Washington mam wins High Court case over 'do not resuscitate' order on disabled son's file

Carl Winspear.
Carl Winspear.
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A bereaved mother has won her High Court case over a "do not resuscitate" notice that was placed on the file of her disabled son.

Elaine Winspear, of Washington, lost 28-year-old Carl, who had cerebral palsy, epilepsy and spinal deformities, in January 2011 after he was admitted to hospital in Sunderland with a chest infection.

Elaine Winspear, pictured shortly after Carl's death in 2011.

Elaine Winspear, pictured shortly after Carl's death in 2011.

In her claim against City Hospitals Sunderland NHS Foundation Trust, she said that placing the Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notice on her son's record from 3am on the day he died until it was cancelled some time after 12.30pm - without any consultation with someone representing his interests - was a breach of his Article 8 rights, which refer to respect for private and family life.

Today in London, Mr Justice Blake granted the mam a declaration that her son's rights under the Human Rights Act were violated by the failure to involve her in the decision-making process that led to the notice.

After four years of fighting, she has said it feels like "justice" for her son.

In addition, the judge, who made no award for damages, said that the notice had no impact on Mr Winspear's actual treatment or the timing and manner of his death.

Mrs Winspear said: "It has been a long and emotional four years but it now finally feels like we have justice for Carl.

"I was Carl's voice and I feel that I was left out of a critical decision in his life, a decision which I should have been consulted on as his mother and his carer.

"Lessons must be learned from this case and the way in which these types of orders are imposed on people and a national policy should be put in place for all Trusts so that it cannot happen again and so that doctors stay within the law.

"These orders should be discussed and signed for by both parties before being placed or cancelled."

Merry Varney, from law firm Leigh Day, said: "Carl was unable to discuss his medical treatment with his doctors, and relied on his mother and other family to do this for him.

"Today's judgement makes it clear that it is not just a matter of good practice but a legal requirement for doctors to consult with family and carers before imposing DNACPR orders on patients without capacity to discuss resuscitation themselves, unless there are clear and convincing reasons not to.

"Imposing a DNACPR order is a sensitive and important decision, and now the courts have made it very clear that it is not a decision for doctors to take alone.

"Clinical judgement plays a pivotal role in the decision making process, however a patient's views and wishes, whether voiced by them directly or by another on their behalf, must be obtained.

"I hope the judgement prompts all those involved in making these decisions, and the authors of the current professional guidance, to revisit their policies and practices to ensure patients' human rights are upheld."

Jan Tregelles, CEO of Mencap, hailed the decision a "landmark" for people with a learning disability, and their families.

She continued: "Today's judgement is a landmark for people with a learning disability, and their families.

"Many families who have lost their loved ones to poor care within the NHS have told us about the inappropriate use of Do Not Attempt Resuscitate (DNAR) Orders.

"Like this tragic case, they tell us that DNAR notices have been applied without their knowledge or involvement in the decision. DNAR orders have also been applied hastily, in inappropriate situations, solely on the basis of a person's learning disability.

"Too often families of people with a learning disability who lack capacity to make their own decisions about care or treatment are excluded from decisions. Despite the Mental Capacity Act saying they must be consulted. This can have devastating consequences. Families often have important knowledge about their loved one and it is vital that this is used when decisions are being made.

"The Mental Capacity Act is there to protect people who lack capacity and it is crucial it is followed. Professionals must be held to account when this doesn't happen.

"1,200 people with a learning disability are dying avoidably in the NHS every year. For real change to happen, professionals need to be properly trained on how to care for people with a learning disability and also know that there will be serious repercussions for failures to carry out their legal duties."