Terminally ill man loses legal battle for the right to be fed

BY DAN FRANK

The Court of Appeal has overturned a landmark ruling that would have compelled doctors to continue to feed a seriously disabled man even if he lost the power to communicate.

Last year Leslie Burke, who suffers from a degenerative brain condition, won a legal battle against the General Medical Council. whose guidelines stipulate that doctors have the ultimate say in what treatment a patient should receive.

But last Thursday the Court of Appeal set aside the original judgment on the grounds that its focus on autonomy could allow patients to demand inappropriate or even harmful treatment.

Speaking on behalf of the bishops' conference, Archbishop Peter Smith of Cardiff said he broadly agreed with the Court's key findings. He said that the original judgment had put too great an emphasis on "subjective patient autonomy" instead of "objective" interests, such as a presumption in favour of life. Lord Justice Munby's decision was "potentially far-reaching and dangerous" if applied to other cases, he said.

The archbishop continued "We sympathise with the Court of Appeal's determination not to range widely over the whole law relating to the end of life, and not to address all the problems of principle highlighted by [the judge's] unilateral prioritising of autonomy over sanctity of life, when determining the appeal."

"Like the Mental Capacity Act, the Court of Appeal's judgment in Burke thus leaves such issues for future resolution," he added.

As part of its opposition to euthanasia and assisted suicide the Catholic Church has consistently stressed the importance of "objective" factors in determining treatment for the terminally ill. But others have strongly condemned the new ruling.

Elspeth Chowdharay-Best, a spokeswoman for ALERT, which campaigns against euthanasia, said:. "Leslie Burke's plea for food and fluid should not be made into an argument about autonomy.

"Fluid is essential to life and is needed by everyone who is not imminently dying. Patients in hospital should not have to ask for it.

"Being deprived of water if you are unable to communicate is not a pleasant thing to look forward to."

Liz Sayce, of the Disability Rights Commission said she was still concerned that the wishes of all patients might not be respected. "The judgment is fine for people who have the capacity to speak. But the difficulty is when you don't have that capacity, it will be back to the doctors taking the decision entirely themselves," she said.

Mr Burke, 45, has cerebellar ataxia, a nervous disorder that does not affect his mental faculties but will gradually cause him to lose speech and limb co-ordination, including, eventually, the ability to swallow.

He argued that General Medical Council advice, which gives the final say on treatment - including artificial nutrition - to doctors rather than patients, infringed his human rights.

The Court of Appeal reassured Mr Burke that he was entitled to be given the treatment he wants as his condition worsens and underlined a competent patient's right to autonomy and self-determination. Patients can refuse treatment, though they cannot demand treatments "that have no clinical benefit," the Court said.

In addition, the Court noted that any doctor who refused nutrition or other life-prolonging treatment "in the face of a competent patient's expressed wish to be kept alive" would have "no answer to the charge of murder."

When Mr Burke eventually falls into a coma, however, he will no longer be able to compel his doctors to keep feeding him.

The GMC appealed against the July 2004 decision, claiming that the ruling had implications beyond the provision of artificial nutrition.

It argued that doctors would be put in an impossible position if patients were given the right to choose what treatment they should receive. Patients could demand inappropriate, non beneficial or even dangerous treatment, which could have "very serious implications" for the NHS, said Philip Havers, QC, representing the GMC.

Mr Burke said: "Obviously I am disappointed that I have not got all that l wished for."