The Government today intervened directly in a right-to-life case being heard at the Court of Appeal with a message to judges that giving patients the right to demand lfe-prolonging treatment would have "very serious implications" for the National Health Service.

The General Medical Council is trying to overturn a ruling in favour of Leslie Burke, a 45-year-old former postman with a degenerative brain condition, who last year won the right to stop doctors withdrawing artificial nutrition or hydration (ANH) treatment until he dies naturally.

Philip Sales, representing Patricia Hewitt, the Health Secretary, told the court today that if a right to ANH was established, patients would be able to demand other life-prolonging treatments.

He told the panel of three judges headed by the Master of the Rolls, Lord Phillips: "A general right, as identified by the judge [in the High Court], for an individual patient to require life-prolonging medical treatment has very serious implications for the functioning of the NHS.

"It may be interpreted as giving patients the right to demand certain treatments, contrary to the considered judgment of their medical team, that would lead to patients obtaining access to treatment that is not appropriate for them, and to inefficient use of resources within the NHS."

Mr Sales said that under current GMC guidelines to doctors, a competent patient was entitled to decide between the treatment options offered to him by his doctor.

"But the patient cannot require his doctor to offer him any treatment option which, in the doctor’s view, is not clinically appropriate or which cannot be offered for other reasons - having regard to the efficient allocation of resources within the NHS."

Mr Justice Munby ruled in May last year that if a patient is competent, or has made a request before becoming incompetent, doctors have a duty to provide ANH. Mr Sales said this ruling had led to a confusion between the roles of doctor and patient - the decision over treatment was for the doctor, not the patient.

He said the Department of Health also supported the GMC’s belief that to impose an absolute obligation on doctors withdrawing treatment to find one who will could involve "extensive and potentially fruitless administrative effort to the detriment of other patients".

Mr Burke, of Mardale Road, Lancaster, who suffers from cerebellar ataxia, was in court in his wheelchair today listening to the arguments for overturning the ruling which he believes will save him from death by starvation, or thirst if ANH was withdrawn after he loses the ability to communicate.

Richard Gordon QC, for Mr Burke, argued that the case for the GMC was based upon a misunderstanding of the role of doctors in relation to the legally competent patient. The key issue could be summarised in two words - who decides?

Mr Burke was a legally competent person and wanted to receive food and water administered by artificial means when he had difficulty in eating or drinking. "If he doesn’t get it, he fears he will suffer and he will die of thirst and malnutrition. He does not want to be told by a doctor that it is in his best interests not to be given food and water by artificial means," Mr Gordon said.

"He doesn’t want to suffer pain or death by being starved or dehydrated. He doesn’t want an undignified death and, in particular, he doesn’t want doctors to tell him it is too burdensome for him to live because he will suffer too much. He wants to be the arbiter of how much he is prepared to suffer.

"If necessary, he wants to be able as a matter of legal entitlement to make an advance directive to ensure that even if he were to lose capacity he would be given ANH. Even if he is sentient but cannot communicate, he wants to receive ANH. That is why he has brought this case."

Mr Gordon said that the person who decided whether something was or was not in a competent person’s best interests was that person and not the doctor. "The doctor is simply not entitled to take a best interests decision in respect of a legally competent person," he said.

Once a competent patient decided on ANH, his wishes must be followed. That is what Mr Justice Munby held and we submit the judge is correct," he added.

The hearing continues tomorrow.

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