England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		21 December 2012

1. MRS JUSTICE NICOLA DAVIES: This ruling is given following the handing down of the judgment upon the facts in this application for judicial review and should be read in conjunction with it. The primary issue before the court is whether there should be a further substantive hearing upon the legal issues against the background of the findings of fact contained in the judgment. Written submission have been received from all parties save from the interested party. Oral submissions have also been made.
2. On 18 November 2011, Eady J granted permission, his observations being that the grounds of claim as amplified in the reply are reasonably arguable. On 9 March 2012, Ouseley J, at a hearing, varied the case management directions made by Eady J to provide for the fact-finding hearing which I conducted. Contained within the order is the following:

"Further hearing to determine legal issues arising out of the disputed facts

12. A further hearing shall be listed to consider the submissions upon the law relating to the imposition of do not attempt CPR ("DNACPR") notices in the medical records of patients."

At the same hearing, Ouseley J gave leave to the Equality and Human Rights Commission ("EHRC") to intervene in relation to the legal issues mentioned at paragraph 12.

3. As a result of my findings on the facts, the position regards the DNACPR notices, the subject of the application, is as follows:

First Notice, 27 February 2011

Dr. Lavinio did not consult with Mrs Tracey prior to its imposition. He did consult with Mrs Tracey's daughter, Alison, and he believed that she had agreed to imposition of such a notice. The notice was cancelled on 2 March 2011.

Second Notice, 5 March 2011

Family members were consulted prior to the imposition of this notice. Mrs Tracey was not consulted. Dr Natasha Simons asked Mrs Tracey's daughters, Alison and Claire, if they would speak to their mother regarding the DNACPR notice but neither was willing to do so.

4. It is the case of the claimant and the interested party that there should be a second hearing to determine the legal issues. This is resisted by the first defendant, who states that the claim as originally advanced by the claimant in the Statement of Grounds is unsustainable. Further, the facts as positively established by the court disclose no decision or other act or omission which amounts to a Convention violation. Alternatively, the first defendant seeks an order from the court that the claimant file and serve a short, clear and concise Amended Statement of Grounds identifying the current nature of the judicial review challenge. The Secretary of State submits that given the factual findings made by the court he is entitled to judgment on the claims against him, as any failure to promulgate policy has no causative link to any possible breach identified on the facts.
5. The claimant relies upon what are described as key issues of facts to underline why the claim should proceed. In particular:

(i) the failure by any clinician or nurse to discuss with the deceased the matter of the imposition of the first DNACPR;

(ii) no clear protocol or policy provided to the family in advance to show what was involved in a decision such as DNACPR so as to allow the patient and the family to understand what was involved and their rights, including to be informed of the ability to obtain a second opinion;

(iii) A failure to comply with Trust policy in completing both notices;

(iv) A Trust policy which was misleading and contradictory;

(v) A policy which is incomplete insofar as it states "the final decision rests with the clinician";

(vi) The imposition of the first DNACPR notice qualified the patient's known wishes and therefore breached her rights pursuant to Articles 2 and 8;

(vii) The process by which the first DNACPR notice was imposed was not in accordance with the Trust's own policy.

6. In his submission to the court, Mr Havers QC, on behalf of the claimants, identified the origins of the claim as set out in paragraphs 1 to 11 of the judgment, in particular paragraphs 1, 6 and 11. It is the claimant's contention that the following outstanding issues are required to be determined at a subsequent hearing:

(i) Whether the first DNACPR notice was preceded by effective and informed involvement of the patient and her relatives;

(ii) Whether clear and accessible criteria relating to the imposition of such a notice were communicated to those affected such that they were able either to challenge the opinion or seek a second opinion;

(iii) Whether the policy of the Trust should have been known to the patient and her family;

(iv) Whether in such circumstances the patient and her relatives should have been told to seek a second opinion in relation to such a notice.

In respect of these four matters it is contended that a determination is required as to whether there has been a violation of the Convention.

7. Further, as to the law:

(a) Whether the involvement of Mrs Tracey and her family was in the legal sense "proper" as complying with the Trust's obligations;

(b) As a matter of law does the Trust have in place a policy which is Convention complicit in its clarity, access and foreseeability;

(c) Is the policy lawful? Does it set out the rights of patients and their families as to their involvement in such a decision, or is the policy confusing? Were the Trust in breach of their Convention obligations?

8. It is the claimant's contention that the findings of the court do not affect the substance of the original issues and legal arguments. Further, the claimant relies upon the submissions of the EHCR as to the absence of what is said to be proper, consistent and coherent guidance. Reliance is placed upon the wider public interest in this matter, as demonstrated by the interest of such organisations as the British Medical Association and the fact of other similar cases. The lack of transparency and clarity of patient's rights reinforces the public interest in the court determining the legal issues. It is said that the fact that Ouseley J allowed the EHCR to intervene reflects the public interest in this matter.
9. The first defendant relies upon the case of the claimant as originally pleaded, where it was stated that the consequences of the failures to properly consult with Mrs Tracey and her family in respect of both notices was that Mrs Tracey was deprived of life-sustaining treatment without lawful justification and in a way that infringed both her and the claimant's rights, including those protected under Article 2 and Article 3. The first defendant's case is that such grounds are now unsustainable. As to the facts, it is said that, as the first notice was cancelled on 2 March 2011, it has no causative relevance or effect, and in any event was part of the background of the claimant's case, the more important notice being the second one. The interest of others, as identified in other cases, or the interests of the BMA cannot justify a court embarking upon a hearing which is neither appropriate nor proportionate.
10. The first defendant relies upon a passage within their Grounds of Resistance which states:

"Recognising that end of life decisions must be 'sensitively' handled and thereby recognising the scope of discretion for clinicians, the claimant then nonetheless seeks to prescribe processes which must be followed for such decisions. The reality is that such decisions are ultimately clinical in nature and in respect of which (and in stark contrast to decisions which impose treatments) the wishes of patients and their families cannot be determinative, whether regarded through the prism of the common law or the ECHR. This proposition is bluntly trite (AVS by his litigation friend CS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7 per Ward LJ at paragraph 35). It carries with it the inevitable corollary that the court should be very slow to examine either the details of discussion surrounding particular DNACPR decision or, even more, to seek to circumscribe the decision-making process. This is not a charter for arbitrary or over-paternalistic clinical decision-making, rather it is an appropriate recognition of the division between the functions of the court and of doctors in this uniquely difficult and sensitive area."

The first defendant contends that the development of an appropriate policy can only result from a multi-disciplinary and lengthy consultation process. The courts are not an advice centre.

11. Further, specific issues in this case raise particular problems for the court:

(i) In his evidence, Mr Kirkpatrick stated that the imposition of a DNACPR notice is ultimately a clinical decision. He was not challenged in cross-examination as to his view. Mr Havers QC subsequently explained that such a challenge would not have been appropriate at a hearing upon the disputed facts. In the post-judgment written submissions the claimant has made clear that:

"It is unequivocally not the claimant's position that DNACPR is ultimately a clinical decision any more than any other best interest decision which calls for adjudication by the court is ultimately a clinical decision."

What in reality this means is that at any subsequent hearing the court would be required to consider and determine how and by whom such a decision should be made. All the evidence is now before the court. Absent from it is any independent expert evidence of the type necessary were the court to embark upon such an issue in this difficult and sensitive area of law, medicine and procedure.

(ii) A determination as to the lawfulness of the Trust of any national policy would require a similar assessment by the court. Of itself that does not mean that a court should not embark upon such an exercise but it highlights the need for caution before so doing. It is a reflection of the difficult and sensitive nature of DNACPR notices and their imposition that a government consultation presently being conducted is multi-disciplinary in nature and wide-reaching in its ambit. On behalf of both defendants it is said that the court does not have the breadth of such evidence before it. The first defendant contends that consideration of this policy enters into the realm of what is described as the quasi-political. To use the 'hook' of 'unlawful' to dictate policy is unhelpful. To prescribe what clinicians should and should not do in the sensitive and delicate area of dealing with patients is undesirable. Given the limited nature of the findings made by the court it is inappropriate to launch into a public inquiry as to what is the right policy.

12. As to the breach of any Convention rights, both defendants contend that as to the first notice and Article 2, no causative loss has resulted from a clinical decision, thus any argument is unlikely to succeed.
13. As to Article 8, the first defendant accepted that it was appropriate for Mrs Tracey to be more fully informed prior to the imposition of the first DNACPR notice. That said, account had to be taken of her clinical state and her capacity to communicate; factors which would have been taken account of by a clinician. It is contended that even if such a breach exists, it is a breach of a qualified right, it had no causative effect and it made no difference to the clinical decision which led to the making of the first notice, namely that of the futility of the treatment. There is no causative link flowing from the arguable breach. This is a factor of which account has to be taken by the court in balancing the relevant factors as to whether the case should proceed to a second and substantive hearing. It is inappropriate and disproportionate to move to a second hearing.

The second defendant

14. Reliance was placed upon the authority of R (Burke) v General Medical Council (Official Solicitors and ors intervening) [2005] EWCA Civ 1003. Lord Phillips of Worth Matravers, Master of the Rolls (as he then was) stated at paragraph 19:

"...it was not the task of a judge when sitting judicially – even in the Administrative Court – to set out to write a text book or practice manual... 21. There are great dangers in a court grappling with issues... When these are divorced from a factual context that requires their determination. The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court's intervention."

15. What is said on behalf of the second defendant is that the process which is being urged upon the court by the claimant is one of micro-management divorced from factual content. The second defendant relies upon the manner in which the claim is pleaded against him in the Statement of Grounds. At paragraph 2 it is said that the claim raises points of importance in relation to the lawful use of DNACPRs wider than the facts of the specific case. Paragraph 40 identifies what is prescribed as a confusing policy (the Trust) and the absence of any clear national policy which lead to the arbitrary and unlawful approach of the hospital. In paragraph 48 it is pleaded that:

"By reason of the lack of appropriate guidance or standard protocol the consequence was that the issue of DNACPR appears to have been determined by the clinicians as a 'best interest decision' without any, or any proper, respect for the wishes of the deceased."

Critically, at paragraph 49 there is the following:

"While of course the claimant appreciates that end of life decisions must be sensitively handled, absent a clear standard policy or approach spelling out: (i) the circumstances in which the treating doctors can impose a DNACPR without the consent of the capacitated patient; (ii) the information which patients and relatives are entitled to receive; and (iii) the right to a second opinion if there is a dispute between the patient or family and the treating doctors as to whether CPR is futile, their use is liable to be arbitrary, variable between hospitals and open to abuse."

16. Reliance is also placed by the second defendant upon the declaratory relief sought, namely that the second defendant has violated the deceased's and the claimant's Article 2, 3 and 8 rights because it has failed to promulgate or implement any national, specific and detailed guidance on the use of DNACPR orders such that their use in an arbitrary and confusing fashion, as demonstrated by the facts of this case, is not in accordance with the law. An order is sought that the second defendant, with precision and clarity, in a manner accessible to NHS patients and by way of a standard protocol or guidance, provide information as to how and in what circumstances the DNACPR orders may be used and the extent of patient's relative's rights to obtain second opinions in cases of dispute.
17. The second defendant submits that by reason of the above and in order to assess the claim as against him it would be necessary for the Administrative Court to identify the breaches from which the current policy suffers, which is not the role of the court in that it interferes with policy. Further, any findings of breach would, in effect, have the result of prescribing policy. In fact, national policy is presently being revised, a process which is being delayed by these proceedings. If amendment to the policy is required, the second defendant contends that the appropriate bodies to do this are those who are part of the consultation process and not the Administrative Court. It is professional bodies who should be promulgating the guidance, not this court. The reality of this challenge is about the entirety of the guidance, which it is contended is too wide given the findings of fact.
18. Separate from this submission, the Secretary of State seeks judgment against the claimant upon the basis that Dr.~Lavinio's failure to consult with Mrs Tracey was not a breach for which the Secretary of State can be held responsible.

Conclusion

19. The finding that Dr. Lavinio failed to consult Mrs Tracey prior to the imposition of the first DNACPR notice can be said to represent a breach of her Article 8 rights. The notice remained in place for 3 to 4 days. It was never acted upon. I do not underestimate the feelings of Mrs Tracey's family but in the context of these proceedings the notice had minimal, if any, causative effect. I understand the argument of Mr Havers QC, that upon Dr. Lavinio's failure alone the claimant would be entitled to a declaration in respect of the Article 8 breach. What I have considerably more difficulty with is his assertion that within the context of these proceedings such a point is not academic and thus the case should proceed to a substantive hearing on the law.
20. The hearing proposed requires the court to embark upon an inquiry as to the process leading to and the imposition of a DNACPR notice as a matter of national and local policy, and, within that, consideration of the role of the clinician and the weight to be attached to the clinician's judgment. The breadth of the inquiry sought by the claimant goes far beyond the limited findings of causative fact. Any such inquiry would be carried out in an area of medicine and law that is properly described as difficult and sensitive. I am of the view that such an inquiry would create precisely the difficulties identified in Burke above. The determinations sought by the claimant would involve the court grappling with issues of policy and clinical decision-making upon the basis of limited evidence such that the court would not have a full appreciation of all relevant considerations, still less the implications resulting from such determinations.
21. I accept that there is a wider interest in such a hearing but that of itself cannot provide a reason to continue. For the reasons identified in the preceding paragraph, I find the that public interest will not be served by embarking upon a wide-ranging inquiry based upon such limited findings of causal fact. I do not read the orders of Eady J or Ouseley J as requiring the court to move to a substantive hearing without first considering, as a result of the facts found, whether it is appropriate and proportionate to do so. I find that a substantive hearing upon the legal issues would be neither appropriate nor proportionate, and, accordingly, I do not order such a hearing.
22. As to the application by the second defendant for judgment, I accept the argument of Mr Havers QC that the Secretary of State was excused attendance at the factual hearing. In reality, he had no part to play. The causal finding of fact does affect the case of the Secretary of State but of greater weight is the ruling which I have now made, namely not to proceed to a substantive hearing upon wider issues of local and national policy. By reason of this, I do not think it appropriate to enter judgment on the claim for the Secretary of State.
23. As to the costs of all parties, these can be dealt with by way of further submissions, be they written or oral. That concludes my ruling.
24. MR HYAM: My Lady, on behalf of the claimant, just for clarity, we will need to draw up an order to reflect today's ruling, as I understand it, the basis of the reason why this claim is not proceeding is that, in your Ladyship's judgment, it is neither appropriate nor proportionate for the matter to continue. That will be reflected in the order. That leads on to my second point, which is that I am seeking permission to appeal against that ruling. I do so under CPR Part 52 on two bases. At page 1700 you will see the rules set out. Essentially, the test for permission is (a) whether the court considers that the appeal will have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard. Can I address you regarding the second part first: compelling reason why the appeal should be heard, because your Ladyship's ruling affects an important point of, we say, wider public importance as to the imposition of DNACPR. Your ruling, effectively, closes out any judicial determination of legality of the imposition of DNACRPs.
25. MRS JUSTICE NICOLA DAVIES: No, that is simply not correct. What my ruling finds is that based on the limited findings of fact in this case it is not appropriate to go forward.
26. MR HYAM: I understand that. Can I just advance, if I may, the two grounds. One is the underlying issues, I say, are sufficiently of wide interest, or wide importance to justify an appeal because we say it should go ahead but, on the other limb, the court considers that the appeal should have a real prospect of success. Your Ladyship has applied a filter to allowing this case to proceed, a case which had been granted permission by Eady J on the basis of a factual chronology which acknowledged that there was a frank dispute over the circumstances in relation to the second DNACPR. The findings that have been made in fact just bear out the factual chronology that was initially lodged in respect of the claim. So, in one sense, nothing has really changed, and we are concerned that a new filter is being applied to this case, of which we had hitherto been unaware that the court applies in judicial review, because we have crossed the permission threshold for an argument on the law to proceed, we have come to a hearing after some factual findings, those factual findings show that there was, at the very least in respect of the first DNACPR, a contravention, or at least potential contravention, of Article 8, and the circumstances and the factual bases have now been nailed down on which submissions on the law could be made and yet we find ourselves being prevented from proceeding with articulating the legal issues by reference to a threshold of, it must be I think, a case management threshold of you saying it is inappropriate and disproportionate. We say that is a wholly novel way of blocking this case from going ahead. We do not think it is justified in all the circumstances. We say, for reasons we have already advanced, that we have a perfectly proper and arguable case.
27. There is an additional strand to that point of appeal, which is that your Ladyship has twice, perhaps three times, in the judgment referred to the causative link or causal fact, and saying, well, DNACPR did not actually cause anything, she did not not have CPR because of the first, as it happened she recovered off the ventilator. We say that is a wholly mistaken view of the way that the claimant has always put her case. The absence of any causative link does not affect what is required by way of processes to ensure the legality of the imposition of a DNACPR, and that issue, we say, we have a real prospect of success on appeal of showing that your Ladyship was wrong so to conclude, that that was a way of, effectively, rendering the claim academic. We do not accept for a minute that it is.
28. I am not going to say anymore. I think that to a certain extent I am rehearsing the arguments that Mr Havers advanced to you only two mornings ago. But for those reasons, I say there is a real prospect of success and there are compelling reasons to hear an appeal.
29. MRS JUSTICE NICOLA DAVIES: I refuse leave to appeal and I do so because (i) I do not find that there is a real prospect of success, and (ii) by reason of the limited findings of fact there is a not a wider public interest in the particular circumstances of this case.
30. MR HYAM: My Lady, in which case, what I do ask is, because the date today is 21 December, there is a tight timetable for lodging an appeal.
31. MRS JUSTICE NICOLA DAVIES: You want some time, do you not?
32. MR HYAM: Indeed.
33. MRS JUSTICE NICOLA DAVIES: All right. What do you want?
34. MR HYAM: Realistically, we want until 7 January, which would allow us the first week in January to lodge an application for permission to appeal with the Court of Appeal.
35. MRS JUSTICE NICOLA DAVIES: 7 January, yes. Anything else? No. Can I thank you all of you for coming today and I hope you, Mr Sachdeva, can get to the Court of Appeal quickly.
36. MR SACHDEVA: Thank you very much, my Lady, for sitting early.
37. MR HYAM: Just before you leave, I will try and draw up an order which reflects the ruling today, which can somehow be lodged with the court and other parties. The only additional thing I would want is an expedited transcript of your ruling today in order that that can be filed with the Court of Appeal.
38. MRS JUSTICE NICOLA DAVIES: Yes, you can have that.
39. MR HYAM: I am grateful, thank you.
40. MRS JUSTICE NICOLA DAVIES: There is an issue of cost. If you want it expedited, it has to be paid for. I do not want to delve into matters that are not mine but I do not know how you are being funded.
41. MR HYAM: We are legally aided. In principle, you are willing for us to have it.
42. MRS JUSTICE NICOLA DAVIES: Of course I am willing in principle for you to have it.
43. MR HYAM: If we do not want to pay to it for whatever reason that I discover, either of us will get it anyway soon enough. Could you leave it for me to sort that out.
44. MRS JUSTICE NICOLA DAVIES: Yes, you can have the order that it be expedited, if that assists you.
45. MR HYAM: I am grateful.