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Report No. 196

(32) R (Burke) v. The General Medical Council, (2004 EWHC 1879 (Admind) (Munby J) (30th July, 2004): (reversed on certain points by Court of Appeal)

This judgment, running into 224 paras (in 95 pages), reviews the entire law on the subject. That part of the judgment which strikes down some of the guidelines given by the General Medical Council of England as being contrary to several Articles of the European Convention has since been set aside by the Court of Appeal.

The learned Judge has given an index of the headings, in the opening part of the judgment, for convenience. of importance are the following headings:

1. GMC Guidance (paras 7 to 17)

2. Artificial Nutrition and hydration (paras 18 to 20)

3. Competence, Incompetence and Advance directives (paras 41 to 50)

4. Ethical Basis of Law ( (paras 51 to 53)

5. Autonomy and Self-determination (54 to 56)

6. Dignity (para 57, 58)

7. Autonomy, dignity and (European) Convention (paras 59 to 72)

8. Tension between these principles (paras 73 to 79)

9. Conclusions (para 80)

10. Common Law (para 81)

11. Duty to Care (paras 82 to 87)

12. Best interests (paras 88 to 97)

13. Best interests and prolonging treatment (paras 98 to 113)

14. The evaluation of best interests (para 114, 115)

15. Conclusions (para 116)

16. The (European) Convention (paras 117, 118)

17. Negative and Positive obligations (paras 119 to 121)

18. (a) Inter-relationship between Articles 2, 3, 8 (paras 122 to 129) (of the Convention)

(b) Article 8 (para 130)

(c) Article 3 (paras 131 to 151)

(d) Article 2 (paras 152 to 162)

19. Convention and Withdrawal of ANH (Artificial Nutrition and Hydration) (para 163 to 177)

20. Conclusions (paras 178, 179)

21. Compelling the doctor (paras 180 to 184)

22. Involving the Court (paras 195 to 211)

23. Summary and discussion (para 212)

24. Summary of Conclusions (para 213 to 214)

25. Discussion (paras 215 to 223)

26. Relief (paras 224, 225)

(Appendix: GMC Guidance) (items 9 to 82)."

The case deals with Mr. Burke, aged 44 years, who suffered from cerebellar ataxia, (a congenital brain disorder), but was mentally sound. Food was sometimes given by artificial means (artificial nutrition and hydration: ANH).

It was the patient who sought clarification from the Court for the purpose of continuing the ANH and wanted guidance as to the exceptional circumstances under which ANH could be withdrawn. He contended that certain paras (namely paras 32, 38, 81 and 82) (as also para 13, 16, 42) of the Guidance issued by the General Medical Council of England (2002) (GMC) with regard to withholding or withdrawing Life Prolonging Treatment.- are inconsistent with Articles 2, 3 and 8 of the European Convention. He referred to judicial review under the Human Rights Act, 1998 (which came into force from 2.10.2000). The guidance was issued by the GMC under section 35 of the Medical Act, 1983.

The case essentially related to patients who were not in permanent vegetative state (PVS) but the Court incidentally considered the cases of PVS patients also. Here the patient did not want the doctors to take a decision for withdrawal of life support on the assumption that his life was no longer worth living. The Official Solicitor and the Disability Rights Commission (DRC), the British Medical Council and the Ethics Committee of the British Medical Association were heard.

If we should refer to the judgment in R (Burke) in detail, which we would have very much liked to do so, it would add to the bulk of this Report. So far as the common law principles referred to in the Judgment are concerned, we do not propose to refer to them in as much as most of the decisions quoted in the Judgment have already been discussed by us in this Chapter.

The judgment of Munby J summarises a large number of judgments of UK and the European Court at Strasbourg and will be very helpful for researchers, except for his views on the validity of GMC guidelines which have not been accepted by the Court of Appeal. We shall refer to the Judgment of the Court of Appeal in detail, hereinbelow. (see item 34 below)

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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