Last
week, Mrs. Justice Nicola Davies ruled in Tracey v. Cambridge
University Hospital. I have posted a copy of the decision
here.
Janet Tracey was not consulted before a "do not
resuscitate" notice was placed on her medical records. But Justice
Davies held that the failure to inform or involve Janet had
"minimal causative effect," as the notice was cancelled five days
later when her family objected, and not acted upon. The judge also found
that a second notice, which followed three days afterwards and two days before
Mrs Tracey's death, was put in place with the agreement of her family.
Justice Davies ruled that it would be neither "appropriate nor
proportionate", in the light of those limited findings of fact, to have a
judicial review hearing on the legal issues. She refused permission to appeal but lawyers for Mrs Tracey can
pursue the application directly with the Court of Appeal. Plaintiffs want a
judicial review to clarify whether there is a legal duty to inform patients
with capacity whether a DNR has been placed on their notes and whether they
have any right to be consulted about it.
WE here in the USA really need guidance from our courts on Unilateral and Covert DNRs --but the bioethicists never mention this, and unilateral DNRs go undiscovered and unpunished as there is growing lack of reimbursement by CMS for unbeneficial treatments.
ReplyDeleteThe 1991 Federal PSDA implies protection against discrimination against those who don't elect to "shorten" their lives under the provisions of the PSDA, but, of course, they don't define "discrimination" in the PSDA and even if there is discrimination, there is NO private right of action in the law ---NO TEETH in the LAW.
Do State laws define whether or not the unilateral DNR is a Crime under their laws or do they defer this tssk to the Hospital Standards Boards who will only look at the incident if it also is a violation of hospital standards prescribed by law and other State laws --and, of course, there is probably ALSO no private right of action under these laws. (
(Since 1991, there has been NO case law concerning unilateral DNRs made in the State of Missoui whose highest court said many years ago that the lives of patients cann't be shortened by anyone ---not even physicians --without convincing proof of the informed consent of the patient) YET Missouri has no PROCEDURAL protections in current law to protect elderly patients from covert DNRs in the hospital charts) -
In Missouri, elder ABUSE is defined as a CRIME using existing state laws but you can't report a Covert DNR put in the hospital by a Nurse and not reported by the Nurses' Administrative Boss to the State as the CRIME of elderabuse to your local police department because they won't accept the complaint and tell you to get a private attorney.
The private attorneys won't take the case because, of course, the DNR is a CRIME, and there is NO insurance, etc...unless they can prove malpractice and then no money in proving malpractice OR EMOTIONAL DISTRESS because OLD PEOPLES LIVES and MENTAL and EMOTIONAL DISTRESS mea nothing to younger juries or to the judges who support the status quo and instruct the juries as to the law of the case.
It appears that the Health and SENIOR Services Division at the State of Missouri ONLY has the power under the law to investigate the complaint of the unilateral DNR AND only to the extent that it violates State Licensing and other State Laws ---and, of course, there is NO private right of action for breaking the State laws either and thus no TEETH in the State laws OR the Federal Laws.
What then?? A further invitation to more unilateral and covert DNRs in the hospital charts of elderly Medicare patients? --supported by the bioethicists and all three branches of government? who support passive euthanasia of the elderly and very ill as a fiscal imperative in these hard times?