British Section of the World Federation of Doctors Who Respect Human Life

The European Court of Human Rights refused to hear Leslie Burke’s case against the GMC guidance on withdrawing and withholding of food and fluid from patients “whose death is not imminent” on the grounds that British domestic law already protected him well enough. Leslie Burke commented on 9 August 2006 , “One of my concerns about the GMC guidance is that a disabled person can choose to die, but not choose to live.”

Disability Now of September 2006 said “The guidance gives doctors the right to remove artificial food and drink from a patient who can no longer communicate, if it is seen to be in their ‘best interests.’

“The Disability Rights Commission said it was ‘bitterly disappointed’ that ‘fundamental issues around a disabled person’s quality of life could not be tested by the highest human rights court in Europe.”

Leslie Burke’s solicitor, Muiris Lyons of Irwin Mitchell, said “Leslie wanted to have his position in law clarified now, before he loses capacity to determine his own best interests. The Court has effectively determined that his application is premature.” (The Scotsman, 9 Aug 2000.) “However, once he loses the capacity to make his own decisions he will also lose the ability to make such an application in his own right. It is a Catch 22 situation for him. Note: under the Mental Capacity Act he does not need to lose competence, but only the power to communicate decisions, to forfeit the right to live if he needs tube feeding. The European Court approvingly quoted part of paragraph 38 of the GMC’s guidance:

“Always consult a clinician with relevant experience…” in such cases. The words they replaced by dots are “who may be from another discipline such as nursing.” Have the court no confidence in nurses, or do they think the public has none?

Abundant evidence of planned death-by-dehydration in British hospitals and nursing homes was never submitted to the High Court by Leslie Burke’s then solicitors – although he had asked by telephone that it should be – and so was not mentioned in Mr. Justice Munby’s judgment. If it had been, the European Court might not have been able to ignore it.