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OFFICE OF THE SOLICITOR
Litigation Division
Room 511
New Court,
48 Carey Street
London
WC2A 2LS
Tel: 0207 412 1402 Fax: 0207 412 1623
Anita.James@dwp.gsi.gov.uk
Department for Work and Pensions
• Department of Health
The Registrar
Civil Appeals Office
Royal Courts of Justice
222 The Strand
London
WC2A 2LL
Date: 7th December 2004
Dear Sir,
Appeal No. 2004/2086,
General Medical Council v Oliver Leslie Burke and others
- I am writing on behalf of the
Secretary of State for Health to request the permission of the
Court to intervene in the above appeal ("the Appeal")
Background
- The Appeal is against the Order
of Munby J dated 30 July 2004 in judicial review proceedings
brought by Mr Burke against the General Medical Council ("GMC"),
in respect of the GMC's Guidance entitled Withholding and Withdrawing
Life-prolonging Treatments: Good Practice in Decision-making
("the Guidance"). Mr Burke is suffering from a congenital
degenerative brain condition and is concerned to establish a
right to receive artificial nutrition and hydration ("ANH")
when, towards the end of his life, he requires ANH to survive.
The Guidance, in very brief summary, seeks to inform doctors
as to the matters which must be taken into account when deciding
whether or not to administer, or withdraw, ANH (inter alia),
that being a decision to be taken by the doctor in the best interests
of the individual patient.
- Mr Burke considers that the
Guidance does not give sufficient weight to his right, as a patient,
to require that he receive ANH and to the role of the courts
in determining whether or not ANH can be withdrawn in an individual
case, Mr Burke was supported in his Claim – to some extent
– by the Official Solicitor and by the Disability Rights
Commission, who appeared before Munby .1 as Interested Parties.
- In the Order dated 30 July 2004,
Munby J granted declarations to the effect that Mr Burke was
entitled to decide, whether by oral communication or by means
of a valid advance directive, to be provided with ANH, and that
that decision must be respected by the doctors treating him,
up until the point at which his death is imminent and he is comatose
(Declarations (1)-(3)). He also declared the Guidance to be unlawful
in a number of respects, including that it did not recognise
the determinative weight of a request by a patient to receive
ANH, that it failed properly to express the "best interests"
test of a patients welfare in this context, and that it failed
to reflect a legal requirement to seek judicial authorisation
in advance of any decision to withdraw ANH from a patient otherwise
in need of it (Declarations (4)-(6)).
- The GMC has appealed the Order
of Munby J and the Secretary of State has been provided with
copies of its Grounds of Appeal and its Skeleton Argument
The Secretary of State's concern.
- The Secretary of State has a
statutory duty to provide or secure the effective provision of
services within the National Health Service ("the NHS"):
s. 1 of the National Health Service Act 1977. He is concerned
about the potential implications of the Order of Munby J for
the functioning of the NHS as a whole.
Wider implications of the Judgment
- In considering the provision
of ANH, Mundy J has purported to establish a broad principle
of patient autonomy, leading to an unprecedented right for a
patient to demand and receive medical treatment of his choosing,
not limited to ANH, and a wide role for the courts in authorising
the withdrawal of medical treatment. Both of those matters have
very serious implications for the functioning of the NHS, because
they undermine the decision-making role of medical practitioners
and because they will require substantial additional expenditure
of scarce resources, regardless of whether those resources might
be more effectively deployed elsewhere.
- Far from seeking to confine
his Judgment to the issue of the provision of ANH, and contrary
to the impression given in §§26-29 of the Judgment,
the Judge proceeded to reason by way of the formulation of general
principles whose purported scope goes well beyond the provision
of ANH itself. On several occasions, the Judge has stated, first
the general principles which are in his view applicable to requests
for life-prolonging treatment, and it is only from application
of those general principles that he has derived, as a distinct
second stage, the specific rules which apply to the provision
of ANH (for example, §§116, 178-179 and 213-214 of
the Judgment). It is therefore very likely that the Judgment
will be relied upon by claimants to found a right of patients
to other forms of life-prolonging treatment (and there are obvious
uncertainties as to how that term might in future be interpreted
by the Courts). A broader right to demand life-prolonging treatment,
going beyond the provision of ANH, would have very serious implications
for the allocation of scarce resources within the NHS; and the
Secretary of State will be able to provide the Court with information
as to the types of treatment which may be involved and the costs
of providing them.
- Up to now, the courts –
including the Court of Appeal and House of Lords, by whom Munby
J was bound - have accepted that a patient is entitled to request
to receive medical treatment, but that whether or not the requested
treatment is actually provided depends upon the clinical judgment
of the medical practitioners treating the patient as to whether
the treatment would be of benefit, and the resources which are
available to them. The law on an issue which is absolutely fundamental
to the day-to-day functioning of the NHS has thereby been left
in (the Secretary of State would respectfully submit) an unsatisfactory
and confused state.
- If permitted to intervene in
the Appeal, the Secretary of State will support the submission
of the GMC that a doctor should not be obliged to provide treatment
which he does not believe to be in the patient's best interests.
He will also urge upon the Court of Appeal the well-
established principle of judicial non-intervention in the decisions
by medical practitioners which are dependent partly or wholly
on considerations of the best allocation of scarce resources
(see, for example, R v Cambridgeshire Health Authority ex parte
B [1995] 1 WLR 898, R v North West Lancashire Health Authority
ex parte A, D and (3 [2000] 1 WLR 977). The Secretary of State
is uniquely well-placed to inform the court about the resources
available within the NHS generally, and has a direct interest
in being able to make submissions to the Court regarding the
proper formulation of legal principle in this area, in the light
of constraints upon resources.
- There is also a very real possibility
that the right of patient autonomy identified by Munby J, both
at common law and under the ECHR, could be relied upon in support
of requests by patients for life-ending treatment. The Judgment
therefore has the potential to constitute a serious and (the
Secretary of State would submit) unwarranted judicial intervention
in a matter which, as the Secretary of State would wish to contend,
is properly regulated by Parliament.
- The Secretary of State would
wish to make submissions in the Court of Appeal that even If
Munby J's conclusions in relation to ANH are correct, they cannot
and should not be extended, by analogy or otherwise, to life-prolonging
treatments more generally, and still less to life-ending treatments.
The GMC contend in relation to this matter only that it is not
clear how wide are the implications of the Judgment (Grounds
of Appeal, §10(1); Skeleton Argument, §67(1)). Thus
it would appear that on these issues and others in the case,
the Secretary of State would not merely be repeating the submissions
of the GMC but would be providing a fresh and very important
perspective for the Court.
- The Secretary of State is also
very concerned about the attempt by Munby J to recast the well-established
'best interests" test as a test of "intolerability",
which (the Secretary of State would wish to contend) radically
changes the focus of the analysis in which doctors must engage
(§§98-116). The Secretary of State supports the submission
of the GMC that the Judge's approach is an unjustified gloss
on the best interests test, and that it is a gloss which sets
a standard for withdrawal of ANH and other treatments which concentrates
unduly on the subjective views of the patient, at the expense
of objective factors such as the risks or disbenefits to the
patient of the treatment (GMC Skeleton Argument, §§59-65).
- A further respect in which,
as the Secretary of State would wish to argue, the Judgment constitutes
an unwarranted extension of the existing law, is that it lays
down a wide-ranging obligation for doctors to refer cases to
the Court where it is proposed to withhold or withdraw ANH. The
position up to now has been that it was a matter of good practice
for a limited range of such cases to be referred to the Court
(see §195 of the Judgment) Munby J relied in particular
upon the recent judgments in 0 v An NHS Hospital (Medical Treatment..
Consent: Termination) [2004] 1 FLR 11.10 (Coleridge J) and Glass
v UK (2004) 1 FLR '1019 (ECtHR) to support his conclusion that
what was previously only good practice had become a matter of
legal obligation, and, moreover, a legal obligation which applies
in all cases where, for example, there is a lack of unanimity
amongst attending medical professionals or where any of the close
relatives or friends of the patient contend that the withdrawal
of ANH would be contrary to the patient's wishes or against his
best interests (see §202),
- The Secretary of State would
wish to submit that the wide-ranging obligation to refer cases
to Court which was identified by Munby J is unwarranted, and
is not supported by the authorities on which he relied. If upheld
by the Court of Appeal, it would have a seriously detrimental
effect upon the functioning of NHS hospitals, both because it
undermines the decision-making powers of medical practitioners
and because it requires the deployment of scarce resources in
paying for litigation which would he better spent on providing
medical treatment, It also takes doctors time away from their
clinical duties. If permitted to intervene, the Secretary of
State would wish to put before the Court figures regarding the
numbers of cases per year which could have to be referred to
Court if Munby J were correct
Wand regarding the costs of such cases, in order that the Court
of Appeal may better understand the implications of the duty
identified by Munby J in the Judgment. The Secretary of State
notes that the GMC has raised this issue in its Grounds of Appeal
(§9), but has devoted little more than a sentence to it
in its Skeleton Argument (§67(3)). It is unclear to what
extent this matter will be pursued by the GMC at the hearing
before the Court of Appeal,
The provision of ANH
- The Secretary of State also
has certain reservations about the principles expressed in the
Judgment with respect to the particular issue of the provision
of ANH. Although Munby J purported to distinguish the case before
him from those involving prioritisation or allocation of resources
(§27), the Secretary of State would wish to submit that
he did so on a false factual basis, in that he considered that
ANH does not have "any significant cost implications"
(§29). in this context, the Secretary of State would wish
to put before the Court evidence of the actual cost of ANH in
individual cases and the incidence of the provision of ANH (or
artificial nutrition or artificial hydration on their own) in
NHS hospitals. Again, it is the Secretary of State who is best
placed to make these points, as they affect the NHS as a whole;
and the Secretary of State who has perhaps the most direct interest
(as, ultimately, the providing and paying party) in being able
to address the Court on these matters.
The Mental Capacity Bill
- The Secretary of State has
been closely involved in the drafting of the Mental Capacity
Bill ("the Bill''), which was introduced into the House
of Commons by the Secretary of State for Constitutional Affairs
on 24 November 2004. I he Bill was accompanied by a statement
made by David Lammy, a Minister of the Department for Constitutional
Affairs, under s. 19(1)(a) of the Human Rights Act 1998, that
the Bill is compatible with Convention rights.
The Bill proposes a definition of the 'best interests" test,
which in the context of medical treatment and more generally,
is to inform decision-making in relation to persons who lack
capacity (clauses 1(5) and 4), and which does not presently include
any reference to the so-called touchstone of "intolerability"
identified by Munby J. It also seeks to clarify and codify the
existing law by making provision for advance decisions to refuse
medical treatment (clauses 24-26), including life-prolonging
treatment (see clause 25(5)), which will be binding provided
that certain conditions are met. It makes no provision for binding
advance decisions to require medical treatment because, in the
view of the Secretaries of State, such provision would be inappropriate
and contrary to the existing law. 1
- The Secretary of State, together
with the Secretary of State for Constitutional Affairs, is obviously
concerned about the impact of the Judgment, and of the forthcoming
ruling of the Court of Appeal, upon the provisions of the Bill
and the way in which the regime proposed in the Bill would operate,
if, for example, the Court were to uphold the ruling of Munby
J that there is or may be in certain circumstances a fundamental
right to require the provision of ANH, the Bill as presently
worded could be argued by some to cause confusion, or even to
be incompatible with Convention rights (arguments which, I should
make clear, the Secretary of State would not, as presently advised,
accept). The views expressed by the Court as to the proper formulation
of the "best interests" test might well have a direct
impact upon its proposed formulation in the Bill, or on the interpretation
of that formulation. It would, it is submitted, be desirable
for the Secretary of State to be able to make submissions to
the Court of Appeal on behalf of himself and of the Secretary
of State for Constitutional Affairs, regarding issues of such
importance on which legislation currently being promoted in Parliament.
The Application
- For the reasons given above,
I wish formally to apply for permissions for the Secretary of
State for Health to intervene, both by way of the presentation
of a Skeleton Argument and by representation by counsel at the
Appeal hearing. The Secretary of State will of course be conscious
of the imperative that he should not repeat submissions which
will already be before the Court as a result of the efforts of
the GMC, or any other party, and that the length of any oral
intervention which he may seek to make should not threaten the
time estimate for the hearing of the Appeal. Counsel's estimate
is that, with the benefit of a full skeleton argument and sensible
co-operation with Counsel for the GMC, the time for oral submissions
on behalf of the Secretary of State would not exceed an hour
and a half.
- I should make clear that the
Secretary of State was aware of Mr Burke's application for judicial
review when it was pending before the Administrative Court and
took the view at that stage that his intervention would be unwarranted
in the light of the issues which appeared to be before the Court,
and the position which the GMC was known to take on those issues.
The unexpectedly broad terms in which the Judgment was expressed
and the promotion of the Mental Capacity Bill have, however,
caused the Secretary of State to take a different view in relation
to his participation in the Appeal than was taken at first instance.
- I have indicated above that,
if permitted to intervene, the Secretary of State would wish
to place certain factual matters before the Court. However, I
do not seek formal permission to adduce evidence at this stage.
Should the Secretary of State be granted permission to intervene,
a witness statement will be completed and the Court invited to
grant permission for its admission at that stage, in the light
of the full contents of the statement and the views of the other
parties,
- I have taken the course of applying
by letter rather than issuing a formal application notice; if,
however, It is deemed necessary to do the latter, I will of course
comply with that requirement.
Yours faithfully
MRS ANITA JAMES (Head of Litigation)
IN THE COURT OF APPEAL CASE: 2004/2086
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(The Hon. Mr Justice Munby)
BETWEEN:-
GENERAL MEDICAL COUNCIL
Appellant/Claimant
-and-
(1) OLIVER LESLIE BURKE
(2) THE DISABILITY RIGHTS COMMISSION
(3) THE OFFICIAL SOLICITOR TO THE SUPREME COURT Respondents/Defendants
draft ORDER
UPON READING the Application
Notice dated [ ]
AND UPON READING [any representations by the other parties]
IT IS ORDERED
- The Secretary of State for Health
is granted permission to intervene.
- The Secretary of State for Health
shall file a Skeleton Argument and any written evidence which
he seeks the permission of the Court to adduce by 31 March 2005,
- There shall be no order for
costs on the application.. DATED
1 A
full copy of the Bill can be viewed at
http://www.publications.parliament.uk/pa/cm200405/cmbills/001/2005001.htm
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