Marlowe's Shade

Monday, August 01, 2005

Dying Man Loses His Right to be Fed

From The Telegraph. Hat tip: NY Nana

In a previous post I was introduce to Leslie Burke's legal battle in the UK. He suffered a major set back due to a Court of Appeal Ruling:

A man who is terminally ill and fears that doctors may allow him to die of thirst said he was "disappointed" yesterday after the Court of Appeal overturned an earlier judgment in his favour.

Last July, the High Court granted a challenge by Leslie Burke, 45, and declared that key sections of General Medical Council guidance on withdrawal of life-prolonging treatment were unlawful.

But yesterday three appeal judges allowed an appeal by the GMC against the ruling, setting aside six declarations by the trial judge. Permission to appeal was refused.

Mr Burke suffers from cerebellar ataxia, a progressively degenerative brain condition that follows a similar course to multiple sclerosis.

In an unusual move, Lord Phillips, the Master of the Rolls, issued a press release saying that "the fact that the appeal has been allowed does not mean that Mr Burke has lost".

Mr Burke will need artificial nutrition and hydration - known as ANH - when he loses the ability to swallow.

Lord Phillips explained that Mr Burke appeared to fear that ANH would be withdrawn before the final stages of his disease, when it would not be capable of prolonging his life. "If this is Mr Burke's fear, there is no reason for him to have it," Lord Phillips said.

"There are no grounds for thinking that those caring for such a patient would be entitled to or would take a decision to withdraw ANH in such circumstances."

The GMC's guidance did not suggest to the contrary, added Lord Phillips, who was sitting with Lords Justice Waller and Wall.

The judges added that, "where a competent patient indicates his or her wish to be kept alive by the provision of ANH, any doctor who deliberately brings that patient's life to an end by discontinuing the supply of ANH will not merely be in breach of duty but guilty of murder".

But they stressed that "in the last stage of life" ANH - far from prolonging life - may even hasten death.

"It is only in this situation that, assuming the patient remains competent, a patient's expressed wish that ANH be continued might conflict with the doctor's view that this is not clinically indicated."

Mr Justice Munby ruled in the High Court that the patient had the right to insist on ANH but the Court of Appeal disagreed.

"A patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient's clinical needs. That said, we consider the scenario that we have just described is extremely unlikely to arise."

The judges believed Mr Burke might have been persuaded by others to challenge aspects of the GMC guidance that had no relevance to someone in his position.

His solicitor, Paul Conrathe, said the ruling was a "technical victory for the GMC" but a "significant and practical victory for Leslie Burke and those in his situation".

Prof Sir Graeme Catto, the GMC president, said: "We have always said that causing patients to die from starvation and dehydration is absolutely unacceptable practice and unlawful. Today the court has reinforced our position."

Despite these assurances, this is clearly an erosion of the rights of patients and the disabled, and coupled with the recent BMA ruling I would say that Mr Burke's concerns are well founded. The trend has been to replace laws that have criminalized euthanasia with "guidelines" that historically (in Holland and Oregon) have failed in their purpose of protecting the sick and disabled.
papijoe 6:22 AM