On 28 July, the Master of the Rolls handed down the judgment of the Court of Appeal in the case of Burke v General Medical Council (GMC). Oliver Burke, who suffers from a degenerative brain condition, wanted reassurance that, as he becomes progressively unwell, he will be fed and provided with artificial hydration until he dies of natural causes. The case attracted interest because the subject matter involved decision-making at the end of life and analysis of the legality of the GMC’s guidance to doctors: ‘Withholding and Withdrawing Life-Prolonging Treatment’. Among others, the Secretary of State for Health intervened in the Court of Appeal alongside the Disability Rights Commission and the Catholic Bishops’ Conference of England and Wales.
At the first hearing before Mr Justice Munby, Burke sought several declarations, including confirmation that removal of treatment would be a breach of Articles 3 and 8 of the European Convention on Human Rights and unlawful under domestic law. This was granted. Munby J, in his 225-paragraph judgment, went on to declare the GMC’s guidance unlawful in part, as it failed to recognise that the decision of a competent patient was determinative as to whether or not the treatment was in their best interests.
Often a public authority will welcome guidance from the court on difficult issues. In this case, the GMC did not allow the declarations of Munby J to remain unchallenged. Its successful appeal has resulted in a judgment interesting for both the particular decisions on the law and for the more wide-ranging comment on the use of legal challenge and the role of the professional.
In its succinct 81-paragraph judgment, the Appeal Court referred to Munby J’s judgment as displaying “erudition and industry”. It recognised that much of the judgment was uncontroversial. But the judge had proposed: “If the patient is competent, there is no difficulty in principle: the patient decides what is in his best interest and what treatment he should or should not have.”
The court, with tacit criticism of Munby J, noted that his “industry was misplaced”. It warned against selective use of the judgment for the future, ruling that a doctor cannot always be obliged to procure required treatment. It also stated that Burke “was not well advised”. The manner and circumstances in which the proceedings were commenced suggested that he was persuaded to advance a claim for judicial review against parts of the GMC’s guidance that had no relevance to his condition. It found that the duty on a doctor to care for Burke in accordance with his wishes had never been open to doubt. Questions have now been raised as to whether the case should ever have been brought and the wisdom of involving the law when other options had not been exhausted.
Putting the legal issues to one side, an interesting aspect of the case is the implicit approval given to the status of professional judgement. At a time when professionals’ integrity for self-regulation is constantly questioned and with strictures on many’s ability to practise being increasingly regulated by government quangos, the good, old-fashioned concept of professional judgement has been given a firm endorsement by our judicial system.
The demand for consumer choice and protection and remedies for malpractice is arguably diminishing the proper recognition by society of the value of the well-qualified, honest and hard-working professional. This judgment by the Court of Appeal endorses the role of a professional in exercising determinative discretion. Consumer concern that professionals behave in a paternalistic manner must be properly tempered with a recognition that professionals principally seek to work in their clients’ best interests.
This judgment is to be welcomed – and not just by doctors, but by all professionals, for its endorsement of the value of professional opinion.
Matthew Lohn, partner and head of the regulatory and public law group, Field Fisher Waterhouse