The High Court hearing before the Honourable Mr Justice Munby resulted in a widely reported judgement1 handed down on 30th July 2004, which if unchanged at appeal will have far reaching effects for geriatricians as well as other medical professionals.

Mr Oliver Leslie Burke has a progressive and ultimately fatal neurological disorder. He wished to ensure the continuation of any artificial nutrition and hydration (ANH) that he might then be receiving and to prevent its withdrawal at a stage of his illness when he was no longer competent to express his wishes. Current General Medical Council (GMC) Guidance2 lays the responsibility for deciding about the continuation of ANH for incompetent patients on the doctor in charge of a patient’s care, weighing “the likely clinical and personal benefits, burdens and risks, for the particular patient …..” and respecting “an adult patient’s competently made refusal of treatment even where complying with the decision will lead to the patient’s death.”

The 74 page judgement brings together common law and the European Convention on Human Rights and identifies errors in the GMC Guidance which lays emphasis on assessing the case for withdrawal of ANH but does not pay regard to any wishes the individual might have previously expressed about continuation of active treatment.

The judgement emphasises that it is for the individual to decide what is in his or her best interests, not for doctors. The GMC has sought leave to appeal "(as) the case raises important points of principle, and there are some areas where we consider further clarification may be needed . . . ."

The judgement states that doctors must abide by the wishes of the competent patient and the valid and relevant advance directive of those who are incompetent, with regard to what life-prolonging treatment s/he should or should not have. In the case of the incompetent patient whose wishes are unknown it is not compatible with the Convention for ANH to be withdrawn until the patient has entered the final coma shortly before death at which stage any treatment will be bereft of benefit.

Treatment can only be withdrawn before the final coma by prior authorisation of the court, or if life has become intolerable - "the touchstone of best interests is intolerability". The judgement states that preservation of dignity is likely to take precedence over the sanctity of life.

Specifically the judgment states it is a matter of law to seek prior authorisation of the court before withholding or withdrawing ANH in five circumstances, quoted as follows:

• where there is any doubt or disagreement as to the capacity (competence) of the patient; or
• where there is a lack of unanimity amongst the medical professionals as to the patient’s condition or prognosis or his best interests or the likely outcome of ANH being either withheld or withdrawn or otherwise; or
• where there is evidence that the patient when competent would have wanted ANH to continue in the relevant circumstances; or
• where there is evidence that the patient (even if a child or incompetent) resisted or disputed the proposed withdrawal of ANH; or
• where persons having a reasonable claim to have their views or evidence taken into account asserts that withdrawal of ANH is contrary to the patient’s wishes or not in the patient’s best interests.

Furthermore, although a doctor cannot be compelled to provide treatment against his/her judgement s/he should continue active measures until someone else who is prepared to provide the treatment is identified and assumes care.

Geriatric practice provides numerous examples of frail demented people who are gradually losing weight and in whom intake is insufficient to meet requirements despite careful hand-feeding by dedicated nursing staff. Hitherto we have tended to regard it as humane practice to continue to offer food and fluid without routine recourse to artificial feeding which is not without risk and does not always reverse the weight loss associated with the underlying condition. The judgment, if fully upheld at appeal, will change our approach to the management of many thousands of frail demented people.

Tony Luxton
Consultant Community Geriatrician

References
(1) R(Burke) v General Medical Council Queen’s Bench Division(Admin): Munby J : 30 July 2004 www.courtservice.gov.uk/judgmentsfiles/j2775/burke-v-gmc.htm

(2) General Medical Council, Guidance on Good Practice, Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making
www.gmc-uk.org/standards/default.htm