The General Medical Council was contending before the court that decisions over treatment were for doctors, not patients, ignoring utterly the provisions of the Mental Capacity Act which allow patients to make living wills denying themselves treatment and which will bind any doctor who might take a different view. In other words, a patient may choose to die and his wishes will be paramount but if he chooses to live he is to be deemed an expensive impediment to the authority of the medical profession. Of course, the Hippocratic oath is no longer automatically required, so it is possible for these doctors to look Mr Burke in the eye and tell him that it is their right to starve him to death.

I emphasise again that the issue here is food and fluid, not some esoteric and complicated medical procedure. We are not talking about assisting someone to breathe but merely refusing to starve him. Throughout the passage of the Mental Capacity Bill in Parliament the argument was put forward strongly in both Houses that it should be made explicit that food and fluid do not constitute treatment. The Government adamantly refused. We can now see why, but none of us could have predicted the speed with which the effects would be realised: the Bill was passed immediately before Parliament dissolved for the election and now, less than a month later, a minister says that it is too costly to administer basic sustenance to the dying.

During the passage of that damnable Bill we thought we were talking about the possible withdrawal of food and fluid from the unconscious (as in the case of Tony Bland, the Hillsborough victim who remained locked in a coma) or from those who could no longer take a decision because of mental incapacity. That had implications enough but never in our wildest nightmares did we suppose that a mentally competent man in a wheelchair would have to fight for the right not to be starved.

Inevitably, perhaps, the issue is being seen as one of a “right to live”, but this is to ignore the much wider question of what we expect or can reasonably expect of the NHS, which has always rationed, is increasingly rationing and which will ration still further. The concept of comprehensive care from cradle to grave has been a myth since the twinkle in Nye Bevan’s eye but generations of politicians have paid lip service to it rather than engage the public in a mature debate about the reality.

Rationing began with prescription charges as Bevan lamented “the cascades of medicine pouring down British throats”, continued through waiting lists and postcode prescribing and culminated in the creation of NICE (the National Institute for Health and Clinical Excellence), which has proved extremely nasty. Among its recent pronouncements has been one that it can be justifiable to refuse patients treatment on grounds of age.

The brutal fact is that we now have a three-tier NHS: on the top level are those who receive their NHS treatment or who choose, quite voluntarily, to obtain private medicine. On the middle level are those who cannot get their NHS treatment — perhaps because the queue is so long that it would endanger their health, or indeed life, to wait or because that particular procedure is not available locally — and, reluctantly, resentfully, they pay, often at enormous cost to their limited budgets, the private sector to supply what the NHS cannot.

At the bottom are those who cannot obtain NHS treatment but who could not afford private treatment even if they did not eat. They are utterly dispossessed and utterly unacknowledged. Many of them are old and frightened. Some of them have terminal illness, like Mr Burke. According to the Intensive Care Society, the NHS in 2000 had four critical care beds per 100,000 of the popul- ation while Germany had 25 and America 24.

When will we admit the stark, bleak, but obvious truth? The National Health Service was a magnificent vision set up on a flawed premise. It is a 1940s system trying to cope with 21st-century mega medical science. Daily, almost hourly, it carries out procedures that would have been science fiction to the founding fathers of the NHS, who wrongly believed that we would all become healthier just by virtue of having the service, and that thereafter demand would decline.

We have a choice and it is a pretty simple one. We can go on rationing ever more stringently, refusing treatment to the elderly, refusing food to the dying, deciding care not on the basis of welfare but of cost; or we can have the long overdue debate which accepts that the NHS cannot cope, accepts that other countries manage better, and accepts that we may have to have the humility to learn from them. I know which I vote for because I never again want a dying man to sit in court and listen to lawyers arguing over his right to food and water.

The author is Conservative MP for Maidstone & the Weald

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