BMJ  2004;329:810-811 (9 October), doi:10.1136/bmj.329.7470.810

Editorial

Why the GMC is right to appeal over life prolonging treatment

Unless a high court judgment is overturned it will skew medical care

The General Medical Council, Britain's regulatory body for doctors, is surely right to have appealed against a high court ruling that its current guidance on withholding and withdrawing life prolonging treatment is unlawful.^{1 2} If not overturned the judgment is likely severely to tilt the balance of medical practice towards non-beneficial and wasteful provision of life prolonging treatment in general and of artificial nutrition and hydration in particular.

The specific case on which the high court made this ruling is uncontroversial. If the existing GMC guidance were followed Mr Burke, who took the case to the high court and who has degenerative spinocerebellar ataxia, would have been treated with artificial nutrition and hydration for rather longer than Mr Justice Munby has now ruled that he must be treated. But the judgment itself extends far beyond the particular case and can be predicted to lead doctors routinely to provide artificial nutrition and hydration—and arguably other life prolonging treatments—for all legally incompetent patients unless either they have previously competently rejected it by a valid advance directive or its provision would be regarded by all involved as "intolerable."

In the absence of a court decision to the contrary, all babies and children, all patients dying of cancer, all brain damaged patients, all patients in intensive care, and all patients with dementia, if they are not competent to make decisions for themselves and have not competently rejected it in advance, will in principle have to be given life sustaining and prolonging treatments if their relatives or friends say it is in their best interests and do not agree that it would be "intolerable" to provide it.

Mr Justice Munby does not himself make these sweeping assertions and formally judged only the case of this particular competent patient, but their truth follows inexorably from his extensive adjudication. Essentially he argues—controversially—that combinations of articles 2, 3, and 8 of the Human Rights Act (the right to life, the prohibition of inhuman and degrading treatment, and the right to respect for private and family life), supported by other existing English law, require the following conclusions.

Firstly, patients who believe that they would "be exposed to acute mental and physical suffering" if they were denied a life prolonging treatment, and in particular artificial nutrition and hydration, would have a right to require that they be provided with that treatment (213 i,l,m,n,o and 214b,c,d,e in the judgment). Secondly, incompetent patients should be presumed to desire such life prolonging treatment and presumed to believe, at least in the case of artificial nutrition and hydration, and arguably in the case of all life prolonging treatments, that they would "be exposed to acute mental and physical suffering" if they were not given it (213 j,k,o and 214 d,e). Thirdly, the legal "best interests" test on which decisions for incompetent patients are properly taken, should, in the case of life and death decisions, be based on "intolerability." Thus except in "extreme" cases in which the court is entitled to say, "The life which this treatment would prolong would be so cruel as to be intolerable," life prolonging treatment is legally required (107, 111). Fourthly, while Judge Munby accepts that people who are in the final phase of dying may have life prolonging treatment withdrawn lawfully without referral to a court, he seems to extend the law concerning obligatory referral to court to all cases of withholding or withdrawing artificial nutrition and hydration—and arguably all life prolonging treatments—from incompetent patients whenever there is doubt or disagreement among partners, carers, relatives, and friends.

These conclusions, with their draconian restriction of the exercise of doctors' professional skills, will surely lead to the outcomes predicted above. Doctors dislike going to court, preferring to look after patients. NHS managers are unlikely to let them go to court over the large number of cases involved: far simpler to change priorities to accommodate more provision of life prolonging treatments, especially artificial nutrition and hydration. Judge Munby assures us that "this is not a case about the prioritisation or allocation of resources, whether human, medical or financial" (27). But, although the case does not concern these issues, his judgment inevitably does, for it and its reasoning must be generalised, and this will surely inevitably lead to prioritisation of resources towards artificial nutrition and hydration and other life prolonging treatments for incompetent patients who have not rejected them in advance. If it is not overturned the ruling will delight vitalists. The rest of us—patients, doctors, and society in general—should be appalled by it. We should hope that the appeal court overturns the judgment.

Imperial College Medical Ethics Unit, Department of Primary Care and Social Medicine, London W6 8RP (raanan.gillon{at}imperial.ac.uk)

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See News p 818

Competing interests. None declared.

References

1. Dyer C. GMC appeals against judgment on withholding treatment. BMJ 2004;329: 818.[Free Full Text]
2. Oliver Leslie Burke and the General Medical Council. (Citation number [2004] EWHC 1879 (Admin)). www.courtservice.gov.uk/judgementfiles/j2775/burke-v-gmc.htm (accessed 26 Sep 2004).

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GMC appeals against judgment on withholding treatment

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• Tripp, J, McGregor, D (2006). Withholding and withdrawing of life sustaining treatment in the newborn. Arch. Dis. Child. Fetal Neonatal Ed. 91: F67-F71 [Abstract] [Full text]  
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