Right to Die: Euthanasia Debate in India
Aruna Ramchandra Shanbaug v. Union of India (SC)
SUPREME COURT OF INDIA
Before :- Markandey Katju and Gyan
Sudha Misra, JJ.
Writ Petition (Crl.) No. 115 of 2009.
D/d. 7.3.2011.
Aruna Ramchandra Shanbaug - Petitioner
Versus
Union of India and others - Respondents
For the Petitioner :- Mr. Shekhar
Naphade, Senior Advocate, Ms. Shubhangi Tuli, Ms. Divya Jain, Mr. Vimal Chandra
S. Dave, Advocates.
For the Respondent :- Ms. Sunaina
Dutta, Mrs. Suchitra Atul Chitale, Advocate.
A. Marcy Killing -
Passive euthanasia (to discontinue life support) - A woman in Permanent
Vegetation State (PVS) for 37/38 years with no chances of regaining
consciousness - Hospital staff looking after her with all Care - Petition by a
social activist for mercy killing of the woman - Petition dismissed - Decision
to discontinue life support could be taken by parents, spouse, or other close
relatives or in their absence by a next friend - In the instant case, the woman
had no such relative - The social activist could not be considered next friend
- In the instant case Hospital staff who have been amazingly caring for her day
and night for so many long years, really are her next friends - Hospital staff
have clearly expressed their wish that woman should be allowed to live -
Meaning of expressions "passive euthanasia" and "active
euthanasia" explained.
[Para 126]
B. Constitution of India,
Article 226 - Mercy killing - Euthanasia - A
person in Permanent Vegetation State with no chances of regaining consciousness
- Passive euthanasia (to discontinue life support) allowed for such patients -
But decision to discontinue life support can be taken by parents, spouse, close
relatives or next friend or Doctors/hospital staff - High Court in exercise of
power under Article 226 can grant approval for withdrawal of life support to
such an incompetent person - It is the Court alone, a parens patriae, which
ultimately must take his decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due weight - Procedure to be
adopted by High Court for grating application for withdrawal of life support
explained.
[Paras 132 to 138]
C. Indian Penal Code,
Section 309 - Attempt to commit suicide is an
offence under Section 309 Indian Penal Code -
Supreme Court observed that his provision should be deleted by Parliament as it
has become anachronistic - A person attempts suicide in a depression, and hence
he needs help, rather than punishment - Recommendation made to Parliament to
consider the feasibility of deleting Section 309
from the Indian Penal Code.
[Para 100]
D. Transplantation of
Human Organ Act, 1994 Section 2(d)
When a person can be said to be dead - One is dead when one's brain is dead - A
person's most important organ is his/her brain - This organ cannot be replaced
- Other body parts can be replaced e.g. if a person's hand or leg is amputed,
he can get an artificial limb - Similarly, we can transplant a kidney, a heart
or a liver when the original one has failed - However brain cannot be
transplanted - Brain death - Meaning explained.
[Paras 106 to 118]
E. Constitution of India,
Article 21 - Indian Penal Code, Sections 302, 304
and 306 - Mercy killing - Active and Passive
Euthanasia - Distinction - Held :-
(i) Euthanasia is of two
types : active and passive - Active euthanasia entails the use of lethal
substances or forces to kill a person e.g. a lethal injection given to a person
with terminal cancer who is in terrible agony - Passive euthanasia entails
withholding of medical treatment for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is likely to die, or removing the
heart lung machine, from a patient in coma.
(ii) Active euthanasia is
a crime all over the world except where permitted by legislation - In India
active euthanasia is illegal and a crime under Section 302 or at least Section 304 Indian Penal Code - Physician assisted
suicide is a crime under Section 306
Indian Penal Code (abetment to suicide).
(iii) Law prevailing in
foreign countries discussed.
[Paras 38, 41, 42, 44 and 51]
F. Mercy killing -
voluntary euthanasia and non voluntary euthanasia - Distinction - Voluntary
euthanasia is where the consent is taken from the patient, whereas non
voluntary euthanasia is where the consent is unavailable e.g. when the patient
is in coma, or is otherwise unable to give consent - While there is no legal
difficulty in the case of the former, the latter poses several problems.
[Paras 40, 52 and 53]
G. Euthanasia and
physician assisted death - Distinction - Held :-
(i) The difference
between euthanasia and physician assisted suicide lies in who administers the
lethal medication - In the former, the physician or someone else administers
it, while in the letter the patient himself does so, though on the advice of
the doctor.
(ii) Oregon was the first
state in U.S.A. to legalise physician assisted death.
[Para 50]
Cases Referred :
1. Airedale NHS Trust v. Bland, (1993)
All ER 82) (HL)
2. Airedale v. Director MHD, (1993)2
WLR 316.
7. Heller v. DOE (509) US 312.
8. Nancy B. v. Hotel Dieu de Quebec,
(1992)86 D.L.R. (4th) 385.
10. re Conroy 98 NJ 321, 486 A.2d 1209
(1985).
11. Re J (A Minor Wardship : Medical
Treatment, 1990(3) All E.R. 930.
12. re Quinlan 70 N.J. 10, 355 A. 2d
647.
13. re T. (Adult: Refusal of treatment,
(1992)3 W.L.R. 782.
14. Sanger v. Butler, 101 S.W. 459, 462
(Tex. Civ. App. 1907).
15. Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).
16. Schmidt v. Pierce, 344 S.W. 2d 120,
133 (Mo. 1961).
19. Sue Rodriguez v. British Columbia
(Attorney General), (1993)3 SCR 519.
20. Superintendent of Belchertown State
School v. Saikewicz, (1977) 370 N.E. 2d. 417, 428.
21. Vacco v. Quill 521 U.S. 793 (1997).
22. Washington v. Glucksberg 521 U.S.
702 (1997).
JUDGMENT
Markandey Katju, J. -
"Marte hain aarzoo mein marne ki
Maut aati hai par nahin aati"
-- Mirza Ghalib
1. Heard Mr. Shekhar Naphade, learned
senior counsel for the petitioner, learned Attorney General for India for the
Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel,
whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior
counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned
counsel for the State of Maharashtra.
2. Euthanasia is one of the most
perplexing issues which the courts and legislatures all over the world are
facing today. This Court, in this case, is facing the same issue, and we feel
like a ship in an uncharted sea, seeking some guidance by the light thrown by
the legislations and judicial pronouncements of foreign countries, as well as
the submissions of learned counsels before us. The case before us is a writ
petition under Article 32 of the Constitution,
and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by
one Ms. Pinki Virani of Mumbai, claiming to be a next friend.
3. It is stated in the writ petition
that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in
King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November,
1973 she was attacked by a sweeper in the hospital who wrapped a dog chain
around her neck and yanked her back with it. He tried to rape her but finding
that she was menstruating, he sodomized her. To immobilise her during this act
he twisted the chain around her neck. The next day on 28th November, 1973 at
7.45 a.m. a cleaner found her lying on the floor with blood all over in an
unconscious condition. It is alleged that due to strangulation by the dog chain
the supply of oxygen to the brain stopped and the brain got damaged. It is
alleged that the Neurologist in the Hospital found that she had plantars'
extensor, which indicates damage to the cortex or some other part of the brain.
She also had brain stem contusion injury with associated cervical cord injury.
It is alleged at page 11 of the petition that 36 years have expired since the
incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is
featherweight, and her brittle bones could break if her hand or leg are
awkwardly caught, even accidentally, under her lighter body. She has stopped
menstruating and her skin is now like papier mache' stretched over a skeleton.
She is prone to bed sores. Her wrists are twisted inwards. Her teeth had
decayed causing her immense pain. She can only be given mashed food, on which
she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent
negetative state (p.v.s.) and virtually a dead person and has no state of
awareness, and her brain is virtually dead. She can neither see, nor hear
anything nor can she express herself or communicate, in any manner whatsoever.
Mashed food is put in her mouth, she is not able to chew or taste any food. She
is not even aware that food has been put in her mouth. She is not able to
swallow any liquid food, which shows that the food goes down on its own and not
because of any effort on her part. The process of digestion goes on in this way
as the mashed food passes through her system. However, Aruna is virtually a
skeleton. Her excreta and the urine is discharged on the bed itself. Once in a
while she is cleaned up but in a short while again she goes back into the same
sub-human condition. Judged by any parameter, Aruna cannot be said to be a
living person and it is only on account of mashed food which is put into her
mouth that there is a facade of life which is totally devoid of any human
element. It is alleged that there is not the slightest possibility of any
improvement in her condition and her body lies on the bed in the KEM Hospital,
Mumbai like a dead animal, and this has been the position for the last 36
years. The prayer of the petitioner is that the respondents be directed to stop
feeding Aruna, and let her die peacefully.
4. We could have dismissed this
petition on the short ground that under Article 32 of
the Constitution of India (unlike Article 226) the petitioner has to prove
violation of a fundamental right, and it has been held by the Constitution
Bench decision of this Court in Gian Kaur v. State of Punjab, 1996(2)
R.C.R.(Criminal) 49 : 1996(2) SCC 648 (vide paragraphs 22 and 23) that
the right to life guaranteed by Article 21 of
the Constitution does not include the right to die. Hence the petitioner has
not shown violation of any of her fundamental rights. However, in view of the
importance of the issues involved we decided to go deeper into the merits of
the case.
5. Notice had been issued by this Court
on 16.12.2009 to all the respondents in this petition. A counter affidavit was
earlier filed on behalf of the respondent Nos. 3 and 4, the Mumbai Municipal
Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and
Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in
normal course and responds by facial expressions. She responds to commands
intermittently by making sounds. She makes sounds when she has to pass stool
and urine which the nursing staff identifies and attends to by leading her to
the toilet. Thus, there was some variance between the allegations in the writ
petition and the counter affidavit of Dr. Pazare.
6. Since there was some variance in the
allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by
our order dated 24 January, 2011 appointed a team of three very distinguished
doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report
about her physical and mental condition. These three doctors were :
(1)
Dr. J.V. Divatia, Professor and Head, Department of Anesthesia, Critical Care
and Pain at Tata Memorial Hospital, Mumbai;
(2)
Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and
(3)
Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital.
7. In pursuance of our order dated 24th
January, 2011, the team of three doctors above mentioned examined Aruna
Shanbuag in KEM Hospital and has submitted us the following report :
"Report
of Examination of Ms. Aruna Ramachandra Shanbaug Jointly prepared and
signed by
1.
Dr. J.V. Divatia
(Professor
and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial
Hospital, Mumbai)
2.
Dr. Roop Gursahani
(Consultant
Neurologist at P.D. Hinduja Hospital, Mumbai)
3.
Dr. Nilesh Shah
(Professor
and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital).
I.
Background
As
per the request of Hon. Justice Katju and Hon. Justice Mishra of the Supreme
Court of India, Ms. Aruna Ramachandra Shanbaug, a 60-year-old female patient
was examined on 28th January 2011, morning and 3rd February 2011, in the
side-room of ward-4, of the K. E. M. Hospital by the team of 3 doctors viz. Dr.
J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai), Dr. Roop Gursahani (Consultant
Neurologist at P.D. Hinduja Hospital, Mumbai) and Dr. Nilesh Shah (Professor
and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical
College and General Hospital).
This
committee was set up because the Court found some variance between the
allegations in the writ petition filed by Ms. Pinki Virani on behalf of Aruna
Ramchandras Shanbaug and the counter affidavit of Dr. Pazare. This team of
three doctors was appointed to examine Aruna Ramachandra Shanbaug thoroughly
and give a report to the Court about her physical and mental condition
It
was felt by the team of doctors appointed by the Supreme Court that
longitudinal case history and observations of last 37 years along with findings
of examination will give a better, clear and comprehensive picture of the
patient's condition.
This
report is based on :
1.
The longitudinal case history and observations obtained from the Dean and the
medical and nursing staff of K. E. M. Hospital,
2.
Case records (including nursing records) since January 2010
3.
Findings of the physical, neurological and mental status examinations performed
by the panel.
4.
Investigations performed during the course of this assessment (Blood tests, CT
head, Electroencephalogram)
II.
Medical history
Medical
history of Ms. Aruna Ramachandra Shanbaug was obtained from the Dean, the
Principal of the School of Nursing and the medical and nursing staff of ward-4
who has been looking after her.
It
was learnt from the persons mentioned above that
1.
Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was
assaulted and strangulated by a sweeper of the hospital on November 27, 1973.
2.
Though she survived, she never fully recovered from the trauma and brain damage
resulting from the assault and strangulation.
3.
Since last so many years she is in the same bed in the side-room of ward-4.
4.
The hospital staff has provided her an excellent nursing care since then which
included feeding her by mouth, bathing her and taking care of her toilet needs.
The care was of such an exceptional nature that she has not developed a
single bed-sore or fracture in spite of her bed-ridden state since 1973.
5.
According to the history from them, though she is not very much aware of
herself and her surrounding, she somehow recognizes the presence of people
around her and expresses her like or dislike by making certain types of vocal
sounds and by waving her hands in certain manners. She appears to be happy and
smiles when she receives her favourite food items like fish and chicken soup.
She accepts feed which she likes but may spit out food which she doesn't like.
She was able to take oral feeds till 16th September 2010, when she developed a
febrile illness, probably malaria. After that, her oral intake reduced and a
feeding tube (Ryle's tube) was passed into her stomach via her nose. Since then
she receives her major feeds by the Ryle's tube, and is only occasionally able
to accept the oral liquids. Malaria has taken a toll in her physical condition
but she is gradually recuperating from it.
6.
Occasionally, when there are many people in the room she makes vocal sounds
indicating distress. She calms down when people move out of her room. She also
seems to enjoy the devotional songs and music which is played in her room and
it has calming effect on her.
7.
In an annual ritual, each and every batch of nursing students is introduced to
Ms. Aruna Ramachandra Shanbaug, and is told that "She was one of us";
"She was a very nice and efficient staff nurse but due to the mishap she
is in this bed-ridden state".
8.
The entire nursing staff member and other staff members have a very
compassionate attitude towards Ms. Aruna Ramachandra Shanbaug and they all very
happily and willingly take care of her. They all are very proud of their
achievement of taking such a good care of their bed-ridden colleague and feel
very strongly that they want to continue to take care of her in the same manner
till she succumbs naturally. They do not feel that Ms. Aruna Ramachandra
Shanbaug is living a painful and miserable life.
III.
Examination
IIIa.
Physical examination
She
was conscious, unable to co-operate and appeared to be unaware of her
surroundings.
Her
body was lean and thin. She appeared neat and clean and lay curled up in the
bed with movements of the left hand and made sounds, especially when many
people were present in the room.
She
was afebrile, pulse rate was 80/min, regular, and good volume. Her blood pressure
recorded on the nursing charts was normal. Respiratory rate was 15/min,
regular, with no signs of respiratory distress or breathlessness.
There
was no pallor, cyanosis, clubbing or icterus. She was edentulous (no teeth).
Skin
appeared to be generally in good condition, there were no bed sores, bruises or
evidence of old healed bed sores. There were no skin signs suggestive of
nutritional deficiency or dehydration.
Her
wrists had developed severe contractures, and were fixed in acute flexion. Both
knees had also developed contractures (right more than left).
A
nasogastric feeding tube (Ryles tube) was in situ. She was wearing diapers.
Abdominal,
respiratory and cardiovascular examination was unremarkable.
IIIb.
Neurological Examination
When
examined she was conscious with eyes open wakefulness but without any apparent
awareness (see Table 1 for detailed assessment of awareness). From the above
examination, she has evidence of intact auditory, visual, somatic and motor
primary neural pathways. However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed during our
examinations.
There
was no coherent response to verbal commands or to calling her name. She did not
turn her head to the direction of sounds or voices. When roused she made
non-specific unintelligible sounds ("uhhh, ahhh") loudly and
continuously but was generally silent when undisturbed.
Menace
reflex (blinking in response to hand movements in front of eyes) was present in
both eyes and hemifields but brisker and more consistent on the left. Pupillary
reaction was normal bilaterally. Fundi could not be seen since she closed her
eyes tightly when this was attempted. At rest she seemed to maintain
preferential gaze to the left but otherwise gaze was random and undirected
(roving) though largely conjugate. Facial movements were symmetric. Gag reflex
(movement of the palate in response to insertion of a tongue depressor in the
throat) was present and she does not pool saliva. She could swallow both
teaspoonfuls of water as well as a small quantity of mashed banana. She licked
though not very completely sugar smeared on her lips, suggesting some tongue
control.
She
had flexion contractures of all limbs and seemed to be incapable of turning in
bed spontaneously. There was what appeared to be minimal voluntary movement
with the left upper limb (touching her wrist to the eye for instance, perhaps
as an attempt to rub it). When examined/disturbed, she seemed to curl up even
further in her flexed foetal position. Sensory examination was not possible but
she did seem to find passive movement painful in all four limbs and moaned
continuously during the examination. Deep tendon reflexes were difficult to
elicit elsewhere but were present at the ankles. Plantars were withdrawal/extensor.
Thus
neurologically she appears to be in a state of intact consciousness without
awareness of self/environment. No cognitive or communication abilities could be
discerned. Visual function if present is severely limited. Motor function is
grossly impaired with quadriparesis.
IIIc.
Mental Status Examination
1.
Consciousness, General Appearance, Attitude and Behavior :
Ms.
Aruna Ramachandra Shanbaug was resting quietly in her bed, apparently listening
to the devotional music, when we entered the room. Though, her body built is
lean, she appeared to be well nourished and there were no signs of
malnourishment. She appeared neat and clean. She has developed contractures at
both the wrist joints and knee joints and so lied curled up in the bed with minimum
restricted physical movements.
She
was conscious but appeared to be unaware of herself and her surroundings. As
soon as she realised the presence of some people in her room, she started
making repetitive vocal sounds and moving her hands. This behavior subsided as
we left the room. She did not have any involuntary movements. She did not
demonstrate any catatonic, hostile or violent behavior.
Her
eyes were wide open and from her behavior it appeared that she could see and
hear us, as when one loudly called her name, she stopped making vocal sounds
and hand movements for a while. She was unable to maintain sustained eye-to eye
contact but when the hand was suddenly taken near her eyes, she was able to
blink well.
When
an attempt was made to feed her by mouth, she accepted a spoonful of water,
some sugar and mashed banana. She also licked the sugar and banana paste
sticking on her upper lips and swallowed it. Thus, at times she could cooperate
when fed.
2.
Mood and affect :
It
was difficult to assess her mood as she was unable to communicate or express
her feelings. She appeared to calm down when she was touched or caressed
gently. She did not cry or laugh or expressed any other emotions verbally or
non-verbally during the examination period. When not disturbed and observed
quietly from a distance, she did not appear to be in severe pain or misery.
Only when many people enter her room, she appears to get a bit disturbed about
it.
3.
Speech and thoughts :
She
could make repeated vocal sounds but she could not utter or repeat any
comprehensible words or follow and respond to any of the simple commands (such
as "show me your tongue"). The only way she expressed herself was by
making some sounds. She appeared to have minimal language comprehension or
expression.
4.
Perception :
She
did not appear to be having any perceptual abnormality like hallucinations or
illusions from her behavior.
5.
Orientation, memory and intellectual capacity :
Formal
assessment of orientation in time, place and person, memory of immediate,
recent and remote events and her intellectual capacity could not be carried
out.
6.
Insight :
As
she does not appear to be fully aware of herself and her surroundings, she is
unlikely to have any insight into her illness.
IV.
Reports of Investigations
IVa.
CT Scan Head (Plain)
This
is contaminated by movement artefacts. It shows generalised prominence of
supratentorial sulci and ventricles suggestive of generalised cerebral atrophy.
Brainstem and cerebellum seem normal. Ischemic foci are seen in left centrum
semi-ovale and right external capsule. In addition a small left
parieto-occipital cortical lesion is also seen and is probably ischemic.
IVb.
EEG
The
dominant feature is a moderately rhythmic alpha frequency at 8-10 Hz and 20-70
microvolts which is widely distributed and is equally prominent both anteriorly
and posteriorly. It is not responsive to eye-opening as seen on the video. Beta
at 18-25 Hz is also seen diffusely but more prominently anteriorly. No focal or
paroxysmal abnormalities were noted IVc. Blood Reports of the hemoglobin, white
cell count, liver function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels are unremarkable.
(Detailed report from KEM hospital attached.)
V.
Diagnostic impression
1)
From the longitudinal case history and examination it appears that Ms. Aruna
Ramachandra Shanbaug has developed non-progressive but irreversible brain
damage secondary to hypoxic-ischemic brain injury consistent with the known
effects of strangulation. Most authorities consider a period exceeding 4 weeks
in this condition, especially when due to hypoxic- ischemic injury as
confirming irreversibility. In Ms. Aruna's case, this period has been as long
as 37 years, making her perhaps the longest survivor in this situation.
2)
She meets most of the criteria for being in a permanent vegetative state (PVS).
PVS is defined as a clinical condition of unawareness (Table 1) of self and
environment in which the patient breathes spontaneously, has a stable
circulation and shows cycles of eye closure and opening which may simulate
sleep and waking (Table 2). While she has evidence of intact auditory, visual,
somatic and motor primary neural pathways, no definitive evidence for awareness
of auditory, visual, somatic and motor stimuli was observed during our
examinations.
VI.
Prognosis
Her
dementia has not progressed and has remained stable for last many years and it
is likely to remain same over next many years. At present there is no treatment
available for the brain damage she has sustained.
VII. Appendix
|
(Wade
DT, Johnston C. British Med.
|
STIMULUS
|
RESPONSE
|
|
Journal
1999; 319:841-844) DOMAIN
|
||
|
OBSERVED
|
||
|
AUDITORY
AWARENESS
|
Sudden
loud noise (clap)
|
Startle
present, ceases other movements
|
|
Meaningful
noise (rattled steel tumbler and spoon, film songs of 1970s)
|
Non-specific
head and body movements
|
|
|
Spoken
commands ("close your eyes", "lift left hand
" in English, Marathi and Konkani)
|
Unable
to obey commands. No specific or reproducible response
|
|
|
VISUAL
AWARENESS
|
Bright
light to eyes
|
Pupillary
responses present
|
|
Large
moving object in front of eyes (bright red torch rattle)
|
Tracking
movements: present but inconsistent and poorly reproducible
|
|
|
Visual
threat (fingers suddenly moved toward eyes)
|
Blinks,
but more consistent on left than right
|
|
|
Written
command (English, Marathi: close your eyes)
|
No
response
|
|
|
SOMATIC
AWARENESS
|
Painful
stimuli to limbs (light prick with sharp end of tendon hammer)
|
Withdrawal,
maximal in left upper limb
|
|
Painful
stimuli to face
|
Distress
but no co-ordinated response to remove stimulus
|
|
|
Routine
sensory stimuli during care (changing position in bad and feeding)
|
Generalised
non specific response presence but no coordinated attempt to assist in
process
|
|
|
MOTOR
OUTPUT
|
Spontaneous
|
Non-specific
undirected activities. Goal directed - lifting left hand to left side of
face, apparently to rub her left eye.
|
|
Responsive
|
Non-specific
undirected without any goal directed activities.
|
Conclusion
:
From
the above examination, she has evidence of intact auditory, visual, somatic and
motor primary neural pathways. However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed during our
examinations.
VIIb. Table 2. Application
of Criteria for Vegetative State
|
(Bernat
JL. Neurology clinical Practice 2010; 75 (suppl. 1) S33-S38) Criteria
|
Examination
findings : whether she meets Criteria (Yes/No/Probably)
|
|
Unaware
of self and environment
|
Yes,
Unaware
|
|
No
interaction with others
|
Yes, no
interaction
|
|
No
sustained, reproducible or purposeful voluntary behavioural response to
visual, auditory, tactile or noxious stimuli
|
Yes, no
sustained, reproducible or purposeful behavioural response, but :
|
|
1.
Resisted examination of fundus
|
|
|
2.
Licked sugar off lips
|
|
|
No
language comprehension or expression
|
Yes, no
comprehension
|
|
No
blink to visual threat
|
Blinks,
but more consistent on left than right
|
|
Present
sleep wake cycles
|
Yes
(according to nurses)
|
|
Preserved
autonomic and hypothalamic function
|
Yes
|
|
Preserved
cranial nerve reflexes
|
Yes
|
|
Bowel
and bladder incontinence
|
Yes
|
VIII.
References
1.
Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative
state. N Engl J Med 1994; 330: 1499-508
2.
Wade DT, Johnston C. The permanent vegetative state: practical guidance on
diagnosis and management. Brit Med J 1999; 319:841-4
3.
Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state :
Definition and diagnostic criteria. Neurology 2002;58:349-353
4.
Bernat JL. Current controversies in states of chronic unconsciousness.
Neurology 2010;75;S33"
8. On 18th February, 2011, we then
passed the following order :
"In
the above case Dr. J.V. Divatia on 17.02.2011 handed over the report of the
team of three doctors whom we had appointed by our order dated 24th January,
2011. He has also handed over a CD in this connection. Let the report as well
as the CD form part of the record.
On
mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the
request of learned Attorney General of India, Mr. T.R. Andhyarujina, learned
Senior Advocate, whom we have appointed as amicus curiae in the case as well as
Mr. Shekhar Naphade, learned Senior Advocate for the petitioner.
We
request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop
Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30
A.M. in the Court, since it is quite possible that we may like to ask them
questions about the report which they have submitted, and in general about
their views in connection with euthanasia.
On
perusal of the report of the committee of doctors to us we have noted that
there are many technical terms which have been used therein which a non-medical
man would find it difficult to understand. We, therefore, request the doctors
to submit a supplementary report by the next date of hearing (by e-mailing copy
of the same two days before the next date of hearing) in which the meaning of
these technical terms in the report is also explained.
The
Central Government is directed to arrange for the air travel expenses of all
the three doctors as well as their stay in a suitable accommodation at Delhi
and also to provide them necessary conveyance and other facilities they
require, so that they can appear before us on 02.03.2011.
An
honorarium may also be given to the doctors, if they so desire, which may be
arranged mutually with the learned Attorney General.
The
Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who claims
to be the next friend of the petitioner) are directed to intimate the
brother(s)/sister(s) or other close relatives of the petitioner that the case
will be listed on 2nd March, 2011 in the Supreme Court and they can put forward
their views before the Court, if they so desire. Learned counsel for the
petitioner and the Registry of this Court shall communicate a copy of this
Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested
to file an affidavit stating his views regarding the prayer in this writ
petition, and also the condition of the petitioner.
Copy
of this Order shall be given forthwith to learned Attorney General of India,
Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates.
Let
the matter be listed as the first item on 2nd March, 2011".
9. On 2.3.2011, the matter was listed
again before us and we first saw the screening of the CD submitted by the team
of doctors along with their report. We had arranged for the screening of the CD
in the Courtroom, so that all present in Court could see the condition of Aruna
Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials
in which a screening was done in the Courtroom of some of the Nazi atrocities
during the Second World War. We have heard learned counsel for the parties in
great detail. The three doctors nominated by us are also present in Court. As
requested by us, the doctors team submitted a supplementary report before us
which states :
Supplement
To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly
prepared and signed by
1.
Dr. J.V. Divatia
(Professor
and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial
Hospital, Mumbai)
2.
Dr. Roop Gursahani
(Consultant
Neurologist at P.D. Hinduja Hospital, Mumbai)
3.
Dr. Nilesh Shah
(Professor
and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital).
Mumbai
February
26, 2011
INDEX
Introduction
3
Terminology
4
Glossary
of Technical terms 7
Opinion
11 3
Introduction
This
document is a supplement to the Report of Examination of Ms. Aruna Ramachandra
Shanbaug, dated February 14, 2011.
On
perusal of the report, the Hon. Court observed that there were many technical
terms which a non-medical man would find it difficult to understand, and
requested us to submit a supplementary report in which the meaning of these
technical terms in the report is also explained.
We
have therefore prepared this Supplement to include a glossary of technical
terms used in the earlier Report, and also to clarify some of the terminology
related to brain damage. Finally, we have given our opinion in the case of
Aruna Shanbaug.
Terminology
The
words coma, brain death and vegetative state are often used in common language
to describe severe brain damage. However, in medical terminology, these terms
have specific meaning and significance.
Brain
death
A
state of prolonged irreversible cessation of all brain activity, including
lower brain stem function with the complete absence of voluntary movements,
responses to stimuli, brain stem reflexes, and spontaneous respirations.
Explanation : This is the most
severe form of brain damage. The patient is unconscious, completely
unresponsive, has no reflex activity from centres in the brain, and has no
breathing efforts on his own. However the heart is beating. This patient can
only be maintained alive by advanced life support (breathing machine or
ventilator, drugs to maintain blood pressure, etc). These patients can be
legally declared dead ('brain dead') to allow their organs to be taken for
donation.
Aruna
Shanbaug is clearly not brain dead.
Coma
Patients
in coma have complete failure of the arousal system with no spontaneous eye
opening and are unable to be awakened by application of vigorous sensory
stimulation.
Explanation
:
These patients are unconscious. They cannot be awakened even by application of
a painful stimulus. They have normal heart beat and breathing, and do not
require advanced life support to preserve life.
Aruna
Shanbaug is clearly not in Coma.
Vegetative
State (VS)
The
complete absence of behavioural evidence for self or environmental awareness.
There is preserved capacity for spontaneous or stimulus-induced arousal,
evidenced by sleep-wake cycles. .i.e. patients are awake, but have no
awareness.
Explanation: Patients appear
awake. They have normal heart beat and breathing, and do not require advanced
life support to preserve life. They cannot produce a purposeful, co- ordinated,
voluntary response in a sustained manner, although they may have primitive
reflexive responses to light, sound, touch or pain. They cannot understand,
communicate, speak, or have emotions. They are unaware of self and environment
and have no interaction with others. They cannot voluntarily control passing of
urine or stools. They sleep and awaken. As the centres in the brain controlling
the heart and breathing are intact, there is no threat to life, and patients
can survive for many years with expert nursing care. The following behaviours
may be seen in the vegetative state :
Sleep-wake
cycles with eyes closed, then open
Patient
breathes on her own
Spontaneous
blinking and roving eye movements Produce sounds but no words
Brief,
unsustained visual pursuit (following an object with her eyes)
Grimacing
to pain, changing facial expressions Yawning; chewing jaw movements
Swallowing
of her own spit
Non-purposeful
limb movements; arching of back
Reflex
withdrawal from painful stimuli
Brief
movements of head or eyes toward sound or movement without apparent localization
or fixation
Startles
with a loud sound
Almost
all of these features consistent with the diagnosis of permanent vegetative
state were present during the medical examination of Aruna Shanbaug. 21
Minimally
Conscious State
Some
patients with severe alteration in consciousness have neurologic findings that
do not meet criteria for VS. These patients demonstrate some behavioural
evidence of conscious awareness but remain unable to reproduce this behavior
consistently. This condition is referred to here as the minimally conscious
state (MCS). MCS is distinguished from VS by the partial preservation of
conscious awareness.
To
make the diagnosis of MCS, limited but clearly discernible evidence of self or
environmental awareness must be demonstrated on a reproducible or sustained
basis by one or more of the following behaviors :
*
Following simple commands.
*
Gestural or verbal yes/no responses (regardless of accuracy).
*
Intelligible sounds
*
Purposeful behaviour, including movements or emotional behaviors (smiling,
crying) that occur in relation to relevant environmental stimuli and are not
due to reflexive activity. Some examples of qualifying purposeful behaviour
include :
-
appropriate smiling or crying in response to the linguistic or visual content
of emotional but not to neutral topics or stimuli
-
vocalizations or gestures that occur in direct response to the linguistic
content of questions
-
reaching for objects that demonstrates a clear relationship between object
location and direction of reach
-
touching or holding objects in a manner that accommodates the size and shape of
the object
-
pursuit eye movement or sustained fixation that occurs in direct response to
moving or salient stimuli
None
of the above behaviours suggestive of a Minimally Conscious State were observed
during the examination of Aruna Shanbaug.
GLOSSARY OF TECHNICAL
TERMS USED IN THE MAIN REPORT
|
(In
Alphabetical order) Term in text
|
Meaning
|
|
Affect
|
Feeling
conveyed though expressions and behaviour
|
|
Afebrile
|
No
fever
|
|
Auditory
|
Related
to hearing
|
|
Bedsore
|
A
painful wound on the body caused by having to lie in bed for a long time
|
|
Bilaterally
|
On both
sides (right and left)
|
|
Bruise
|
An
injury or mark where the skin has not been broken but is darker in colour,
often as a result of being hit by something
|
|
Catatonic
|
Describes
someone who is stiff and not moving or reacting, as if dead
|
|
Cerebral
atrophy Clubbing
|
Shrinking
of the globe (cortex) of the brain Bulging or prominence of the nailbed,
making base of the nails look thick. This is often due to longstanding
infection inside the lungs.
|
|
Cognitive
|
Related
to ability to understand and process information in the brain
|
|
Conjugate
Conscious
|
Synchronised
movement (of the eyeball) Awake with eyes open. By itself the term conscious
does not convey any information about awareness of self and surroundings, or
the ability to understand, communicate, have emotions, etc.
|
|
Contractures
|
Muscles
or tendons that have become shortened and taut over a period of time. This
causes deformity and restriction of movements.
|
|
CT Scan
|
A
specialised X-ray test where images of the brain (or other part of the body)
are obtained in cross-section at different levels. This allows clear
visualization of different parts of the brain
|
|
Cyanosis
|
Bluish
discoloration of the nails, lips or skin. It may be due to low levels of
oxygen in the blood.
|
|
Deep
tendon reflexes
|
Reflex
response of the fleshy part of certain muscles when its tendon is hit lightly
with an examination hammer
|
|
Dementia
|
Disorder
in which there is a cognitive defect, i.e. the patient is unable to
understand and process information in the brain
|
|
Electroencephalography,
(EEG)
|
Recording
of the electrical activity of the brain
|
|
Febrile
illness
|
Illness
with fever
|
|
Fracture
|
A crack
or a break in bones
|
|
Fundi
|
Plural
of fundus. Fundus of the eye is the interior surface of the eye, opposite the
lens. It is examined with an instrument called the ophthalmoscope
|
|
Gag
reflex
|
Movement
of the palate in response to insertion of a tongue depressor in the throat
|
|
Hallucinations
|
Perception
in the absence of stimuli. (e.g. hearing voices which are not there or which
are inaudible to others)
|
|
Hemifields
|
Right
or left part of the field of vision
|
|
Hypoxic
|
Related
to reduced oxygen levels in the blood
|
|
Icterus
|
Yellowish
discoloration of the skin and eyeballs. This is commonly known as jaundice,
and may be caused by liver disease
|
|
Illusions
|
Misperception
of stimuli (seeing a rope as a snake)
|
|
Immediate
memory
|
Memory
of events which have occurred just a few minutes ago
|
|
Insight
|
Person's
understanding of his or her own illness
|
|
Intellectual
capacity
|
Ability
to solve problems. The ability to learn, understand and mke judgments or have
opinions that are based on reason
|
|
Involuntary
movements
|
Automatic
movements over which patient has no control
|
|
Ischemic
|
Related
to restriction or cutting off of the blood flow to any part of the body
|
|
Malnourishment
|
Weak
and in bad health because of having too little food or too little of the
types of food necessary for good health
|
|
Menace
reflex
|
Blinking
in response to hand movements in front of eyes
|
|
Mood
|
The way
one feels at a particular time
|
|
Motor
|
Related
to movement
|
|
Movement
artefacts
|
Disturbance
in the image seen in the CT scan due to patient movement
|
|
Oral
feed
|
Food
given through mouth
|
|
Orientation
|
Awareness
about the time, place and person
|
|
Pallor
|
Pale
appearance of the skin. Usually this is due to a low red blood cell count or
low haemoglobin level in the blood.
|
|
Passive
movement
|
Movement
of a limb or part of the body done by the doctor without any effort by the
patient
|
|
Perception
|
Sensory
experiences (such as seeing, hearing etc.)
|
|
Perceptual
abnormalities
|
Abnormal
sensory experiences, e.g. seeing thinghs that do not exist, hearing sounds
when there are none
|
|
Plantars
|
Reflex
response of the toes when a sharp painful stimulus is applied to the sole of
the foot. The normal response is curling downwards of the toes.
|
|
Plantars
were withdrawal/extensor
|
When a
painful stimulus was applied to the sole of the foot the toes spread out and
there was reflex movement of the leg (withdrawal) or upward curling of the
great toe and other toes (extensor). This is an abnormal response indicating
damage in the pathway in the brain or to the area in the brain controlling
function of the legs.
|
|
Primary
neural pathways
|
Course
of the nerves from a part of the body to the area in the brain responsible
for the function of that part
|
|
Pupillary
reaction
|
The
pupillary light reflex controls the diameter of the pupil, in response to the
intensity of light. Greater intensity light cause the pupil to become smaller
(allowing less light in), whereas
|
Opinion
In
our view, the issues in this case (and other similar cases) are :
1.
In a person who is in a permanent vegetative state (PVS), should withholding or
withdrawal of life sustaining therapies (many authorities would include
placement of an artificial feeding tube as a life sustaining intervention) be
permissible or 'not unlawful' ?
2.
If the patient has previously expressed a wish not to have life- sustaining
treatments in case of futile care or a PVS, should his/her wishes be respected
when the situation arises?
3.
In case a person has not previously expressed such a wish, if his family or
next of kin makes a request to withhold or withdraw futile life- sustaining
treatments, should their wishes be respected?
4.
Aruna Shanbaug has been abandoned by her family and is being looked after for
the last 37 years by the staff of KEM Hospital. Who should take decisions on
her behalf?
Questions
such as these come up at times in the course of medical practice. We realise
that answers to these questions are difficult, and involve several ethical,
legal and social issues. Our opinion is based on medical facts and on the
principles of medical ethics. We hope that the Honourable Court will provide
guidance and clarity in this matter.
Two
of the cardinal principles of medical ethics are Patient Autonomy and
Beneficiance.
1.
Autonomy means the right to self-determination, where the informed patient has
a right to choose the manner of his treatment. To be autonomous the patient
should be competent to make decisions and choices. In the event that he is
incompetent to make choices, his wishes expressed in advance in the form of a
Living Will, OR the wishes of surrogates acting on his behalf ('substituted
judgment') are to be respected.
The
surrogate is expected to represent what the patient may have decided had he/she
been competent, or to act in the patient's best interest. It is expected that a
surrogate acting in the patient's best interest follows a course of action
because it is best for the patient, and is not influenced by personal
convictions, motives or other considerations.
2.
Beneficence is acting in what is (or judged to be) in patient's best interest.
Acting in the patient's best interest means following a course of action that
is best for the patient, and is not influenced by personal convictions, motives
or other considerations. In some cases, the doctor's expanded goals may include
allowing the natural dying process (neither hastening nor delaying death, but
'letting nature take its course'), thus avoiding or reducing the sufferings of
the patient and his family, and providing emotional support. This is not to be
confused with euthanasia, which involves the doctor's deliberate and
intentional act through administering a lethal injection to end the life of the
patient.
In
the present case under consideration
1.
We have no indication of Aruna Shanbaug's views or wishes with respect to
life-sustaining treatments for a permanent vegetative state.
2.
Any decision regarding her treatment will have to be taken by a surrogate
3.
The staff of the KEM hospital have looked after her for 37 years, after she was
abandoned by her family. We believe that the Dean of the KEM Hospital
(representing the staff of hospital) is an appropriate surrogate.
4.
If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital,
together acting in the best interest of the patient, feel that life sustaining
treatments should continue, their decision should be respected.
5.
If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital,
together acting in the best interest of the patient, feel that withholding or
withdrawing life-sustaining treatments is the appropriate course of action,
they should be allowed to do so, and their actions should not be considered
unlawful.
10. To complete the narration of facts
and before we come to the legal issues involved, we may mention that Dr. Sanjay
Oak, Dean KEM Hospital Mumbai has issued a statement on 24.1.2011 opposing
euthanasia for the petitioner :-
"She
means a lot to KEM hospital. She is on liquid diet and loves listening to
music. We have never subjected her to intravenous food or fed her via a tube.
All these years, she hasn't had even one bedsore. When those looking after her
do not have a problem, I don't understand why a third party who has nothing to
do with her [Pinky Virani who has moved the apex court to seek euthanasia for
Shanbaug] needs to worry," added Dr Oak, who, when he took over as dean of
KEM hospital in 2008, visited her first to take her blessings. "I call on
her whenever I get time. I am there whenever she has dysentery or any another
problem. She is very much alive and we have faith in the judiciary," said
Dr Oak."
11. Dr. Sanjay Oak has subsequently
filed an affidavit in this Court which states :
"a)
Smt. Aruna Ramchandra Shanbaug has been admitted in a single room in Ward No. 4
which is a ward of general internal medicine patients and she has been there
for last 37 years. She is looked after entirely by doctors, nurses and
para-medical staff of KEM Hospital. She has been our staff nurse and the
unfortunate tragic incidence has happened with her in KEM Hospital and I must
put on record that the entire medical, administrative, nursing and para-medical
staff is extremely attached to her and consider her as one of us. Her relatives
and a gentleman (her fiancie) used to visit her in the initial period of her
illness but subsequently she has been left to the care of KEM staff. I visit
her frequently and my last visit to her was on 22nd February, 2011. I give my
observations as a Clinician about Smt. Aruna Shanbaug as under :
b)
It would be incorrect to say that Smt. Aruna Shanbaug is an appropriate case
for Coma. It appears that for a crucial, critical period her brain was deprived
of Oxygen supply and this has resulted in her present state similar to that of
Cerebral Palsy in the newborn child. It is a condition where brain looses it's
co-ordinatory, sensory as well as motor functions and this includes loss of
speech and perception. This has resulted into a state which in a layman's words
"Aruna lives in her own world for last 37 years". She is lying in a bed
in a single room for 33 years. She has not been able to stand or walk, nor have
we attempted to do that of late because we fear that she is fragile and would
break her bones if she falls. Her extremities and fingers have developed
contractures and subsequent to non-use; there is wasting of her body muscles.
Her eyes are open and she blinks frequently; however, these movements are not
pertaining to a specific purpose or as a response to a question. At times she
is quiet and at times she shouts or shrieks. However, I must say that her
shouts and shrieks are completely oblivious to anybody's presence in her room.
It is not true that she shouts after seeing a man. I do not think Aruna can
distinguish between a man and a woman, nor can she even distinguish between
ordinate and inordinate object. We play devotional songs rendered by Sadguru
Wamanrao Pai continuously in her room and she lies down on her bed listening to
them. She expresses her displeasure by grimaces and shouts if the tape recorder
is switched off. All these years she was never fed by tube and whenever a nurse
used to take food to her lips, she used to swallow it. It is only since
September 2010 she developed Malaria and her oral intake dropped. In order to
take care of her calorie make need, nurses cadre resorted to naso-gastric tube
feed and now she is used to NG feeding. However, if small morsels are held near
her lips, Aruna accepts them gladly. It appears that she relishes fish and
occasionally smiles when she is given non-vegetarian food. However, I am honest
in admitting that her smiles are not purposeful and it would be improper to
interpret them as a signal of gratification. I must put on record that in the
world history of medicine there would not be another single case where such a
person is cared and nurtured in bed for 33 long years and has not developed a
single bed sore. This speaks of volumes of excellence of nursing care that KEM
Nursing staff has given to her.
c)
This care is given not as a part of duty but as a part of feeling of oneness.
With every new batch of entrants, the student nurses are introduced to her and
they are told that she was one of us and she continues to be one of us and then
they whole-heartedly take care of Aruna. In my opinion, this one is finest
example of love, professionalism, dedication and commitment to one of our
professional colleagues who is ailing and cannot support herself. Not once, in
this long sojourn of 33 years, anybody has thought of putting an end to her so
called vegetative existence. There have been several Deans and Doctors of KEM
Hospital who have cared her in succession. Right from illustrious Dr. C.K.
Deshpande in whose tenure the incidence happened in 1973, Dr. G.B. Parulkar,
Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar, Dr. M.E.
Yeolekar and now myself Dr. Sanjay N. Oak, all of us have visited her room time
and again and have cared for her and seen her through her ups and downs. The
very idea of withholding food or putting her to sleep by active medication
(mercy killing) is extremely difficult for anybody working in Seth GSMC &
KEM Hospital to accept and I sincerely make a plea to the Learned Counsel and
Hon'ble Judges of Supreme Court of India that this should not be allowed. Aruna
has probably crossed 60 years of life and would one day meet her natural end.
The Doctors, Nurses and staff of KEM, are determined to take care of her till
her last breath by natural process.
d)
I do not think it is proper on my part to make a comment on the entire case.
However, as a clinical surgeon for last 3 decades and as an administrator of
the hospitals for last 7 years and as a student of legal system of India (as I
hold "Bachelor of Law" degree from Mumbai University), I feel that
entire society has not matured enough to accept the execution of an Act of
Euthanasia or Mercy Killing. I fear that this may get misused and our
monitoring and deterring mechanisms may fail to prevent those unfortunate
incidences. To me any mature society is best judged by it's capacity and
commitment to take care of it's "invalid" ones. They are the children
of Lesser God and in fact, developing nation as we are, we should move in a
positive manner of taking care of several unfortunate ones who have
deficiencies, disabilities and deformities."
12. The Hospital staff of KEM Hospital,
Mumbai e.g. the doctors, sister- in-charge ward No. 4 KEM hospital Lenny
Cornielo, Assistant Matron Urmila Chauhan and others have also issued
statements that they were looking after Aruna Shanbaug and want her to live.
"Aruna is the bond that unites us", the KEM Hospital staff has
stated. One retired nurse, Tidi Makwana, who used to take care of Aruna while
in service, has even offered to continue to take care of her without any salary
and without charging any travelling expenses.
13. We have referred to these
statements because it is evident that the KEM Hospital staff right from the
Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses
and para-medical staff have been looking after Aruna for 38 years day and night.
What they have done is simply marvelous. They feed Aruna, wash her, bathe her,
cut her nails, and generally take care of her, and they have been doing this
not on a few occasions but day and night, year after year. The whole country
must learn the meaning of dedication and sacrifice from the KEM hospital staff.
In 38 years Aruna has not developed one bed sore.
14. It is thus obvious that the KEM
hospital staff has developed an emotional bonding and attachment to Aruna
Shanbaug, and in a sense they are her real family today. Ms. Pinki Virani who
claims to be the next friend of Aruna Shanbaug and has filed this petition on
her behalf is not a relative of Aruna Shanbaug nor can she claim to have such
close emotional bonding with her as the KEM hospital staff. Hence, we are
treating the KEM hospital staff as the next friend of Aruna Shanbaug and we
decline to recognise Ms. Pinki Virani as her next friend. No doubt Ms. Pinki
Virani has written a book about Aruna Shanbaug and has visited her a few times,
and we have great respect for her for the social causes she has espoused, but
she cannot claim to have the extent of attachment or bonding with Aruna which
the KEM hospital staff, which has been looking after her for years, claims to
have.
SUBMISSIONS OF LEARNED COUNSEL FOR THE
PARTIES
15. Mr. Shekhar Naphade, learned senior
counsel for the petitioner has relied on the decision of this Court in Vikram
Deo Singh Tomar v. State of Bihar, 1988(2) R.C.R.(Criminal) 186 : 1988 (Supp)
SCC 734 (vide para 2) where it was observed by this Court :
"We
live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is
entitled to a quality of life consistent with his human personality. The right
to live with human dignity is the fundamental right of every Indian
citizen".
16. He has also relied on the decision
of this Court in P. Rathinam v. Union of India and another, 1994(2)
R.C.R.(Criminal) 564 : (1994)3 SCC 394 in which a two-Judge bench of
this Court quoted with approval a passage from an article by Dr. M. Indira and
Dr. Alka Dhal in which it was mentioned:
"Life
is not mere living but living in health. Health is not the absence of illness
but a glowing vitality".
17. The decision in Rathinam's case
(supra) was, however, overruled by a Constitution Bench decision of this Court
in Gian Kaur v. State of Punjab, (1996)2 SCC 648.
18. Mr. Naphade, however, has invited
our attention to paras 24 & 25 of the aforesaid decision in which it was
observed :
"(24)
Protagonism of euthanasia on the view that existence in persistent vegetative
state (PVS) is not a benefit to the patient of a terminal illness being
unrelated to the principle of 'sanctity of life' or the right to live with
dignity' is of no assistance to determine the scope of Article 21 for deciding
whether the guarantee of right to life' therein includes the right to die'. The
right to life' including the right to live with human dignity would mean the
existence of such a right upto the end of natural life. This also includes the
right to a dignified life upto the point of death including a dignified
procedure of death. In other words, this may include the right of a dying man
to also die with dignity when his life is ebbing out. But the 'right to die'
with dignity at the end of life is not to be confused or equated with the right
to die' an unnatural death curtailing the natural span of life.
(25)
A question may arise, in the context of a dying man, who is, terminally ill or
in a persistent vegetative state that he may be permitted to terminate it by a
premature extinction of his life in those circumstances. This category of cases
may fall within the ambit of the 'right to die' with dignity as a part of right
to live with dignity, when death due to termination of natural life is certain
and imminent and the process of natural death has commenced. These are not
cases of extinguishing life but only of accelerating conclusion of the process
of natural death which has already commenced. The debate even in such cases to
permit physician assisted termination of life is inconclusive. It is sufficient
to reiterate that the argument to support the view of permitting termination of
life in such cases to reduce the period of suffering during the process of
certain natural death is not available to interpret Article 21 to include
therein the right to curtail the natural span of life".
He has particularly emphasised
paragraph 25 of the said judgment in support of his submission that Aruna
Shanbaug should be allowed to die.
19. We have carefully considered
paragraphs 24 and 25 in Gian Kaur's case (supra) and we are of the opinion that
all that has been said therein is that the view in Rathinam's case (supra) that
the right to life includes the right to die is not correct. We cannot construe
Gian Kaur's case (supra) to mean anything beyond that. In fact, it has been
specifically mentioned in paragraph 25 of the aforesaid decision that "the
debate even in such cases to permit physician assisted termination of life is
inconclusive". Thus it is obvious that no final view was expressed in the
decision in Gian Kaur's case beyond what we have mentioned above.
20. Mr. Naphade, learned senior counsel
submitted that Ms. Pinky Virani is the next friend of Aruna as she has written
a book on her life called 'Aruna's story' and has been following Aruna's case
from 1980 and has done whatever possible and within her means to help Aruna.
Mr. Naphade has also invited our attention to the report of the Law Commission
of India, 2006 on 'Medical Treatment to Terminally Ill Patients'. We have
perused the said report carefully.
21. Learned Attorney General appearing
for the Union of India after inviting our attention to the relevant case law
submitted as under :
(i)
Aruna Ramchandra Shanbaug has the right to live in her present state.
(ii)
The state that Aruna Ramchandra Shanbaug is presently in does not justify
terminating her life by withdrawing hydration/food/medical support.
(iii)
The aforesaid acts or series of acts and/or such omissions will be cruel,
inhuman and intolerable.
(iv)
Withdrawing/withholding of hydration/food/medical support to a patient is
unknown to Indian law and is contrary to law.
(v)
In case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug,
the efforts which have been put in by batches after batches of nurses of KEM
Hospital for the last 37 years will be undermined.
(vi)
Besides causing a deep sense of resentment in the nursing staff as well as
other well wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the
management, such acts/omissions will lead to disheartenment in them and large
scale disillusionment.
(vii)
In any event, these acts/omissions cannot be permitted at the instance of Ms.
Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug
without any locus.
Learned Attorney General stated that
the report of the Law Commission of India on euthanasia has not been accepted
by the Government of India. He further submitted that Indian society is emotional
and care-oriented. We do not send our parents to old age homes, as it happens
in the West. He stated that there was a great danger in permitting euthanasia
that the relatives of a person may conspire with doctors and get him killed to
inherit his property. He further submitted that tomorrow there may be a cure to
a medical state perceived as incurable today.
22. Mr. T. R. Andhyarujina, learned
senior counsel whom we had appointed as Amicus Curiae, in his erudite
submissions explained to us the law on the point. He submitted that in general
in common law it is the right of every individual to have the control of his
own person free from all restraints or interferences of others. Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body. In the case of medical treatment, for example, a surgeon who
performs an operation without the patient's consent commits assault or battery.
23. It follows as a corollary that the
patient possesses the right not to consent i.e. to refuse treatment. (In the
United States this right is reinforced by a Constitutional right of privacy).
This is known as the principle of self-determination or informed consent.
24. Mr. Andhyarujina submitted that the
principle of self-determination applies when a patient of sound mind requires
that life support should be discontinued. The same principle applies where a
patient's consent has been expressed at an earlier date before he became
unconscious or otherwise incapable of communicating it as by a 'living will' or
by giving written authority to doctors in anticipation of his incompetent
situation.
Mr. Andhyarujina differed from the view
of the learned Attorney General in that while the latter opposed even passive
euthanasia, Mr. Andhyarujina was in favour of passive euthanasia provided the
decision to discontinue life support was taken by responsible medical
practitioners.
25. If the doctor acts on such consent
there is no question of the patient committing suicide or of the doctor having
aided or abetted him in doing so. It is simply that the patient, as he is
entitled to do, declines to consent to treatment which might or would have the
effect of prolonging his life and the doctor has in accordance with his duties
complied with the patient's wishes.
26. The troublesome question is what
happens when the patient is in no condition to be able to say whether or not he
consents to discontinuance of the treatment and has also given no prior
indication of his wishes with regard to it as in the case of Aruna. In such a
situation the patient being incompetent to express his self-determination the
approach adopted in some of the American cases is of "substituted
judgment" or the judgment of a surrogate. This involves a detailed inquiry
into the patient's views and preferences. The surrogate decision maker has to
gather from material facts as far as possible the decision which the
incompetent patient would have made if he was competent. However, such a test
is not favoured in English law in relation to incompetent adults.
27. Absent any indication from a
patient who is incompetent the test which is adopted by Courts is what is in
the best interest of the patient whose life is artificially prolonged by such
life support. This is not a question whether it is in the best interest of the
patient that he should die. The question is whether it is in the best interest
of the patient that his life should be prolonged by the continuance of the life
support treatment. This opinion must be formed by a responsible and competent
body of medical persons in charge of the patient.
28. The withdrawal of life support by
the doctors is in law considered as an omission and not a positive step to
terminate the life. The latter would be euthanasia, a criminal offence under
the present law in UK, USA and India.
29. In such a situation, generally the
wishes of the patient's immediate family will be given due weight, though their
views cannot be determinative of the carrying on of treatment as they cannot
dictate to responsible and competent doctors what is in the best interest of
the patient. However, experience shows that in most cases the opinions of the
doctors and the immediate relatives coincide.
30. Whilst this Court has held that
there is no right to die (suicide) under Article 21 of
the Constitution and attempt to suicide is a crime vide Section 309 Indian Penal Code, the Court has held that
the right to life includes the right to live with human dignity, and in the
case of a dying person who is terminally ill or in a permanent vegetative state
he may be permitted to terminate it by a premature extinction of his life in
these circumstances and it is not a crime vide Gian Kaur's case (supra).
31. Mr. Andhyarujina submitted that the
decision to withdraw the life support is taken in the best interests of the
patient by a body of medical persons. It is not the function of the Court to
evaluate the situation and form an opinion on its own. In England for historical
reasons the parens patriae jurisdiction over adult mentally incompetent persons
was abolished by statute and the Court has no power now to give its consent. In
this situation, the Court only gives a declaration that the proposed omission
by doctors is not unlawful.
32. In U.K., the Mental Capacity Act,
2005 now makes provision relating to persons who lack capacity and to determine
what is in their best interests and the power to make declaration by a special
Court of Protection as to the lawfulness of any act done in relation to a
patient.
33. Mr. Andhyarujina submitted that the
withdrawal of nutrition by stopping essential food by means of nasogastric tube
is not the same as unplugging a ventilator which artificially breathes air into
the lungs of a patient incapable of breathing resulting in instant death. In
case of discontinuance of artificial feeding the patient will as a result
starve to death with all the sufferings and pain and distress associated with
such starving. This is a very relevant consideration in a PVS patient like
Aruna who is not totally unconscious and has sensory conditions of pain etc.
unlike Antony Bland in Airedale v. Director MHD, (1993)2 WLR 316
who was totally unconscious. Would the doctor be able to avoid such pain or distress
by use of sedatives etc.? In such a condition would it not be more appropriate
to continue with the nasogastric feeding but not take any other active steps to
combat any other illness which she may contract and which may lead to her
death?
34. Mr. Andhyarujina further submitted
that in a situation like that of Aruna, it is also necessary to recognise the
deep agony of nurses of the hospital who have with deep care looked after her
for over 37 years and who may not appreciate the withdrawal of the life
support. It may be necessary that their views should be considered by the Court
in some appropriate way.
35. Mr. Andhyarujina, in the course of
his submission stated that some Courts in USA have observed that the view of a
surrogate may be taken to be the view of the incompetent patient for deciding
whether to withdraw the life support, though the House of Lords in Airedale's
case has not accepted this. He submitted that relatives of Aruna do not seem to
have cared for her and it is only the nursing staff and medical attendants of
KEM hospital who have looked after her for 37 years. He has also submitted that
though the humanistic intention of Ms. Pinky Virani cannot be doubted, it is
the opinion of the attending doctors and nursing staff which is more relevant
in this case as they have looked after her for so many years.
36. Mr. Pallav Shishodia, learned
senior counsel for the Dean, KEM hospital, Mumbai submitted that Ms. Pinky
Virani has no locus standi in the matter and it is only the KEM hospital staff
which could have filed such a writ petition.
37. We have also heard learned counsel
for the State of Maharashtra, Mr. Chinmoy Khaldkar and other assisting counsel
whose names have been mentioned in this judgment. They have been of great
assistance to us as we are deciding a very sensitive and delicate issue which
while requiring a humanistic approach, also requires great case and caution to
prevent misuse. We were informed that not only the learned counsel who argued
the case before us, but also the assistants (whose names have been mentioned in
the judgment) have done research on the subject for several weeks, and indeed
this has made our task easier in deciding this case. They therefore deserve our
compliment and thanks.
Legal Issues : Active and Passive
Euthanasia
38. Coming now to the legal issues in
this case, it may be noted that euthanasia is of two types : active and
passive. Active euthanasia entails the use of lethal substances or forces to
kill a person e.g. a lethal injection given to a person with terminal cancer
who is in terrible agony. Passive euthanasia entails withholding of medical
treatment for continuance of life, e.g. withholding of antibiotics where
without giving it a patient is likely to die, or removing the heart lung machine,
from a patient in coma.
39. The general legal position all over
the world seems to be that while active euthanasia is illegal unless there is
legislation permitting it, passive euthanasia is legal even without legislation
provided certain conditions and safeguards are maintained.
40. A further categorisation of
euthanasia is between voluntary euthanasia and non voluntary euthanasia.
Voluntary euthanasia is where the consent is taken from the patient, whereas
non voluntary euthanasia is where the consent is unavailable e.g. when the
patient is in coma, or is otherwise unable to give consent. While there is no
legal difficulty in the case of the former, the latter poses several problems,
which we shall address.
ACTIVE EUTHANASIA
41. As already stated above active
euthanasia is a crime all over the world except where permitted by legislation.
In India active euthanasia is illegal and a crime under section 302 or at least section 304 Indian Penal Code. Physician assisted
suicide is a crime under section 306
Indian Penal Code (abetment to suicide).
42. Active euthanasia is taking
specific steps to cause the patient's death, such as injecting the patient with
some lethal substance, e.g. sodium pentothal which causes a person deep sleep
in a few seconds, and the person instantaneously and painlessly dies in this
deep sleep.
43. A distinction is sometimes drawn
between euthanasia and physician assisted dying, the difference being in who
administers the lethal medication. In euthanasia, a physician or third party
administers it, while in physician assisted suicide it is the patient himself
who does it, though on the advice of the doctor. In many countries/States the
latter is legal while the former is not.
44. The difference between
"active" and "passive" euthanasia is that in active
euthanasia, something is done to end the patient's life' while in passive
euthanasia, something is not done that would have preserved the patient's life.
45. An important idea behind this
distinction is that in "passive euthanasia" the doctors are not
actively killing anyone; they are simply not saving him. While we usually
applaud someone who saves another person's life, we do not normally condemn
someone for failing to do so. If one rushes into a burning building and carries
someone out to safety, he will probably be called a hero. But if one sees a
burning building and people screaming for help, and he stands on the sidelines
- whether out of fear for his own safety, or the belief that an inexperienced
and ill-equipped person like himself would only get in the way of the
professional firefighters, or whatever - if one does nothing, few would judge
him for his inaction. One would surely not be prosecuted for homicide. (At
least, not unless one started the fire in the first place.)
46. Thus, proponents of euthanasia say
that while we can debate whether active euthanasia should be legal, there can
be no debate about passive euthanasia: You cannot prosecute someone for failing
to save a life. Even if you think it would be good for people to do X, you
cannot make it illegal for people to not do X, or everyone in the country who
did not do X today would have to be arrested.
47. Some persons are of the view that
the distinction is not valid. They give the example of the old joke about the
child who says to his teacher, "Do you think it's right to punish someone
for something that he didn't do?" "Why, of course not," the
teacher replies. "Good," the child says, "because I didn't do my
homework."
48. In fact we have many laws that
penalise people for what they did not do. A person cannot simply decide not to
pay his income taxes, or not bother to send his/her children to school (where
the law requires sending them), or not to obey a policeman's order to put down
one's gun.
49. However, we are of the opinion that
the distinction is valid, as has been explained in some details by Lord Goff in
Airedale's case (infra) which we shall presently discuss.
LEGISLATION IN SOME COUNTRIES RELATING
TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH
50. Although in the present case we are
dealing with a case related to passive euthanasia, it would be of some interest
to note the legislations in certain countries permitting active euthanasia.
These are given below.
Netherlands :
Euthanasia
in the Netherlands is regulated by the "Termination of Life on Request and
Assisted Suicide (Review Procedures) Act", 2002. It states that euthanasia
and physician-assisted suicide are not punishable if the attending physician
acts in accordance with the criteria of due care. These criteria concern the
patient's request, the patient's suffering (unbearable and hopeless), the
information provided to the patient, the presence of reasonable alternatives,
consultation of another physician and the applied method of ending life. To
demonstrate their compliance, the Act requires physicians to report euthanasia
to a review committee.
The
legal debate concerning euthanasia in the Netherlands took off with the
"Postma case" in 1973, concerning a physician who had facilitated the
death of her mother following repeated explicit requests for euthanasia. While
the physician was convicted, the court's judgment set out criteria when a doctor
would not be required to keep a patient alive contrary to his will. This set of
criteria was formalized in the course of a number of court cases during the
1980s. Termination of Life on Request and Assisted Suicide (Review Procedures)
Act took effect on April 1, 2002. It legalizes euthanasia and physician
assisted suicide in very specific cases, under very specific circumstances. The
law was proposed by Els Borst, the minister of Health. The procedures codified
in the law had been a convention of the Dutch medical community for over twenty
years.
The
law allows a medical review board to suspend prosecution of doctors who
performed euthanasia when each of the following conditions is fulfilled :
*
the patient's suffering is unbearable with no prospect of improvement
*
the patient's request for euthanasia must be voluntary and persist over time
(the request cannot be granted when under the influence of others,
psychological illness, or drugs)
*
the patient must be fully aware of his/her condition, prospects and options
*
there must be consultation with at least one other independent doctor who needs
to confirm the conditions mentioned above
*
the death must be carried out in a medically appropriate fashion by the doctor
or patient, in which case the doctor must be present
*
the patient is at least 12 years old (patients between 12 and 16 years of age
require the consent of their parents)
The
doctor must also report the cause of death to the municipal coroner in
accordance with the relevant provisions of the Burial and Cremation Act. A
regional review committee assesses whether a case of termination of life on
request or assisted suicide complies with the due care criteria. Depending on
its findings, the case will either be closed or, if the conditions are not met,
brought to the attention of the Public Prosecutor. Finally, the legislation
offers an explicit recognition of the validity of a written declaration of the
will of the patient regarding euthanasia (a "euthanasia directive").
Such declarations can be used when a patient is in a coma or otherwise unable
to state if they wish to be euthanized.
Euthanasia
remains a criminal offense in cases not meeting the law's specific conditions,
with the exception of several situations that are not subject to the
restrictions of the law at all, because they are considered normal medical
practice. These are :
*
stopping or not starting a medically useless (futile) treatment
*
stopping or not starting a treatment at the patient's request
*
speeding up death as a side-effect of treatment necessary for alleviating
serious suffering
Euthanasia
of children under the age of 12 remains technically illegal; however, Dr.
Eduard Verhagen has documented several cases and, together with colleagues and
prosecutors, has developed a protocol to be followed in those cases.
Prosecutors will refrain from pressing charges if this Groningen Protocol is
followed.
Switzerland
:
Switzerland
has an unusual position on assisted suicide: it is legally permitted and can be
performed by non-physicians. However, euthanasia is illegal, the difference
between assisted suicide and euthanasia being that while in the former the
patient administers the lethal injection himself, in the latter a doctor or
some other person administers it.
Article
115 of the Swiss penal code, which came into effect in 1942 (having been
approved in 1937), considers assisting suicide a crime if, and only if, the
motive is selfish. The code does not give physicians a special status in
assisting suicide; although, they are most likely to have access to suitable
drugs. Ethical guidelines have cautioned physicians against prescribing deadly
drugs.
Switzerland
seems to be the only country in which the law limits the circumstances in which
assisted suicide is a crime, thereby decriminalising it in other cases, without
requiring the involvement of a physician. Consequently, non-physicians have
participated in assisted suicide. However, legally, active euthanasia e.g.
administering a lethal injection by a doctor or some other person to a patient
is illegal in Switzerland (unlike in Holland where it is legal under certain
conditions).
The
Swiss law is unique because (1) the recipient need not be a Swiss national, and
(2) a physician need not be involved. Many persons from other countries,
especially Germany, go to Switzerland to undergo euthanasia.
Belgium
:
Belgium
became the second country in Europe after Netherlands to legalise the practice
of euthanasia in September 2002.
The
Belgian law sets out conditions under which suicide can be practised without
giving doctors a licence to kill.
Patients
wishing to end their own lives must be conscious when the demand is made and
repeat their request for euthanasia. They have to be under "constant and
unbearable physical or psychological pain" resulting from an accident or
incurable illness.
The
law gives patients the right to receive ongoing treatment with painkillers -
the authorities have to pay to ensure that poor or isolated patients do not ask
to die because they do not have money for such treatment.
Unlike
the Dutch legislation, minors cannot seek assistance to die. In the case of
someone who is not in the terminal stages of illness, a third medical opinion
must be sought.
Every
mercy killing case will have to be filed at a special commission to decide if the
doctors in charge are following the regulations.
U.K.,
Spain, Austria, Italy, Germany, France, etc.
In
none of these countries is euthanasia or physician assisted death legal. In
January 2011 the French Senate defeated by a 170-142 vote a bill seeking to
legalise euthanasia. In England, in May 2006 a bill allowing physician assisted
suicide, was blocked, and never became law.
United
States of America :
Active
Euthanasia is illegal in all states in U.S.A., but physician assisted dying is
legal in the states of Oregon, Washington and Montana. As already pointed out
above, the difference between euthanasia and physician assisted suicide lies in
who administers the lethal medication. In the former, the physician or someone
else administers it, while in the latter the patient himself does so, though on
the advice of the doctor.
Oregon
:
Oregon
was the first state in U.S.A. to legalise physician assisted death.
The
Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under
the Death With Dignity Act, a person who sought physician-assisted suicide
would have to meet certain criteria :
*
He must be an Oregon resident, at least 18 years old, and must have decision
making capacity.
*
The person must be terminally ill, having six months or less to live.
*
The person must make one written and two oral requests for medication to end
his/her life, the written one substantially in the form provided in the Act,
signed, dated, witnessed by two persons in the presence of the patient who
attest that the person is capable, acting voluntarily and not being coerced to
sign the request. There are stringent qualifications as to who may act as a
witness.
*
The patient's decision must be an 'informed' one, and the attending physician
is obligated to provide the patient with information about the diagnosis,
prognosis, potential risks, and probable consequences of taking the prescribed
medication, and alternatives, including, but not limited to comfort care,
hospice care and pain control. Another physician must confirm the diagnosis,
the patient's decision making capacity, and voluntariness of the patient's
decisions.
*
Counselling has to be provided if the patient is suffering from depression or a
mental disorder which may impact his judgment.
*
There has to be a waiting period of 15 days, next of kin have to be notified,
and State authorities have to be informed.
*
The patient can rescind his decision at any time
In response to concerns that patients
with depression may seek to end their lives, the 1999 amendment provides that
the attending physician must determine that the patient does not have
'depression causing impaired judgment' before prescribing the medication.
Under
the law, a person who met all requirements could receive a prescription of a
barbiturate that would be sufficient to cause death. However, the lethal
injection must be administered by the patient himself, and physicians are
prohibited from administering it.
The
landmark case to declare that the practice of euthanasia by doctors to help
their patients shall not be taken into cognizance was Gonzalez vs Oregon
decided in 2006.
After
the Oregon Law was enacted about 200 persons have had euthanasia in Oregon.
Washington
:
Washington
was the second state in U.S.A. which allowed the practice of physician assisted
death in the year 2008 by passing the Washington Death with Dignity Act, 2008.
Montana
:
Montana
was the third state (after Oregon and Washington) in U.S.A. to legalise
physician assisted deaths, but this was done by the State judiciary and not the
legislature. On December 31, 2009, the Montana Supreme Court delivered its
verdict in the case of Baxter v. Montana permitting physicians to
prescribe lethal indication. The court held that there was "nothing in
Montana Supreme Court precedent or Montana statutes indicating that physician
aid in dying is against public policy."
Other
States in U.S.A. :
In
no other State in U.S.A. is euthanasia or physician assisted death legal.
Michigan banned euthanasia and assisted suicide in 1993, after Dr. Kevorkian
(who became known as 'doctor death') began encouraging and assisting in
suicides. He was convicted in 1999 for an assisted suicide displayed on
television, his medical licence cancelled, and he spent 8 years in jail.
In
1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas
hospitals and doctors, in some situations, to withdraw life support measures,
such as mechanical respiration, from terminally ill patient when such treatment
is considered futile and inappropriate. However, Texas has not legalised
euthanasia or physician assisted death. In California, though 75 of people
support physician assisted death, the issue is highly controversial in the
State legislature. Forty States in USA have enacted laws which explicitly make
it a crime to provide another with the means of taking his or her life.
In
1977 California legalised living wills, and other States soon followed suit. A
living will (also known as advance directive or advance decision) is an
instruction given by an individual while conscious specifying what action
should be taken in the event he/she is unable to make a decision due to illness
or incapacity, and appoints a person to take such decisions on his/her behalf.
It may include a directive to withdraw life support on certain eventualities.
Canada
:
In
Canada, physician assisted suicide is illegal vide Section 241(b) of the
Criminal Code of Canada.
The
leading decision of the Canadian Supreme Court in this connection is Sue
Rodriguez v. British Columbia (Attorney General), (1993)3 SCR 519.
Rodriguez, a woman of 43, was diagnosed with Amyotrophic Lateral Sclerosis
(ALS), and requested the Canadian Supreme Court to allow someone to aid her in
ending her life. Her condition was deteriorating rapidly, and the doctors told
her that she would soon lose the ability to swallow, speak, walk, and move her
body without assistance. Thereafter she would lose her capacity to breathe
without a respirator, to eat without a gastrotomy, and would eventually be
confined to bed. Her life expectancy was 2 to 14 months.
The Canadian Supreme Court was deeply
divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka, speaking
for the majority (which included Justices La Forest, Gonthier, Iacobucci and
Major) observed :
"Sanctity
of life has been understood historically as excluding freedom of choice in the
self infliction of death, and certainly in the involvement of others in
carrying out that choice. At the very least, no new consensus has emerged in
society opposing the right of the State to regulate the involvement of others
in exercising power over individuals ending their lives."
The minority, consisting of Chief
Justice Lamer and Justices L'Heureux-Dube, Cory and McLachlin, dissented.
PASSIVE EUTHANASIA
51. Passive euthanasia is usually defined
as withdrawing medical treatment with a deliberate intention of causing the
patient's death. For example, if a patient requires kidney dialysis to survive,
not giving dialysis although the machine is available, is passive euthanasia.
Similarly, if a patient is in coma or on a heart lung machine, withdrawing of
the machine will ordinarily result in passive euthanasia. Similarly not giving
life saving medicines like antibiotics in certain situations may result in
passive euthanasia. Denying food to a person in coma or PVS may also amount to
passive euthanasia.
52. As already stated above, euthanasia
can be both voluntary or non voluntary. In voluntary passive euthanasia a
person who is capable of deciding for himself decides that he would prefer to
die (which may be for various reasons e.g., that he is in great pain or that
the money being spent on his treatment should instead be given to his family
who are in greater need, etc.), and for this purpose he consciously and of his
own free will refuses to take life saving medicines. In India, if a person
consciously and voluntarily refuses to take life saving medical treatment it is
not a crime. Whether not taking food consciously and voluntarily with the aim
of ending one's life is a crime under section 309
Indian Penal Code (attempt to commit suicide) is a question which need not be
decided in this case.
53. Non voluntary passive euthanasia
implies that the person is not in a position to decide for himself e.g., if he
is in coma or PVS. The present is a case where we have to consider non
voluntary passive euthanasia i.e. whether to allow a person to die who is not
in a position to give his/her consent.
54. There is a plethora of case law on
the subject of the Courts all over the world relating to both active and
passive euthanasia. It is not necessary to refer in detail to all the decisions
of the Courts in the world on the subject of euthanasia or physically assisted
dead (p.a.d.) but we think it appropriate to refer in detail to certain
landmark decisions, which have laid down the law on the subject.
THE AIREDALE CASE : (Airedale
NHS Trust v. Bland (1993) All E.R. 82) (H.L.)
55. In the Airedale case decided by the
House of Lords in the U.K., the facts were that one Anthony Bland aged about 17
went to the Hillsborough Ground on 15th April 1989 to support the Liverpool
Football Club. In the course of the disaster which occurred on that day, his
lungs were crushed and punctured and the supply to his brain was interrupted. As
a result, he suffered catastrophic and irreversible damage to the higher
centres of the brain. For three years, he was in a condition known as
'persistent vegetative state (PVS). This state arises from the destruction of
the cerebral cortex on account of prolonged deprivation of oxygen, and the
cerebral cortex of Anthony had resolved into a watery mass. The cortex is that
part of the brain which is the seat of cognitive function and sensory capacity.
Anthony Bland could not see, hear or feel anything. He could not communicate in
any way. His consciousness, which is an essential feature of an individual
personality, had departed forever. However, his brain-stem, which controls the
reflective functions of the body, in particular the heart beat, breathing and digestion,
continued to operate. He was in persistent vegetative state (PVS) which is a
recognised medical condition quite distinct from other conditions sometimes
known as "irreversible coma", "the Guillain-Barre
syndrome", "the locked-in syndrome" and "brain death".
56. The distinguishing characteristic
of PVS is that the brain stem remains alive and functioning while the cortex
has lost its function and activity. Thus the PVS patient continues to breathe
unaided and his digestion continues to function. But although his eyes are
open, he cannot see. He cannot hear. Although capable of reflex movement,
particularly in response to painful stimuli, the patient is uncapable of
voluntary movement and can feel no pain. He cannot taste or smell. He cannot
speak or communicate in any way. He has no cognitive function and thus can feel
no emotion, whether pleasure or distress. The absence of cerebral function is
not a matter of surmise; it can be scientifically demonstrated. The space which
the brain should occupy is full of watery fluid.
57. In order to maintain Mr. Bland in
his condition, feeding and hydration were achieved by artificial means of a
nasogastric tube while the excretory functions were regulated by a catheter and
enemas. According to eminent medical opinion, there was no prospect whatsoever
that he would ever make a recovery from his condition, but there was every
likelihood that he would maintain this state of existence for many years to
come provided the artificial means of medical care was continued.
58. In this state of affairs the
medical men in charge of Anthony Bland case took the view, which was supported
by his parents, that no useful purpose would be served by continuing medical
care, and that artificial feeding and other measures aimed at prolonging his
existence should be stopped. Since however, there was a doubt as to whether
this course might constitute a criminal offence, the hospital authorities
sought a declaration from the British High Court to resolve these doubts.
59. The declaration was granted by the
Family Division of the High Court on 19.11.1992 and that judgment was affirmed
by the Court of Appeal on 9.12.1992. A further appeal was made to the House of
Lords which then decided the case.
60. The broad issued raised before the House
of Lords in the Airedale case (supra) was "In what circumstances, if ever,
can those having a duty to feed an invalid lawfully stop doing so?" In
fact this is precisely the question raised in the present case of Aruna
Shanbaug before us.
61. In Airedale's case (supra), Lord
Keith of Kinkel, noted that it was unlawful to administer treatment to an adult
who is conscious and of sound mind, without his consent. Such a person is
completely at liberty to decline to undergo treatment, even if the result of
his doing so will be that he will die. This extends to the situation where the
person in anticipation of his entering into a condition such as PVS, gives
clear instructions that in such an event he is not to be given medical care,
including artificial feeding, designed to keep him alive.
62. It was held that if a person, due
to accident or some other cause becomes unconscious and is thus not able to
give or withhold consent to medical treatment, in that situation it is lawful
for medical men to apply such treatment as in their informed opinion is in the
best interests of the unconscious patient. That is what happened in the case of
Anthony Bland when he was first dealt with by the emergency services and later
taken to hospital.
63. When the incident happened the
first imperative was to prevent Anthony from dying, as he would certainly have
done in the absence of the steps that were taken. For a time, no doubt, there
was some hope that he might recover sufficiently for him to be able to live a
life that had some meaning. Some patients who have suffered damage to the
cerebral cortex have, indeed, made a complete recovery. It all depends on the
degree of damage. But sound medical opinion takes the view that if a P.V.S.
patient shows no signs of recovery after six months, or at most a year, then
there is no prospect whatever of any recovery.
64. There are techniques available
which make it possible to ascertain the state of the cerebral cortex, and in
Anthony Bland's case these indicated that, it had degenerated into a mass of
watery fluid. In this situation the question before the House of Lords was
whether the doctors could withdraw medical treatment or feeding Anthony Bland
thus allowing him to die.
65. It was held by Lord Keith that a
medical practitioner is under no duty to continue to treat such a patient where
a large body of informed and responsible medical opinion is to the effect that
no benefit at all would be conferred by continuance of the treatment. Existence
in a vegetative state with no prospect of recovery is by that opinion regarded
as not being of benefit to the patient.
66. Given that existence in the
persistent vegetative state is of no benefit to the patient, the House of Lords
then considered whether the principle of the sanctity of life which is the
concern of the State (and the Judiciary is one of the arms of the State)
required the Court to hold that medical treatment to Bland could not be
discontinued.
67. Lord Keith observed that the
principle of sanctity of life is not an absolute one. For instance, it does not
compel the medical practitioner on pain of criminal sanction to treat a
patient, who will die, if he does not, according to the express wish of the
patient. It does not authorise forcible feeding of prisoners on hunger strike. It
does not compel the temporary keeping alive of patients who are terminally ill
where to do so would merely prolong their suffering. On the other hand, it
forbids the taking of active measures to cut short the life of a terminally-ill
patient (unless there is legislation which permits it).
68. Lord Keith observed that although
the decision whether or not the continued treatment and cure of a PVS patient
confers any benefit on him is essentially one for the medical practitioners in
charge of his case to decide, as a matter of routine the hospital/medical
practitioner should apply to the Family Division of the High Court for
endorsing or reversing the said decision. This is in the interest of the
protection of the patient, protection of the doctors, and for the reassurance
of the patient's family and the public.
69. In Airdale's case (Supra) another
Judge on the Bench, Lord Goff of Chievely observed :-
"The
central issue in the present case has been aptly stated by the Master of the
Rolls to be whether artificial feeding and antibiotic drugs may lawfully be
withheld from an insensate patient with no hope of recovery when it is known
that if that is done the patient will shortly thereafter die. The Court of
Appeal, like the President, answered this question generally in the
affirmative, and (in the declarations made or approved by them) specifically
also in the affirmative in relation to Anthony Bland. I find myself to be in
agreement with the conclusions so reached by all the judges below,
substantially for the reasons given by them. But the matter is of such
importance that I propose to express my reasons in my own words.
I
start with the simple fact that, in law, Anthony is still alive. It is true
that his condition is such that it can be described as a living death; but he
is nevertheless still alive. This is because, as a result of developments in
modern medical technology, doctors no longer associate death exclusively with
breathing and heart beat, and it has come to be accepted that death occurs when
the brain, and in particular the brain stem, has been destroyed (see Professor
Ian Kennedy's Paper entitled "Switching off Life Support Machines: The
Legal Implications" reprinted in Treat Me Right, Essays in Medical Law and
Ethics, (1988)), especially at pp. 351-2, and the material there cited). There
has been no dispute on this point in the present case, and it is unnecessary
for me to consider it further. The evidence is that Anthony's brain stem is
still alive and functioning and it follows that, in the present state of
medical science, he is still alive and should be so regarded as a matter of
law.
It
is on this basis that I turn to the applicable principles of law. Here, the
fundamental principle is the principle of the sanctity of human life - a
principle long recognised not only in our own society but also in most, if not
all, civilised societies throughout the modern world, as is indeed evidenced by
its recognition both in article 2 of the European Convention of Human Rights,
and in article 6 of the International Covenant of Civil and Political Rights.
But
this principle, fundamental though it is, is not absolute. Indeed there are
circumstances in which it is lawful to take another man's life, for example by
a lawful act of self-defence, or (in the days when capital punishment was
acceptable in our society) by lawful execution. We are not however concerned
with cases such as these. We are concerned with circumstances in which it may
be lawful to withhold from a patient medical treatment or care by means of
which his life may be prolonged. But here too there is no absolute rule that
the patient's life must be prolonged by such treatment or care, if available,
regardless of the circumstances.
First,
it is established that the principle of self- determination requires that
respect must be given to the wishes of the patient, so that if an adult patient
of sound mind refuses, however unreasonably, to consent to treatment or care by
which his life would or might be prolonged, the doctors responsible for his care
must give effect to his wishes, even though they do not consider it to be in
his best interests to do so (see Schloendorff v . Society of New York Hospital
105 N.E. 92, 93, per Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S.
Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid; and Sidaway v . Board of
Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC
871, 882, per Lord Scarman). To this extent, the principle of the sanctity of
human life must yield to the principle of self- determination (see Court of
Appeal Transcript in the present case, at p. 38F per Hoffmann L.J.), and, for
present purposes perhaps more important, the doctor's duty to act in the best
interests of his patient must likewise be qualified. On this basis, it has been
held that a patient of sound mind may, if properly informed, require that life
support should be discontinued: see Nancy B. v. Hotel Dieu de Quebec,
(1992)86 D.L.R. (4th) 385. Moreover the same principle applies where
the patient's refusal to give his consent has been expressed at an earlier
date, before he became unconscious or otherwise incapable of communicating it;
though in such circumstances especial care may be necessary to ensure that the
prior refusal of consent is still properly to be regarded as applicable in the
circumstances which have subsequently occurred (see, e.g. In re T.
(Adult: Refusal of treatment, (1992)3 W.L.R. 782. I wish to add that,
in cases of this kind, there is no question of the patient having committed
suicide, nor therefore of the doctor having aided or abetted him in doing so.
It is simply that the patient has, as he is entitled to do, declined to consent
to treatment which might or would have the effect of prolonging his life, and
the doctor has, in accordance with his duty, complied with his patient's
wishes.
But
in many cases not only may the patient be in no condition to be able to say
whether or not he consents to the relevant treatment or care, but also he may
have given no prior indication of his wishes with regard to it. In the case of
a child who is a ward of court, the court itself will decide whether medical
treatment should be provided in the child's best interests, taking into account
medical opinion. But the court cannot give its consent on behalf of an adult
patient who is incapable of himself deciding whether or not to consent to
treatment. I am of the opinion that there is nevertheless no absolute
obligation upon the doctor who has the patient in his care to prolong his life,
regardless of the circumstances. Indeed, it would be most startling, and
could lead to the most adverse and cruel effects upon the patient, if any such
absolute rule were held to exist. It is scarcely consistent with the primacy
given to the principle of self-determination in those cases in which the
patient of sound mind has declined to give his consent, that the law should
provide no means of enabling treatment to be withheld in appropriate
circumstances where the patient is in no condition to indicate, if that was his
wish, that he did not consent to it. The point was put forcibly in the judgment
of the Supreme Judicial Court of Massachusetts in Superintendent of
Belchertown State School v. Saikewicz, (1977) 370 N.E. 2d. 417, 428, as
follows :
"To
presume that the incompetent person must always be subjected to what many
rational and intelligent persons may decline is to downgrade the status of the
incompetent person by placing a lesser value on his intrinsic human worth and
vitality."
I
must however stress, at this point, that the law draws a crucial distinction
between cases in which a doctor decides not to provide, or to continue to
provide, for his patient treatment or care which could or might prolong his
life, and those in which he decides, for example by administering a lethal drug,
actively to bring his patient's life to an end. As I have already indicated,
the former may be lawful, either because the doctor is giving effect to his
patient's wishes by withholding the treatment or care, or even in certain
circumstances in which (on principles which I shall describe) the patient is
incapacitated from stating whether or not he gives his consent. But it is
not lawful for a doctor to administer a drug to his patient to bring about his
death, even though that course is prompted by a humanitarian desire to end his
suffering, however great that suffering may be: see Reg. v. Cox
(Unreported), Ognall J., Winchester Crown Court, 18 September 1992. So to
act is to cross the Rubicon which runs between on the one hand the care of
the living patient and on the other hand euthanasia - actively causing his
death to avoid or to end his suffering. Euthanasia is not lawful at common law.
It is of course well known that there are many responsible members of our
society who believe that euthanasia should be made lawful; but that result
could, I believe, only be achieved by legislation which expresses the
democratic will that so fundamental a change should be made in our law, and
can, if enacted, ensure that such legalised killing can only be carried out subject
to appropriate supervision and control. It is true that the drawing of this
distinction may lead to a charge of hypocrisy; because it can be asked why, if
the doctor, by discontinuing treatment, is entitled in consequence to let his
patient die, it should not be lawful to put him out of his misery straight
away, in a more humane manner, by a lethal injection, rather than let him
linger on in pain until he dies. But the law does not feel able to authorise
euthanasia, even in circumstances such as these; for once euthanasia is
recognised as lawful in these circumstances, it is difficult to see any logical
basis for excluding it in others.
At
the heart of this distinction lies a theoretical question. Why is it that the
doctor who gives his patient a lethal injection which kills him commits an
unlawful act and indeed is guilty of murder, whereas a doctor who, by
discontinuing life support, allows his patient to die, may not act unlawfully -
and will not do so, if he commits no breach of duty to his patient? Professor
Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p.
282) that the reason is that what the doctor does when he switches off a
life support machine 'is in substance not an act but an omission to struggle,
and that 'the omission is not a breach of duty by the doctor because he is not
obliged to continue in a hopeless case'.
I
agree that the doctor's conduct in discontinuing life support can properly be
categorized as an omission. It is true that it may be difficult to describe
what the doctor actually does as an omission, for example where he takes some
positive step to bring the life support to an end. But discontinuation of
life support is, for present purposes, no different from not initiating life
support in the first place. In each case, the doctor is simply allowing his
patient to die in the sense that he is desisting from taking a step which
might, in certain circumstances, prevent his patient from dying as a result
of his pre-existing condition; and as a matter of general principle an
omission such as this will not be unlawful unless it constitutes a breach of
duty to the patient. I also agree that the doctor's conduct is to be
differentiated from that of, for example, an interloper who maliciously
switches off a life support machine because, although the interloper may
perform exactly the same act as the doctor who discontinues life support, his
doing so constitutes interference with the life-prolonging treatment then being
administered by the doctor. Accordingly, whereas the doctor, in discontinuing
life support, is simply allowing his patient to die of his pre- existing
condition, the interloper is actively intervening to stop the doctor from
prolonging the patient's life, and such conduct cannot possibly be categorised
as an omission.
The
distinction appears, therefore, to be useful in the present context in that it
can be invoked to explain how discontinuance of life support can be
differentiated from ending a patient's life by a lethal injection. But in the
end the reason for that difference is that, whereas the law considers that
discontinuance of life support may be consistent with the doctor's duty to care
for his patient, it does not, for reasons of policy, consider that it forms any
part of his duty to give his patient a lethal injection to put him out of his
agony.
I
return to the patient who, because for example he is of unsound mind or has
been rendered unconscious by accident or by illness, is incapable of stating
whether or not he consents to treatment or care. In such circumstances, it is
now established that a doctor may lawfully treat such a patient if he acts in
his best interests, and indeed that, if the patient is already in his care, he
is under a duty so to treat him: see In re F [1990] 2 AC 1, in which the legal
principles governing treatment in such circumstances were stated by this House.
For my part I can see no reason why, as a matter of principle, a decision by a
doctor whether or not to initiate, or to continue to provide, treatment or care
which could or might have the effect of prolonging such a patient's life,
should not be governed by the same fundamental principle. Of course, in the
great majority of cases, the best interests of the patient are likely to
require that treatment of this kind, if available, should be given to a
patient. But this may not always be so. To take a simple example given by
Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992,
at p. 35), to whose judgment in that case I wish to pay tribute, it cannot be
right that a doctor, who has under his care a patient suffering painfully from
terminal cancer, should be under an absolute obligation to perform upon him
major surgery to abate another condition which, if unabated, would or might
shorten his life still further. The doctor who is caring for such a patient
cannot, in my opinion, be under an absolute obligation to prolong his life by
any means available to him, regardless of the quality of the patient's life.
Common humanity requires otherwise, as do medical ethics and good medical
practice accepted in this country and overseas. As I see it, the doctor's
decision whether or not to take any such step must (subject to his patient's
ability to give or withhold his consent) be made in the best interests of the
patient. It is this principle too which, in my opinion, underlies the
established rule that a doctor may, when caring for a patient who is, for
example, dying of cancer, lawfully administer painkilling drugs despite the
fact that he knows that an incidental effect of that application will be to
abbreviate the patient's life. Such a decision may properly be made as part of
the care of the living patient, in his best interests; and, on this basis, the
treatment will be lawful. Moreover, where the doctor's treatment of his patient
is lawful, the patient's death will be regarded in law as exclusively caused by
the injury or disease to which his condition is attributable.
It
is of course the development of modern medical technology, and in particular the
development of life support systems, which has rendered cases such as the
present so much more relevant than in the past. Even so, where (for example) a
patient is brought into hospital in such a condition that, without the benefit
of a life support system, he will not continue to live, the decision has to be
made whether or not to give him that benefit, if available. That decision can
only be made in the best interests of the patient. No doubt, his best interests
will ordinarily require that he should be placed on a life support system as
soon as necessary, if only to make an accurate assessment of his condition and
a prognosis for the future. But if he neither recovers sufficiently to be taken
off it nor dies, the question will ultimately arise whether he should be
kept on it indefinitely. As I see it, that question (assuming the continued
availability of the system) can only be answered by reference to the best
interests of the patient himself, having regard to established medical
practice. Indeed, if the justification for treating a patient who lacks the
capacity to consent lies in the fact that the treatment is provided in his best
interests, it must follow that the treatment may, and indeed ultimately
should, be discontinued where it is no longer in his best interests to provide
it. The question which lies at the heart of the present case is, as I see
it, whether on that principle the doctors responsible for the treatment and
care of Anthony Bland can justifiably discontinue the process of artificial feeding
upon which the prolongation of his life depends.
It
is crucial for the understanding of this question that the question itself
should be correctly formulated. The question is not whether the doctor
should take a course which will kill his patient, or even take a course which
has the effect of accelerating his death. The question is whether the doctor
should or should not continue to provide his patient with medical treatment or
care which, if continued, will prolong his patient's life. The question is
sometimes put in striking or emotional terms, which can be misleading. For
example, in the case of a life support system, it is sometimes asked: Should a
doctor be entitled to switch it off, or to pull the plug? And then it is asked:
Can it be in the best interests of the patient that a doctor should be able to
switch the life support system off, when this will inevitably result in the
patient's death? Such an approach has rightly been criticised as misleading,
for example by Professor Ian Kennedy (in his paper in Treat Me Right, Essays in
Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-22. This
is because the question is not whether it is in the best interests of the
patient that he should die. The question is whether it is in the best interests
of the patient that his life should be prolonged by the continuance of this
form of medical treatment or care.
The
correct formulation of the question is of particular importance in a case such
as the present, where the patient is totally unconscious and where there is no
hope whatsoever of any amelioration of his condition. In circumstances such as
these, it may be difficult to say that it is in his best interests that the
treatment should be ended. But if the question is asked, as in my opinion it
should be, whether it is in his best interests that treatment which has the
effect of artificially prolonging his life should be continued, that question
can sensibly be answered to the effect that it is not in his best interests to
do so.
(emphasis supplied)
70. In a Discussion Paper on Treatment
of Patients in Persistent Vegetative State issued in September 1992 by the
Medical Ethics Committee of the British Medical Association certain safeguards
were mentioned which should be observed before constituting life support for
such patients :-
"(1)
Every effort should be made at rehabilitation for at least six months after the
injury; (2) The diagnosis of irreversible PVS should not be considered
confirmed until at least twelve months after the injury, with the effect that
any decision to withhold life prolonging treatment will be delayed for that
period; (3) The diagnosis should be agreed by two other independent doctors;
and (4) Generally, the wishes of the patient's immediate family will be given great
weight."
71. Lord Goff observed that
discontinuance of artificial feeding in such cases is not equivalent to cutting
a mountaineer's rope, or severing the air pipe of a deep sea diver. The true
question is not whether the doctor should take a course in which he will
actively kill his patient, but rather whether he should continue to provide his
patient with medical treatment or care which, if continued, will prolong his
life.
72. Lord Browne-Wilkinson was of the
view that removing the nasogastric tube in the case of Anthony Bland cannot be
regarded as a positive act causing the death. The tube itself, without the food
being supplied through it, does nothing. Its non removal itself does not cause
the death since by itself, it does not sustain life. Hence removal of the tube
would not constitute the actus reus of murder, since such an act would not
cause the death.
73. Lord Mustill observed :-
"Threaded
through the technical arguments addressed to the House were the strands of a
much wider position, that it is in the best interests of the community at large
that Anthony Bland's life should now end. The doctors have done all they can.
Nothing will be gained by going on and much will be lost. The distress of the
family will get steadily worse. The strain on the devotion of a medical staff
charged with the care of a patient whose condition will never improve, who may
live for years and who does not even recognise that he is being cared for, will
continue to mount. The large resources of skill, labour and money now being
devoted to Anthony Bland might in the opinion of many be more fruitfully
employed in improving the condition of other patients, who if treated may have
useful, healthy and enjoyable lives for years to come."
74. Thus all the Judges of the House of
Lords in the Airedale case (supra) were agreed that Anthony Bland should be
allowed to die.
75. Airedale (1993) decided by the
House of Lords has been followed in a number of cases in U.K., and the law is
now fairly well settled that in the case of incompetent patients, if the
doctors act on the basis of informed medical opinion, and withdraw the
artificial life support system if it is in the patient's best interest, the
said act cannot be regarded as a crime.
76. The question, however, remains as
to who is to decide what is the patient's best interest where he is in a
persistent vegetative state (PVS)? Most decisions have held that the decision
of the parents, spouse, or other close relative, should carry weight if it is
an informed one, but it is not decisive (several of these decisions have been
referred to in Chapter IV of the 196th Report of the Law Commission of India on
Medical Treatment to Terminally ill Patients).
77. It is ultimately for the Court to
decide, as parens patriae, as to what is is in the best interest of the
patient, though the wishes of close relatives and next friend, and opinion of
medical practitioners should be given due weight in coming to its decision. As
stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment)
1990(3) All E.R. 930, the Court as representative of the Sovereign as
parens patriae will adopt the same standard which a reasonable and responsible
parent would do.
78. The parens patriae (father of the
country) jurisdiction was the jurisdiction of the Crown, which, as stated in
Airedale, could be traced to the 13th Century. This principle laid down that as
the Sovereign it was the duty of the King to protect the person and property of
those who were unable to protect themselves. The Court, as a wing of the State,
has inherited the parens patriae jurisdiction which formerly belonged to the
King.
U.S. decisions
79. The two most significant cases of
the U.S. Supreme Court that addressed the issue whether there was a federal
constitutional right to assisted suicide arose from challenges to State laws
banning physician assisted suicide brought by terminally ill patients and their
physicians. These were Washington v. Glucksberg 521 U.S. 702 (1997)
and Vacco v. Quill 521 U.S. 793 (1997).
80. In Glucksberg's case, the U.S.
Supreme Court held that the asserted right to assistance in committing suicide
is not a fundamental liberty interest protected by the Due Process Clause of
the Fourteenth Amendment. The Court observed :
"The
decision to commit suicide with the assistance of another may be just as
personal and profound as the decision to refuse unwanted medical treatment, but
it has never enjoyed similar legal protection. Indeed the two acts are widely
and reasonably regarded as quite distinct."
81. The Court went on to conclude that
the Washington statute being challenged was rationally related to five
legitimate Government interest : protection of life, prevention of suicide,
protection of ethical integrity of the medical profession, protection of vulnerable
groups, and protection against the "slippery slope" towards
euthanasia. The Court then noted that perhaps the individual States were more
suited to resolving or at least addressing the myriad concerns raised by both
proponents and opponents of physician assisted suicide. The Court observed :
"Throughout
the Nation, Americans are engaged in an earnest and profound debate about the
morality, legality and practicality of physician assisted suicide. Our holding
permits this debate to continue, as it should in a democratic society."
82. In Vacco's case (supra) the U.S.
Supreme Court again recognised the distinction between refusing life saving
medical treatment and giving lethal medication. The Court disagreed with the
view of the Second Circuit Federal Court that ending or refusing lifesaving
medical treatment is nothing more nor less than assisted suicide. The Court
held that "the distinction between letting a patient die and making that
patient die is important, logical, rational, and well established". The
Court held that the State of New York could validly ban the latter.
83. In Cruzan v. Director, MDH,
497 U.S. 261(1990) decided by the U.S. Supreme Court the majority
opinion was delivered by the Chief Justice Rehnquist.
84. In that case, the petitioner Nancy
Cruzan sustained injuries in an automobile accident and lay in a Missouri State
hospital in what has been referred to as a persistent vegetative state (PVS), a
condition in which a person exhibits motor reflexes but evinces no indication
of significant cognitive function. The state of Missouri was bearing the cost
of her care. Her parents and co-guardians applied to the Court for permission
to withdraw her artificial feeding and hydration equipment and allow her to
die. While the trial Court granted the prayer, the State Supreme Court of
Missouri reversed, holding that under a statute in the State of Missouri it was
necessary to prove by clear and convincing evidence that the incompetent person
had wanted, while competent, withdrawal of life support treatment in such an
eventuality. The only evidence led on that point was the alleged statement of
Nancy Cruzan to a housemate about a year before the accident that she did not
want life as a 'vegetable'. The State Supreme Court was of the view that this did
not amount to saying that medical treatment or nutrition or hydration should be
withdrawn.
85. Chief Justice Rehnquist delivering
the opinion of the Court (in which Justices White, O'Connor, Scalia, and
Kennedy, joined) in his judgment first noted the facts :-
"On
the night of January 11, 1983, Nancy Cruzan lost control of her car as she
travelled down Elm Road in Jasper County, Missouri. The vehicle overturned, and
Cruzan was discovered lying face down in a ditch without detectable respiratory
or cardiac function. Paramedics were able to restore her breathing and
heartbeat at the accident site, and she was transported to a hospital in an
unconscious state. An attending neurosurgeon diagnosed her as having sustained
probable cerebral contusions compounded by significant anoxia (lack of oxygen).
The Missouri trial court in this case found that permanent brain damage
generally results after 6 minutes in an anoxic state; it was estimated that
Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for
approximately three weeks, and then progressed to an unconscious state in which
she was able to orally ingest some nutrition. In order to ease feeding and
further the recovery, surgeons implanted a gastrostomy feeding and hydration
tube in Cruzan with the consent of her then husband. Subsequent rehabilitative
efforts proved unavailing. She now lies in a Missouri state hospital in what is
commonly referred to as a persistent vegetative state: generally, a condition
in which a person exhibits motor reflexes but evinces no indications of
significant cognitive function. The State of Missouri is bearing the cost of
her care. [497 U.S. 261, 267]
After
it had become apparent that Nancy Cruzan had virtually no chance of regaining
her mental faculties, her parents asked hospital employees to terminate the
artificial nutrition and hydration procedures. All agree that such a [497 U.S.
261, 268] removal would cause her death. The employees refused to honor the
request without court approval. The parents then sought and received
authorisation from the state trial court for termination."
86. While the trial Court allowed the
petition the State Supreme Court of Missouri reversed. The US Supreme Court by
majority affirmed the verdict of the State Supreme Court
87. Chief Justice Rehnquist noted that
in law even touching of one person by another without consent and without legal
justification was a battery, and hence illegal. The notion of bodily integrity
has been embodied in the requirement that informed consent is generally
required for medical treatment. As observed by Justice Cardozo, while on the
Court of Appeals of New York "Every human being of adult years and sound
mind has a right to determine what shall be done with his own body, and a
surgeon who performs an operation without his patient's consent commits an
assault, for which he is liable in damages." vide Schloendorff v.
Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).
Thus the informed consent doctrine has become firmly entrenched in American
Tort Law. The logical corollary of the doctrine of informed consent is that the
patient generally possesses the right not to consent, that is to refuse
treatment.
88. The question, however, arises in
cases where the patient is unable to decide whether the treatment should
continue or not e.g. if he is in coma or PVS. Who is to give consent to
terminate the treatment in such a case? The learned Chief Justice referred to a
large number of decisions of Courts in U.S.A. in this connection, often taking
diverse approaches.
89. In re Quinlan 70 N.J.10, 355
A. 2d 647, Karen Quinlan suffered severe brain damage as a result of
anoxia, and entered into PVS. Her father sought judicial approval to disconnect
her respirator. The New Jersey Supreme Court granted the prayer, holding that
Karen had a right of privacy grounded in the U.S. Constitution to terminate
treatment. The Court concluded that the way Karen's right to privacy could be
exercised would be to allow her guardian and family to decide whether she would
exercise it in the circumstances.
90. In re Conroy 98 NJ 321, 486
A.2d 1209 (1985), however, the New Jersey Supreme Court, in a case of
an 84 year old incompetent nursing home resident who had suffered irreversible
mental and physical ailments, contrary to its decision in Quinlan's case,
decided to base its decision on the common law right to self determination and
informed consent. This right can be exercised by a surrogate decision maker
when there was a clear evidence that the incompetent person would have
exercised it. Where such evidence was lacking the Court held that an
individual's right could still be invoked in certain circumstances under
objective 'best interest' standards. Where no trustworthy evidence existed that
the individual would have wanted to terminate treatment, and a person's
suffering would make the administration of life sustaining treatment inhumane,
a pure objective standard could be used to terminate the treatment. If none of
these conditions obtained, it was best to err in favour of preserving life.
91. What is important to note in
Cruzan's case (supra) is that there was a statute of the State of Missouri,
unlike in Airedale's case (where there was none), which required clear and
convincing evidence that while the patient was competent she had desired that
if she becomes incompetent and in a PVS her life support should be withdrawn.
92. In Cruzan's case (supra) the
learned Chief Justice observed :
"Not
all incompetent patients will have loved ones available to serve as surrogate
decision makers. And even where family members are present, there will be, of
course, some unfortunate situations in which family members will not act to
protect a patient. A State is entitled to guard against potential abuses in
such situations."
93. The learned Chief Justice further
observed :
"An
erroneous decision not to terminate results in maintenance of the status quo;
the possibility of subsequent developments such as advancements in medical
science, the discovery of new evidence regarding the patient's intent, changes
in the law, or simply the unexpected death of the patient despite the
administration of life-sustaining treatment, at least create the potential that
a wrong decision will eventually be corrected or its impact mitigated. An
erroneous decision to withdraw life-sustaining treatment, however, is not
susceptible of correction."
94. No doubt Mr. Justice Brennan (with
whom Justices Marshall and Blackmun joined) wrote a powerful dissenting
opinion, but it is not necessary for us to go into the question whether the
view of the learned Chief Justice or that of Justice Brennan, is correct.
95. It may be clarified that foreign
decisions have only persuasive value in our country, and are not binding
authorities on our Courts. Hence we can even prefer to follow the minority
view, rather than the majority view, of a foreign decision, or follow an
overruled foreign decision.
96. Cruzan's case (supra) can be
distinguished on the simple ground that there was a statute in the State of Missouri,
whereas there was none in the Airedale's case nor in the present case before
us. We are, therefore, of the opinion that the Airedale's case (supra) is more
apposite as a precedent for us. No doubt foreign decisions are not binding on
us, but they certainly have persuasive value.
LAW IN INDIA
97. In India abetment of suicide
(Section 306 Indian Penal Code) and attempt to
suicide (Section 309 of Indian Penal Code)
are both criminal offences. This is in contrast to many countries such as USA
where attempt to suicide is not a crime.
98. The Constitution Bench of the
Indian Supreme Court in Gian Kaur v. State of Punjab, 1996(2) SCC 648
held that both euthanasia and assisted suicide are not lawful in India. That
decision overruled the earlier two Judge Bench decision of the Supreme Court in
P. Rathinam v. Union of India, 1994(3) SCC 394. The Court held
that the right to life under Article 21 of
the Constitution does not include the right to die (vide para 33). In Gian
Kaur's case (supra) the Supreme Court approved of the decision of the House of
Lords in Airedale's case (supra), and observed that euthanasia could be made
lawful only by legislation.
"306.
Abetment of suicide
- If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
309.
Attempt to commit suicide - Whoever attempts to commit suicide and does any act
towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year or with fine, or with
both."
100. We are of the opinion that
although Section 309 Indian Penal Code
(attempt to commit suicide) has been held to be constitutionally valid in Gian
Kaur's case (supra), the time has come when it should be deleted by Parliament
as it has become anachronistic. A person attempts suicide in a depression, and
hence he needs help, rather than punishment. We therefore recommend to
Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.
101. It may be noted that in Gian
Kaur's case (supra) although the Supreme Court has quoted with approval the
view of the House of Lords in Airedale's case (supra), it has not clarified who
can decide whether life support should be discontinued in the case of an
incompetent person e.g. a person in coma or PVS. This vexed question has been
arising often in India because there are a large number of cases where persons
go into coma (due to an accident or some other reason) or for some other reason
are unable to give consent, and then the question arises as to who should give
consent for withdrawal of life support.
102. This is an extremely important
question in India because of the unfortunate low level of ethical standards to
which our society has descended, its raw and widespread commercialization, and
the rampant corruption, and hence, the Court has to be very cautious that
unscrupulous persons who wish to inherit the property of someone may not get
him eliminated by some crooked method.
103. Also, since medical science is
advancing fast, doctors must not declare a patient to be a hopeless case unless
there appears to be no reasonable possibility of any improvement by some newly
discovered medical method in the near future. In this connection we may refer
to a recent news item which we have come across on the internet of an Arkansas
man Terry Wallis, who was 19 years of age and newly married with a baby
daughter when in 1984 his truck plunged through a guard rail, falling 25 feet.
He went into coma in the crash in 1984, but after 24 years he has regained
consciousness. This was perhaps because his brain spontaneously rewired itself
by growing tiny new nerve connections to replace the ones sheared apart in the
car crash. Probably the nerve fibers from Terry Wallis' cells were severed but
the cells themselves remained intact, unlike Terri Schiavo, whose brain cells
had died (see Terri Schiavo's case on Google).
104. However, we make it clear that it
is experts like medical practitioners who can decide whether there is any
reasonable possibility of a new medical discovery which could enable such a
patient to revive in the near future.
WHEN CAN A PERSON IS SAID TO BE DEAD
105. It is alleged in the writ petition
filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug)
that in fact Aruna Shanbaug is already dead and hence by not feeding her body
any more we shall not be killing her. The question hence arises as to when a
person can be said to be dead ?
106. A person's most important organ is
his/her brain. This organ cannot be replaced. Other body parts can be replaced
e.g. if a person's hand or leg is amputed, he can get an artificial limb.
Similarly, we can transplant a kidney, a heart or a liver when the original one
has failed. However, we cannot transplant a brain. If someone else's brain is
transplanted into one's body, then in fact, it will be that other person living
in one's body. The entire mind, including one's personality, cognition, memory,
capacity of receiving signals from the five senses and capacity of giving
commands to the other parts of the body, etc. are the functions of the brain.
Hence one is one's brain. It follows that one is dead when one's brain is dead.
107. As is well-known, the brain cells
normally do not multiply after the early years of childhood (except in the
region called hippocampus), unlike other cells like skin cells, which are
regularly dying and being replaced by new cells produced by multiplying of the
old cells. This is probably because brain cells are too highly specialised to
multiply. Hence if the brain cells die, they usually cannot be replaced (though
sometimes one part of the brain can take over the function of another part in
certain situations where the other part has been irreversibly damaged).
108. Brain cells require regular supply
of oxygen which comes through the red cells in the blood. If oxygen supply is
cut off for more than six minutes, the brain cells die and this condition is
known as anoxia. Hence, if the brain is dead a person is said to be dead.
BRAIN DEATH
109. The term 'brain death' has
developed various meanings. While initially, death could be defined as a
cessation of breathing, or, more scientifically, a cessation of heart-beat,
recent medical advances have made such definitions obsolete. In order to
understand the nature and scope of brain death, it is worthwhile to look at how
death was understood. Historically, as the oft- quoted definition in Black's
Law Dictionary suggests, death was :
"The
cessation of life; the ceasing to exist; defined by physicians as a total
stoppage of the circulation of the blood, and a cessation of the animal and
vital functions consequent thereon, such as respiration, pulsation, etc.". This definition saw
its echo in numerous other texts and legal case law. This includes many
American precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo.
1961) ("Black's Law Dictionary, 4th Ed., defines death as 'the
cessation of life; the ceasing to exist ...."'); and Sanger v.
Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907) ("The
Encyclopaedic Dictionary, among others, gives the following definitions of
[death]: 'The state of being dead; the act or state of dying; the state or
condition of the dead.' The Century Dictionary defines death as 'cessation of
life; that state of a being, animal or vegetable, in which there is a total and
permanent cessation of all the vital functions."').
110. This understanding of death
emerged from a cardiopulmonary perspective. In such cases, the brain was
usually irrelevant -- being understood that the cessation of circulation would
automatically lead to the death of brain cells, which require a great deal of
blood to survive. 111. The invention of the ventilator and the defibrillator in
the 1920s altered this understanding, it being now possible that the cessation
of respiration and circulation, though critical, would no longer be
irreversible. Hence, a present-day understanding of death as the irreversible
end of life must imply total brain failure, such that neither breathing, nor
circulation is possible any more. The question of the length of time that may
determine such death is significant, especially considering a significant
increase in organ donations across jurisdictions over the last few years.
112. Brain death, may thus, be defined
as "the irreversible cessation of all functions of the entire brain,
including the brain stem".4 It is important to understand that this
definition goes beyond acknowledging consciousness - a person who is incapable
of ever regaining consciousness will not be considered to be brain dead as long
as parts of the brain e.g. brain stem that regulate involuntary activity (such
as response to light, respiration, heartbeat etc.) still continue to function.
Likewise, if consciousness, albeit severely limited, is present, then a person
will be considered to be alive even if he has suffered brain stem death,
wherein breathing and heartbeat can no longer be regulated and must be
mechanically determined. Hence, the international standard for brain death is
usually considered to include "whole-brain death", i.e., a situation
where the higher brain (i.e. the part of the brain that regulates consciousness
and thought), the cerebellum or mid-brain, and the brain-stem have all ceased
to demonstrate any electrical activity whatsoever for a significant amount of
time. To say, in most cases, that only the death of the higher brain would be a
criteria for 'brain death' may have certain serious consequences - for example,
a foetus, technically under this definition, would not be considered to be
alive at all. Similarly, as per this, different definitions of death would
apply to human and non-human organisms.
113. Brain death, thus, is different
from a persistent vegetative state, where the brain stem continues to work, and
so some degree of reactions may occur, though the possibility of regaining
consciousness is relatively remote. Even when a person is incapable of any
response, but is able to sustain respiration and circulation, he cannot be said
to be dead. The mere mechanical act of breathing, thus, would enable him or her
to be "alive".
114. The first attempt to define death
in this manner came about in 1968, as a result of a Harvard Committee
constituted for the purpose.5 This definition, widely criticized for trying to
maximize organ donations, considered death to be a situation wherein
"individuals who had sustained traumatic brain injury that caused them to
be in an irreversible coma, and had lost the ability to breathe
spontaneously"6, would be considered dead. This criticism led to the
Presidents' Committee, set up for the purpose, in 1981, defining death more
vaguely as the point "where the body's physiological system ceases to
contribute a uniform whole".
This definition of whole brain death,
however, is not without its critics. Some argue that the brain is not always
responsible for all bodily functioning- digestion, growth, and some degree of movement
(regulated by the spinal cord) may not require any electrical activity in the
brain. In order to combat this argument, and further explain what brain death
could include, the President's Committee on Bio-ethics in the United States of
America in 2008 came up with a new definition of brain death, according to
which a person was considered to be brain dead when he could no longer perform
the fundamental human work of an organism. These are :
"(1)
"openness to the world, that is receptivity to stimuli and signals from
the surrounding environment,"
(2)
"the ability to act upon the world to obtain selectively what it needs.
and
(3)
"the basic felt need that drives the organism to act ... to obtain what it
needs."
115. When this situation is reached, it
is possible to assume that the person is dead, even though he or she, through
mechanical stimulation, may be able to breathe, his or her heart might be able
to beat, and he or she may be able to take some form of nourishment. It is
important, thus, that it be medically proved that a situation where any human
functioning would be impossible should have been reached for there to be a
declaration of brain death-situations where a person is in a persistent
vegetative state but can support breathing, cardiac functions, and digestion
without any mechanical aid are necessarily those that will not come within the
ambit of brain death.
116. In legal terms, the question of
death would naturally assume significance as death has a set of legal
consequences as well. As per the definition in the American Uniform Definition
of Death Act, 1980. an individual who "sustain[s] . . . irreversible
cessation of all functions of the entire brain, including the brain stem, is
dead." This stage, thus, is reached at a situation where not only
consciousness, but every other aspect of life regulated from the brain can no
longer be so regulated.
117. In the case of 'euthanasia',
however, the situation is slightly different. In these cases, it is believed,
that a determination of when it would be right or fair to disallow
resuscitation of a person who is incapable of expressing his or her consent to
a termination of his or her life depends on two circumstances :
a.
when a person is only kept alive mechanically, i.e. when not only consciousness
is lost, but the person is only able to sustain involuntary functioning through
advanced medical technology-such as the use of heart-lung machines, medical
ventilators etc.
b.
when there is no plausible possibility of the person ever being able to come
out of this stage. Medical "miracles" are not unknown, but if a
person has been at a stage where his life is only sustained through medical
technology, and there has been no significant alteration in the person's
condition for a long period of time-at least a few years-then there can be a
fair case made out for passive euthanasia.
To extend this further, especially when
a person is incapable of being able to give any consent, would amount to
committing judicial murder.
118. In this connection we may refer to
the Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament.
Section 2(d) of the Act states:
"brain-stem
death" means the stage at which all functions of the brain-stem have
permanently and irreversibly ceased and is so certified under sub-section (6)
of section 3:"
119. Section 3(6) of the said Act
states :
"(6)
Where any human organ is to be removed from the body of a person in the event
of his brain-stem death, no such removal shall be undertaken unless such death
is certified, in such form and in such manner and on satisfaction of such
conditions and requirements as may be prescribed, by a Board of medical experts
consisting of the following, namely :-
(i)
the registered medical practitioner, in charge of the hospital in which brain-stem
death has occurred;
(ii)
an independent registered medical practitioner, being a specialist, to be
nominated by the registered medical practitioner specified in clause (i), from
the panel of names approved by the Appropriate Authority;
(iii)
a neurologist or a neurosurgeon to be nominated by the registered medical
practitioner specified in clause (i), from the panel of names approved by the
Appropriate Authority; and
(iv)
the registered medical practitioner treating the person whose brain-stem death
has occurred".
120. Although the above Act was only
for the purpose of regulation of transplantation of human organs it throws some
light on the meaning of brain death.
121. From the above angle, it cannot be
said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors
which we have quoted above it appears that she has some brain activity, though
very little.
122. She recognizes that persons are
around her and expresses her like or dislike by making some vocal sound and
waving her hand by certain movements. She smiles if she receives her favourite
food, fish and chicken soup. She breathes normally and does not require a heart
lung machine or intravenous tube for feeding. Her pulse rate and respiratory
rate and blood pressure are normal. She was able to blink well and could see
her doctors who examined her. When an attempt was made to feed her through
mouth she accepted a spoonful of water, some sugar and mashed banana. She also
licked the sugar and banana paste sticking on her upper lips and swallowed it.
She would get disturbed when many people entered her room, but she appeared to
calm down when she was touched or caressed gently.
123. Aruna Shanbaug meets most of the
criteria for being in a permanent vegetative state which has resulted for 37
years. However, her dementia has not progressed and has remained stable for
many years.
124. From the above examination by the
team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the
condition of her cortex, her brain stem is certainly alive. She does not need a
heart-lung machine. She breathes on her own without the help of a respirator.
She digests food, and her body performs other involuntary function without any
help. From the CD (which we had screened in the courtroom on 2.3.2011 in the
presence of counsels and others) it appears that she can certainly not be
called dead. She was making some sounds, blinking, eating food put in her
mouth, and even licking with her tongue morsels on her mouth.
125. However, there appears little
possibility of her coming out of PVS in which she is in. In all probability,
she will continue to be in the state in which she is in till her death. The
question now is whether her life support system (which is done by feeding her)
should be withdrawn, and at whose instance?
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT
IN PERMANENT VEGETATIVE STATE (PVS)
126. There is no statutory provision in
our country as to the legal procedure for withdrawing life support to a person
in PVS or who is otherwise incompetent to take a decision in this connection.
We agree with Mr. Andhyarujina that passive euthanasia should be permitted in
our country in certain situations, and we disagree with the learned Attorney
General that it should never be permitted. Hence, following the technique used
in Vishakha's case (supra), we are laying down the law in this connection which
will continue to be the law until Parliament makes a law on the subject.
(i)
A decision has to be taken to discontinue life support either by the parents or
the spouse or other close relatives, or in the absence of any of them, such a
decision can be taken even by a person or a body of persons acting as a next
friend. It can also be taken by the doctors attending the patient. However, the
decision should be taken bonafide in the best interest of the patient.
In
the present case, we have already noted that Aruna Shanbaug's parents are dead
and other close relatives are not interested in her ever since she had the
unfortunate assault on her. As already noted above, it is the KEM hospital
staff, who have been amazingly caring for her day and night for so many long
years, who really are her next friends, and not Ms. Pinky Virani who has only
visited her on few occasions and written a book on her. Hence it is for the KEM
hospital staff to take that decision. The KEM hospital staff have clearly
expressed their wish that Aruna Shanbaug should be allowed to live.
Mr.
Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital,
Mumbai, submitted that Ms. Pinky Virani has no locus standi in this
case. In our opinion it is not necessary for us to go into this question since
we are of the opinion that it is the KEM Hospital staff who is really the next
friend of Aruna Shanbaug.
We
do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we
wish to express our appreciation of the splendid social spirit she has shown.
We have seen on the internet that she has been espousing many social causes,
and we hold her in high esteem. All that we wish to say is that however much
her interest in Aruna Shanbaug may be it cannot match the involvement of the
KEM hospital staff who have been taking care of Aruna day and night for 38
years.
However,
assuming that the KEM hospital staff at some future time changes its mind, in
our opinion in such a situation the KEM hospital would have to apply to the
Bombay High Court for approval of the decision to withdraw life support.
(ii)
Hence, even if a decision is taken by the near relatives or doctors or next friend
to withdraw life support, such a decision requires approval from the High Court
concerned as laid down in Airedale's case (supra).
In
our opinion, this is even more necessary in our country as we cannot rule out
the possibility of mischief being done by relatives or others for inheriting
the property of the patient.
127. In our opinion, if we leave it
solely to the patient's relatives or to the doctors or next friend to decide
whether to withdraw the life support of an incompetent person there is always a
risk in our country that this may be misused by some unscrupulous persons who
wish to inherit or otherwise grab the property of the patient. Considering the
low ethical levels prevailing in our society today and the rampant
commercialisation and corruption, we cannot rule out the possibility that
unscrupulous persons with the help of some unscrupulous doctors may fabricate
material to show that it is a terminal case with no chance of recovery. There
are doctors and doctors. While many doctors are upright, there are others who
can do anything for money (see George Bernard Shaw's play 'The Doctors
Dilemma'). The commercialisation of our society has crossed all limits. Hence
we have to guard against the potential of misuse (see Robin Cook's novel
'Coma'). In our opinion, while giving great weight to the wishes of the
parents, spouse, or other close relatives or next friend of the incompetent
patient and also giving due weight to the opinion of the attending doctors, we
cannot leave it entirely to their discretion whether to discontinue the life
support or not. We agree with the decision of the Lord Keith in Airedale's case
(supra) that the approval of the High Court should be taken in this connection.
This is in the interest of the protection of the patient, protection of the
doctors, relative and next friend, and for reassurance of the patient's family
as well as the public. This is also in consonance with the doctrine of parens
patriae which is a well known principle of law.
DOCTRINE OF PARENS PATRIAE
128. The doctrine of Parens Patriae
(father of the country) had originated in British law as early as the 13th
century. It implies that the King is the father of the country and is under
obligation to look after the interest of those who are unable to look after
themselves. The idea behind Parens Patriae is that if a citizen is in need of
someone who can act as a parent who can make decisions and take some other
action, sometimes the State is best qualified to take on this role.
129. In the Constitution Bench decision
of this Court in Charan Lal Sahu v. Union of India (1990) 1 SCC 613 (vide
paras 35 and 36), the doctrine has been explained in some details as
follows:
"In
the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is
stated that parens patriae is the inherent power and authority of a legislature
to provide protection to the person and property of persons non sui juris, such
as minor, insane, and incompetent persons, but the words parens patriae meaning
thereby 'the father of the country', were applied originally to the King and
are used to designate the State referring to its sovereign power of
guardianship over persons under disability. Parens patriae jurisdiction, it has
been explained, is the right of the sovereign and imposes a duty on the
sovereign, in public interest, to protect persons under disability who have no
rightful protector. The connotation of the term parens patriae differs from
country to country, for instance, in England it is the King, in America it is
the people, etc. The Government is within its duty to protect and to control
persons under disability".
The duty of the King in feudal times to
act as parens patriae (father of the country) has been taken over in modern
times by the State.
130. In Heller v. DOE (509) US
312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :
"the
State has a legitimate interest under its parens patriae powers in providing
care to its citizens who are unable to care for themselves".
131. In State of Kerala v. N.M.
Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :
"The
Court also is 'state' within the meaning of Article 12 (of the
Constitution).".
132. In our opinion, in the case of an
incompetent person who is unable to take a decision whether to withdraw life
support or not, it is the Court alone, as parens patriae, which ultimately must
take this decision, though, no doubt, the views of the near relatives, next
friend and doctors must be given due weight.
UNDER WHICH PROVISION OF THE LAW CAN
THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON
133. In our opinion, it is the High
Court under Article 226 of the Constitution
which can grant approval for withdrawal of life support to such an incompetent
person. Article 226(1) of the Constitution
states :
"Notwithstanding
anything in article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person
or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for
any other purpose".
134. A bare perusal of the above
provisions shows that the High Court under Article 226
of the Constitution is not only entitled to issue writs, but is also entitled
to issue directions or orders.
135. In Dwarka Nath v. ITO, AIR
1966 Supreme Court 81(vide paragraph 4) this Court observed :
"This
article is couched in comprehensive phraseology and it ex facie confers
a wide power on the High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in describing the nature of the
power, the purpose for which and the person or authority against whom it can be
exercised. It can issue writs in the nature of prerogative writs as understood
in England; but the scope of those writs also is widened by the use of the
expression "nature", for the said expression does not equate the
writs that can be issued in India with those in England, but only draws an
analogy from them. That apart, High Courts can also issue directions, orders or
writs other than the prerogative writs. It enables the High Courts to mould the
reliefs to meet the peculiar and complicated requirements of this country. Any
attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the
English Courts to issue prerogative writs is to introduce the unnecessary
procedural restrictions grown over the years in a comparatively small country
like England with a unitary form of Government to a vast country like India
functioning under a federal structure."
136. The above decision has been
followed by this Court in Shri Anadi Mukta Sadguru v. V.R. Rudani, AIR
1989 Supreme Court 1607 (vide para 18).
137. No doubt, the ordinary practice in
our High Courts since the time of framing of the Constitution in 1950 is that
petitions filed under Article 226
of the Constitution pray for a writ of the kind referred to in the provision.
However, from the very language of the Article 226, and as explained by the
above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or
direction, and not for any writ. Hence, in our opinion, Article 226 gives
abundant power to the High Court to pass suitable orders on the application
filed by the near relatives or next friend or the doctors/hospital staff
praying for permission to withdraw the life support to an incompetent person of
the kind above mentioned.
PROCEDURE TO BE ADOPTED BY THE HIGH
COURT WHEN SUCH AN APPLICATION IS FILED
138. When such an application is filed
the Chief Justice of the High Court should forthwith constitute a Bench of at
least two Judges who should decide to grant approval or not. Before doing so
the Bench should seek the opinion of a committee of three reputed doctors to be
nominated by the Bench after consulting such medical authorities/medical
practitioners as it may deem fit. Preferably one of the three doctors should be
a neurologist, one should be a psychiatrist, and the third a physician. For
this purpose a panel of doctors in every city may be prepared by the High Court
in consultation with the State Government/Union Territory and their fees for
this purpose may be fixed.
139. The committee of three doctors
nominated by the Bench should carefully examine the patient and also consult
the record of the patient as well as taking the views of the hospital staff and
submit its report to the High Court Bench.
140. Simultaneously with appointing the
committee of doctors, the High Court Bench shall also issue notice to the State
and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient,
and in their absence his/her next friend, and supply a copy of the report of
the doctor's committee to them as soon as it is available. After hearing them,
the High Court bench should give its verdict. The above procedure should be
followed all over India until Parliament makes legislation on this subject.
141. The High Court should give its
decision speedily at the earliest, since delay in the matter may result in
causing great mental agony to the relatives and persons close to the patient.
142. The High Court should give its
decision assigning specific reasons in accordance with the principle of 'best
interest of the patient' laid down by the House of Lords in Airedale's case
(supra). The views of the near relatives and committee of doctors should be
given due weight by the High Court before pronouncing a final verdict which
shall not be summary in nature.
143. With these observations, this
petition is dismissed.
144. Before parting with the case, we
would like to express our gratitude to Mr. Shekhar Naphade, learned senior
counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya Jain and
Mr. Vimal Chandra S. Dave, advocates, the learned Attorney General for India
Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina,
learned Senior Counsel, whom we had appointed as amicus curiae assisted by Mr.
Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior counsel,
assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates for the
KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of
Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair,
advocates, who were of great assistance to us. We wish to express our
appreciation of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research
Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who
is Law-Clerk-cum-Research Assistant of Hon'ble Justice Gyan Sudha Mishra. We
also wish to mention the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav
Rangarajan, final year law students in the School of Excellence, Dr. B.R.
Ambedkar Law University, Chennai, who were the interns of one of us (Katju, J.)
and who were of great help in doing research in this case.
145. We wish to commend the team of
doctors of Mumbai who helped us viz. Dr. J.V. Divatia, Professor and Head,
Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital,
Mumbai; Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and
Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital. They did an
excellent job.
146. We also wish to express our
appreciation of Ms. Pinki Virani who filed this petition. Although we have
dismissed the petition for the reasons given above, we regard her as a public
spirited person who filed the petition for a cause she bonafide regarded
as correct and ethical. We hold her in high esteem.
147. We also commend the entire staff
of KEM Hospital, Mumbai (including the retired staff) for their noble spirit
and outstanding, exemplary and unprecedented dedication in taking care of Aruna
for so many long years. Every Indian is proud of them.
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