Suing to Stay on Life Support

A court case that speaks to choice in healthcare

A man named Leslie Burke, who's a patient in England, has thrown a legal challenge to Britain's universal tax-supported healthcare system. The outcome could serve as a lesson for any nation with a strong or growing government role in personal healthcare.

Mr. Burke is mentally competent, but because his doctors say a debilitating condition might result in him needing food and water through a tube, he sued the National Health Service (NHS) to guarantee that it not withhold such care should he need it. He did not want to be dehydrated against his wishes. He won the first round.

Burke challenges what is known in medical circles as "futile care protocols." These are practiced in Britain when hospital ethics committees authorize doctors to unilaterally cease treatment for "hopeless" cases. It's a policy that led the NHS and a doctors' association to appeal the decision. The case is now before the intermediate Court of Appeal.

This legal contest evokes the recent case of the Florida courts allowing the husband of Terri Schiavo to remove her feeding tube. Burke, however, asks that his directive to sustain his life be honored, despite any future opinion by doctors about his quality of life or prospects for living, and despite the government's interest in containing healthcare costs.

Compromising doctors' expertise

No one disputes that the British system has so far provided Burke with excellent care. But rather than trust the "hand that holds the scalpel," he's essentially sought a lawyer at his bedside. The General Medical Council, representing doctors, says the lower-court decision compromises the practice of allowing professional medical judgment as the best arbiter. If upheld, the doctors and government claim, the decision could lead to any number of demands by patients for "critical" treatment, forcing a general reduction in care if taxpayers aren't willing to bear the increased costs. As it is, many patients now face delays or reduced care due to mismanagement or current rationing of care.

The Burke case has the potential to alter the relationship between patient and doctor not only in Britain, but in the US as well, since a number of federal courts have cited international or foreign precedents when justifying decisions. And given the onset of baby-boomer retirement, Medicare may soon be forced to ration healthcare in cases that doctors decide are "hopeless." Medicare already has strict rules on what it will pay for.

The Schiavo case challenged people to consider the meaning, purpose, and source of life. But, as the Burke case might do, it also reaffirmed the right of individuals, or their legal proxies, to decide the treatment that might or might not be applied in a case of severe disability.

British patients, if they can afford it, may always resort to private care. But if they can't, Britain, and perhaps many other nations, must face the question of whether to keep paying for any life-saving treatment, or simply ration such care.

And as new medical technologies allow the human body to be further kept alive in some state of existence, everyone may eventually need to choose the type of critical care they want. Individuals, however, give up some responsibility when they turn to others for care, and even more so when they are in a government medical system or a private insurance plan.

A right to choose one's form of health treatment can easily get lost in today's medical debates. Giving up that right should not be done without being fully aware of potential consequences, just as a patient should never give up hope of a road to recovery.

Relying on the opinion of professional caregivers is often seen as necessary, but patients need to be very aware of when they've elected to subject themselves to the judgments of an entire profession. But once that permission is given, professional advice should not be lightly overruled.

Consequences of the Burke case

If Burke loses, it will serve as a reminder that giving up individual choice in healthcare can have sad consequences. If Burke wins, that individual right will be reaffirmed, and he will have championed a better balance in the relationship between patients and their caregivers. But it would also signal open-ended costs to taxpayers who must pay for even more government healthcare.

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