Life Prolonging Treatment

Originally published in September 2004.

Challenge to the GMC's guidance†The High Court has recently declared in the†case of R (On the Application of Burke) v The†General Medical Council that key sections of†the General Medical Council's guidance on†withdrawal of life prolonging treatment are†unlawful. The case has given added legal force†to the fundamental right that it is the†individual who primarily determines how he†should die.

The facts

The claimant, Leslie Burke, suffers from†cerebellar ataxia, a progressively degenerative†disorder that follows a similar course to multiple†sclerosis and will necessitate artificial nutrition†and hydration (ANH) as his condition worsens.†Eventually, he will lose the ability to swallow.†Thereafter, he will only survive if he is fed†through a tube. Mr Burke was concerned with the†wording of guidelines issued by the GMC†entitled 'Withholding and Withdrawing Life†Prolonging Treatments: Good Practice and†Decision Making'. His worry was that the†emphasis throughout is on the right of the†competent patient to refuse treatment rather than†his right to require treatment.

Legal principles

The case was pleaded under articles 2 (right to†life), 3 (prohibition against inhuman and†degrading treatment) and 8 (right to a family life)†of the European Convention on Human Rights†(ECHR), incorporated in English law by the†Human Rights Act 1998. Once a patient is†admitted to a NHS hospital a duty of care arises†to provide treatment, notwithstanding that the†patient is competent or incompetent, conscious or†unconscious. The doctor and the hospital are†then under a continual obligation that cannot†lawfully be shared unless arrangements are made†for someone else to take over the responsibility.†The duty to care is to be carried out pursuant to†what is in the best interests of the patient.

New guidance from judgment

The judgment confirms that sections of the†GMC's guidance on the withdrawal of life

prolonging treatment are unlawful. It provides†comprehensive instructions and guidance on†correct and lawful procedures for a doctor†treating a patient in an analogous situation to that†of Mr Burke. It also confirms that health†professionals must do as much as possible to†preserve life and that there should not be a†different approach to a less able or incompetent†patient. It includes the following points: -

The evaluation of a patient's best interests†involves a welfare appraisal in the widest†sense, taking into account...