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Meaning of life now a matter for courts
Aug 25 2004
Birmingham Post
Everybody knows it is never going to happen to them. They won't be the ones to lose a loved one, go bankrupt or be struck down by a chronic illness.
But what if it does? What if you are the one diagnosed with a degenerative disease and one day find yourself lying in a hospital bed, unable to make the decision to carry on with treatment or nourishment for yourself?
Or what if you had a third consecutive heart attack and were already suffering from terminal cancer - would you expect doctors to revive you or allow you to die?
Suddenly you have no control or autonomy and in a moment your future lies in the expertise and professional opinions of the doctors around you.
Or at least it used to. A ground-breaking High Court ruling earlier this month marked a significant shift in the balance of power away from the doctor and medical profession to the patient and the courts.
Ruling in the case of Leslie Burke, a 44-year-old from Lancaster who has a degenerative brain condition, Mr Justice James Munby found parts of the existing guidance issued by the General Medical Council on the Withholding and Withdrawal of Life-prolonging Treatment to be unlawful in relation to the Human Rights Act.
Mr Burke took the GMC to court over concerns that his wish to go on living until a natural death could be overridden under its current guidelines.
Although Mr Justice Munby pronounced the bulk of the GMC's instruction reassuring to patients and their relatives, he found it failed to give full force to the right of patients to decide positively about their treatment in the future.
And if a patient gives an advance directive, doctors must abide by it.
According to a top Birmingham lawyer, this could lead to more cases involving a conflict of either medical opinion or difference of views between doctors and relatives ending up in court.
David Lock, head of health-care practice at city-based lawyers Mills & Reeve, which acts on behalf of 110 NHS trusts in the country, said the ruling expanded the type of cases where doctors ought to seek guidance from a court of law on the treatment of a patient.
"This clarifies the law in this difficult area but it also expands the number of cases where doctors are encouraged to go to court for advance approval of the treatment they propose for a patient who cannot give their own consent because they are unconscious or too ill," he said. "If somebody is brought in on a stretcher from a road accident and it is an emergency life or death situation, the doctors are still required to determine the best action.
"But it becomes more complex when you have someone with a degenerative disease or a person who is in a persistent vegetative state.
"In these circumstances, if no advance directive has been given by the patient and doctors do not agree on the treatment, or if relatives are concerned, the ruling now states doctors must go to court."
Mr Lock said the Burke case ruling, which is being appealed by the GMC, would help protect hospital doctors from later legal action while at the same time protecting patients' human rights.
"The court judgment highlights the tension between sanctity of life and personal autonomy but if there is a clash between these two, patient choice takes precedent," he said.
"It means the ultimate decisionmaker is the court if people cannot make the decision themselves.
"In the past this ultimate decision came down to doctors but the point is doctors do not always know best.
"It is already having a number of effects on the NHS - strengthening the relationship between the clinicians and families, making clinicians think more about human rights and at the same time assuring relatives their best interests are being addressed.
"This is precisely the sort of area where the courts ought to be the ultimate guarantor of citizens' rights - when we need our human rights protected most is when we cannot shout about it ourselves."
