There is relatively little case-law on whether a patient has the right to demand particular treatment. What case-law there is usually arises in the most dramatic circumstances : often involving a patient who cannot consent and whose next-of-kin are divided as to the response to be taken to clinical recommendation. Outside such extreme situations, however, there remains the broader question : does autonomy mena that a patient is completely in control of their healthcare choices? Or is the patient’s autonomy limited to giving consent to one or the other treatment offered by a healthcare professional?
In Burke –v- General Medical Council EWCA Civ 1003 the plaintiff, Mr Burke, suffered from spino-cerebral ataxia, a degenerative brain condition which takes a very similar course to multiple sclerosis. At some time in the future, it was likely to require artificial nutrition and hydration (“ANH”) while still mentally competent. He would later become totally immobilised, dependent on others and unable to communicate but still retaining full cognitive faculties even at the end stage of his illness. He would therefore still be aware of the pain and distress due to malnutrition and dehydration should ANH be withdrawn.
Mr Burke was concerned about the GMC guidance for doctors on witholding and withdrawin treatments that may prolong life, in that a doctor might interpret these guidelines as authorising withdrawal of ANH despite the express wishes of Mr. Burke to continue receiving such treatment until he died from natural causes.
In the High Court of England and Wales, Munby J., emphasised patient autonomy and concluded that a healthcare professional has a duty to act in what the patient considers to be his best interests:
“The duty to care is, in principle a duty to provide that treatment which is in the best interest of the patient … Doctors can properly claim expertise on medical matters; but they can claim no special expertise on the many non- medical matters which go to form the basis of any decision as to what is in the patient’s best interests. Medical opinion, however eminent, can never be determinative of what is in a patient’s best interest. In the final analysis it is for the patient, if competent, to determine what is in his own best interests.”
This approach was overturned in the Court of Appeal of England and Wales. Lord Phillips MR criticised the use of ‘best interests’ suggesting that ‘treating a patient in the manner that doctors consider to be in his best interests may be at odds with the patient’s view. The Court noted that the ‘best interests’ test was of most use when considering the duty owed to a patient who was not compos mentis and not, as here, where a patient was capable.
To dispel the concern that doctors might be forced to accede to a patient’s demand for a specific treatment, Lord Phillips offered the following guidance (at para 31 and 50) :
“Atonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment. Insofar as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it
…(i) The doctor, exercising his professional judgment, decides what treatment options are clinically indicated, (i.e. will provide overall clinical benefit) for his patient He then offers those treatment options to the patient in the course of which he explains to him/her the risks, benefits, side effects, etc involved in each of the treatment options.
iii) The patient then decides whether he wishes to accept any of those treatment options and, if so, which one. In the vast majority of cases he will, of course, decide which treatment option he considers to be in his best interests and, in doing so, he will or may take into account other, non clinical, factors. However, he can, if he wishes, decide to accept (or refuse) the treatment option on the basis of reasons which are irrational or for no reasons at all.
iv) If he chooses one of the treatment options offered to him, the doctor will then proceed to provide it.v) If, however, he refuses all of the treatment options offered to him and instead informs the doctor that he wants a form of treatment which the doctor has not offered him, the doctor will, no doubt, discuss that form of treatment with him (assuming that it is a form of treatment known to him) but if the doctor concludes that this treatment is not clinically indicated he is not required (i.e. he is under no legal obligation) to provide it to the patient although he should offer to arrange a second opinion.”