Burke, R (on the application of) v The General Medical Council Rev 1

A competent adult’s decision about life-prolonging treatment is ordinarily determinative, including a decision requiring treatment. Medical opinion does not determine the patient’s best interests. For an incompetent patient, the test is best interests, with a strong presumption in favour of preserving life. In the context of life-prolonging treatment, the touchstone is whether continued life would be intolerable from the patient’s perspective.

Where the NHS has assumed responsibility for care, treatment cannot be withdrawn in circumstances exposing a patient to acute suffering and an avoidably distressing death. Prior judicial authorisation is legally required in specified cases involving withdrawal of artificial nutrition and hydration. The GMC Guidance was unlawful to the extent that it failed to reflect these principles.

The claimant, who had a degenerative neurological condition but retained capacity, sought judicial review of the GMC’s guidance on withholding and withdrawing life-prolonging treatment. He wanted artificial nutrition and hydration to continue until his natural death and challenged the guidance as incompatible with domestic law and Articles 2, 3, 6, 8 and 14 of the Convention.

The issues concerned the circumstances in which artificial nutrition and hydration could lawfully be withheld or withdrawn, whether a doctor could be required to arrange treatment, and when the matter required prior determination by the court.

1. Common law. Once an NHS hospital has assumed responsibility for a patient, the duty to care is continuing and cannot lawfully be shed unless responsibility is transferred. The duty is in principle to provide treatment in the patient’s best interests.
2. Best interests require a welfare appraisal extending beyond medical matters. The Bolam test is relevant to whether treatment is professionally proper, but medical opinion is not determinative of best interests. A competent patient decides for himself. For an incompetent patient without a valid and applicable advance directive, the court ultimately decides.
3. For an incompetent patient, there is a strong presumption in favour of life-prolonging treatment, subject to exceptional circumstances, dying patients, futility and intolerability. If treatment provides some benefit, it should be continued unless life prolonged from the patient’s perspective would be intolerable.
4. Convention rights. Articles 3 and 8 protect autonomy, dignity and physical and psychological integrity. A competent patient’s Article 8 rights prevail over contrary considerations under Articles 2 and 3. Article 3 may be engaged by a failure to provide treatment where the result is acute suffering or an avoidably distressing death. Awareness by the patient is not essential to degrading treatment.
5. Where the NHS has assumed responsibility for treating a terminally ill patient, withdrawal of care may prima facie breach Article 3 if it causes acute mental and physical suffering and exposes the patient to an avoidably distressing death. Article 2 adds little in this context and does not require treatment contrary to autonomy or Article 3.
6. For a sentient patient who wants artificial nutrition and hydration, withdrawal before coma would in principle breach Articles 3 and 8. Once a patient is dying, comatose and wholly unaware, withdrawal may be lawful where artificial nutrition and hydration serve no purpose beyond a very short prolongation of life and are futile.
7. A doctor cannot ordinarily be compelled by mandatory order personally to provide treatment, but disagreement with the patient about best interests does not automatically end the doctor’s duty. The doctor must continue care or arrange transfer to a doctor willing to provide it. Appropriate declarations and mandatory relief may be granted against an NHS trust.
8. Prior judicial authorisation is required before withholding or withdrawing artificial nutrition and hydration where there is doubt about capacity; relevant medical disagreement; evidence of the patient’s contrary wishes; resistance by the patient; or opposition by persons reasonably entitled to have their views considered. The claimant therefore established entitlement to relief, and declarations were made that specified provisions of the GMC Guidance were unlawful.

First-instance judicial review proceedings. The judgment records that permission was granted by Mitting J on 23 October 2003. The claim was determined by the Administrative Court, which granted declaratory relief.