'Taking account of the views of the patient', but only if the clinician (and the court) agrees - <i>R (Burke) v General Medical Council</i>

09 MAY 2007

Hazel Biggs, Professor of Medical Law, Lancaster University. In R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2005] 2 FLR 1223 the Court of Appeal allowed the General Medical Council's appeal against the first instance decision of Munby J [2004] EWHC 1879 (Admin), [2004] 2 FLR 1121, setting aside all six declarations made in that case. Mr Burke's case concerned his wish to avoid suffering during the latter stages of his terminal illness (when there was a possibility he would be aware but unable to communicate in any way) resulting from the withdrawal of artificial nutrition and hydration (ANH) if medical staff treating him decided this was in his best interests, which they could lawfully do under the current British Medical Association guidelines. Mr Burke's concern was that the BMA guidance vests too much power in the hands of doctors and he wanted to make an advance decision about how he should be treated in the final phase of his illness, when he would be unable to communicate his views. The Court of Appeal did not agree that the guidance gave too much power to doctors. Among other things, they found that Munby J's discussion of the relationship between autonomy, best interests and the patient's wishes unhelpful. The author argues here that, contrary to the Court of Appeal's view, the concepts of best interests and the patient's wishes are of central import to this case and that although there is no legal duty to obtain court approval for the withdrawal of ANH, case law shows that contested medical decisions of this type and gravity ought to be referred for judicial interpretation.

This article evaluates the impetus behind Mr Burke's original claim and questions the reasons why the first instance decision was so roundly rejected by the appeal court. Munby J's first instance decision was widely regarded as an assault on medical discretion with the potential to disrupt the doctor-patient relationship, but does the Court of Appeal decision represent a dangerous endorsement of medical paternalism? For the full article see Child and Family Law Quarterly, Vol 19, No 2, 2007.

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