Report No. 196

(34) GMC vs. Burke: (2005) EWCA (Civ) 1003: (CA) (Lord Phillips of Worth Matravers, MR, Waller and Wall LJJ) (d. 28.7.2005)

This is one of the most useful judgments on the various related aspects of the subject.

It was an appeal by the General Medical Council against the judgment of Munby J (2004 EWHC 1879 Admn) (already referred to) dt. 30th July, 2004.

Out of six declarations granted by the learned Judge, three related to medical treatment of Mr. Burke while three other declarations held that a number of paragraphs of the Guidance published by the General Medical Council in August 2002 (on Withholding and Withdrawing Life-Prolonging Treatment: Good Practice and Decision Making) were violative of the European Convention. The GMC was aggrieved by the declarations. As stated while dealing with Justice Munby's judgment, the declarations were sought by the patient himself i.e. Mr. Burke.

The evidence in the case was that Mr. Burke will remain competent until the final stage of his disease. He will thus be competent to take decisions except at the final stages of his case, when he may first lose his ability to communicate though he will be conscious but later, he will go into coma. During the final stages, ANH (Artificial Nutrition and Hydration) will not be capable of prolonging his life. Mr. Burke wanted that ANH should not be withdrawn at the earlier stages when he is able to communicate.

The Court of Appeal held that there was no question of withdrawing ANH if Mr. Burke was able to communicate. The GMC guidelines did not say that ANH could be withdrawn when the patient is able to communicate.

The Judges of the Court of Appeal did not agree with Munby J who, according to them, stated that patient's view of his best interests must prevail over the view of the doctors. However, the Court of Appeal held that 'best interests' is an objective test to be applied by the doctors, while the patient's view is based on his right of 'self-determination'. They said that:

"Where a patient makes it clear that he does not wish to receive treatment which is, objectively, in his medical best interests, it is unlawful for doctors to administer that treatment. Personal autonomy or the right of self-determination prevails"

They, however, observed that the patient cannot decide about medical best interests. They said:

"Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment. Insofar as a doctor has a legal objection to provide treatment, this cannot be founded simply upon the fact that the patient demands it. The source of duty lies elsewhere"

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 duty will not, however, override the competent patient's wish not to receive ANH. 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.

The duty to keep a patient alive by administering ANH or other life prolonging treatment is not absolute, the exceptions have been restricted to two situations: (1) where the competent patient refuses to receive ANH and 166(2) where the patient is not competent and it is not considered to be in the best interests of the patient to be artificially kept alive. It is with the second exception that the law has most difficulty.

The Courts have accepted that where life involves an extreme degree of pain, discomfort or indignity to a patient, who is sentient but not competent and who has manifested no wish to be kept alive, these circumstances may absolve the doctors of the positive duty to keep the patient alive. Equally, the Courts have recognized that there may be no duty to keep alive a patient who is in a persistent vegetative state (PVS). In each of these examples, the facts of the individual case may make it difficult to decide whether the duty to keep the patient alive persists.

In the case of Mr. Burke, no such difficulty arose because he was sentient, competent and he wished to be kept alive, regardless of the pain, suffering or indignity of his condition. The doctor's duty to keep the patient alive is not therefore called in question. Lord Phillips said:

"Indeed, it seems to us that for a doctor deliberately to interrupt life prolonging treatment in the face of a competent patient's express 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"

Lord Phillips then went into the question whether 'withdrawal of ANH' contrary to the wishes of Mr. Burke infringes Articles 2, 3 and 8 of the European Convention. Articles 2, 3 and 8 read as follows:

"Art. 2-1. Everyone's right to life shall be protected by law.

No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection."

"Art. 3.- No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

"Art. 8.- 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."