Family threaten to sue government over use of DNRs on Covid patients

Family who won landmark lawsuit after hospital put ‘do not resuscitate’ notice on terminally-ill mother are now threatening to sue government over their use on care home Covid patients

  • Kate Masters’s mother Janet Tracey, 63, who had lung cancer, died after car crash in 2011 
  • Ms Masters’s late father David Tracey brought successful judicial review establishing a violation of Janet’s human rights while she was treated in hospital
  • Addenbrooke’s hospital, in Cambs, put ‘DNR’ on file without telling her or family
  • Ms Masters said decision-making process around DNRs had ‘become opaque’ 
  • More than 5,000 care home residents have died from Covid-19 in the UK 
  • Official data shows care home deaths account for over a third of all fatalities 
  • Here’s how to help people impacted by Covid-19

The family of terminally ill woman Janet Tracey (above) won a landmark legal case over ‘do not resuscitate’ (DNR) notices. They have now threatened legal action against the Government over fears seriously ill Covid-19 patients’ human rights are being ignored

The family of a terminally ill woman who won a landmark legal case over ‘do not resuscitate’ (DNR) notices have threatened legal action against the Government over concerns seriously ill coronavirus patients’ human rights in care homes and hospitals are being ignored.

Kate Masters said the decision-making process around DNRs had ‘become opaque, inconsistent and deficient’ in the wake of the Covid-19 pandemic.

Ms Masters’s late father David Tracey had brought a successful judicial review establishing a violation of his late wife Janet’s human rights while she was treated in Addenbrooke’s Hospital, in Cambridge, after a fatal car crash in 2011. 

In June 2014, the Court of Appeal ruled that the human rights of 63-year-old care home manager and grandmother Mrs Tracey, who had terminal lung cancer, were violated when a DNR order was placed on her medical notes without discussing it with her first. 

More than 5,000 care home residents have died from Covid-19 in the UK. Official data shows care home deaths account for more than a third of all fatalities. 

Ms Masters said she was prompted into action after becoming concerned that DNRs were being imposed in ‘seemingly blanket ways, without consultation with patients or their families and [there was] a great amount of confusion within the general public over the need for consent’.

Her family’s case in 2014 established there was a legal duty to consult with and inform patients if a DNR order was placed on their records except in very narrow circumstances.

It comes amid concerns from care organisations that elderly people across the nation are being pressured into signing DNR forms.

Kate Masters said the decision-making process around DNRs had ‘become opaque’ in the wake of the Covid-19 pandemic. Ms Masters’s late father David Tracey had brought a successful judicial review establishing a violation of his late wife Janet’s human rights while she was treated in Addenbrooke’s Hospital, in Cambridge, after a car crash in 2011. Above, Mr Tracey at the Royal Courts of Justice in 2014, with Kate (r) and another of his daughters, Alison Noeland

In a letter before legal action formally commences, Ms Masters called on Health Secretary Matt Hancock to ensure that patients’ human rights were protected by reminding NHS trusts that blanket DNRs were unlawful

In a letter before legal action formally commences, Ms Masters called on Health Secretary Matt Hancock to ensure that patients’ human rights were protected by reminding NHS trusts that blanket DNRs were unlawful.

‘Please do not exclude me!’: The tragic case of Janet Tracey’s DNR

Despite Janet Tracey’s poor prognosis after the car crash in 2011, her family said at the time that she had ‘a strong will to live’ and ‘wanted to have every minute of every day’ for her four daughters and seven grandchildren.

Mrs Tracey, 63 – who already had terminal lung cancer – had told doctors she wished to be included in conversations about her care, and even wrote a note to one consultant from her hospital bed which said ‘Please do not exclude me’ and ‘I will do my damnedest’.

So she was ‘distraught’ and ‘horrified’ to discover that a DNR order had been placed on her notes without her knowledge.

When Mrs Tracey objected, it was cancelled by Addenbrooke’s staff, but it was reinstated days later following discussions with the family after her condition deteriorated, and she passed away on March 7, 2011.

She said without action from the Government, Covid-19 patients were ‘at a considerable risk of having a DNR imposed on them without full information being given in advance, without a proper consultation and without any information as to what to do if the decision is disagreed with’.

The letter, from legal firm Leigh Day on behalf of Ms Masters, said: ‘Trusts and staff are under unprecedented burdens with the day-to-day management of healthcare provision, giving rise to a real risk of local inconsistency and arbitrariness as to decision-making procedures in the absence of clear national policy.’

It also draws on Ms Masters’s concerns for her own situation were she to be admitted to hospital.

The letter said: ‘The proposed claimant is 53-years-old, with diabetes, fibromyalgia and an underactive thyroid.

‘She is frightened that by reason of her underlying health condition and in the current pandemic with the well-publicised pressure on resources, she (and many others in similar circumstances) are at risk of having a DNA imposed on her without the requisite consultation and information which is necessary for the protection of her (human) rights.’

In a statement, Ms Masters said: ‘I have watched with alarm as reports of blanket DNR orders in care homes and failures to consult with patients and their families have been reported in the news since the start of the coronavirus crisis.

Janet Tracey had told doctors she wished to be included in conversations about her care, and even wrote a note to one consultant from her hospital bed which said ‘Please do not exclude me’ and ‘I will do my damnedest’. So she was ‘distraught’ and ‘horrified’ to discover that a DNR order had been placed on her notes without her knowledge. (File image, Addenbrooke’s)

‘After all that my dad did to fight to clarify the law regarding DNRs, I am determined to ensure that my human rights and those of others are not breached due to a lack of government direction.’ 

Merry Varney, Ms Masters’s solicitor, added: ‘Healthcare professionals are already overburdened. 

‘Our client believes it is time for the Government to step up and give national guidance that will ensure consistent and lawful decision-making at a local level and also ensure patients’ fundamental human rights are being upheld.’

The legal firm said Ms Masters would consider bringing a judicial review if she did not receive a satisfactory response from the Government.

Hidden epidemic of coronavirus in care homes – where more than 5,000 have died from the killer bug

Coronavirus deaths in care homes are not inevitable, a report has warned amid fears the killer virus has claimed the lives of thousands of Britain’s most vulnerable.

Researchers at the London School of Economics have highlighted exactly where the UK has fallen short of protecting some 400,000 care home residents and staff.

More than 5,000 care home residents have died from Covid-19. Official data shows care home deaths account for more than a third of all fatalities.

The LSE report highlights how the UK Government’s response has been different to other countries, taking a reactive approach rather than precautionary measures to prevent an outbreak.  

In contrast, Hong Kong – which took action to prevent a crisis early on – has recorded no official deaths in care homes.

The UK’s total fatalities has reached 29,876. The Government added deaths outside hospital, such as in care homes, in their tallies only until April 30

In some cases, swab tests have been limited to six residents with symptoms per care home, forcing staff to make assumptions on who may have the killer infection.

Carers are allowed to continue working even if they have had contact with a positive case, while in Germany a 14-day self isolation period is compulsory.

In South Korea, where total and care home deaths have been relatively low, regular temperature checks are taken of residents. A fever is one of the tell-tale symptoms.

Similarly in Hong Kong, residents are self-isolating even if there is no outbreak and must wear a face mask if they leave their room.

It comes as experts believe deaths are being hugely under-reported because of a lack of testing.

GPs may also have been reluctant to write Covid-19 on death certificates in the outbreak’s early stages and figures from care homes are not included in the official daily toll.

By the time official sources had confirmed 217 care homes deaths, up to April 3, industry figures were saying the true count was much higher – potentially 4,000 between that date and the start of the outbreak.

Campaigners and MPs warned of an ‘unfolding horror’ that could end up with tens of thousands of forgotten victims.

Ministers faced urgent calls to get a grip and get virus tests for all staff and residents with symptoms, more protection gear and a Cabinet minister to deal with the crisis.

Care home operators complained they were being overlooked, left desperate by shortages of testing and staff safety equipment, which made it difficult to stop the disease.

How have different countries controlled Covid-19 in care homes? 

 UK

  • Admission to care homes, including from hospital, are as normal. But residents are tested prior to admission.
  • If patients show suspected COVID-19 symptoms, they should be isolated in their room. If there are two or more suspected cases, public health officials should be notified. 
  • It has come to light that testing was initially done on the first five symptomatic residents. This has been accelerated to include all symptomatic residents.
  • Residents and staff isolation guidance continues to be based on symptoms, not on potential contact with people with COVID-19.
  • Care home should implement daily monitoring for COVID19 symptoms among residents. 
  • Care home staff who come into contact with a COVID-19 resident while not wearing PPE can remain at work, but individual risk assessments should be conducted.

Germany

  • If there is a confirmed COVID-19 case, all residents and staff must be tested, sometimes repeatedly such as in Hamburg.
  • Strict self-isolation rules for staff who have had face-to-face contact with confirmed cases. 
  • When a patient is discharged from hospital after having two negative COVID-19 tests, they must isolate for two weeks, have no symptoms for at least 48 hours.
  • In Lower Saxony, patients discharged must go to rehabilitation hospitals to receive short-term care. 
  • Some states have frozen new admissions to care homes entirely. 
  • Some states ban visitors while others still allow adults who are close relatives. 
  • All staff who have direct contact with vulnerable people must cover their noses and mouths to protect patients, even if the person does not have symptoms.
  • The Robert Koch Institute, the public health institute in Germany (RKI), recommends daily documentation of health of residents and staff. 
  • The Government raised care workers’ wages on April 23. 

Hong Kong

  • All residents must stay in their room whether or not there is an outbreak. They must wear a surgical face mask if they have to leave, it was reported on March 27.
  • Families have only been allowed to visit on compassionate grounds since March 27.
  • Staff who have been overseas are subject to compulsory quarantine for 14 days.

South Korea

  • Started restricting visitors on March 7.
  • Regular temperature checks.
  • Anyone who needs to isolate must go to quarantine facilities such as the Human Resources Development Institute.
  • Exclusion of workers who had recently been to China or other risky countries.
  • All staff were provided with PPE on March 27.

Italy

  • Many Regions banned new admissions to nursing homes. When this was not the case, nursing homes managers themselves opted for the freezing of new admission if isolation was not possible.
  • Suspended visits on March 9 until May 4. Three weeks at the start of the outbreak had no restrictions.
  • Shortage of PPE supplies in care homes. Workers have not been sufficiently protected and nursing home providers are buying their own PPE.
  • Nursing homes are following their own initiatives of checking residents’ symptoms regularly because formal guidelines have been implemented.
  • Testing needs to be allowed by Local Health Authorities in a case by case basis. Some Nursing Homes are starting buying testing services on their own.

Spain

  • ‘Mass purchasing’ of PPE to try and protect workers.
  • Use of adapted hotels and other facilities as quarantine and rehabilitation facilities following hospital discharge.
  • New guidance issued on 24th March extends isolation measures for residents and staff who are asymptomatic but may have been in contact with positive cases. But many care homes report that if they adhered to this they would need to send all staff home.
  • Recruitment of staff by relaxing accreditation requirements 

US

  • Guidance for testing long term residents was issued on April 27 by the CDC.
  • Restricted visitors from March 13.
  • Isolation of residents varies by state. Some states, including Connecticut, Massachusetts, Oregon, and Indiana are also creating new COVID-only skilled nursing facilities in underused homes. But the proposal to move residents testing positive to new locations has largely been abandoned because of an outcry from the public.
  • Rapid response teams ready to reach out and assess nursing homes as the fight outbreaks – but this is reportedly an ad-hoc basis.
  • Nursing homes are eligible to receive accelerated Medicare Payments. Some private firms are giving bonuses.
  • On the April 30, the federal government announced it will begin sending a seven-day supply of personal protective equipment (PPE) to over 15,400 nursing homes. Until this point it has been priority access 

Source: LTCcovid

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