The Burke Case: The Terminally Ill Patient and The Right To Life

Published date01 March 2007
Date01 March 2007
interpretation is applied only to general and evaluative words, thereby allowing
citizens to beguided by the ordinary meaningof more precisestatutory language.
Moreover, if judges give an abstract purposive interpretation of general and eva-
luative words, then that is a legitimate answer to the puzzle of what must be‘read
and given e¡ect’under section 3, as Lord Nicholls argued in his majority judg-
ment in Ghaidan. Admittedly the argument of Lord Nicholls went too far, as
was noted above, in that it tended towards disregarding the use of precise words
by Parliament, but that tendency has been removed by con¢ning the method to
general and evaluative words.
Ghaidan vGodin-Mendoza is a remarkable case.The majority uses section 3 to reach a
di¡erent interpretation of the phrase ‘living with the original tenant as his or her
wife or husband’ from that adopted in Fitzpa trick.This contrast occurs despite the fact
that the Fitzpatrick court favoureda purposive method of interpretation. The Ghaidan
majority’s method of interpretation, which this comment has termed ‘abstract pur-
posive interpretation’, is more highly purposive than other methods of statutory
interpretation which have been used hitherto. Unfortunately abstract purposive
interpretation is open to serious criticism for its lack of attention to the words of
the statute, which endangers both legal certainty and the constitutional legitimacy
of the method.These dangers are pointed out in the dissent of Lord Millett, which
ultimately fails largely on its assessment of the facts regarding same-sex relationships.
More recently theWilk in son decision modi¢es the approach in Ghaidan by suggest-
ing that courts should search for general and evaluative words as pointers to support
abstract purposive interpretation under section 3.This is a promising modi¢cation,
as it enhances legal certainty and the legitimacy of the new interpretative method.
The Burke Case:
The Terminally Ill Patient and The Right To Life
Peter de Cruz
The Court of Appeal case of R(Burke)vGMC
is a highly signi¢cant decision
which seeks to clarify the circumstances under which arti¢cial nutrition and
Professor of Law,Liverpool John Moores University.Thanks are due to the anonymous referees for
their helpful comments.
1R (Burke) vGeneral Medical Council (O⁄cialSolicitor and others intervening) [2005] EWCA Civ 1003;
2 It was called ‘the most important bioethics litigation in the world today’by WesleyJ. Smith in‘The
English Patient’ The Weekly Standard (2005) 30 July 2005 at
Utilities/printer_preview.asp?idArticle=5645&R=EC5(last visited 6May 2006).
Treating the Terminally Ill
306 r2007 The Authors. Journal Compilation r2007 The Modern LawReview Limited.
(2007) 70(2)MLR 294^317

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