Right-to-life case doctors backed by British Government

May 18 2005

The British Government has directly intervened in a right-to-life case being heard at the Court of Appeal with a message to judges that giving patients the right to demand life-prolonging treatment would have "very serious implications" for the National Health Service (NHS).

Last year, Leslie Burke, a 45-year-old former postman with a degenerative brain condition, won the right to stop doctors withdrawing artificial nutrition or hydration (ANH) treatment until he dies naturally. The General Medical Council is trying to overturn that ruling.

In representing Patricia Hewitt, the Health Secretary, Philip Sales, told the court that if a right to ANH was established, patients would be able to demand other life-prolonging treatments and that would have very serious implications for the functioning of the NHS.

He said the initial ruling could be interpreted as giving patients the right to demand certain treatments, contrary to the considered judgment of their medical team, that might not be appropriate for them, and could lead to inefficient use of resources within the NHS.

Mr Sales said that under current GMC guidelines to doctors, a competent patient was entitled to decide between the treatment options offered to him by his doctor, but the patient cannot require his doctor to offer him any treatment option which, in the doctor’s view, is not clinically appropriate or which cannot be offered for other reasons such as having regard to the efficient allocation of resources within the NHS.

Mr Justice Munby ruled in May last year that if a patient is competent, or has made a request before becoming incompetent, doctors have a duty to provide ANH.

Mr Sales says this ruling has led to a confusion between the roles of doctor and patient, and the decision over treatment was for the doctor to make, not the patient.

He said the Department of Health also supported the GMC’s belief that to impose an absolute obligation on doctors withdrawing treatment to find one who will could involve "extensive and potentially fruitless administrative effort to the detriment of other patients".

Mr Burke, of Mardale Road, Lancaster, who suffers from cerebellar ataxia, was in court in his wheelchair today listening to the arguments for overturning the ruling which he believes will save him from death by starvation, or thirst if ANH was withdrawn after he loses the ability to communicate.

Richard Gordon QC, for Mr Burke, argued that the case for the GMC was based upon a misunderstanding of the role of doctors in relation to the legally competent patient, and the key issue could be summarised in two words - who decides?

He said Mr Burke was a legally competent person and wanted to receive food and water administered by artificial means when he had difficulty in eating or drinking, and fears he will suffer and die of thirst and malnutrition. Mr Gordon said his client does not want to be told by a doctor that it is in his best interests not to be given food and water by artificial means, neither does he want to suffer pain or death by being starved or dehydrated. He doesn’t want an undignified death and, in particular, he wants to be the arbiter of how much he is prepared to suffer.

Gordon said that Mr Burke if necessary, wants to be able as a matter of legal entitlement, to make an advance directive to ensure that even if he were to lose capacity he would be given ANH. Even if he is sentient but cannot communicate, he wants to receive ANH, which is why he has brought this case.

Mr Gordon said a doctor is simply not entitled to take a best interests decision in respect of a legally competent person, the person who decided whether something was or was not in a competent person’s best interests was that person.

He added that once a competent patient decided on ANH, his wishes must be followed and that is what Mr Justice Munby ruled and the judge is correct.