Nicola Brent | Correspondent | Tuesday, August 2, 2005
Former mailman Leslie Burke, 45, has a progressively degenerative disease that although leaving him fully conscious, will eventually rob him of the ability to swallow and communicate.
He petitioned the High Court last year to ensure that he would not be denied food and water once he was no longer able to articulate his wishes.
Burke won that right when judge James Munby ruled that if a patient was mentally competent -- or if incapacitated, had made an advance request for treatment -- then doctors were bound to provide artificial nutrition or hydration (ANH).
But last May, the General Medical Council (GMC) -- the medical licensing authority -- took the case to the Appeal Court, arguing that doctors had been placed "in an impossibly difficult position."
The appeal judges have now agreed, overturning the High Court judgment and upholding GMC guidelines on how to treat incapacitated patients.
Those guidelines give doctors the final say in whether a patient should be given life-sustaining "treatment," a term legally defined to include artificial feeding or hydration.
The latest ruling obliges doctors to provide life-prolonging treatment if a terminally ill and mentally competent patient asks for it.
However, once a patient is no longer able to express his or her wishes or is mentally incapacitated, doctors can withdraw treatment, including ANH, if they consider it to be causing suffering or "overly burdensome."
Ultimately, the court said, a patient cannot demand treatment the doctor considers to be "adverse to the patient's clinical needs."
Anti-euthanasia campaigner and author Wesley Smith told Cybercast News Service it was important Burke had taken the case to court because "it is now clear that a patient who can communicate desires cannot have food and water withdrawn.
"That is a line in the sand that is helpful."
However, he added, the judgment had "cast aside" those who were mentally incompetent or unable to communicate their wishes -- "those who bioethicists call non-persons because of incompetence or incommunicability.
"I believe that the judgment clearly implies that the lives of the competent are worth more than the lives of the incompetent since doctors can decide to end life-sustaining medical care, including ANH," said Smith, a senior fellow at the Discovery Institute and author of Culture of Death: The Assault on Medical Ethics in America.
Burke was quoted as saying in reaction to the ruling that it held "no good news at all" for people who shared his concerns.
In the light of public health service cuts and underfunding, Burke said he was worried about "the decisions that will have to be made" by doctors in the future.
"I have come to realize that there are quite a few people who feel the same way I do," the Yorkshire Post quoted him as saying. "Not everyone wants to be put down. Not everyone wants their life to be ended prematurely."
Responding to the court's ruling, the GMC said it should reassure patients.
The council's guidelines made it clear "that patients should never be discriminated against on the grounds of disability," said GMC President Prof. Graeme Catto in a statement.
"We have always said that causing patients to die from starvation and dehydration is absolutely unacceptable practice and unlawful."
A professor of palliative medicine at Cardiff University, Baroness Ilora Finlay, supported the court ruling. "Stopping futile interventions allows natural death to occur peacefully," she argued in a British daily newspaper. "This is not euthanasia by the back door."
But the Disability Rights Commission (DRC) took a different view.
The commission was one of several campaigners, including right-to-life activists and patients' groups, which had strongly supported Munby's earlier ruling.
DRC Chairman Bert Massie expressed the group's dismay at the Appeal Court decision, saying it did nothing to dispel the fears of many disabled people that "some doctors make negative, stereotypical assumptions about their quality of life."
It had also "totally ignored" the rights of those who were unable to express their wishes, he added.
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