You are here: HomeCommentaries → R (on the Application of Burke) v General Medical Council

Commentaries

R (on the Application of Burke) v General Medical Council

R (on the Application of Burke) v General Medical Council [2004] EWHC 1879 (Admin)

Liz Mulvaney, Partner, Weightmans Solicitors.

You can also follow this link to read a summary of responses from clinical ethics committees to a Request for comments and views on the Judgment in Burke v the General Medical Council

In Glass v UK a mother challenged the legality of doctors making decisions as to the best interests of her disabled son without reference to the court, and without taking into account her opposing views. The European Court found that, save in rare emergency situations, the court should be involved in the decision making process in the event of parental or other objection to a proposed treatment or non-treatment plan.

The case of Glass clearly put an end to any sense that an assessment of medical best interests is bound to hold sway in a court of law. The case of Burke (which is subject to appeal by the GMC) similarly serves to emphasise that quality of life decisions are not a matter of medical judgment to be made by doctors in isolation behind closed doors. Rather, the court made it clear that evaluation of best interests “involves a welfare appraisal in the widest sense, taking account, where appropriate, [of] a wide range of ethical, social, moral, emotional and welfare considerations.” [1] This means listening to family members and say, the patient’s GP, so as to gain a holistic appreciation of what the patient would likely have wanted if able to make a treatment decision for himself.

Mr Burke went to court because he is suffering from a progressive degenerative disease, cerebellar ataxia, which will eventually lead to loss of speech and movement and he will require treatment by way of artificial nutrition and hydration to keep him alive. He was concerned to clarify when, if at all, such treatment could be lawfully withdrawn. He argued that existing guidance issued by the General Medical Council was unlawful in so far as it failed to protect the rights of a patient expressing an advance directive to carry on life prolonging treatment. [2] He was afraid that when he became unable to communicate, although he may still be conscious of what was happening to him, artificial feeding would be withdrawn with the effect that he would be aware of being starved to death. Naturally enough, he found such a prospect altogether frightening. Accordingly, Mr Burke wanted to be sure that doctors would not, contrary to his wishes, be able to withdraw feeding. Mr Burke relied on principles of common law and on Articles 2 and 3 of the European Convention on Human Rights dealing respectively with the “right to life” and the “prohibition against inhumane and degrading treatment”.

In a wide-ranging judgment His Honour Judge Munby concluded that the GMC’s guidance in relation to withholding and withdrawing treatment was vulnerable to criticism in 4 respects in that there was a failure to:

  1. emphasise the right of the competent patient to require (as opposed to refuse) treatment [3]
  2. make clear that a doctor who had assumed responsibility for a patient’s care was under a duty to continue providing treatment (even if unwilling) until he had found another doctor to take over from him
  3. acknowledge, when considering withholding or withdrawing treatment, that the touchstone of patient’s best interests was intolerability
  4. spell out the legal requirement to obtain prior judicial sanction for the withdrawal of artificial feeding in cases where there was disagreement about capacity, condition and prognosis, best interests and/or applicability of an advance directive.

His Honour Judge Munby concluded that if a patient had, when competent, made a valid and relevant advance directive as to what life prolonging treatment he should or should not have, this should, in principle, be determinative. Mr Burke was thus reassured that his wish to have artificial feeding continued would be respected, even if he becomes incapable of communicating this wish.

In the course of giving judgment, the individual’s right to autonomy and self-determination were discussed at length.

It was acknowledged that the law is opposed to physician or other assisted suicide but supportive of a competent patient’s right to refuse treatment that may result in death [4]. Accordingly, the “right to life” provision set out in Article 2 of the Convention on Human Rights does not impose an absolute obligation to prolong treatment at the cost of sacrificing a person’s right to respect for his autonomy. In this regard, respecting a person’s autonomy embraces, indeed prioritises, a respect for the individual’s sense of personal dignity.

As per Lord Hoffman in Bland [5], His Honour Judge Munby contended that it would be “demeaning to the human spirit” to confine consideration of a person’s interests to issues of animal feelings of pain or pleasure. Accordingly, it would be wrong to say “[that] being unconscious, a person can have no interest in his personal privacy or dignity, in how he lives or dies.” [6] Rather, an unconscious patient would arguably expect and should be afforded by a humane society, the same respect for dignity as if he were conscious. Apart from patients who have expressly prohibited artificial feeding issues of patient dignity should incline towards a strong presumption in favour of continuing artificial feeding in all cases.

Nevertheless, the judgment in Burke suggests that the touchstone for determining best interests should not necessarily be regarded as intolerability from the perspective of the patient or his family, but rather that of “the right thinking bystander”. Whilst disputes between patients and clinicians are likely to be rare, the right of a patient or his family to demand or direct treatment should not be regarded as absolute. Instead, the scope for arguing that a patient would not have considered a treatment intolerable will be checked by objective consideration as to whether such treatment would be humiliating, debasing or lacking respect for the patient’s dignity so as to breach of Article 3, if permitted. [7]

Significantly, the decision in Burke may encourage more patients to express wishes about their medical treatment in advance. Inherently the problem remains that many treatments are not neutral and ideas as to merits and personal best interests clearly shift depending on the type of illness suffered, the prospects of recovery or perceived closeness to death. In this regard a living will made by a fit 20 year old may not adequately express the choices the same person would make if 80 and suffering from a recurrence of cancer. The relevance of many living wills may therefore be open to question at the critical moment.

For trusts, if expensive court cases are to be avoided, there is a need to minimise conflict and ensure that those close to the incompetent patient are involved in discussions about the existence of advance directives and the patient’s likely wishes and treatment options. If disagreement cannot be resolved by informal or independent review, legal advice should be sought as to whether it is necessary to apply to court for a ruling. Whilst the court will not make a mandatory order against a doctor requiring him to treat a patient, it may give the doctor and/or trust declaratory relief against a continuing obligation to treat the patient. It should be understood that to avoid breach of the patient’s human rights, the court may make an order requiring a health body to arrange for treatment to be continued or commenced by other doctors willing to do so. How a health authority will cope with a situation where an alternative provider of treatment cannot be found is not mentioned in Burke just as the resource issues raised by this judgment are left for us to ponder on and resolve. In the words of His Honour Judge Munby “the State’s positive obligations… can never be open ended”, and it is arguable that the more respect given to patient choice and their right to press for continuation of care to preserve dignity, the greater the cost of being part of a civilised society [8].

Footnotes

  1. Paragraph 90
  2. GMC Withholding and Withdrawing Life Prolonging Treatments: Good Practice in Decision Making
  3. See Re B(Consent to Treatment:Capacity) [2002] EWHC 249 (Fam) regarding the rights of the competent patient to refuse treatment even where this will result in death
  4. See Lord Joffe’s private members bill on Assisted Dying for the Terminally Ill and Sunday Observer 19 September 2004 Dr Hazel Briggs book Euthanasia: Death with dignity and the law
  5. Airedale Hospital v Bland [1993] AC
  6. ibid 789 per Lord Hoffman page 829 (para 58)
  7. Article 3 prohibition against torture, inhuman or degrading treatment or punishment
  8. See paragraphs 118 ,140,191, 192

This case commentary was submitted by Liz Mulvaney, Partner, Weightmans Solicitors. An earlier version was first published in the firm’s Healthcare Legal Update 50 (September 2004).