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.