Court throws out dying man's right to be fed

The General Medical Council (GMC) succeeded yesterday in its bid to overturn an earlier High Court judgment that a terminally ill man had the right to insist on artificial nutrition and hydration, even if his doctors were convinced that the process was futile.

Leslie Burke, 45, who has a degenerative brain condition, brought the initial case because he was concerned that GMC guidelines meant that when he lost the capacity to communicate, medical staff could effectively starve him to death against his wishes.

The former postman from Lancaster was backed by pro-life campaigners and disability groups who claim doctors should not be able to withdraw artificial nutrition and hydration (ANH) as it is not a medical treatment.

The GMC insisted that doctors only withdraw artificial nutrition when a patient was close to dying and food and drink was merely prolonging their agony.

In a landmark ruling at the High Court last July, Mr Justice Munby backed Mr Burke and ordered the GMC to change its guidance. Mr Burke and his supporters were jubilant, but the medical profession was horrified, warning that the ruling would fundamentally change the doctor-patient relationship by effectively allowing people to demand all kinds of possibly pointless treatment.

The GMC appealed against the ruling and yesterday, three judges, headed by Lord Phillips, the Master of the Rolls, set aside the earlier judgment. They said: "Ultimately, a patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient's clinical needs."

Mr Burke, who is confined to a wheelchair, suffers from cerebellar ataxia, a disorder of the nervous system that slowly robs people of co-ordination and movement, although it does not affect their mental faculties. Eventually, sufferers lose the ability to communicate and swallow.

He is concerned that when he can no longer make his wishes known, doctors could withdraw feeding and he could spend weeks slowly starving to death.

But the judges said that doctors needed the ability to make decisions about provision and withdrawal of treatment when patients no longer had the capacity or the competence to make judgements themselves.

Outside the court, Mr Burke said: "Obviously I am disappointed that I have not got all that I wished for. I have every wish to take it to the House of Lords."

Mr Burke claimed some victory in the fact that the judges emphasised that a doctor who withdraws ANH against the wishes of a "competent" patient would be guilty of murder.

"People in the unhappy position of Mr Burke are entitled to have confidence that they will be treated properly and in accordance with good practice, and they will not be ignored or patronised because of their disability," the judges said.

The GMC has also already changed its guidance on the withdrawal of life-prolonging treatments to reflect issues raised by the case. Professor Sir Graeme Catto, its president, said: "Patients should be reassured by this judgment, which emphasises the partnership needed to resolve end of life issues. Our guidance makes it clear that patients should never be discriminated against on the grounds of disability and we have always said that causing patients to die from starvation ... is unlawful."

Anti-euthanasia campaigners attacked the ruling. Joyce Robins, a co-director of Patient Concern, said: "Doctors again have extraordinary power over us, making decisions on how and when we die. This is a huge step backwards for patients. This is only round one. We will take this all the way to Strasbourg."

Lord Phillips said there was evidence that Mr Burke would remain competent until the final stage of his disease and so long as ANH was prolonging his life, he would be able to communicate his wishes. When he lost the ability to communicate and lapsed into a coma, ANH would not help him, said the judge.

The judge said it appeared Mr Burke was persuaded to advance a claim in court by people who were trying to challenge aspects of the GMC guidance which had no relevance for him.

Arts and Entertainment
Game Of Thrones
Uh-oh, winter is coming. Ouch, my eyes! Ygritte’s a goner. Lysa’s a goner. Tywin’s a goner. Look, a dragon
tvSpoiler warning: The British actor says viewers have 'not seen the last' of his character
Arts and Entertainment
'New Tricks' star Dennis Waterman is departing from the show after he completes filming on two more episodes
tvOnly remaining original cast-member to leave long-running series
The Etihad Stadium, home of Manchester City
premier league

The Independent's live blog of today's Premier League action

ebooksAn unforgettable anthology of contemporary reportage
Polly Borgen at the Tribeca Film Festival in 2012
peopleThe Emmy award-winner starred in Cape Fear, the Sopranos and Desperate House Wives
people'I hated him during those times'
Britain's shadow chancellor Ed Balls (L) challenges reporter Rob Merrick for the ball during the Labour Party versus the media soccer match,
peopleReporter left bleeding after tackle from shadow Chancellor in annual political football match
Rumer was diagnosed with bipolarity, attention deficit hyperactivity disorder and post-traumatic stress disorder: 'I was convinced it was a misdiagnosis'
peopleHer debut album caused her post-traumatic stress - how will she cope as she releases her third record?
Life and Style
Couples have been having sex less in 2014, according to a new survey
Arts and Entertainment
tvReview: 'Time Heist' sees a darker side to Peter Capaldi's Doctor
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

Day In a Page

Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

Despite the result, this is the end of the status quo

Boyd Tonkin on the fall-out from the Scottish referendum
Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

Manolo Blahnik: Flats, Englishness, and Mary Beard

The shoe designer who has been dubbed 'the patron saint of the stiletto'
The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

Scrambled eggs and LSD

Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

'Normcore': Blending in is the new standing out

Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

New leading ladies of dance fight back

How female vocalists are now writing their own hits
Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments
These Iranian-controlled Shia militias used to specialise in killing American soldiers. Now they are fighting Isis, backed up by US airstrikes

Widespread fear of Isis is producing strange bedfellows

Iranian-controlled Shia militias that used to kill American soldiers are now fighting Isis, helped by US airstrikes
Topshop goes part Athena poster, part last spring Prada

Topshop goes part Athena poster, part last spring Prada

Shoppers don't come to Topshop for the unique
How to make a Lego masterpiece

How to make a Lego masterpiece

Toy breaks out of the nursery and heads for the gallery
Meet the ‘Endies’ – city dwellers who are too poor to have fun

Meet the ‘Endies’ – city dwellers who are too poor to have fun

Urbanites are cursed with an acronym pointing to Employed but No Disposable Income or Savings
Paisley’s decision to make peace with IRA enemies might remind the Arabs of Sadat

Ian Paisley’s decision to make peace with his IRA enemies

His Save Ulster from Sodomy campaign would surely have been supported by many a Sunni imam