Report No. 196
Having approved this passage from Justice Munby's judgment, Lord Phillips clarified:
"We endorse this conclusion. It does not, however, lead to the further conclusion that if a National Health doctor were deliberately to bring about the death of a competent patient by withdrawing lifeprolonging treatment contrary to that patient's wishes, Art. 2 would not be infringed. It seems to us that such conduct would plainly violate Art. 2.
Furthermore, if English law permitted such conduct, this would also violate this country's positive obligation to enforce Art. 2. As we have already indicated, we do not consider that English criminal law would countenance such conduct. However, the fact that Articles . 2, 3 and 8 of the Convention may be engaged does not, in our judgment, advance the argument or alter the common law."
The Court of Appeal, therefore, held that the doctor who is in charge of the Mr. Burke would himself be obliged, so long as the treatment was prolonging Mr. Burke's life, to provide ANH in accordance with his expressed wish. This is not in doubt either.
The Court of Appeal then dealt with the validity of paras 13, 16, 32, 42 and 81 of the Guidelines (hereinafter called 'Guidance') issued by the GMC.
Is the Guidance compatible with the duty of a doctor to administer ANH to a competent patient where this is necessary to keep the patient alive and the patient expresses to be kept alive. We shall first refer to these paras of the Guidance.
Para 13 of the Guidance deals with the right of adult patients to refuse treatment. It has no reference to the duty of the doctor to provide ANH. It has no bearing on the present case.
Para 16 of the Guidance deals with the differences in choice by patients based on different values, beliefs and priorities which doctors must take into account. Where, however, a patient wants treatment which the doctors feel is not clinically indicated, they have no ethical or legal obligation. The Court of Appeal felt that para 16 has no relevance to the case of ANH, except where a patient demands ANH during terminal stages where it is not going to prolong life. This was an unlikely scenario and not one that can properly concern Mr. Burke at this stage of his illness.
Para 32 of the Guidance states that it is the doctor's responsibility to make a decision about whether to withhold or withdraw a life-prolonging treatment, taking into account the views of the patient or those close to the patient. Exceptionally, in an emergency where the senior clinician cannot be contacted in time, if the doctor is appropriately experienced, a junior hospital doctor or deputizing general practitioner may take responsibility for making the decision but it must be discussed with the senior clinician as soon as possible. On this, the Court of Appeal observed as follows:
"This is part of the general framework of the guidance and not specifically directed to the provision, or withdrawal of ANH. We accept that, if read in isolation, the phrase 'taking into account of the views of the patient', might suggest that a consultant or general practitioner in charge of a patient's case could withhold or withdraw ANH, contrary to the expressed wish of a competent patient if he considered that there was good reason for disregarding his wish.
Taken in the context of the Guidance as a whole, however, we do not consider that any reasonable doctor would conclude from para 32 that it would be permissible to withdraw life-prolonging treatment with a view of ending a patient's life despite the patient's expressed wish to be kept alive."
Para 42 of the Guidance stated that a doctor should bear in mind that he is bound to respect an adult patient's refusal of treatment, made competently, even where complying with the decision will lead to the patient's death. If a specific treatment is requested which, in the doctor's considered view is clinically inappropriate, the doctor is not legally or ethically bound to provide it. However, he should give the patient a clear explanation of the reasons for his view, and respect the patient's request to have a second opinion. The Court of Appeal stated:
"We understand that it is the second half of this paragraph that the Judge considered objectionable. This could only be relevant to Mr. Burke's predicament if one postulates that a doctor might consider it 'clinically inappropriate' to keep him alive by administering ANH despite his wishes that this should be done. We consider such a scenario to be totally unrealistic"
Para 81 of the Guidance states that where patients have capacity to decide, they may consent or refuse to any proposed intervention of any kind. Where patients lack capacity to decide, the doctors should take into account various circumstances:
(i) provide ANH for a trial-period, if there is reasonable uncertainty about the likely benefits or burdens of ANH;
(ii) where death is imminent, it is not appropriate to start artificial hydration or nutrition, although artificial hydration can be provided to give symptom-relief;
(iii) where death is imminent and artificial hydration and/or nutrition are already in use, it may be appropriate to withdraw them if it is considered that the burdens outweigh the possible benefits of the patient;
(iv) where death is not imminent, it usually will be appropriate to provide artificial nutrition and hydration. However, if the patient's condition is so severe and progress is so poor that artificial nutrition or hydration may cause suffering, a senior clinician (who might be from another discipline such as nursing) may have to be consulted.