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Outcome of GMC appeal against Burke ruling

The Appeal Court’s recommendation that the GMC guidance should be implemented throughout all levels of health care may be something that clinical ethics committees and the Network wish to consider.

On 31st July 2004 Justice Munby issued several declarations in the High Court in a judicial review of the General Medical Council’s guidance on withholding and withdrawing life prolonging treatment. The judicial review had been sought by Mr Leslie Burke and was supported by the Disability Rights Commission and others. In his judgement Justice Munby declared unlawful a number of paragraphs of the GMC guidance. The main points of the original judgement are summarised below:

1. The GMC guidance fails to recognise a right to require treatment as well as a right to refuse treatment. Thus a competent patient’s decision that they wish artificial nutrition and hydration (AN&H) to be continued until death is imminent must be seen as determinative of the patient’s best interests. The only circumstances in which it could be discontinued would be if death was imminent, or if continuation of the treatment was seen as intolerable to the patient.

2. The guidance fails to acknowledge the heavy presumption in favour of life prolonging treatment and that such treatment will be in the best interests of the patient, unless the life of the patient, viewed from the patient’s perspective would be intolerable.

3. The guidance fails to reflect the legal requirement that in certain circumstances AN&H cannot be withdrawn without prior judicial authorisation.

4. If a doctor or NHS trust has taken on care of a patient who has expressed a wish that AN&H be continued they must continue to provide such treatment or arrange for the patient’s care to be transferred to someone who is willing to provide such treatment.

The GMC appealed against the declarations of Justice Munby, seeking clarification of, among other things, the concept of a right to require treatment and the use of ‘intolerability’ as a touchstone of best interests. The Appeal was heard in May 2005 and the Appeal court judgement given on 28th July 2005.

The Appeal court upheld the appeal of the GMC. The Judges were critical of both Justice Munby and the official solicitor for extending their consideration of the issues beyond the specific circumstances of the case of Mr Burke into wider areas of concern. Mr Burke was competent and was likely to remain competent, and able to communicate his wishes, either by speech or electronic communication, until very soon before death. Thus discussion of general principles on advance directives and decision-making when a patient is incompetent were not relevant to the specific situation of Mr Burke.

The Judges stated that:
‘The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court’s intervention.’

Thus the judges were very clear that the courts should limit their judgements to specific cases and not extend their rulings to set out general principles to govern a range of hypothetical cases. However, the Appeal Court did respond to those parts of the initial judgement that extended beyond the specific case of Mr Burke. The reason given by the Judges was a concern that parts of the initial judgement would be ‘seized on and dissected by lawyers seeking supportive material for future cases’. They cautioned strongly against this.

The main points of the appeal judgement are summarised below:

1. Autonomy and the right of self determination do not entitle a patient to request a medical treatment regardless of the nature of the treatment.

2. Where artificial nutrition and hydration is needed to keep a patient alive a doctor will normally be required under a duty of care to provide it. The patient’s wish to receive it underscores the duty to provide it but is not the source of the duty.

3. A doctor who withdraws AN&H from a patient who requires it to live, and against the expressed wishes of that patient to receive such treatment, will be open to a charge of murder.

4. The duty to provide life sustaining treatment is not absolute. There are exceptions including when a patient refuses such treatment or when the patient is incompetent and it is not considered in the best interests of the patient to be kept alive, for example, patients in persistent vegetative state or when life involves extreme pain, discomfort or indignity. In the latter situation the decision will depend on the facts of the individual case.

5. The above exceptions do not apply in the case of Mr Burke, that of a competent patient wishing to be kept alive.

6. The GMC guidance, in so far as it relates to Mr Burke’s predicament is not unlawful.

I7. n cases at the extreme end of life where AN&H will not prolong life the decision whether to continue with treatment will rest on a clinical decision balancing benefits and burdens of treatment. In this situation a patient cannot demand that a doctor administer treatment which the doctor considers is adverse to the patient’s clinical needs. (The judges stressed that this scenario, of conflict between patient and clinician, would be extremely unlikely to arise in practice).

8. A requirement that a patient be kept alive simply because he had made an advance directive to that effect is not compatible with the Mental Capacity Act 2005, or with common law. The legal requirement s that an advance refusal of treatment is respected.

9. It is not possible to define what is in the best interests of a patient by a single test (the intolerability test) in all circumstances. The test must depend on the particular circumstances.

10. There is no legal requirement to seek a declaration from the court to withdraw or withhold life prolonging treatment. It is a matter of good practice that in certain circumstances, practitioners should seek such a declaration.

A footnote to the judgement strongly urges that the GMC guidance is vigorously promulgated taught, understood and implemented at all levels within the NHS. Anecdotal cases of patients being denied treatment were examples of instances where good practice and guidance had not been followed, and patients such as Mr Burke should have confidence that they will be treated in accordance with good practice.

The Appeal Court judgement has confirmed that the GMC guidance is compliant with English law, and with the relevant sections of the Human Rights Act. It has clarified the position with regard to advance directives and how they should be taken into account in end of life decision-making. It has also emphasised the duty of a doctor to maintain life by provision of AN&H while recognising specific exceptions to this duty. A key message is that determination of best interests can be a complex process, not usually best suited to a single test, and depending very much on the specific circumstances of the individual case.

Several CECs contributed to a discussion document for the GMC that informed the preparation of their appeal. The discussion document is available on the Network website CEC comments on Burke Thank you to all who contributed. The court’s recommendation that the GMC guidance should be implemented throughout all levels of health care may be something that clinical ethics committees and the Network wish to consider. How can CECs contribute to this endeavour? If you have any ideas about this or would like to contribute to a debate on this issue pleas get in touch with us.

The full judgement of the Appeal Court can be accessed at
Burke appeal judgement

Anne Slowther

This article is the author’s own interpretation of the judgement and is not necessarily the view of UKCEN. This article does not constitute legal advice. CECs should seek advice from the Trust legal department before taking or refraining from any action as a result of the contents of this document.