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Family Law

The leading authority on all aspects of family law

28 JUL 2005

MEDICAL TREATMENT: R (Burke) v General Medical Council (Official Solicitor and Others Intervening) [2005] EWCA Civ 1003

(Court of Appeal; Lord Phillips of Worth Matravers MR, Waller and Wall LJJ; 28 July 2005) [2005] 2 FLR 1205

In judicial review proceedings the Court of Appeal set aside the declarations made by Munby J and held that the law as it currently stood addressed the fears of Mr Burke. He was a competent patient who made it plain that he wished to be kept alive and a doctor who deliberately interrupted such treatment with the intention of terminating such a patient's life would leave the doctor with no answer to a charge of murder. Thus, the doctor caring for Mr Burke would be obliged, so long as the treatment was prolonging life, to provide artificial nutrition and hydration in accordance with his expressed wish. The phrase best interests should be confined to an objective test, which is more helpful when considering the duty owed to an incompetent patient and easiest to apply when the relevant interests were medical. Equating best interests with the expressed wishes of a competent patient was unhelpful. The General Medical Councils guidance on the circumstances in which life-prolonging treatment in the form of artificial nutrition and hydration could be withdrawn from a patient was lawful and did not violate the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

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