Tube-fed patients "too costly"

In the High Court in July 2004 Mr. Justice Munby ruled that Leslie Burke should be able to request tube feeding and hydration in advance of its becoming necessary - and receive it - as well as being able to refuse. The Dept of Health was so appalled by this that they intervened in the Appeal by the General Medical Council. Their solicitor in applying for leave wrote:

"The Secretary of State would wish to put before the Court evidence of the actual cost of ANH to individual cases and the incidence of the provision of ANH (or artificial nutrition and hydration on their own) in NHS hospitals. Again, it is the Secretary of State who is best placed to make these points, as they affect the NHS as a whole; and the Secretary of State who has perhaps the most direct interest (as ultimately the providing and paying party) in being able to address the Court on these matters."

After a critical headline in the Daily Mail, Baroness Ashton told the House of Lords the only grounds on which the Dept. of Health had joined the appeal were that "the judgment could be read as allowing patients to request any life sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interest."

On 24th March in debates on the Mental Capacity Bill, when challenged by Lord (John) Patten to explain the discrepancy, she repeated the cover-up. However on 18th May, when the Burke case came to the Appeal Court, Mr. Sales, Counsel for the Dept. of Health, said that judges must respect the will of Parliament in the Mental Capacity Act. (The Doctors' Federation, also, was an Intervener in this case, with the Medical Ethics Alliance and ALERT.) Our solicitor's notes read:

Mr. Sales: "In the light of the 2005 Act, we say it has superseded the [Munby] judgment. A patient has no right to demand a particular form of treatment, the Secretary of State has a question of resources, we say it is a remarkable feature that the Judge suppressed concerns re resources."

Later: "Even if there are no resource concerns, there may still be contra-indications of application of ANH as treatment."(Emphasis ours)

Our QC, Mr. Dingemans, made the point that the patient's best interests and the resources of the NHS were separate issues.In the Judgment handed down on 28th July 2005 which denied Leslie Burke the right to food and water when he becomes unable to communicate, resources were only mentioned once, and that was in quoting Judge Munby (para 27).