R (Burke) v General Medical Council and Others [2005] EWCA Civ 1003

This was an appeal by the General Medical Council (GMC) against declarations made by the Administrative Court, 3 of which related to the respondent, B.  The central issue for the appeal was the circumstances in which artificial nutrition and hydration (ANH) could be withdrawn from a patient.

B was 45 years of age and suffered from a congenital degenerative brain condition, (similar to multiple sclerosis) known as spino-cerebellar ataxia, causing him to be wheelchair dependant.  B would retain full cognitive ability almost until the end of his life, as well as awareness of the pain discomfort and distress that would result from malnutrition and dehydration.  He would be unlikely to lose his capacity to make decisions for himself and to communicate his wishes until death was imminent.

B wished to be fed and be provided with hydration until he died of natural causes.  He did not want ANH to be withdrawn.  He was concerned that a decision might be taken by a doctor that his life was no longer worth living and wanted to be fully involved in any decision-making so long as this was possible.  He was particularly concerned over the GMC guidance on this subject which in certain circumstances allowed the withdrawal of ANH where a patient’s condition was so severe and the prognosis so poor, that providing ANH may cause suffering or be too burdensome in relation to the possible benefits.   He was concerned that there was no obligation upon a doctor to seek the advice of the court as to whether his life should be allowed to end.

B brought judicial review proceedings, and 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 his rights under Articles 2, 3, and 8 ECHR and would be unlawful under domestic law;

(2) Where a competent patient requested or where an incompetent patient had, prior to becoming incompetent, made it clear that they would wish to receive ANH, the withholding or withdrawal of ANH, leading to death by starvation or thirst would be a breach of their rights under Articles 2, 3 and 8 and would be unlawful under domestic law (a competent patient was one who had the capacity to take logical decisions and the ability to communicate those decisions.);

(3) The refusal of ANH to an incompetent patient would be a breach of Article 2 unless providing it would amount to degrading treatment contrary to Article 3;

(4) Specified sections of the GMC guidance on withholding and withdrawing life-sustaining treatment were unlawful in so far as they failed to safeguard patients’ rights under Articles 2,3,8,14 and domestic law.

(6) Withdrawal of ANH from a non-PVS (persistent vegetative state) patient without first seeking a court ruling in circumstances where it would not be withdrawn from a PVS patient was unlawful discrimination contrary to Article 14;

(8) Where there was disagreement between a competent patient, or relatives or carers of an incompetent patient, as to whether ANH should be withdrawn, the disagreement should be resolved by application to a court.

The Court of Appeal was critical at the scope of the declarations sought.  Firstly, B could have sought reassurance from the GMC before bringing the case before the court, and secondly, as B’s advisors sought primarily to challenge the GMC guidance, the declarations sought had little relevance to a person in B’s position. The Official Solicitor supported this view, submitting that B was asking for the resolution of questions that had not yet arisen.  Any answers would have to be given based on the circumstances as they presented at the time.

Munby J in the Administrative Court made the following declarations;
(i) Any decision made by a competent patient regarding ANH or contained in an advance directive, was determinative of his best interests.
(ii) The failure of a hospital to follow this principle would breach a claimant’s rights under Articles 3 and 8 ECHR.
(iii) In the circumstances in (i) above, a doctor must follow the patient’s wishes regarding ANH in the period until the claimant’s death is imminent.
(iv) The sections of the GMC Guidance specified by the respondent, were unlawful

The Court of Appeal found the first 3 declarations “extraordinary” in that they did not purport to resolve any issue between the parties but appeared to lay down propositions of law “binding on the world.”  They went far beyond B’s current concerns and dealt with the position of an incompetent patient and addressed the effects of advance directives, when B had made no such directive.  It went on to criticise the judge for using his judgment to write a practice manual for this area of the law.  His approach extended well beyond a patient in B’s position or the use of ANH.  The court should not be used as a general advice centre or enunciate propositions of principle without full appreciation of the implications that these would have in practice and confusing those who might feel obliged to put those proposition into practice.  The court concluded that a capacitated person can only ask for any form of medical treatment according to his preferences – or go elsewhere, to another professional who is minded to accede to the person’s wishes.  No professional could be ordered to provide a form of medical intervention that was in their view not an appropriate form of treatment. There is no absolute duty to keep people alive, even where it is possible to do so.  Where a case before the court was interwoven with questions of ethical and social controversy, a court should confine itself to deciding legal correctness and avoid opinions or proffering answers to hypothetical questions of law which did not arise for decision.  Gillick v West Norfolk & Wisbech Area Health Authority [1986] considered.

Appeal allowed and declarations set aside.

Comment

Many psychiatrists believe that it is ethically inappropriate to offer artificial feeding systems to patients with advanced Alzheimer’s Disease, arguing that once a person’s own instinctive bodily urges for food and drink have been destroyed, it cannot be other than undignified to force feed them. Research evidence is cited suggesting that the discomfort and complications can outweigh the advantage of being kept alive – whereas for a stroke victim, whose brain function has been destroyed, but without a progressive disease, there would be no indications against keeping someone alive for their natural lifespan, via ANH.

Others might say that age and being seen as ‘having had a good innings’ is what might subliminally be affecting the professional’s evaluation of the person’s best interests at that point, and one might ask whether the reaction would be the same for a patient with early onset dementia, of an advanced degree.

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