Bishops comment on Court of Appeal ruling in Burke case


We were grateful to be given leave to intervene in the appeal in R (Burke) v GMC and warmly welcome the key findings of the Court of Appeal.

Our principal concern - and reason for intervening in the appeal - was the wide-ranging scope of the judgment by Munby J at first instance in this case.

Munby J appeared to have given an overemphasis to the principle of patient autonomy in clinical decision-making, and set out a range of propositions which we considered held potentially far-reaching and dangerous implications if applied to other cases.

In allowing the GMC’s appeal, the Court of Appeal has set aside the declarations granted by Munby J and warned against the use of Munby J’s judgment in future cases.

Whilst we would not agree with some aspects of the Court of Appeal’s analysis, its key findings are welcome. In particular, the Court has rightly stressed that a patient’s best interests are “objective” and not defined simply by the patient’s wishes and determinations.

It has given Mr Burke reassurance that he is entitled to be given the treatment and care he wishes in the later stages of his disease. It has also stressed that the GMC guidance on withholding and withdrawing treatment is not unlawful and that it is the task of the GMC to ensure that the guidance is “vigorously promulgated, taught, understood, and implemented at every level and in every hospital.”

We sympathise with the Court of Appeal’s determination not to range widely over the whole law relating to the end of life, and not to address all the problems of principle highlighted by Munby J’s unilateral prioritising of autonomy over sanctity of life, when determining the appeal. Once the Court decided to deal with the appeal on a narrow basis, and only to decide issues raised on the facts of Mr Burke’s own case, it was understandable that, as a corollary, the law on those wider issues would not be clarified fully in this appeal.

Like the Mental Capacity Act, the Court of Appeal’s judgment in Burke thus leaves such issues for future resolution. They will need a clearer and sounder resolution for the sake of patients, doctors and the whole community in the very complex matter of end of life decisions.