Burke, R (on the application of) v The General Medical Council Rev 1

Factual and Procedural Background

The claimant suffers from a progressive neurological condition that will eventually render him unable to swallow, necessitating artificial nutrition and hydration (ANH) for survival. He seeks judicial review of the General Medical Council's (GMC) guidance on withholding and withdrawing life-prolonging treatments, challenging its compatibility with his rights under Articles 2, 3, 6, 8, and 14 of the European Convention on Human Rights (the Convention). The case raises significant medical law and ethical questions about patient autonomy and the lawful circumstances for withdrawing ANH.

The claimant is currently competent but severely disabled, reliant on a wheelchair, and anticipates retaining cognition and decision-making capacity until near death. He wishes to receive ANH until natural death and opposes withdrawal of such treatment.

Permission for judicial review was granted, with the Official Solicitor and the Disability Rights Commission (DRC) intervening. The hearing occurred over three days, with further submissions following a relevant European Court of Human Rights judgment. The claimant sought declarations regarding the unlawfulness of parts of the GMC Guidance and the necessity of court involvement before withdrawing ANH.

Legal Issues Presented

1. Whether the GMC Guidance on withholding and withdrawing life-prolonging treatments, particularly ANH, is lawful and compatible with the claimant's Convention rights.
2. The extent to which a competent patient's autonomy includes the right to require or refuse ANH.
3. The circumstances under which ANH may lawfully be withdrawn from competent and incompetent patients.
4. Whether prior judicial authorization is required before withdrawing ANH in certain circumstances.
5. The interaction and reconciliation of Articles 2, 3, 6, 8, and 14 of the Convention in the context of life-prolonging treatment decisions.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the claimant's condition and his desire to receive ANH until natural death. It identified the core legal issues as the lawful circumstances for withholding or withdrawing ANH and whether prior court authorization is required.

The court emphasized the fundamental ethical principles underpinning the law: sanctity of life, personal autonomy, and human dignity. It recognized that while sanctity of life is important, it must yield to autonomy and dignity in certain circumstances, especially for competent patients making informed decisions.

The court distinguished between competent patients, incompetent patients with valid advance directives, and those without, noting that competent patients or those with valid directives have their treatment decisions respected as determinative. For incompetent patients without directives, decisions are made in their best interests, evaluated broadly beyond medical factors to include ethical, social, and personal considerations.

The court analyzed the GMC Guidance, noting its extensive consultative process and general quality but identified legal shortcomings: an overemphasis on the right to refuse treatment rather than the right to require treatment; insufficient recognition of the doctor’s duty to find another doctor if unwilling to provide requested treatment; failure to adequately acknowledge the presumption in favor of life-prolonging treatment and the intolerability test; and inadequate recognition of the legal requirement for prior judicial authorization before withdrawing ANH in certain circumstances.

In applying the Convention, the court held that Articles 3 and 8 protect both dignity and autonomy, with Article 8 guaranteeing personal autonomy including decisions on how to manage the end of life. Article 3 prohibits inhuman or degrading treatment, which includes avoidably distressing dying circumstances. The court found that withdrawing ANH from a competent patient who wishes to continue it, or from an incompetent but sentient patient deriving benefit from it, would breach Articles 3 and 8 unless the treatment is futile or intolerable from the patient's perspective.

The court further clarified that Article 2 does not impose a positive obligation to continue life-prolonging treatment against the patient’s wishes nor to force treatment on competent patients. It recognized that prior judicial authorization is legally required when there is doubt or dispute about capacity, best interests, or disagreement among medical professionals or close relatives regarding ANH withdrawal.

Finally, the court explained that while doctors cannot be compelled to provide treatment against their clinical judgment, they have a duty to arrange for another doctor to provide such treatment if the patient requests it and it is in their best interests. The court can grant declaratory and mandatory relief against health authorities to ensure patients receive treatment consistent with their rights.

Holding and Implications

The court’s final decision includes the following core rulings:

• The decision of a competent patient, or a valid advance directive, to receive ANH is determinative of the patient’s best interests, at least until the patient is comatose and death is imminent.
• Refusal by a hospital or doctor to provide ANH in accordance with the competent patient’s wishes or valid advance directive prior to the final comatose stage constitutes a breach of Articles 3 and 8.
• Doctors who have assumed care must either provide ANH or arrange for another doctor to do so.
• Certain provisions of the GMC Guidance are unlawful as they fail to recognize the right to require treatment, the presumption in favor of life-prolonging treatment, and the legal requirement for prior judicial authorization before withdrawing ANH in specified circumstances.
• Prior judicial authorization is required before withholding or withdrawing ANH where there is doubt or disagreement about patient capacity, best interests, prognosis, or opposition from the patient or those close to the patient.

The implications are that the GMC Guidance must be amended to reflect these legal principles, particularly recognizing a competent patient’s right to require treatment and the necessity of court involvement in contested cases. The decision imposes clear duties on healthcare providers to respect patient autonomy and dignity, and to seek judicial authorization when appropriate, thereby reinforcing protections under the Human Rights Act 1998 and the Convention. No new precedent beyond these clarifications was established.