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The Court of Appeal ruled that there should be a presumption in favour of patient involvement if there were convincing reasons not to do so.

The case involved a decision to place a DNACPR order in the notes of a patient, Mrs Tracey, who had terminal cancer and a fractured neck following a car accident.  Her family sought a judicial review regarding the placing of a DNACPR order without her or her family’s knowledge. The judgement stated that by failing to discuss the making of a do-not-attempt-cardiopulmonary-resuscitation (DNACPR) decision with a patient who had capacity and had expressed a clear wish to be involved in discussions about her treatment, the first defendant was in breach of Mrs Tracey’s human rights under Article 8 of the European Convention.’


Article 8 states that

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


Whether it is appropriate to consult will depend on a difficult judgment to be made by the clinicians. Whilst stating that a clinician has a duty to discuss a DNACPR decision with the patient the judgement acknowledges that there are some situations in which a clinician thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm. The distress must be likely to cause the patient a degree of harm to warrant them not having the decision discussed with or explained to them. However, If the clinician forms the view that a patient will not suffer harm if they are consulted, the fact that they may find the topic distressing is unlikely to make it inappropriate to involve them.