2011 (3) TMI 1729 - SC - Indian Laws

Euthanasia and its legal implications - brain stem contusion injury with associated cervical cord injury - Determination of brain death and persistent vegetative state (PVS) - Role of the High Court in approving withdrawal of life support - Doctrine of Parens Patriae - Smt. Aruna Shanbaug is an is about 60 years of age lives in her own world for last 37 years - She is looked after entirely by doctors nurses and para-medical staff of KEM Hospital - she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it to rape her - due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. HELD THAT - From the 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. 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. Whether her life support system (which is done by feeding her) should be withdrawn and at whose instance? - 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 commercialization 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 commercialization 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. 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. 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. 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. 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. 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. 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. Conclusion Petition for euthanasia for Aruna Shanbaug emphasizing that the decision to withdraw life support should be taken by the KEM Hospital staff who have been caring for her for 37 years or by the High Court if the hospital staff changes their mind in the future. With these observations this petition is dismissed.

Summary

Issues Involved:
1. Euthanasia and its legal implications.
2. Determination of "brain death" and "persistent vegetative state" (PVS).
3. Legal procedure for withdrawing life support in India.
4. Role of the High Court in approving withdrawal of life support.
5. Doctrine of Parens Patriae.

Detailed Analysis:

Euthanasia and its Legal Implications:
Euthanasia is categorized into active and passive euthanasia. Active euthanasia involves the use of lethal substances to end a person's life and is illegal in India under sections 302, 304, and 306 IPC. Passive euthanasia, which entails withholding or withdrawing medical treatment to let a patient die naturally, is considered legal under certain conditions and safeguards. The court distinguished between voluntary euthanasia (with patient consent) and non-voluntary euthanasia (without patient consent, e.g., in cases of coma or PVS).

Determination of "Brain Death" and "Persistent Vegetative State" (PVS):
The court examined the medical condition of Aruna Shanbaug, who has been in a PVS for 37 years. The medical report indicated that she had some brain activity, could respond to stimuli, and did not require a heart-lung machine. The court concluded that Aruna was not brain dead but in a PVS, making her eligible for considerations regarding passive euthanasia.

Legal Procedure for Withdrawing Life Support in India:
The court laid down the legal procedure for passive euthanasia, stating that a decision to withdraw life support should be taken by the patient's parents, spouse, close relatives, or next friend, or by the doctors attending the patient. However, such a decision must be bona fide and in the patient's best interest. The court emphasized the need for High Court approval to prevent misuse and ensure that the decision is in the patient's best interest.

Role of the High Court in Approving Withdrawal of Life Support:
The High Court, under Article 226 of the Constitution, has the power to approve the withdrawal of life support for an incompetent person. The Chief Justice of the High Court should constitute a Bench of at least two judges to decide on such cases. The Bench should seek the opinion of a committee of three reputed doctors and issue notices to the State and close relatives of the patient. The High Court should give its decision speedily, assigning specific reasons based on the principle of the patient's best interest.

Doctrine of Parens Patriae:
The court invoked the doctrine of Parens Patriae, which implies that the State has a duty to protect those who cannot protect themselves. The court, as a representative of the State, must take the ultimate decision regarding the withdrawal of life support for an incompetent person, giving due weight to the views of close relatives, next friend, and medical practitioners.

Conclusion:
The Supreme Court dismissed the petition for euthanasia for Aruna Shanbaug, emphasizing that the decision to withdraw life support should be taken by the KEM Hospital staff, who have been caring for her for 37 years, or by the High Court if the hospital staff changes their mind in the future. The court laid down detailed guidelines for the legal procedure to be followed in cases of passive euthanasia, ensuring that such decisions are made in the best interest of the patient and are subject to judicial oversight to prevent misuse.