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

Factual and Procedural Background

This opinion concerns an appeal by the General Medical Council ("GMC") against six declarations made by Judge Munby in judicial review proceedings brought by the Plaintiff. The declarations challenged certain paragraphs of a GMC guidance document titled Withholding and Withdrawing Life-prolonging Treatment: Good Practice and Decision Making ("the Guidance"), specifically regarding the withdrawal of artificial nutrition and hydration ("ANH") from patients.

The Plaintiff suffers from a progressive degenerative brain condition causing severe physical disabilities but retaining mental competence and capacity. The progression will eventually render the Plaintiff entirely dependent on others and require ANH to survive. The Plaintiff fears that ANH may be withdrawn contrary to his expressed wishes to continue receiving it, raising concerns about his right to life and autonomy.

The Plaintiff sought declarations that various provisions of the Guidance were unlawful as incompatible with Articles 2, 3, 6, 8, and 14 of the European Convention on Human Rights ("the Convention"). The GMC challenged these declarations, leading to this appeal.

Legal Issues Presented

1. Whether the decision of a competent patient to receive artificial nutrition and hydration is determinative of the patient's best interests.
2. Whether withdrawal of ANH contrary to a competent patient's expressed wishes infringes Articles 2, 3, and 8 of the European Convention on Human Rights.
3. Whether doctors have a legal duty to provide or arrange for the provision of ANH to a competent patient who wishes to receive it.
4. Whether certain paragraphs of the GMC Guidance are unlawful for failing to reflect the legal position regarding competent patients and ANH.
5. Whether prior judicial authorisation is legally required before withholding or withdrawing ANH in certain circumstances.
6. The broader implications of the declarations on the rights of incompetent patients and the role of courts in decisions to withhold or withdraw life-prolonging treatment.

Arguments of the Parties

Appellant's Arguments (General Medical Council)

• Doctors exercise professional clinical judgment to determine what treatment is clinically indicated and offer those options to patients.
• Patients may accept or refuse offered treatments, even irrationally, but cannot demand treatments not clinically indicated.
• The Guidance correctly reflects the legal position that doctors must provide treatment in the patient’s best interests, which includes considering the patient’s wishes but does not equate to an absolute obligation to provide any treatment requested.
• There is no legal duty to seek prior court approval before withdrawing ANH except possibly as a matter of good practice in certain cases; the judge’s declaration to the contrary misstates the law.
• The declarations sought by the Plaintiff extend beyond his personal concerns and raise issues inappropriate for judicial determination absent a concrete factual context.

Appellee's Arguments (Plaintiff)

• The Plaintiff fears that doctors may withdraw ANH despite his competent and expressed wishes to continue receiving it, effectively deciding his life is not worth living.
• The relevant paragraphs of the GMC Guidance are unlawful as they permit withdrawal of ANH without proper safeguards, infringing Articles 2, 3, 6, 8, and 14 of the Convention.
• The Plaintiff seeks declarations that withdrawal of ANH contrary to a competent patient’s wishes is unlawful and that judicial oversight is required in certain circumstances.
• There is concern that no legal forum exists to protect the rights of patients like him against withdrawal of life-prolonging treatment.

Intervenor's Arguments (Official Solicitor)

• The Plaintiff is currently competent and not receiving ANH; thus, the question of withdrawal does not yet arise.
• Medical evidence suggests the Plaintiff will remain competent until late in the illness.
• There is no evidence that medical practitioners intend to apply the Guidance in a manner feared by the Plaintiff.
• The Official Solicitor will address the wider public importance issues but offers limited comment on the Plaintiff’s personal case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying the Plaintiff’s situation: he is currently competent, likely to remain so until late in his illness, and fears withdrawal of ANH contrary to his wishes. The court found no basis for this fear, as the law and medical practice protect competent patients’ rights to receive life-prolonging treatment they request.

The court rejected the judge’s equating of best interests with the patient’s expressed wishes, emphasizing that best interests is an objective test primarily relevant to incompetent patients. The court stressed that personal autonomy prevails for competent patients, who can refuse treatment, but cannot demand treatments that doctors do not consider clinically indicated.

Regarding the Guidance, the court found that the contested paragraphs, when read in context, do not authorize withdrawal of ANH against a competent patient’s wishes. The court acknowledged some drafting deficiencies but held these did not render the Guidance unlawful.

The court rejected the judge’s declaration that prior judicial authorisation is legally required before withdrawing ANH in specified circumstances. It held that judicial approval remains a matter of good practice, not legal obligation. The court distinguished between good practice and legal duty, noting that courts cannot authorise unlawful acts nor legalize unlawful conduct.

The court expressed concern that the judge’s extensive judgment, while erudite, went beyond the factual context of the Plaintiff’s case, raising broad principles with potentially confusing implications. The court cautioned against selective use of that judgment in future cases.

Holding and Implications

The appeal is allowed and the declarations made by the judge are set aside.

The court concluded that the existing law adequately protects the Plaintiff’s rights and that the challenged parts of the GMC Guidance are not unlawful in relation to his circumstances. There is no legal duty to obtain prior court approval before withdrawing ANH in the situations identified by the judge. The decision limits the scope of judicial pronouncements to the concrete facts of a case and cautions against broad declarations on ethical issues absent a direct factual dispute.

No new precedent was established beyond reaffirming established principles concerning patient competence, autonomy, best interests, and the role of courts in treatment withdrawal decisions. The ruling directly affects the parties by dismissing the Plaintiff’s claims and upholding the GMC Guidance as lawful in the relevant respects.