Court of Appeal clarifies GMC guidelines on right to life

Field Fisher Waterhouse has secured victory for the General Medical Council (GMC) in its appeal against a High Court decision in the “right to life” case of Burke v the GMC.

The GMC appealed against a decision of Mr Justice Munby in July 2004 in which he declared that GMC guidlines were unlawful.

The claimant in the case is Leslie Burke, who is wheelchair-bound and suffers from a degenerative brain condition. Munby J ruled that Burke had the right to be fed as his condition grew worse.

But the Court of Appeal this morning ruled that Munby J’s declarations were unnecessary in Burke’s case, and that under current GMC guidelines he could continue to be fed if that was what he wanted.

In a lengthy judgment, the Master of the Rolls, Lord Phillips of Worth Matravers, together with Lord Justices Waller and Wall, dissected Munby J’s decision and found that the litigation “expanded inappropriately to deal with issues which, whilst important, were not appropriately justiciable on the facts of the case”.

The judges said that they were concerned not to allow Munby J’s judgment to set a precedent in future cases, stating: ” […] it is […] inappropriate to leave the judgment to be seized on and dissected by lawyers seeking supportive material for future cases. Although we have said that a great deal in the body of the judgment is uncontroversial, we counsel strongly against selective use of Munby J’s judgment in future cases.”

FFW partner Matthew Lohn instructed One Crown Office Row’s Philip Havers QC for the GMC. Burke was advised by Brick Court Chambers’ Richard Gordon QC and South East London firm Ormerods.

Several parties intervened in the appeal. Matrix Chambers’ David Wolfe represented the Disability Rights Commission. The Official Solicitor instructed 3 Serjeant’s Inn’s Robert Francis QC. Eleanor Sharpston QC of Hailsham Chambers acted for the Catholic Bishops’ Conference of England and Wales. The Secretary of State for Health instructed Philip Sales of 11 King’s Bench Walk. Leigh Day & Co acted for Patient Concern and Mills & Reeve for the Intensive Care Society.

Barlow Robbins instructed James Dingemans QC of 3 Hare Court for the Medical Ethics Alliance, Alert, and the British Section of the World Federation of Doctors Who Respect Human Life.