Winspear v City Hospitals Sunderland NHS Foundation Trust

Factual and Procedural Background

The Plaintiff is the mother of an adult male patient who suffered from multiple severe health conditions including cerebral palsy, epilepsy, and spinal deformities, and who lacked capacity under the Mental Capacity Act 2005 at all relevant times. The patient was admitted to a local hospital with chest infections and received treatment including oxygen and antibiotics. During his admission, a decision was made by a specialist registrar (Doctor A) at 3:00 am to place a "Do Not Attempt Cardiopulmonary Resuscitation" (DNACPR) notice on the patient’s medical record without consulting the Plaintiff or any family member. The registrar based this decision on clinical grounds, concluding CPR would be ineffective and distressing due to the patient's physical condition.

Later that morning, the Plaintiff was invited to the hospital and had a meeting with a consultant cardiologist (Doctor B) and others, during which the DNACPR notice was discussed and subsequently cancelled following the Plaintiff’s strong objection to the notice. The patient was then moved to intensive care and received non-invasive respiratory support but died later that evening from bronchial-pneumonia.

The Plaintiff issued proceedings alleging that the placement of the DNACPR notice without consultation violated the patient’s right to respect for private life under Article 8(1) of the European Convention on Human Rights (ECHR). The case was stayed pending the Court of Appeal’s decision in a related case and then restored for trial. The trial included oral evidence from the Plaintiff, family members, and the consultant cardiologist, while the registrar’s witness statement was accepted without live testimony.

Legal Issues Presented

1. Whether the decision to place a DNACPR notice without prior consultation with the patient’s carer (Plaintiff) breached the procedural obligations under Article 8(1) ECHR.
2. Whether the principles established in Regina (Tracey) v Cambridge University Hospital NHS Foundation Trust concerning consultation on DNACPR decisions apply to patients who lack capacity.
3. Whether the Mental Capacity Act 2005 (MCA), specifically section 4(7), was complied with by consulting the patient’s carer before the DNACPR decision.
4. Whether the defence under section 5 MCA protects the decision-maker from liability despite the lack of consultation.
5. The extent to which clinical judgment alone can justify implementing a DNACPR notice without consultation.

Arguments of the Parties

Plaintiff's Arguments

• The DNACPR notice was a significant medical decision engaging Article 8 rights and required consultation with the Plaintiff as the patient’s lifelong carer under section 4(7) MCA.
• It was both practicable and appropriate to consult the Plaintiff either by telephone or in person before placing the notice, given her involvement and presence in the hospital the previous day.
• Alternatively, the decision could have been deferred until the morning to allow for consultation, which would have been the least restrictive means of respecting the patient’s rights.
• The failure to consult constituted a procedural breach of Article 8 and section 4(7) MCA, which was not justified under section 5 MCA.
• The Plaintiff sought a declaration of breach and damages but was only awarded a declaration as no personal damages claim was established.

Defendant's Arguments

• The decision to place the DNACPR notice was based on clinical grounds believed to be in the patient’s best interests.
• Section 5 MCA provides a defence if the decision-maker reasonably believes the decision is in the patient’s best interests, even if consultation was not conducted.
• The decision-making process as a whole, including subsequent consultation and cancellation of the DNACPR notice, respected the patient’s Article 8 rights.
• Consultation was not necessary at 3:00 am due to the patient’s stable condition and the futility of CPR in this case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Regina (Tracey) v Cambridge University Hospital NHS Foundation Trust [2014] EWCA Civ 822	Established that DNACPR decisions engage Article 8 ECHR and require procedural safeguards including patient consultation unless there are convincing reasons not to involve the patient.	The court applied the principles to a patient without capacity, concluding that consultation with the carer is similarly required unless impracticable or inappropriate.
Tysiac v Poland (2007) 45 EHRR 947	Introduced the concept of considering the "decision-making process as a whole" under Article 8 procedural obligations.	The defendant relied on this to argue that subsequent consultation satisfied Article 8; the court rejected this interpretation in context.
H v Commissioner of Police for the Metropolis [2013] EWCA Civ 69	Considered the reasonableness of emergency actions taken without prior consultation with carers under s.5 MCA.	The court found that a reasonable belief of emergency is required for exemption from consultation; applied analogously to the DNACPR decision.
R (Burke) v General Medical Council [2006] QB 273	Outlined principles of clinical decision-making and patient involvement in treatment decisions.	Supported the view that clinical judgment must be accompanied by patient involvement where practicable.
Glass v United Kingdom (Application 61827/00)	Clarified that human rights claims relating to treatment decisions are considered from the patient’s perspective rather than the carer’s.	The court held that the Plaintiff’s claim was derivative of the patient’s rights and limited the scope of personal damages.

Court's Reasoning and Analysis

The court acknowledged that a DNACPR decision is a significant medical decision engaging Article 8 rights, requiring procedural safeguards including consultation. It applied the principles from Tracey to a patient without capacity, holding that consultation with the patient’s carer is necessary unless it is impracticable or inappropriate.

The decision-maker, Doctor A, did not consult the Plaintiff before placing the DNACPR notice, nor did he record any consideration of the duty to consult under section 4(7) MCA. The reasons given for not consulting—lack of imminent risk and the clinical nature of the judgment—were found insufficient to justify the absence of consultation.

The court rejected the defendant’s argument that consultation after the fact satisfied procedural requirements, emphasizing that the obligation is to consult before the decision is made and recorded. The court found that it was practicable and appropriate to consult the Plaintiff given her role as carer and her recent contact with the hospital.

The court also considered relevant statutory provisions of the MCA, the Code of Practice, and professional guidance, noting that although some guidance predates Tracey, the principles of consultation and respect for dignity remain central.

Ultimately, the court concluded there was a breach of the procedural duty under Article 8 and section 4(7) MCA, and no defence under section 5 MCA was available because the procedural requirements had not been met.

Holding and Implications

The court's final decision was to grant a declaration of breach of the procedural obligations under Article 8 ECHR and the Mental Capacity Act 2005.

The direct effect of this decision is a formal recognition that placing a DNACPR notice without prior consultation with the patient’s carer when practicable and appropriate violates the patient’s right to respect for private life. No personal damages were awarded to the Plaintiff. The court emphasized that this procedural breach did not affect the patient’s actual treatment or the timing of death, and the decision does not establish new precedent beyond affirming the application of existing principles in the context of incapacitated patients.