (QB),  MHLO 104
(1) 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. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); 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). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
HUMAN RIGHTS — Respect for private life — Interference with — Death of mentally incapable patient in hospital — Doctor having placed do not resuscitate notice on patient’s medical records without consulting mother as carer — Whether decision to file notice without consultation in breach of statutory requirements — Whether decision procedurally flawed — Whether breach of patient’s Convention right to respect for private life — Human Rights Act 1998, Sch 1, Pt I, art 8 — Mental Capacity Act 2005, ss 4(7), 5
Winspear v City Hospitals Sunderland NHS Foundation Trust
B;  WLR (D) 468
QBD: Blake J: 13 November 2015
If it was both practicable and appropriate to consult a patient’s carer before filing a do not attempt cardio-pulmonary resuscitation (“DNACPR”) notice on the patient’s medical records, then in the absence of some other compelling reason against consultation, the decision to file the DNACPR notice without prior consultation would be procedurally flawed and would not meet the requirements of section 4(7) of the Mental Capacity Act 2005. The core principle of prior consultation before a DNACPR decision was placed on a case file applied whether the patient had or lacked capacity.
Blake J so held when allowing a claim by Elaine Winspear (acting personally and as personal of the estate of Carl Winspear, deceased), inter alia, for a declaration that the defendant, City Hospitals Sunderland NHS Foundation Trust, had breached section 4(7) of the Mental Capacity Act 2005. The claimant’s son, who at all times had lacked capacity under the Mental Health Act 2005 and was seriously ill, was being treated at the defendant’s hospital. In the early hours of the morning, a doctor, without prior consultation with the claimant or any other family member or person representing the patient’s interests, had placed on her son’s clinical record a DNACPR notice. Having been contacted by the hospital later that day, the claimant expressed her strong disagreement with the suggestion that if her son stopped breathing resuscitation should not be attempted, and the notice was cancelled. Her son died that evening of a bronchial-pneumonia illness. The claimant submitted that the defendant’s failure to discuss the proposed DNACPR notice with her breached section 4(7) of the 2005 Act and constituted a procedural failure resulting in unjustified interference with her son’s right to respect for private life under article 8.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The defendant relied on section 5 of the 2005 Act as a defence to any liability arising out of breach of section 4(7).
Section 4(7) of the Mental Capacity Act 2005 provides: “[The decision-maker] must take into account, if it is practicable and appropriate to consult them, the views of ... (b) anyone engaged in caring for the person or interested in his welfare.”
Section 5 of the 2005 Act provides: “(1) If a person (‘D’) does an act in connection with the care or treatment of another person (‘P’), the act is one to which this section applies if— (b) when doing the act, D reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done. (2) D does not incur any liability in relation to the act that he would not have incurred if P— (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act.”
BLAKE J said that the core principle of prior consultation before a DNACPR decision was put into place on the patient’s case file applied in cases both of capacity and absence of capacity. In the case of persons who lacked capacity, the 2005 Act spelled out when and with whom a decision-taker had to consult; if it was not “practicable or appropriate” to consult a person identified in section 4(7) before the decision was made or acted on, there would be a convincing reason to proceed without consultation. If, on the other hand, it was 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 without prior consultation would be procedurally flawed. It would not meet the requirements of section 4(7) of the 2005 Act and would therefore not be in accordance with the law. It would be an interference with article 8.1 of the Convention that was not justified under article 8.2 for two reasons: (i) a decision that was not taken “in accordance with law” could not justify an interference with the right to respect afforded under article 8.1; and (ii) if consultation was appropriate and practicable there was no convincing reason to depart from it as an important part of the procedural obligations inherent in article 8. Although the doctor might have considered that resuscitation would have been futile, R (Tracey) v Cambridge University Hospitals NHS Foundation TrustB made it plain that that did not obviate the need for consultation for patients with capacity; and section 4(7) made plain that consultation about such a decision was necessary with the carer of an incapacitated patient unless not practicable. Accordingly, there was a breach of the section 4(7) duty; no section 5(2) defence existed to the claim; and there had been a violation of the procedural duty under article 8.2.
Appearances: Jeremy Hyam and Kate Beattie (instructed by Leigh Day) for the claimant; Angus McCullough QC (instructed by Bevan Brittan LLP) for the defendant.
Reported by: Isabella Cheevers, Barrister.
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