A friend and colleague was recently admitted to a Glasgow hospital for treatment over a few days. The NHS Scotland staff were brilliant and the procedure was successful.

While in the receiving ward a nurse was going through his medical records and said “I see you have DNR marked down?”. He asked what this meant and was taken aback to be told.

DNR is shorthand for “Do Not Attempt Cardio-Pulmonary Resuscitation" (DNACPR).

This had never been discussed with him or any family member; and as a patient, he had full legal capacity to give consent to medical treatment.

DNR means if a person suffers from a heart attack and stops breathing while in hospital they will not be resuscitated. To be fair, the nurse removed this from his case record after discussing it with him.

He’s trying to find out how this happened. Perhaps an oversight or administrative error. But it’s a pretty gaping failure by any standard.

If you’re in hospital you’re there for medical treatment; if you’re seriously ill or undergoing a lifesaving procedure and have legal capacity why wouldn’t a doctor or nurse obtain your views and consent on the issue of resuscitation?

Without doubt this is a sensitive subject, but it’s one that’s vitally important to all of us as human beings as a matter of dignity and human rights.

DNR decisions became very controversial during the Covid-19 pandemic. In 2021, the English Care Quality Commission (CQC) found that doctors may have made DNR decisions on a blanket basis in the first wave of the pandemic.

The CQC has expressed concern over the relationship between poor practice and the unprecedented pressure on the NHS. The found poor record keeping, and a lack of oversight and scrutiny of decisions being made – importantly, these problems pre-dated the pandemic. As regards the pandemic, the use of DNR decisions during Covid-19 are within the terms of reference of the UK Covid-19 inquiry and indeed the Scottish Covid-19 public inquiry.

It is deeply troubling to think that poor practice is still occurring over DNR decisions. Not least, because the law in this area has been clear for almost a decade.

The law was clarified by the England and Wales Court of Appeal in R (Tracey) v Cambridge University Hospitals NHS Foundation Trust and others [2014] EWCA Civ 822.

Janet Tracey had been diagnosed with terminal lung cancer in February 2011.

Later that month she was in a car crash. She was taken to hospital with a neck fracture then transferred to Addenbrooke's hospital in Cambridge. She died on 7 March 2011.

Her husband David brought a judicial review in the English High Court. He sought to clarify whether there was a legal duty to inform patients with capacity whether a DNR had been placed on their record and whether they had any right to be consulted about it.

His late wife had two DNR orders placed on her medical notes without her consent and without anyone discussing this with her.

The English Court of Appeal found that doctors had acted unlawfully when they had placed a DNACPR on Mrs Tracey’s medical record.

Lord Dyson, the Master of the Rolls, said: A “DNACPR decision is one which will potentially deprive the patient of life-saving treatment, there should be a presumption in favour of patient involvement. There need to be convincing reasons not to involve the patient.”

The court made it clear that doctors should be wary of being “too ready to exclude patients from the process on the grounds that their involvement is likely to distress them”.

Lord Justice Ryder said: “The duty to consult … involves a discussion, where practicable, about the patient’s wishes and feelings that is better undertaken at the earliest stages of the clinical relationship so that decisions can be reviewed as circumstances change. That involves an acknowledgement that the duty to consult is integral to the respect for the dignity of the patient.”

The Tracey case was followed by Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250. A young man with cerebral palsy had been admitted to a hospital with a chest infection and a DNR notice was placed on his record without any consultation with his mother and carer.

The young man did not have legal capacity to consent to a DNR but the court found that the hospital ought to have consulted with his carer. The failure to do so was a breach of the patient’s article 8 right for respect for his private life under the Human Rights Act 1998.

The use of DNR notices will affect more than 50% of the UK’s population at some point in time.

It’s important that we get this procedure right. It’s vital that we give proper respect to people’s fundamental human rights at a time of great difficulty in life.