Withholding life‐prolonging treatment

Abstract

Anaesthetists and intensivists should be aware of a recent High Court decision in the case of Burke v General Medical Council [1], which may set a new legal precedent in the withholding and withdrawal of life-prolonging treatment. Forty-four-year-old Leslie Burke suffers from the congenital degenerative condition spino-cerebellar ataxia. Although he retains full mental capacity, his physical condition is deteriorating. Supported by the Disability Rights Commission, Mr Burke sought clarification from the High Court that artificial hydration and nutrition (AHN) would not be withdrawn when his condition eventually necessitated them. To this end, he contested that the guidance given by the General Medical Council in ‘Withholding and withdrawing life-prolonging treatments: good practice in decision making’[2] would contravene his human rights as detailed by the European Convention on Human Rights (ECHR – incorporated into English Law as the Human Rights Act, 1998), specifically with regard to Articles 2 (right to life), 3 (prohibition of torture) and 8 (right to respect for private and family life). The GMC's guidance is a fair representation of English Law to this point, such that it is the doctor in charge of an incompetent patient's care who is responsible for deciding whether to withhold or withdraw medical treatment (which includes AHN) (paragraph 32), a decision which may allow for withdrawal when death is not imminent, providing that AHN is considered too burdensome a treatment (paragraph 81). The patient's stated wishes should be taken into account when making the decision. In a significant departure from legal precedent, Mr Justice Munby found for Mr Burke, such that his ‘advanced directive’ proscribing the withdrawal of AHN was to be respected unless death was imminent, even if the doctors treating him thought the treatment unnecessarily burdensome [1]. Moreover, the GMC's advice was judged to be contrary to Articles 3 and 8 of the ECHR, and so could not support the decisions of a doctor who was guided by the GMC's advice. This has several implications for the provision of intensive medical care, particularly at the end of life [3]: a patient's rights to medical care may exceed a doctor's desire to withhold or withdraw it, the ‘best interests’ of a patient are judged as best served by treatment in all cases except where the treatment is ‘intolerable’ or death is imminent, patients may make advanced requests for treatment that doctors do not think is in the patient's best interests, resources may have to be redistributed towards the provision of expensive, experimental or equivocal treatment, and referral of similar cases to the courts may become considerably more commonplace. Furthermore, this is a case that challenges the supposition that official guidelines are rational determinants of the standard of medical care. The GMC intends to appeal the decision in May 2005, and the decision of the Court of Appeal (and probably the House of Lords) in due course should be of great interest to those involved in decision making in this difficult area of medical law.