TMI Blog2011 (3) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immobilize 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical and nursing staff of K. E. M. Hospital, 2. Case records (including nursing records) since January 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 realized 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 tou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 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 VII a. Table 1. CLINICA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Nonpurposeful 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubbing 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 Synchronised movement (of the eyeball) Conscious 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 specialized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 causes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 traveling expenses. 13. We have referred to these statements because it is evident that the KEM Hospital staff right from the Dean, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hes 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 vs. 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 recognize 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided certain conditions and safeguards are maintained. 40. A further categorization 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 IPC. Physician assisted suicide is a crime under section 306 IPC (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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma 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 : 7 stopping or not starting a medically useless (futile) treatment 7 stopping or not starting a treatment at the patient's request 7 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to legalize 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 legalize 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: 7 He must be an Oregon resident, at least 18 years old, and must have decision making capacity. 7 The person must be terminally ill, having six months or less to live. 7 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme 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 legalized 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 legalized living wills, and other States soon follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 IPC (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, 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, accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognized not only in our own society but also in most, if not all, civilized 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enabli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorize euthanasia, even in circumstances such as these; for once euthanasia is recognized 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinued, 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 recognize 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 opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysicians. These were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vs. 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 vs. 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. 99. Sections 306 and 309 IPC read as under : 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [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 1 Black's Law Dictionary 488 (4th ed., rev. 1968). 2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007). respiration and circulation, though critical, would no longer be irreversible3. 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968). 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State. 130. In Heller vs. 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 vs. 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 Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bona fide regarded as correct and ethical. We hold her in high esteem. 147. We also commen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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