Burke, R (on the application of) v General Medical Council & Ors

Doctors who assume responsibility for a patient owe a positive duty to take reasonable steps to keep the patient alive. That duty normally requires artificial nutrition and hydration where it sustains life and a competent patient wishes to receive it. Autonomy gives a competent patient the right to refuse treatment, but does not create a general right to demand clinically inappropriate treatment. For an incompetent patient, best interests depend on the circumstances; intolerability is not a universal test. Prior judicial approval is not a general legal prerequisite to withdrawing artificial nutrition and hydration. Doubt about legality may require a declaration as good practice. Courts should exercise restraint when reviewing non-statutory medical guidance and avoid deciding hypothetical ethical questions.

Oliver Burke suffered from a progressive degenerative brain condition. He was expected eventually to require artificial nutrition and hydration to survive, while retaining competence and the ability to communicate until the final stages of his illness. He feared that doctors might withdraw that treatment against his wishes because they considered his life no longer worth living.

The General Medical Council had published guidance on withholding and withdrawing life-prolonging treatment. Mr Burke challenged that guidance by judicial review. Munby J, in [2004] EWHC 1879 (Admin), made six declarations concerning Mr Burke's wishes, advance directives, the lawfulness of parts of the guidance and the need for judicial authorisation before withdrawing treatment.

The General Medical Council appealed. The central issues were whether existing law protected Mr Burke, whether the guidance was unlawful, and whether the declarations extended improperly into hypothetical questions about treatment choices and incompetent patients.

1. Appeal allowed. All six declarations were set aside. Existing law addressed Mr Burke's fears. Declaratory relief was unnecessary for his protection and inappropriate in relation to the guidance. Courts reviewing non-statutory advisory documents should exercise restraint and avoid resolving hypothetical ethical questions. The approach in Gillick v West Norfolk and Wisbech Area Health Authority was applied.

2. A competent patient's right to refuse treatment prevailed over an objective assessment of medical best interests. That right did not create a general entitlement to demand particular treatment. Once a hospital accepted a patient, its staff owed a positive duty to take reasonable steps to preserve life. That duty normally required life-sustaining artificial nutrition and hydration. A competent patient's wish to receive it underscored the existing duty rather than creating it. Deliberate withdrawal intended to terminate such a patient's life would amount to murder. The court also stated that deliberate termination by a National Health Service doctor against the patient's wishes would violate Article 2 of the European Convention on Human Rights. The possible engagement of Articles 2, 3 and 8 did not alter the common law.

3. In its wider guidance, the court explained that doctors determine which treatments are clinically indicated and offer those options with appropriate information. Patients choose whether to accept them. Doctors need not provide a requested treatment which they consider clinically inappropriate, although they should offer to arrange a second opinion. Where artificial nutrition and hydration no longer prolonged life, its provision depended on clinical considerations, including palliation and adverse effects. Distress caused by overriding a patient's wishes required consideration, but those wishes did not compel clinically adverse treatment.

4. For incompetent patients, best interests depended on the particular circumstances. The strong presumption favouring preservation of life was qualified, and intolerability was not a universal test. For a dying patient, easing suffering could properly take priority over briefly prolonging life. As an additional observation, an advance request to remain alive in a permanent vegetative state was not automatically binding. Sections 4 and 26 of the Mental Capacity Act 2005 reflected the distinction between considering wishes to receive treatment and respecting a valid advance refusal.

5. The guidance, read as a whole, did not permit withdrawal of life-sustaining treatment against a competent patient's wishes. Although paragraph 81 could be better drafted, that inadequacy did not establish illegality.

6. The disagreements and uncertainties identified below did not create a legal duty to obtain prior judicial authorisation before withdrawing artificial nutrition and hydration. Courts declared whether proposed treatment or withdrawal was lawful; they could not authorise otherwise unlawful conduct. Good practice could require a declaration where legality was doubtful. The recommendation concerning permanent vegetative states in Airedale NHS Trust v Bland concerned good practice. Neither D v NHS Trust nor Glass v UK established the asserted conversion of good practice into a general legal requirement.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1003 , the court delivered a joint judgment allowing the General Medical Council's appeal and setting aside all six declarations.
• High Court (Administrative Court): Munby J, in [2004] EWHC 1879 (Admin) , made six declarations on 30 July 2004 concerning artificial nutrition and hydration, advance directives, the General Medical Council's guidance and judicial authorisation. He granted permission to appeal.