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Burke: A tale of unhappy endings


Charles Foster,
Barrister,
Outer Temple Chambers,
London WC2

This article was first published in the Journal of
Personal Injury Law: December 2005, p. 293: [2005] JPIL Issue 4/05: 293
and is reproduced here by kind permission of the author and publisher.

Introduction

On 28 July 2005 the Court of Appeal (Phillips MR and Waller and Wall LJJ) handed down judgment in R (on the application of Burke) v The General Medical Council . The judgement may have ended an unhappy piece of litigation. It was unhappy for Leslie Burke, who presumably still feels that the GMC guidelines he criticised afford him and others inadequate protection. It was unhappy for his lawyers, who were roundly criticised by the Court of Appeal. It was unhappy for the pro-life lobby, because this case has handed its opponents in the Voluntary Euthanasia Society some headlines and some real legal hope. It is unhappy for patients in extremis: they may be less safe than they were, because the intolerability test – one of the main safeguards against premature withdrawal of treatment – was disapproved, and the way paved for its complete abolition. And it was unhappy for Munby J, who received a nasty appellate rap across the knuckles. Many read with schadenfreudic glee how the Court of Appeal denounced him for going off-piste.

And it was all unnecessary. As the Court of Appeal found, and as many commentators had observed, Burke’s fears were wholly legally groundless: he was perfectly adequately protected by the existing law.

The facts

Leslie Burke suffers from spino-cerebellar ataxia - a congenital degenerative disease with a clinical course similar to multiple sclerosis. Some time in the future he will need artificial nutrition and hydration (ANH). At the time that he needs this he will be legally competent.

He was concerned about the GMC’s guidelines dealing with the withdrawal of ANH . He thought that, despite his expressed wish to continue receiving ANH, a doctor reading the guidelines might feel able to withdraw ANH. He thought that two paragraphs in particular might lead to that conclusion.

(a) “If you are the consultant or general practitioner in charge of a patient’s care, it is your responsibility to make the decision about whether to withhold or withdraw a life-prolonging treatment, taking account of the views of the patient or those close to the patient as set out in paragraphs 41-48 and 53-57.”

(b) “Where death is not imminent, it usually will be appropriate to provide artificial nutrition or hydration. However, circumstances may arise where you judge that a patient’s condition is so severe, the prognosis so poor, that providing artificial nutrition or hydration may cause suffering or to be too burdensome in relation to the possible benefits.”

There was another worry – that there was “no obligation upon a doctor to seek the
advice of a court as to whether and when my life should be ended.”

He brought proceedings for judicial review. He sought the following declarations:
“(1) the withholding or withdrawal of artificial nutrition and hydration, leading to death by starvation or thirst would be a breach of Mr Burke’s rights under Articles 2, 3, and 8 and would be unlawful under domestic law;
(2) where a competent patient requests or where an incompetent patient has, prior to becoming incompetent, made it clear that they would wish to receive artificial nutrition and hydration, the withholding or withdrawal of artificial nutrition and hydration, leading to death by starvation or thirst would be a breach of their rights under Articles 2, 3 or 8 and would be unlawful under domestic law;
(3) the refusal of artificial nutrition and hydration to an incompetent patient would be a breach of Article 2 unless providing such artificial nutrition and hydration would amount to degrading treatment contrary to Article 3;
(4) the Guidance … is unlawful in so far as it fails it safeguard the rights of patients under Articles 2, 3 and 8;
(5) paragraph 81 of Guidance … is unlawful as it is incompatible with Article 2, 3 and 8 and domestic law;
(6) withdrawal of artificial nutrition and hydration from a non-PVS patient without first seeking a court ruling in circumstances where artificial nutrition and hydration would not be withdrawn from a PVS patient is unlawful discrimination contrary to Article 14;
(7) paragraph 81 of Guidance … is unlawful as it is incompatible with Article 14;
(8) where there is disagreement between a competent patient, or relatives or carers of an incompetent patient, as to whether artificial nutrition should be withdrawn, the disagreement should be resolved by application to a court or, alternatively, that those proposing to withdraw artificial nutrition and hydration should inform the patient or relatives and carers and afford them sufficient time before withdrawal of artificial nutrition and hydration to enable them to take steps to secure their rights under Articles 2, 3 and 8.”
The case before Munby J

Although the evidence was that Leslie Burke will be competent at the time that he
needs ANH, Munby J embarked on a detailed review of the law relating to the
withdrawal of life-sustaining treatment from both competent and incompetent
patients. His judgment is 225 paragraphs long .

He made a number of declarations. They included:

(a) a declaration that paragraph 32 of the guidelines was unlawful because it failed “to recognise that the decision of a competent patient on whether [ANH should be given] is determinative in principle of whether or not such treatment is in the patient’s best interests.”

(b) a declaration that paragraph 81 of the guidelines was unlawful in that: “(a) it fails to recognise that the decision of a competent patient that artificial nutrition and hydration should be provided is determinative of the best interests of the patient. (b) it fails to acknowledge the heavy presumption in favour of life-prolonging treatment and that such treatment will be in the best interests of a patient unless the life of the patient, viewed from that patient’s perspective, would be intolerable, and (c) provides that it is sufficient to withdraw [ANH] from a patient who is not dying because it may cause suffering or be too burdensome in relation to the possible benefits.”

He further said that there was a legal requirement to obtain court authorisation before withholding or withdrawing ANH “in certain circumstances” - evidently “(i) where there is any doubt or disagreement as to the capacity (competence) of the patient; or where there is a lack of unanimity amongst the attending medical professionals as to either (1) the patient’s condition or prognosis or (2) the patient’s best interests or (3) the likely outcome of ANH being either withheld or withdrawn or (4) otherwise as to whether or not ANH should be withheld or withdrawn; or (iii) where there is evidence that the patient (even if a child or incompetent) resists or disputes the proposed withdrawal of ANH; or (v) where persons having a reasonable claim to have their views taken into account (such as parents or close relatives, partners, close friends, long-term carers) assert that withdrawal of ANH is contrary to the patient’s wishes or not in the patient’s best interests.”

Leslie Burke chose to fight the case on the grounds, inter alia, of his right to autonomy. For the pro-life lobby who supported him, that was a dangerous thing to do. Autonomy is a crucial principle, but it needs to be kept in its place. If it is allowed to metastasize out of its proper arena it becomes deadly. The ratio of Munby J’s judgment can be said to be: Autonomy trumps all. And what is sauce for the pro-life goose is even richer sauce for the pro-euthanasia gander.

Here is Munby J’s hymn to autonomy:

“…The personal autonomy which is protected by Article 8 embraces such matters as how one chooses to pass the closing days and moments of one’s life and how one manages one’s death…. The dignity interests protected by the Convention include, under Article 8, the preservation of mental stability and, under Article 3, the right to die with dignity and the right to be protected from treatment, or from a lack of treatment, which will result in one dying in avoidably distressing circumstances…Important as the sanctity of life is, it has to take second place to personal autonomy; and it may have to take second place to human dignity…”

The passage duly appeared in lights on the website of the Voluntary Euthanasia Society. It was the biggest forensic coup in their history.

Withholding and withdrawing treatment from competent patients

It is well established that, so far as the refusal of treatment by a competent adult is concerned, autonomy does indeed rule. The “best interests” test is irrelevant. If a Jehovah’s Witness tells a doctor that he does not want a life-saving blood transfusion, but the doctor nonetheless goes ahead and gives it, the doctor has no defence to a claim of battery . That the transfusion was in the objective best interests of the patient is neither here nor there.

It does not follow from this that a patient can stamp his foot and demand whatever treatment he wants. As a very broad generalisation (subject to caveats inserted by Articles 2, 3 and 8), the law relating to what treatment should be provided (as opposed to the treatment that should not be provided) is the law determining the ambit of the treatment provider’s duty. We do have two different, and sometimes competing, jurisprudences in England: rights and duties. The extent of the competition is sometimes exaggerated: there is some overlap . But the Court of Appeal was completely clear that the “duty” rather than the “rights” analysis was the correct one when considering the obligation to treat.
“Insofar as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. The source of the duty lies elsewhere….Where the competent patient makes it plain that he or she wishes to be kept alive by ANH, this will not be the source of the duty to provide it. The patient’s wish will merely underscore that duty.”

In future debates about the provision of treatment it will be interesting to see how far this dogmatic insistence on a duty-based analysis goes. Of course rights arguments cannot, as a matter of law, be ousted completely, but they can be sidelined into irrelevance without Strasbourg being able to do much about it. This might not make much practical difference. In arguments about the legitimate impact of resource allocation on treatment decisions, for instance, any half-competent barrister can get to whatever conclusion he wants as comfortably down the rights path as down the duty path.

It is plain that, when a hospital accepts a patient, the hospital generally has a duty to provide basic medical care. This is an old, unsurprising and entirely uncontroversial proposition . Nonetheless it was a proposition which Leslie Burke appeared not to understand. It was this incomprehension that took him to court in the first place. Medical care does not get much more basic than the provision of ANH.

The Court of Appeal put it like this:
“So far as ANH is concerned, there is no need to look far for the duty to provide this. Once a patient is accepted into a hospital, the medical staff come under a positive duty at common law to care for the patient…. A fundamental aspect of this positive duty of care is a duty to take such steps as are reasonable to keep the patient alive. Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH….”
This is all the more so in the case of a patient like Leslie Burke, who, regardless of the pain, suffering or indignity of his condition, makes it plain that he wants to be kept alive.

“No authority lends the slightest countenance to the suggestion that the duty on the doctors to take reasonable steps to keep the patient alive in such circumstances may not persist. Indeed, it seems to us that for a doctor deliberately to interrupt life-prolonging treatment in the face of a competent patient’s expressed wish to be kept alive, with the intention of thereby terminating the patient’s life, would leave the doctor with no answer to a charge of murder.”

This is strong and simple stuff. It is, really, the ratio of the case. As long as the guidelines were concordant with this (as they were found to be) nothing else needed to be decided. Arguably everything else the Court of Appeal said was obiter.

Of course the argument can be put in ECHR terms too. But again the answer is fairly obvious. If an NHS doctor were deliberately to bring about the death of a competent patient by withdrawing life-prolonging treatment contrary to the patient’s wishes, Article 2 would be violated, and any English law which purported to permit such conduct would be incompatible with Article 2. Articles 3 and 8 have nothing to contribute to this debate . They do have something to say where the patient is incompetent.

The GMC was very concerned that Munby J may have suggested that doctors might be obliged to provide, or to procure another doctor to provide, treatment wanted by the patient but which the clinicians concerned do not think is clinically indicated. The Court of Appeal doubted that there had been such a suggestion, but endorsed the following propositions, which together purport to be a workmanlike practitioners’ guide for sticky clinical decision-making:
“(i) The doctor, exercising his professional clinical judgment, decides what treatment options are clinically indicated (i.e. will provide overall clinical benefit) for his patient.
(ii) He then offers those treatment options to the patient in the course of which he explains to him/her the risks, benefits, side effects, etc involved in each of the treatment options.
(iii) The patient then decides whether he wishes to accept any of those treatment options and, if so, which one. In the vast majority of cases he will, of course, decide which treatment option he considers to be in his best interests and, in doing so, he will or may take into account other, non clinical, factors. However, he can, if he wishes, decide to accept (or refuse) the treatment option on the basis of reasons which are irrational or for no reasons at all.
(iv) If he chooses one of the treatment options offered to him, the doctor will then proceed to provide it.
(v) If, however, he refuses all of the treatment options offered to him and instead informs the doctor that he wants a form of treatment which the doctor has not offered him, the doctor will, no doubt, discuss that form of treatment with him (assuming that it is a form of treatment known to him) but if the doctor concludes that this treatment is not clinically indicated he is not required (i.e. he is under no legal obligation) to provide it to the patient although he should offer to arrange a second opinion.”
This all sounds common-sensical enough, but its reliance on the doctor’s judgment about “clinical indication” imports an old-fashioned doctor-knows-best paternalism into the process of medical decision-making. What amounts to “overall clinical benefit” cannot necessarily be determined by purely clinical criteria. Whether a particular patient is prepared to weather the side effects of drug X in order to obtain a few more months of life will depend on many things apart from the graphs in the medical textbooks and the experience of the individual clinician. Rights-based analytical tools deal better with such questions than duty-based tools.

There was one final, legally exotic twist to the competent patient story. It is put here as an afterthought, because, as the Court of Appeal observed, it is unlikely to arise in practice. What if, in the final stages of life, the provision of ANH would not only fail to prolong life but would also hasten death? And what if the patient is still competent and indicates that he wants to receive that ANH? Would the clinicians be bound to provide it? Yes, said Munby J: the patient’s wishes are as determinative here as at all other times . No, said the Court of Appeal: a patient cannot demand treatment that the doctor considers would be against the patient’s best interests .

This is odd. Precisely when the patient is at his most vulnerable the law abandons him. His disease has stripped him of most of his autonomy: the common law strips him of the rest. If the common law imposes a duty to provide basic care earlier in the patient’s life, is it really allowing autonomy too free a rein, or offensively infringing medical professionalism, to allow the same duty to be imposed as a result of a patient’s dying request? There is all the difference in the world between a request for ANH and a request for a lethal injection. Munby J’s error was in failing to see that difference . The Court of Appeal need not have been worried that allowing a request for one might necessitate allowing a request for the other. The law is not and need not be that unsubtle.

Withholding and withdrawing treatment from incompetent patients

The Court of Appeal dealt briefly with the position of incompetent patients, pointing out that it was irrelevant to Leslie Burke’s concern of the moment.

Leaving aside for the moment the question of advance directives, Munby J’s conclusion was as follows:

“There is a very strong presumption in favour of taking all steps which will prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In case of doubt that doubt falls to be resolved in favour of the preservation of life. But the obligation is not absolute. Important as the sanctity of life is, it may have to take second place to human dignity. In the context of life-prolonging treatment the touchstone of best interests is intolerability. So if life-prolonging treatment is providing some benefit it should be provided unless the patient’s life, if thus prolonged, would from the patient’s point of view be intolerable. ”
The emphasis in the final two sentences is the Court of Appeal’s own. They said:
“We do not think that any objection could have been taken to this summary had it not contained the final two sentences, which we have emphasised. The suggestion that the touchstone of ‘best interests’ is the ‘intolerability’ of continued life has, understandably given rise to concern. The test of whether it is in the best interests of the patient to provide or continue ANH must depend on the particular circumstances. The two situations that we have considered above [a patient in PVS and an incompetent but sentient patient capable of being kept alive for an indefinite period by the provision of ANH] are very different. As to the approach to be adopted in the former, this court dealt with that in Re J and we do not think that it is appropriate to review what the court there said in a context that is purely hypothetical.”
This is an extraordinary passage. There is no doubt that Munby J set out established legal orthodoxy. The Court of Appeal appear to be changing radically the nature of the test to be applied in end of life decision-making for incompetent patients without even discussing the many hallowed authorities which Munby J relied on. The Court of Appeal seem to acknowledge that their comments on this subject are obiter, but even so, they appear very blasé in ripping away one of the principal ethical pillars of the law of the end of life. The Court of Appeal counselled against “selective use of Munby J’s judgment in future cases”, on the grounds that much of it was effectively obiter – answering questions which did not properly arise for determination . On precisely the same grounds the Court of Appeal’s comments on the withdrawing life-sustaining treatment from incompetent patients should be viewed with great caution. Since they decided to deal with questions which they acknowledged they did not need to answer, the time and energy they devoted to spanking Munby J would have been better spent looking at the cases which compelled him to his conclusion.

Absent an advance directive, in all cases where the patient is incompetent the test for what should be done or not done is the “best interests” test. It has long been recognised, though, that the phrase “best interests” is inadequate by itself. It begs far too many questions. It needs exposition. The law needs to say, for instance, whether the test is objective or subjective. If the test is subjective the person whose view is definitive needs to be identified. If the test is objective the criteria used in making the decision, along with the values which underpin the criteria, need to be spelt out. And that is what the judges have done.

The classic exposition is in In re J (A Minor) (Wardship: Medical Treatment) . It applies to cases (other than PVS cases) where the patient is incompetent but is not dying. Here is Taylor LJ in Re J, whose judgment Munby J found particularly illuminating.

“Despite the court’s inability to compare a life afflicted by the most severe disability with death, the unknown, I am of the view that there must be extreme cases in which the court is entitled to say: “The life which this treatment would prolong would be so cruel as to be intolerable.” If, for example, a child was so damaged as to have negligible use of its faculties and the only way of preserving its life was by the continuous administration of extremely painful treatment such that the child either would be in continuous agony or would have to be so sedated continuously as to have no conscious life at all, I cannot think Mr Munby’s absolute test should apply to require the treatment to be given. In those circumstances, without there being any question of deliberately ending the life or shortening it, I consider the court is entitled in the best interests of the child to say that deliberate steps should not be taken artificially to prolong its miserable life span.

Once the absolute test is rejected, the proper criteria must be a matter of degree. At what point in the scale of disability and suffering ought the court to hold that the best interests of the child do not require further endurance to be imposed by positive treatment to prolong its life? Clearly, to justify withholding treatment, the circumstances would have to be extreme … I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say “to that child” because the test should not be whether the life would be tolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable.”
This approach was not created in Re J: it had a distinguished judicial lineage. It has been repeatedly used and approved by subsequent judges.

That lineage was reviewed in detail by Munby J. His review was not uncritical. He recognised that:
“neither Templeman LJ’s use of the words “demonstrably so awful” nor Dunn LJ’s use of the word “intolerable” is to be treated as providing a quasi-statutory yardstick. Nor, for the same reason, ought we to elevate Taylor LJ’s formulation to a status which it cannot have. After all, as Balcombe LJ put it, there is only one test: best interests. But when all is said and done, it is, I think, Taylor LJ’s judgment which provides the most helpful and illuminating guidance.”
He noted too that: “[the] concept of treatment unacceptable as prolonging a “life … so cruel as to be intolerable” surely reflects the concept of the “inhuman or degrading treatment” proscribed by Article 3 of the [ECHR]” .. This is hard to contradict.
The law, then, until the Court of Appeal’s judgment in Burke, was settled. Where one was dealing with an incompetent, non-dying patient who was not in PVS, one had to act in that patient’s best interests. There was a presumption that it was in the patient’s best interests to continue to live. That presumption could be displaced, but displacement was difficult. The presumption could only be displaced if it could be shown that continued existence would be intolerable.
Taking its cue from Burke, the Court of Appeal, in a case where the issue of the intolerability test was certainly not obiter, has now swept away the intolerability test: see Wyatt v Portsmouth Hospital NHS Trust. It has replaced it with the untrammelled “best interests” test. If recourse to the courts is unavoidable “the forensic debate should….be unfettered by any potentially contentious glosses on the best interests test which are likely either inappropriately to shift the focus of the debate, or to restrict the broad exercise of the judicial discretion involved in balancing the multifarious factors in the case.” The intolerability test, instead of being the philosophical offspring of the principle of the sanctity of life, is merely a “…contentious gloss on the best interests test….” While intolerability is not dismissed entirely as a criterion (“…it is a valuable guide in the search for best interests…” ), it has been sidelined to practical irrelevance.
The intolerability test is practically and ethically valuable. It is there because the notion of sanctity of life is presumed to be part of the “best interests” determination. If the intolerability test is excised, the notion of the sanctity of life is excised too.
It is naïve and dangerous of the Court of Appeal to imply, as it did, that judges need no help in deciding what “best interests” means. The Court emphasised elsewhere that the test was an objective one, but gave no guidance as to the criteria to be used in deciding whether or not the test is satisfied. A “best interests” test simpliciter is so elastic as to be meaningless. It can stretch to accommodate all sorts of medical skulduggery and judicial sloppiness. It will be impossible to police. With the intolerability test gone, doctors will be less sure where they stand, judges will be less reviewable, patients will be less safe and the principles underpinning the law will be either non-existent or invisible .
The Court of Appeal frowned too on the application of the intolerability test when a patient is dying . Munby J himself appeared to think that it could not be applied there. Assuming that there is no doubt that the patient is dying, most ethicists would agree that there is a real distinction between this situation and that of a non-dying patient, and most lawyers would agree that that ethical difference should be reflected in a different test.

Advance directives

Burke contains an important comment on advance directives. Leslie Burke had contended that if a patient had made an advance directive requiring him to be kept alive in specified circumstances, this must be complied with as a matter of law.
The Court of Appeal gave this short shrift:
“The position of a patient in a PVS was addressed at length by the House of Lords in Bland and we do not consider it appropriate in this case to add to what was said by their Lordships, other than to make the following observation. While a number of their Lordships indicated that an advance directive that the patient should not be kept alive in a PVS should be respected, we do not read that decision as requiring such a patient to be kept alive simply because he has made an advance directive to that effect. Such a proposition would not be compatible with the provisions of the Mental Capacity Act 2005, which we consider accords with the position at common law. While section 26 of that Act requires compliance with a valid advance directive to refuse treatment, section 4 does no more than require this to be taken into consideration when considering what is in the best interests of a patient.”
This final sentence may allay some of the (legitimate) concerns about the 2005 Act. It also gives weight to the many criticisms of the drafting of the Act. However kindly you read it, s. 4 does not sit happily with s. 26. But the Court of Appeal seem to agree that despite s. 26, there is no magic in an advance directive: it is merely evidence to be taken into account in deciding whether or not treatment should be given or withheld. In the case of an advance directive to refuse treatment, that directive, if found to apply, will bring the principle of autonomy swinging decisively in. In the case of an advance directive that treatment should be given, the directive is, again, evidence relevant to the issue of autonomy. But here, as already noted, autonomy does not always have the final word. In either case there will have to be detailed consideration of the question of whether the directive applies. Were the exact clinical circumstances that have arisen envisaged at the time the directive was made? Has the prognosis changed in the light of medical advance since the directive was made? Was the patient adequately counselled about the relevant treatment options and the prognosis at the time the directive was made. And so on.
Authorisation of treatment decisions by the Court

Munby J’s comments about the need in certain circumstances to obtain the court’s approval of a decision to withhold or withdraw treatment gave rise to a lot of consternation. The Intensive Care Society told the Court of Appeal that each year about 50,000 patients were admitted to intensive care units. Of these, 30% die in the unit or on the wards. Most of these deaths are a result of the withdrawal or limiting of treatment – albeit in circumstances where the treating clinicians conclude that treatment would be likely merely to prolong the process of dying. There is not always agreement on the part of all concerned about the withdrawal of treatment. The Society said that that if Munby J’s criteria were applied, about 10 applications a day would have to be made to the courts.

This last observation seems to have carried some weight with the Court of Appeal. If it did, that is a worry. There are few more important things than treatment withdrawal decisions. This is literally a matter of life and death. If it is desirable that the court should supervise them, then crowded court lists are not a good reason not to supervise.

The Court of Appeal did not deal at all with the rather important question of the desirability of court endorsement in difficult situations, other than to say that “Good practice may require medical practitioners to seek [a declaration as to whether proposed treatment or the withdrawal of treatment would be lawful] where the legality….is in doubt.” It gave no guidance as to when “good practice” might require such a declaration. It dealt only with the question of whether there was a legal obligation to seek that endorsement. It concluded that there was not.
“We asked [Counsel for Mr. Burke] to explain the nature of the duty to seek the authorisation of the court and he was not able to give us a coherent explanation. So far as the criminal law is concerned, the court has no power to authorise that which would otherwise be unlawful – see, for instance, the observation of Lord Goff of Chievely in Bland at p. 785 H. Nor can the court render unlawful that which would otherwise be lawful. The same is true in relation to a possible infringement of civil law. In Bland the House of Lords recommended that, as a matter of good practice, reference should be made to the Family Court before withdrawing ANH from a patient in a PVS, until a body of experience and practice had built up. Plainly there will be occasions in which it will be advisable for a doctor to seek the court’s approval before withdrawing ANH in other circumstances, but what justification is there for postulating that he will be under a legal duty so to do?” (Original emphasis).
Munby J had concluded that the ECHR, as construed by European Court of Human Rights in Glass v UK , had transmuted the seeking of court approval in controversial cases from a rule of good practice to a rule of law. This was a misreading of Glass, said the Court of Appeal. “The ECtHR did no more than consider the implications of the doctors’ conduct in the light of what the ECtHR understood to be English law.”

The Court of Appeal has been less than helpful. Even if Munby J did indeed elevate Glass to a status that it does not have, at least he took the trouble to identify the situations where the oversight of the court might be desirable. There is nothing legally offensive about the court laying down rules of good practice. That, after all, was precisely what the Court of Appeal found had been done by the House of Lords in Bland. Call it merely a rule of practice if you like: since Bland all practitioners have regarded it as mandatory to seek the approval of the court to the withdrawal of ANH in all cases of PVS.

The tone of the Court of Appeal’s comments on court authorisation will have the effect of discouraging applications to the court in difficult cases. That is undoubtedly a bad thing. It will make patients less safe, relatives and carers less confident that the right thing has been done, and clinicians sometimes more arrogant, and sometimes less secure that they have done the right thing.

Charles Foster,
Barrister,
Outer Temple Chambers,
222 Strand,
London WC2

Charles.Foster@outertemple.com
tweedpipe@aol.com