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

A competent patient may refuse treatment, including treatment that is objectively in that patient’s medical interests. That autonomy does not generally entitle the patient to require treatment which the doctor judges not to be clinically indicated.

However, a hospital which has accepted a patient owes a positive common-law duty to take reasonable steps to keep the patient alive. Where artificial nutrition and hydration is necessary to sustain the life of a competent patient who wishes to remain alive, that duty will normally require its provision. For an incompetent patient, best interests depend on the particular circumstances and cannot be reduced to a single test of whether continued life is intolerable.

Mr Burke, who had a progressive neurological condition, sought judicial review of the General Medical Council’s guidance on withholding and withdrawing life-prolonging treatment. He feared that artificial nutrition and hydration might be withdrawn despite a competent patient’s wish to receive it.

Munby J made six declarations concerning Mr Burke, the lawfulness of the guidance, the best-interests assessment, and the need for prior judicial approval before withdrawing artificial nutrition and hydration. The General Medical Council appealed from the Administrative Court decision, [2004] EWHC 1879 (Admin).

The central issues were the duties owed to a competent patient seeking life-sustaining artificial nutrition and hydration, the limits of patient choice, and whether court approval is legally required before withdrawal.

1. Appeal allowed. The six declarations were set aside. Mr Burke’s legitimate concern was narrow: whether artificial nutrition and hydration could be stopped while he remained competent and wished it to continue. The law already protected him, and broad declaratory relief about hypothetical future circumstances was unnecessary and inappropriate.

2. Once a hospital accepts a patient, its staff owe a positive common-law duty of care. A fundamental aspect is taking reasonable steps to keep the patient alive. Where artificial nutrition and hydration is necessary to do so, the duty will normally require its provision. A competent patient’s wish to remain alive reinforces that duty. Deliberately stopping life-prolonging treatment with the intention of ending such a patient’s life could amount to murder.

3. Autonomy gives a competent patient a paramount right to refuse treatment, even treatment objectively in the patient’s medical interests. It does not confer a general right to demand a particular treatment. The doctor decides which treatment options are clinically indicated and offers them; the patient may accept or refuse them. A doctor need not provide treatment judged clinically inappropriate, although a second opinion should be offered.

4. The court rejected the proposition that best interests always equate with the patient’s wishes or are governed by a universal intolerability test. For an incompetent patient, best interests depend upon the particular circumstances. When death is close, the proper goal may be relief of suffering and easing the passing rather than a short prolongation of life.

5. A positive advance directive requiring continued treatment does not necessarily require a patient in a persistent vegetative state to be kept alive. The court regarded that conclusion as consistent with the distinction in the Mental Capacity Act 2005 between a valid advance decision refusing treatment and wishes relevant to a best-interests assessment.

6. There is no legal duty to obtain judicial authorisation before withdrawing artificial nutrition and hydration. A court declares whether proposed treatment or its withdrawal is lawful; it cannot authorise what would otherwise be unlawful. Good practice may require a declaration where legality is genuinely in doubt, but that is not a freestanding legal requirement.

7. The guidance was not unlawful in relation to Mr Burke’s competent-patient predicament. Read as a whole, it did not permit a doctor to withdraw life-sustaining treatment in order to end the life of a competent patient who wished to remain alive. Its drafting concerning patients without capacity could be clearer, but that did not justify a declaration of unlawfulness.

• Court of Appeal (Civil Division): Allowed the General Medical Council’s appeal and set aside all six declarations: [2005] EWCA Civ 1003.
• High Court (Administrative Court): Munby J granted declarations concerning artificial nutrition and hydration, the General Medical Council guidance, and judicial involvement in withdrawal decisions: [2004] EWHC 1879 (Admin).