'Taking account of the views of the patient', but only if the clinician (and the court) agrees - R (Burke) v General Medical Council [2007] CFLQ 225

Unlike the first instance judgment in this case, the Court of Appeal decision in R (Burke) v General Medical Council has attracted little criticism. The majority of commentators appear to regard the outcome as unproblematic, almost an inevitable corollary to the first instance decision. This article will not follow the same path. Instead it will evaluate the impetus behind Leslie Burke's original claim and question the reasons why the first instance decision was so roundly rejected by the appeal court. Having considered the legal principles that underpin both judgments, it will conclude that Munby J accurately and sensitively depicted the plight of the applicant but that his judgment and its perceived implications were misinterpreted by some in the medical community whose passionate lobbying against it1 influenced not only the General Medical Council to bring the appeal, but also the court.