The Court of Appeal this morning (Thursday 28 July 2005) handed down its judgment in the case of R (Burke) v the General Medical Council. The judgment of the Court is to allow the GMC’s appeal, and to set aside the declarations made by the judge.
In view of the considerable public interest the case has attracted, it is very important that the Court’s decision should not be misinterpreted or misunderstood.
In particular, the fact that the appeal has been allowed does not mean that Mr. Burke has lost.
Mr. Burke suffers from a congenital degenerative brain condition known as spino-cerebellar ataxia, and is confined to wheelchair. The Court was impressed by his dignified presence in court. He took proceedings because he does not wish to die of hunger and thirst, and wished to be assured that before his condition reached its final stage, artificial nutrition and hydration (ANH) would not be withdrawn.
The evidence showed that Mr. Burke would at some point in the future require ANH. It also showed that he remain able to make rational decisions about himself and his treatment up until a period very shortly before his death. In legal terms, he is “competent”. In these circumstances, the Court is satisfied that if Mr. Burke wishes to continue to receive ANH in the circumstances he envisages, he will do so and that it would be unlawful for it to be withdrawn.
The Court has also decided that Mr. Burke’s position is protected by the law as it stands, and that the guidance given in the GMC’s document Withholding and Withdrawing Life-prolonging Treatment: Good Practice in Decision Making issued in August 2002 (the Guidance) is lawful. It is therefore neither necessary nor appropriate to made declarations relating the Guidance.
The Court is also of the view that the case has been allowed to expand inappropriately to embrace issues which have nothing to do with Mr. Burke’s case. Had Mr. Burke been well advised, he would and could have sought reassurance from the GMC as to the purport of its Guidance or from the doctors who were treating him as to the circumstances, if any, in which ANH might be discontinued. Had this occurred, the proceedings would have been unnecessary.
The Court wishes to draw attention to the final paragraph of its judgment. Having decided that the Guidance is lawful, the Court takes the view that the GMC has a responsibility to ensure that it is understood and implemented at every level of the NHS. Patients, and in particular those who suffer from a disability, are entitled to have confidence that they will be treated properly and in accordance with good practice, and that they will not be ignored or patronized because of their disability.
Ends
