The High Court has ruled in the case of Winspear v City Hospitals Sunderland NHS Foundation Trust that a decision to place a DNACPR notice on a patient’s medical records, without consultation with his mother, was unlawful and a breach of his European Convention on Human Rights Article 8 rights.
A 28-year-old male (C) suffered from a number of serious health conditions and lacked mental capacity regarding decisions about his treatment and care. C was admitted to hospital with a chest infection. The condition was not thought to be life-threatening. In the early hours of the morning, a specialist cardiology registrar placed a DNACPR notice on C’s file, without prior consultation with any family members or carers. A note was made to speak with his family in the morning.
The following morning, C’s mother, who was known to staff to be involved in her son’s care and wellbeing, expressed her disapproval. The notice was removed. Fortunately, no harm was caused to C in the 9 – 10 hours the notice remained in place. The medical judgment of the registrar was not in doubt, but crucially, there was nothing in the clinical notes to suggest that the registrar had considered his duty to contact the patient’s carer. It was noted that while there was every reason why a telephone call during the night might be less convenient or desirable than a meeting in office hours, that did not mean it was not practicable.
The question before the court was whether the duty of prior consultation extended to a patient lacking mental capacity. Applying the recent case of Tracey the court confirmed that yes, it did. Consultation was a matter of human dignity and an individual’s “best interests” for the purposes of a decision under section 5 Mental Capacity Act 2005 were broader than mere clinical judgment.
What are the implications of Winspear
This case will have broad application. Where a patient lacks mental capacity within the meaning of MCA 2005 and it is practicable and appropriate to consult a patient’s section 4(7) representative then, unless there is a compelling reason against doing so, a failure to consult is likely to cause any non-urgent decision regarding that patient’s welfare to be procedurally flawed and unlawful.