#1736 - R(burke) V Gmc - Medical Law

R(Burke) v GMC [2005] 3 FCR 169

Court of Appeal

Facts

C suffered from a condition which was gradually progressive, meaning he would need ATN eventually. He was expected to remain competent until the final stages of the condition. He was concerned that before those finals stages, the GMC guidelines may lead to doctors withdrawing ATN when he wished to continue to receive it no matter than pain and suffering. He sought a declaration that the guidance was incompatible with the ECHR.

Held Lord Phillips MR

• Munby J equated the best interests test with the wishes of the competent patient

  • He claimed that doctors who have assumed the care of the patient, subject to resource implications,

    • must administer such treatment that the patient has expressed an informed wish for

      • As receipt of such treatment will be in the patient's best interests

  • However, the concept of "best interests" depends very much on the context in which it is used, as indeed does the Bolam test, but neither is of much relevance when considering the situation with which we are concerned

    • It seems to us that it is best to confine the use of the phrase "best interests" to an objective test,

      • which is of most use when considering the duty owed to a patient who is not competent and is easiest to apply when confined to a situation where the relevant interests are medical.

• Thus, if best interests is an objective test it is apparent that treating a patient in the manner that doctors consider to be in his best interests may be at odds with his wishes.

  • So P who is in desperate clinical need of a blood transfusion and who has no wish to die may, for religious reasons, not wish to receive one although the consequence is almost certain death.

    • Where a competent 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

  • The corollary does not, however, follow, at least as a general proposition. 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.

    • In so far as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. The source of the 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.

• In so far as the law has recognised that the duty to keep a patient alive by administering ANH or other life-prolonging treatment is not absolute, the exceptions have been restricted to the following situations:

  • (1) where the competent patient refuses to receive ANH and

  • (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 had most difficulty. The courts have accepted that where life involves an extreme degree of pain, discomfort or indignity to a patient,

      • these circumstances may absolve the doctors of the positive duty to keep the patient alive.

  • No such difficulty arises, however, in the situation that has caused Mr Burke concern, that of the competent patient who, regardless of the pain, suffering or indignity of his condition, makes it plain that he wishes to be kept alive.

    • No authority lends the slightest countenance to the suggestion that the duty on the doctors to take reasonable steps to keep the patient alive in such circumstances may not persist. I

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

• As for Art 2

  • Article 2 does not entitle anyone to continue with life-prolonging treatment where to do so would expose the patient to 'inhuman or degrading treatment' breaching article 3.

  • On the other hand, a withdrawal of life-prolonging treatment which satisfies the exacting requirements of the common law, including a proper application of the intolerability test,

    • and in a manner which is in all other respects compatible with the patient's rights under article 3 and article 8

      • will not give rise to any breach of article 2

Doctor-patient relationship

• The relationship between doctor and patient usually begins with diagnosis and advice.

  • The doctor will

    • describe the treatment(s) that he recommends or, the choices he would perform, and their implications and his recommended...