Law Commission of India: Justice
Law Commission of India: Justice
Law Commission of India: Justice
196TH REPORT
ON
MARCH, 2006
Residence:
1, JANPATH
NEW DELHI – 110 011
TEL: 23019465
The request for a study on this subject came from the Indian Society
of Critical Care Medicine at a Seminar on 27th April, 2005, which was
inaugurated by Hon’ble Minister for Law and Justice. The Commission
agreed to study and give a Report as well as a draft Bill.
A hundred years ago, when medicine and medical technology had not
invented the artificial methods of keeping a terminally ill patient alive by
medical treatment, including by means of ventilators and artificial feeding,
such patients were meeting their death on account of natural causes.
Today, it is accepted, a terminally ill person has a common law right to
refuse modern medical procedures and allow nature to take its own course,
as was done in good old times. It is well-settled law in all countries that a
terminally ill patient who is conscious and is competent, can take an
‘informed decision’ to die a natural death and direct that he or she be not
given medical treatment which may merely prolong life. There are currently
a large number of such patients who have reached a stage in their illness
when according to well-informed body of medical opinion, there are no
chances of recovery. But modern medicine and technology may yet enable
such patients to prolong life to no purpose and during such prolongation,
patients could go through extreme pain and suffering. Several such patients
prefer palliative care for reducing pain and suffering and do not want
medical treatment which will merely prolong life or postpone death.
The House of Lords in Airedale NHS Trust vs. Bland: 1993(1) All ER
821 (HL), the American Supreme Court in Cruzan vs. Director MDH (1990)
497 US 261, the Irish Supreme Court in Ward of Court, Re a : 1995 ILRM
401, the Court of Sessions, Inner House of Scotland in Law Hospital NHS
Trust vs. Lord Advocate: 1996 SLT 848, the Canadian Supreme Court in
Ciarlariello vs. Schater 1993(2) SCR 119 and in Rodriguez vs. The Attorney
General of Canada 1993(3) SCR 519, the Australian Courts in Q vs.
Guardianship Administrative Board & Pilgrim: 1998 V.S. (CA) and
Northridge vs. Central Sydeny Area Health Service: (2000) NSW 1241
(SC), Issac Messiha vs. South East Health: 2004. NSW (SC) 1061 and the
4
New Zealand Court in Auckland Area Health Board vs. Attorney General:
1993(1) NLLR 235, to name a few, are unanimous on the legal principles.
Incompetent patients and competent patients who have not taken informed
decision:
On the other hand, according to the same case law, in the matter of
incompetent patients and also competent patients who have not taken
informed decisions, the doctor can take a decision to withhold or withdraw
medical treatment, if that is in the ‘best interests’ of the patients and if it is
based on the opinion of a body of medical experts. A ‘competent patient’
is proposed to be defined as a patient who is not an ‘incompetent patient’.
Once the above Register is duly maintained, the doctor must inform
the patient (if he is conscious), or his or her parents or relatives before
withdrawing or withholding medical treatment.
In case the patient, parents or relatives want to move the High court
under section 14, the medical practitioner shall postpone such withholding
or withdrawal for a period of fifteen days and if he does not receive any
orders from the High Court, he may then proceed with the withholding or
withdrawal.
The doctors and experts must also act in consonance with any
guidelines prescribed by the Medical Council of India.
case. In fact, such ‘best medical practices’ laid down by Courts in the UK
and Commonwealth countries have now crystallized into various legal
principles which we have incorporated in the proposed draft Bill.
In the Bill, we made it clear that it is not necessary to move the High
Court in every case. Where the action to withhold or withdraw treatment is
taken without resort to Court, it will be deemed ‘lawful’ if the provisions of
the Act have been followed and it will be a good defence in subsequent civil
or criminal proceedings to rely on the provisions of the Act.
Confidentiality:
The Report contains vast literature, both case law and statutes of
several countries, UK, USA, Canada, Australia and its States, New Zealand,
South Africa and other countries. A special feature of the Report is that
the case law is given extensively with medical facts and the medical
decisions which have been taken, so that legislators, lawyers, judges,
doctors and all others may understand the international trends and the
uniformity in all countries in the basic principles applicable.
Yours sincerely,
INDEX
I Introductory 3-7
Chapter – I
Introductory
Hon’ble Minister for Law and Justice Sri H.R. Bhardwaj agreed that
there was need to develop some legal frame-work. The speakers included
the Chairman of the Law Commission of India and Sri S. Balakrishnan,
Senior Advocate, Supreme Court of India, Dr. Ram E. Rajagopalan,
President of the Society, Dr. R.K. Mani, President (Elect) of the Society and
Dr. Rajesh Chawla, Secretary of the Society.
support’ was accepted. But, the Commission realized soon that most of the
cases before the doctors have given rise to purely legal issues. As the
issues are legal issues, the Commission has decided to prepare a final
Report.
One of the first things that has to be taken note of is that ‘withdrawal
of life support’ to patients is totally different from Euthanasia and Assisted
Suicide.
set of facts. We hope that this method adopted by us in this Report will be
to the satisfaction of one and all.
Chapter - II
(a) Sections 107, 306 and 309 of the Indian Penal Code, 1860:
“Section 309: 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.”
In Gian Kaur, the Supreme Court made it clear that ‘Euthanasia’ and
‘Assisted Suicide’ are not lawful in India and the provisions of the Penal
21
Code 1860 get attracted to these acts. But, the question is whether there is
anything in Gian Kaur’s case upholding sections 306 and 309, which either
directly or indirectly deals with ‘withdrawal of life support’?
(A) Fortunately, in the context of sec 306 (abetment of suicide), there are
some useful remarks in Gian Kaur which touch upon the subject of
withdrawal of life support. Before the Supreme Court, in the context of an
argument dealing with ‘abetment’ of suicide, the decision of the House of
Lords in Airedale N.H.S. Trust vs. Bland 1993(1) All ER 821, was cited.
The Supreme Court referred to the distinction between withdrawing life
support and euthanasia, as follows: (p. 665).
The Supreme Court stated, after the above quotation from Airdale as
follows: (p 665)
From the above passages, it is clear that the Supreme Court accepted
the statement of law by the House of Lords in Airedale that ‘euthanasia’ is
unlawful and can be permitted only by the legislature i.e. act of killing a
patient painlessly for relieving his suffering from incurable illness. (and be
subject to appropriate supervision and control). Otherwise, it is not legal.
‘Assisted suicide’ is where a doctor is requested by a patient suffering from
24
pain and he helps the patient by medicine to put an end to his life. This is
also not permissible in law. Again, at p 661, the Supreme Court stated:
which is the concern of the State, has been stated to be not an absolute one.
In such cases also, there is a crucial distinction between cases in which (a) a
physician decides not to provide or continue to provide treatment or care
which can or may prolong his life and (b) where the physician decides, for
example, to administer a lethal drug, actively to bring an end to the patient’s
life. The former is permissible but the latter is not. Taking care of a living
patient is different from crossing the Rubicon to resort to euthanasia. (para
40 of SCC)
If these are the guidelines that can be culled out from the judgment of the
Supreme Court in Gian Kaur’s case, which expressly referred to Airedale
N.H.S. Trust vs. Bland, there is no difficulty in accepting the principles laid
down in UK and other countries as to when it would be lawful for a patient
or a doctor to direct stoppage of ventilation or artificial nutrition or other
life sustaining treatment. We shall, therefore, deal elaborately with the
principles of law laid down in UK and other countries. After referring to
the case law in other countries, we shall come back to the provisions of the
Indian Penal Code and to the tort law.
These sections of the Penal Code are also relevant and their relevancy
can be seen in the various judgments that are analysed in the following
chapters. For the present, we shall merely refer to these sections.
26
“87. Act not intended and not known to be likely to cause death or
grievous hurt, done by consent:
Section 88 deals with ‘Act done in good faith for benefit of a person
with consent’. It reads as follows:
“88. Act not intended to cause death, done by consent in good faith
for person’s benefit:
27
Section 92 deals with ‘Act done in good faith for benefit of a person
without consent’. It reads as follows:
“92. Act done in good faith for benefit of a person without consent:
Nothing is an offence by reason of any harm which it may cause to a
person for whose benefit it is done in good faith, even without that
person’s consent, if the circumstances are such that it is impossible
for that person to signify consent, or if that person is incapable of
giving consent, and has no guardian or other person in lawful charge
of him from who it is possible to obtain consent in time for the thing
to be done with benefit:
Provided-
First – That this exception shall not extend to the intentional causing
of death, or the attempting to cause death;
28
child, and intending, in good faith, the child’s benefit. Here, even if
the child is killed by the fall, A has committed no offence.
Explanation: Mere pecuniary benefit is not benefit within the
meaning of sections 88, 89 and 92.”
“81. Act likely to cause harm, but done without criminal intent, and
to prevent other harm.
Nothing is an offence merely by reason of its being done with the
knowledge that it is likely to cause harm, if it be done without any
criminal intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
Explanation: It is a question of fact in such a case whether the
harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.
Illustrations: (a) A, the captain of a steam vessel, suddenly and
without any fault or negligence on his part, finds himself in such a
position that, before he can stop his vessel, he must inevitably run
down a boat B, with twenty or thirty passengers on board, unless he
changes the course of the vessel, and that, by changing his course, he
must incur risk of running down a boat C with only two passengers
30
Chapter III
Principles of law laid down by the House of Lords in Airedale NHS Trust v.
Bland:
We shall start with the leading decision Airedale NHS Trust vs.
Bland.
Airedale NHS Trust vs. Bland: 1993(1) All ER 821: (This was an appeal by
the Official Solicitor, representing Mr. Bland).
Mr. Anthony Bland met with an accident and for three years, he was
in a condition known as ‘persistent vegetative state’ (PVS). The said
condition was the result of destruction of the cerebral cortex on account of
prolonged deprivation of oxygen and the cortex had resolved into a watery
32
mass. The cortex is that part of the brain which is the seat of cognitive
function and sensory capacity. The patient cannot see, hear or feel anything.
He cannot communicate in any way. Consciousness has departed for ever.
But the brain-stem, which controls the reflective functions of the body, in
particular the heart beat, breathing and digestion, continues to operate.
In the eyes of the medical world and of the law, a person is not
clinically dead so long as the brain-stem retains its function.
The doctors and the parents of Bland felt, after three years, that no
useful purpose would be served by continuing the artificial medical care and
that it would be appropriate to stop these measures aimed at prolonging his
existence.
33
On further appeal to the House of Lords, Lord Keith of Kinkel observed that
the object of medical treatment and care is, after all, to benefit the patient.
But it is unlawful, both under the law of torts and criminal law of battery, to
administer medical treatment to an adult, who is conscious and of sound
mind, without his consent (In re F. Mental Patient: Sterlisation) 1990 (2)
AC 1. Such a person is completely at liberty to decline to undergo
34
treatment, even if the result of his doing will be that he will die. This
extends to the situation where the person, in anticipation of his death
through one cause or another and entering into a condition such as P.V.S.,
gives clear instructions that in such event, he is not to be given medical
care, including artificial feeding, designed to keep him alive. The second
point is that it very commonly occurs that 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, under the
principle of necessity, for medical men to apply such treatment as in their
informed opinion is in the “best interests” of the unconscious patient. In In
re J (A Minor) (Wardship: Medical Treatment)(1991) Fam. 33, the Court of
Appeal held it to be lawful to withhold life saving treatment from a very
young child in circumstances where the child’s life, if saved, would be one
irredeemably racked by pain and agony. In the case of a permanently
insensate being, who if continuing to live would never experience the
slightest actual discomfort, it is difficult, if not possible, to make any
relevant comparison between continued existence and the absence of it. It
is, however, perhaps permissible to say that to an individual with no
cognitive capacity whatever, and no prospect of ever recovering any such
capacity in this world, it would be a matter of complete indifference whether
he lives or not. Lord Keith observed:
not unarguably correct, at least forms a proper basis for the decision
to discontinue treatment and care: (Bolam vs. Freirn Hospital
Management Committee 1957(1) WLR 582).
After stating that the principle of sanctity of life is important for the State,
Lord Keith said it was not absolute. He said:
Lord Keith observed that the law in other countries, and in particular in
USA was the same that such withdrawal is not treated as a criminal offence.
He said:
cases on the subject, the Courts have, with near unanimity, concluded
that it is not unlawful to discontinue medical treatment and care,
including artificial feeding of P.V.S. patients and others in similar
conditions”.
He also pointed out that, in order to protect the interests of patients, doctors
and patients families and reassurance to the public, it is permissible to seek
a declaration from the Family Division and the Court of Appeal for
permission for withdrawal of life support. This is necessary till a body of
experience and practice is built up.
“…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 development in modern medicine
and 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 Prof. Ian Kennedy’s paper entitled “Switching off
life Support Medicines: The Legal Implications”, reprinted in Treat
Me Right, Essays in Medical Law and Ethics (1988), especially at pp
351-352) ….. he is still alive…as a matter of law.
37
Lord Goff went on to further quote the following words of Lord Bingham
on informed consent:
“Why is it that a 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? Prof. Glanville Williams
has suggested (See his Textbook of Criminal Law, 2nd Ed (1983) 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.”
support in the best interests of the patient. A doctor, for example, is not, as
held by Thomas J in Auckland Area Health Authority vs. AG:1993(1)
NZLR 235 bound to perform a surgery on a cancer patient if it is likely to
result in shortening the patient’s life further. He may then lawfully
administer palliatives to reduce the pain and suffering. He said that,
therefore,
“…. I do not consider that any such test forms part of English law in
relation to incompetent adults, on whose behalf nobody has power to
give consent to medical treatment. Certainly, in In re F 1990(2) AC
1, your Lordship’s House adopted a straightforward test based on the
best interests of the patient;….”
Lord Goff finally approved Lord Bingham MR’s view that Courts could
grant declarations for stoppage of life support, in the interests of patients,
doctors and patients’ families and in the context of re-assurance to the
public.
“Given that there are limited resources available for medical care, is it
right to devote money to sustaining the lives of those who are, and
always will be, unaware of their own existence rather than to treating
those who, in a real sense, can be benefited e.g. those deprived of
dialysis for want of resources.”
“I do not accept this. Apart from the act of removing the nasogastric
tube, the mere failure to continue to do what you have previously
done, is not, in any ordinary sense, to do anything positive; on the
contrary, it is by definition an omission to do what you have
previously done.
The positive act of removing the nasogastric tube presents more
difficulty. It is undoubtedly a positive act, similar to switching off a
ventilator in the case of a patient whose life is being sustained by
artificial ventilation. But, in my judgment, in neither case should the
act be classified as positive, since to do so would be to introduce
45
“The doctor cannot owe to the patient any duty to maintain his life
where that life can only be sustained by intrusive medical care to
which the patient will not consent.”
“(In re F), both Lord Brandon of Oakbrook (at p.64) and Lord Goff
(at p.75, 77) make it clear that the right to administer invasive
medical care is wholly dependent upon such care being in the best
interests of the patient. Moreover, a doctor’s decision whether
invasive care is in the best interests of the patient falls to the assessed
by reference to the test laid down in Bolam v. Frienn Hospital
Management Committee 1957 (1) WLR 582, viz., is the decision in
accordance with a practice accepted at the time by a responsible body
of medical opinion.”
natural death and that where death in the normal course is certain,
withholding or withdrawal of life support is not an offence.
In this Chapter, we have set out the broad principles laid down by the
House of Lords in Airedale. In the next Chapter, we shall refer to other
cases decided in UK before and after Airedale.
49
Chapter IV
In as much as, from the point of view of the State, life is sacrosanct
and every effort should be made to continue life in a patient, the question
arises when a patient’s parents’ desire to stop life-support system, can be
accepted? In case there is divergence of opinion between the opinions of
the patient/parents on the one hand and that of the doctors on the other,
whether it will always be necessary for any of these or all of them to obtain
the opinion of the Court of Law? These aspects have come up for decision
in UK in several cases.
But the Court of Appeal differed on the ground that, if operated, the
child would live the normal life span of a ‘mongoloid child’ with the
handicaps/defects/life of such a child and in as much as it was not
established that a life of that description ought to be extinguished.
51
The Court of Appeal held that as the child had been made a ward of
the Court, the Court would decide what was in the “best interests” of the
child and the decision did not lie with the parents or doctors, though the
views of the parents and doctors will be kept in mind. The Trial Court erred
in going only by the wishes of the parents. The Court directed the surgery
to be conducted.
He had been ventilated twice for long periods and treatment was both
painful and hazardous. Further re-ventilation, doctors felt, would result in
his collapse. Question before the Court was whether if breathing should
stop, re-ventilation should be done or not?
patriae jurisdiction of the sovereign, was not expected to adopt any higher
or different standard than that which, viewed objectively, a reasonable and
responsible parent would have taken.
He also held that in principle, neither the Court nor the parents could
insist upon doctors that a particular treatment which the doctor found to be
not suitable, should be given to the patient. The inevitable and desired result
is that choice of treatment is in some measure a joint decision of the doctor,
and the Court or parents.
dying and no amount of medical skill or care could do more than a brief
postponement of the moment of death.
This last sentence puts it right. It is not appropriate for an external decision-
maker to apply his standards of what constitutes a liveable life and exercise
the right to impose death if that standard is not met in his estimation. The
decision can only be made in the context of the disabled person viewing the
worthwhileness or otherwise of his life in its own context as a disabled
person – and in that context, he would not compare his life with that of a
person enjoying normal advantages. He would know nothing of a normal
person’s life, having never experienced it.”
Lord Donaldson clarified that what was in issue was not a right to
impose death but a right to choose a course of action which would fail to
avert death. The choice was that of the patient, if of full age and capacity,
the choice was that of the parents or Court if, by reason of his age, the child
would not be able to make the choice and it was a choice which must be
made solely on behalf of the child and in what the Court or parents
conscientiously believe to be “in his best interests”. He held that the
Canadian Judgment should not be understood as advocating an absolutist
approach. “In real life, there are presumptions, strong presumptions and
almost overwhelming presumptions, but there are few, if any, absolutes”.
case, there were differences in the opinions of the surgeons. The Court gave
its consent for surgery as it considered it was not a case ‘demonstrably so
awful’ or ‘intolerable’. Lord Donaldson continued:
“We know that the instinct and desire for survival is very strong. We
all believe in and assert the sanctity of human life. As explained, this
formulation takes account of this and also underlines the need to
avoid looking at the problem from the point of view of the decider but
instead, requires him to look at it from the point of view of the
patient. This gives effect, as it should, to the fact that even very
severely handicapped people find a quality of life rewarding which to
the unhandicapped may seem manifestly intolerable. People have an
amazing adaptability. But in the end, there will be cases in which the
answer must be that it is not in the interests of the child to subject it to
treatment which will cause increased suffering and produce no
consummate benefit, giving the fullest possible weight to the child’s
and mankind’s desire to survive”.
Here, as regards J, the doctors were unanimous that any invasive procedure,
such as introduction of a naso-gastric tube drips which have to be given and
that constant blood sampling, would cause the child distress. Hence,
discontinuance of life-support was held valid.
In this case a baby was made a ward of Court shortly after her birth by the
local authority as it was felt that her parents would have great difficulty in
looking after her. The child was seriously brain damaged, severely
handicapped and terminally ill. The medical opinion was that only
palliative care could be given to relieve pain and suffering rather than to
achieve prolongation of life. The trial Court, which was approached by the
local authority, heard the Official Solicitor as the child’s guardian-ad-litem,
and granted leave “to treat the ward in such a way that she ended her life
peacefully with least pain, suffering and distress and that the hospital was
not required to treat any serious infection which the baby contracted nor
need it set up any intravenous feeding system for her.” The official
Solicitor appealed.
The Court of Appeal affirmed it and held that where the ward of
Court was terminally ill, the Court would authorize treatment which would
relieve the ward’s suffering during the remainder of his or her life and
would accept the opinion of the doctors that the aim was only to relieve
suffering rather than achieve a short prolongation of life. The Court could
not, however, give directives as to how the child could be treated, hence the
directions of the trial Judge not to treat for serious infections or intravenous
feeding were set aside.
Lord Donaldson referred to Re B (1981) (1) WLR 1421 (CA) above and to
the view expressed therein that the ‘best interests’ of the child are alone
relevant rather than just going by the parents’ views. He said that in Re B
(1987) (HC), it was also said that the paramount consideration was the well-
being, welfare and interests of the ward.
“not a ‘right to die’ situation where the Courts are concerned with
people who are terminally ill from incurable conditions. Rather, it is
a question whether S, has the right to receive appropriate medical and
surgical care of a relatively simple kind which will assure him the
continuation of his life, such as it is.”
59
“Courts in the United States of America have also been faced with
similar cases and the problem has been the subject of discussion at
legal conferences. Nevertheless, neither in this country nor, so far as
I know, elsewhere has the legislature attempted to lay down the
guidelines for the Courts or others faced with a problem of the type
that arises in this case”.
In this case, there is also significant remark which came from Lord
Donaldson was that in these type of cases, the name of the patient as well as
opinions of professors etc., should be kept confidential and not referred to in
the judgment of the Court. He stated:
The Court heard the application of Daily Mail and Mail on Sunday
made before the Court of Appeal to review its earlier order of 20.4.1989
restraining any person from making or causing or permitting inquiry
directed to ascertain the identity of the patients, patient’s parents, doctors,
hospital and medical advice.
The review was allowed in part. It was held that since publicity about
the medical treatment of the ward of the Court could affect the quality of
care given to her, the public interest – that is required in ensuring that the
quality of care she was receiving did not suffer - would require the Court, in
the interests of the ward, to issue an injunction prohibiting identification of
the ward, the parents or publication of information in that regard,
notwithstanding that the ward may be incapable of noticing such
identification or publicity. Moreover, such an injunction would reinforce
the duty of confidentiality owed by those caring for her. The injunction
against identifying the parents was justified in order to protect the wardship
jurisdiction since parents might refuse to make a child a ward of Court if
they thought that they might be identified and singled out for media
attention.
61
In this case, the child suffered brain damage of a serious nature, she
was spastic, both arms and hands were contracted, both legs and feet were
extended, her jaws were clenched, for otherwise she would bite inside of her
cheeks and tongue, her back-teeth had been capped to prevent the front
teeth from fully enclosing. She could not swallow, she could not speak.
She was incontinent. For 20 years she was fed through nasograstric tube. It
was painful, and was replaced by gastronomy tube in 1972 which required
administration of general anaesthetic. The tube became detached in Dec
1993, and a new tube was inserted under general anaesthesia . The ward’s
heart and lungs were functioning normally. She could not speak. She had a
62
The High Court which heard the case gave consent for such
withdrawal of nourishment by tube, whether nasogastric or the gastrostomy
tube and decided such termination lawful. It consented to the non-treatment
of infections or other pathological conditions which may effect the ward
(except palliative care to avoid pain and suffering) and declared such
treatment lawful; it authorized the mother and family to make such
arrangements as they considered suitable and appropriate for the admission
of the ward to a type of institution which was not contrary to their
philosophy and ethics and to proceed in accordance with the consensus and
declarations made (It stayed the order for 21days to enable parties to move
the Supreme Court).
The appellate Court was convinced that the ward was not fully in
Permanent Vegetative State (PVS), as she has minimal cognitive capacity.
However, after 20 years, there was no prospect of her improvement.
“It is, however, important to be clear from the outset what the case is,
and is not, about. It is not about euthanasia, if by that it meant the
taking of a positive action to cause death. It is not about putting
down the old and infirm, the mentally defective or the physically
imperfect…. The issue is 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 right, as so defined, does not include the right to have life
terminated or death accelerated, and is confined to the natural process
of dying. No person has the right to terminate or to have terminated
his or her life, or to accelerate or have accelerated his or her death.”
Hamilton CJ also stated that the right to bodily integrity, privacy and
self-determination are “unenumerated rights” but are implied by the ‘right to
life’. They are available if the patient is mentally competent and he or she
could wish the artificial treatment to be discontinued even if it would result
in death. The artificial treatment being intensive, constitutes an interference
with the integrity of her body and cannot be regarded as normal means of
nourishment. ‘A competent adult, if terminally ill, has the right to forego or
65
On this basis, the Supreme Court was satisfied to take the ‘awesome’
decision to consent to the withdrawal and termination of the abnormal
66
“This case is not about terminating a life but only to allow nature to
take its course which would have happened even a short number of
years ago and still does in places where medical technology has not
advanced so much as in this country.”
67
“Not long ago, the realms of life and death were delineated by a
bright line. Now this line is blurred by wondrous advances in medical
technology – advances that until recent years were only ideas
conceivable by such science fiction visionaries as Jules Verne and
H.G. Wells. Medical technology has entered a twilight zone of
suspended animation where death commences while life, in some
form, continues. Some patients, however, want no part of a life
sustained only by medical technology. Instead, they prefer a plan of
medical treatment that allows nature to take its course and permits
them to die in dignity.” (emphasis supplied)
(6) Law Hospital NHS Trust v. Lord Advocate (Scotland): (1996) SLT
848 = 1996 SCLR 491) (22nd March 1996) (Lord President (Hope), Lord
Clyde, Lord Cullan, Lord Milligam and Lord Wylie). (Court of Sessions,
Inner House) (Court of Five Judges)
Her husband, daughter and two brothers agreed that life-sustaining and
medical treatment should be discontinued. The patient was, however,
unable to give consent.
The present action was raised as an ordinary action by the NHS Trust,
in the Outer House and was reported to the Inner House. The declarations
sought for were similar to those in Airdale. In England where the courts
parens patriae jurisdiction was abolished, the courts innovated a procedure
whereby declarations in regard to termination of life support could be
granted. In Scotland, as the parens patriae jurisdiction remained, a
declaratory remedy was sought under the parens patriae jurisdiction. The
Lord Ordinary before whom the action came up, reported to the Inner
House, seeking that rulings be given, including a ruling about the
competency of the action.
The problems arose where the patient was not of full age or lacked
the capacity to consent to what was being proposed. The law had to decide
issues firmly rather than refer merely to moral obligations of the doctors,
because a ‘deliberate omission which causes death may also expose the
medical practitioner to the allegation that his conduct is criminal’. It was
not a sufficient reassurance for a doctor, in the present state of the law, to be
told that his proposed conduct was medically ethical. He was entitled to
know about civil or criminal liability under the law.
After holding that the Lord Ordinary had parens patriae jurisdiction in
Scotland and that a declaratory relief was sought as conceived by the
Scottish Law Commission he said that the application was maintainable
whether or not, there were objectors to such an application.
72
But, the more important issue that was raised by the Lord Advocate
was whether a virtual declaration could be sought whether a particular
proposed conduct was a crime or not in as much as that would amount to an
intrusion into the fields of criminal courts which have exclusive jurisdiction
to decide the questions (in Scotland, the High Court of Justiciary).
“Lord Goff of Chieveley (at p.862 G) and Lord Mustill (at pp.888E-
889F) expressed strong reservation about the granting of a declarator
as to criminality in a civil case. Lord Mustill pointed out that the
decision in that case would in any event not create an estoppel in the
criminal courts which would form a conclusive bar to future
prosecution. Nevertheless, they did proceed to decide the issue and
it is clear from all the speeches that their Lordship were of the view
that the conduct which was proposed would not amount to crime
according to the law of England.”
Having said that, the Lord President doubted if any declaration that
might be granted would preclude the criminal court from going into the
question. He stated:
“while a declaration can be given about the civil law in this process, it
is beyond the jurisdiction of this court to say whether the proposed
course of conduct is or is not criminal. Nevertheless, I consider that
74
In Scotland, the civil jurisdiction alone is with the Court of Sessions (which
made this reference to the Inner House while the criminal jurisdiction is
with High Court of Justiciary). He, however, says:
There are, he says, strong reasons of policy for leaving the definitions of
what amounts to ‘Criminal conduct’ to be decided by the criminal Courts.
75
For these reasons, while I consider that the Lord Ordinary may
properly grant a declaration in this case, the terms of the proposed
declaration will require to be amended to make it clear that the declaration
is given in regard to the civil consequences of the proposed conduct. Some
other solution must be found as to how the re-assurance in regard to the
criminal consequence of that conduct can be given to the pursuers and the
medical practitioner.”
The Lord President referred to the Canadian case in Mrs. E vs. Eve
1986 (2) SCR 388, as one where the parens patriae jurisdiction was held by
77
L’a Forest J (p 410) as being available for a Court under its inherent powers,
to permit non therapeutic sterilization of persons mentally incompetent,
(referred to in In re B (A Minor) (Wardship : Sterilisation): 1988 (1) AC
199 (at p 211). In Ireland, in ‘Ward of Court, In the matter of a’ (1995(2)
ILR M 401 too, the Court could hold that a Judge of the High Court could
exercise his parens patriae jurisdiction, (as exercised by the Lord
Chancellors of Ireland prior to 1922 and now vested in the President of the
High Court) to give consent on behalf of a ward in persistent vegetative
state. It is not the practice in Scotland to treat persons of unsound mind as
wards of Court.
This was a case of a mentally retarded 17 year old ward and her
ability to understand speech was that of a 6 year old child. Her mother and
staff at the Sunderland Borough Council where she lives, became aware that
the girl showing signs of sexual awareness and could become pregnant. The
Council applied to the Court for an order that B, a ward of Court, should be
allowed to undergo sterlisation compulsorily. She would panic and require
heavy sedation during normal delivery, which carried risk of injury to her.
Caesarian was deemed inappropriate. She may not care for the child as a
mother. Bush J gave leave for sterilisation.
inability even to desire or care for a child, the operation would be in the best
interests of the child.
Here the woman was 36 years old, was mentally handicapped and
unable to consent to an operation. She became pregnant. The hospital staff
considered that she would be unable to cope with the effects of pregnancy
and giving birth to a child and that, since all other forms of contraception
were unsuitable and it was considered undesirable to further her limited
freedom of movement in order to prevent sexual activity, it would be in her
best interests to be sterilised. Her mother who was of the same view moved
80
the Court for a declaration that such operation would not amount to an
unlawful act by reason of the absence of her consent. The trial Judge and
the Court of Appeal accepted that the lady be sterilised.
The House of Lords held that though the parens patriae jurisdiction
was not available because it was abolished in the case of mentally-ill
patients by statute, the Court still had inherent jurisdiction to grant a
declaration that sterilization of F in the circumstances of the case, would not
be unlawful if it was in the best interests of the patient. Though there was no
need to obtain a declaration in as much as doctors could perform the surgery
on the ground that it was in the best interests of such a patient, but in
practice the Court’s jurisdiction should be invoked whenever it was
proposed to perform such an operation, ‘since a declaration would establish,
by judicial process whether the proposed operation was in the best interests
of the patient and therefore lawful’. In determining whether the proposed
81
operation was in the best interests of the patient, the Court could apply the
established test of what would be accepted as appropriate treatment at the
time by a reasonable body of medical opinion skilled in the particular form
of treatment. At common law, a doctor can lawfully operate on or give
other treatment to adult patients who are incapable of consenting to his
doing so, provided that the operation is in the best interests of such patients.
The operation or treatment will be in their best interests only if it is carried
out in order either to save their lives or to ensure improvement or prevent
deterioration in their physical or mental health. (Lord Griffith dissented)
Among the cases considered are Bolam 1957 (2) All ER 118 Re D (a
minor)(wardship: sterilization) : (1976)(1) All ER 326, Re Eve (1986) 31
DLR (4th) 1 (Canadian Supreme Court) Re Grady (1981) 85 NJ 235 (NJ
SC); Re Jane (1988) (Australian Family Court), Marshall vs. Curry (1933) 3
DLR 260 (NS SC); Murray vs. McCarthy : 1949(2) (DLR 422 (BC, SC);
Schlocndorf vs. Society of New York Hospital (1914) 211 NY 123 (NY Ct
of Apps): & other cases of English Courts. The main judgment is by Lord
Brandon of Oakbrook and Lord Goff of Chieveley. (The judgment of the
Court of Appeal was rendered by Lord Donaldson of Lymington MR, Neill
& Butter-Sloss LJJ).
“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 assault.”
proceedings, notwithstanding that the doctor had the consent of the child’s
parents.
This Practice Note was issued by the Official Solicitor mentioning the
procedure to be followed while seeking declaratory relief. The formal of
the declaration is also given in the Practice Note.
The Note states that termination of artificial feeding and hydration for
patients in a PVS requires, virtually in all cases, sanction of High Court
Airedale and Frenchay Healthcare NHS Trust vs. S: 1994(2) All ER 403 are
quoted. (That it need not be in all cases was laid down by the Court of
Appeal, in Re Burke, (2005) EWCA (Civ) 2003)
(2) All ER 545 (HC) and Official Solicitor’s Practice Note of May 1993:
1993 (3) All ER 222. (The form of declaration to be asked is also set out
in the present Practice Direction).
It was further held that although prima facie, every adult had the right
and capacity to decide whether he or she would accept medical treatment,
even at the risk of permanent injury to health or premature death, and
regardless of whether the reasons for refusal were rational or irrational, or
were unknown or non-existent, still if an adult did not have the capacity, at
the time of the purported refusal and continued not to have that capacity, or
if his or her capacity to make a decision had been overborne by others, it
was the duty of doctors to treat him in whatever way they considered, in the
exercise of their clinical judgment, to be in his best interests.
It was held, on the facts, that the doctors had been justified in
disregarding T’s instructions and in administering blood transfusion as a
matter of necessity since the evidence showed that T had not been fit to
make a genuine decision because of her medical condition and that, in fact,
she was subjected to the undue influence of her mother, which vitiated her
decision to refuse blood transfusion. The appeal was dismissed.
(3) A patient should know in broad terms the nature and effect of the
medical procedure to which consent is given or refused. But, although
doctors are under a duty to give the patient appropriate full information as to
the nature of the treatment and the likely risks (including any special risks
attaching to the treatment being administered by particular person), failure
to perform that duty will only amount to negligence but does not as such
vitiate the consent or refusal. However, misinforming a patient, whether
innocently or not, and withholding information which is expressly or
impliedly sought by the patient, will vitiate either a consent or a refusal – (a)
If, in a potentially life-threatening situation or one in which irreparable
damage to the patient’s health can be anticipated, doctors or hospital
authorities are faced with a refusal of an adult patient to accept essential
treatment, they should both in the public and the patient’s interest, at once
88
It was held that the High Court, in exercise of its inherent jurisdiction,
could give directions by way of injunction/declaration in respect of an
individual not capable of refusing/consenting to medical treatment
(including future medical treatment). However, the question to be decided
was whether it had been established that his capacity had been so reduced
by his chronic mental illness and that he did not sufficiently understand the
nature, purpose and effects of the preferred medical treatment. That in turn
depended upon whether he had comprehended and retained information as
to the proposed treatment, had believed it and had weighed it in the balance
90
(11). Frenchay Healthcare NHS Trust v. S: 1994 (2) All ER 403 (CA)
(Sir Thomas Bingham MR, Waite and Peter Gibson LJJ) (14.1.1994)
Sir Thomas Bingham MR held that the question which the court had
to determine, in an application for permission not to continue treatment to a
PVS patient was to consider what was in the ‘best interests’ of the patient.
Though the court had power to review the medical opinion and was not
bound to accept it in all cases or circumstances placed before it did not
warrant it, the court would be reluctant to place those treating the patient in
a position of having to carry out treatment which they considered to be
contrary to the patient’s best interests unless the court had real doubt about
the reliability, bona fides or correctness of the medical opinion in question.
Airedale was applied.
the application in the same leisurely way as in the case where there is no
pressure of time. Re C:
A 25 years old plaintiff and her elder sister (the defendant) came from
a very close supportive family. The plaintiff suffered a bone marrow
disorder. Since 1984, the plaintiff had undergone extensive chemotherapy
(i.e. for 12 years). There had been recent deterioration in plaintiff’s
condition and there was a strong likelihood that her situation would
progress to acute myeloid leukemia in next three months. The only feasible
prospect was a bone marrow transplant from her sister (defendant). The
defendant was severely mentally and physically handicapped and was
incapable of giving consent to bone marrow transplant. Plaintiff sought a
declaration that two preliminary blood tests and a conventional bone
marrow harvesting operation under general anaesthetic could lawfully be
taken from the defendant, despite the fact that defendant could not give her
consent.
(1) The test in such case was whether it was in the best interests of the
defendant for the procedure to take place. The fact that the process would
benefit the plaintiff was not relevant, unless, as a result of the defendant
helping the plaintiff, the best interests of the defendant were served.
93
(2) Without any transplant, the plaintiff’s prospects for survival were
poor and her condition was deteriorating fast. If the plaintiff died, this
would have adverse effect on the mother of the parties with whom the
defendant had a closer relationship than with any other relative. In
particular, the mother’s ability to visit the defendant would be handicapped
significantly. The defendant would be harmed by the reduction in or loss
of contact to her mother.
“In each of the foregoing cases where consent to the kidney transplant
was authorized, regardless whether the authority to consent was to be
94
exercised by the court, a parent or a guardian, the key inquiry was the
presence or absence of a benefit to the potential donor.
Notwithstanding the language used by the courts in reaching their
determination that a transplant may or may not occur, the standard by
which the determination was made was, whether the transplant would
be in the best interests of the child or incompetent person.
The primary benefit to the donor in these case arises from the
relationship existing between the donor and the recipient. In Strunk,
the donor lived in a State institution. The recipient was a brother
who served as the donor’s only connection with the outside world. In
both Hart and Little, there was evidence that the sibling relationship
between the donor and the recipient was close.
“The guardian ad litem for the twins recommends that it is not in the
best interests of either Alisu or James to undergo the proposed bone
marrow harvesting procedure, in the absence of an existing close
relationship with the recipient (their half-brother) and over the
objection of their primary care taker (the mother). Because the
evidence presented supports this recommendation, we agree”.
(13). Gillick vs. West Norfolk Wisbech Area Health Authority: = 1986 AC
112: 1985(3) All ER 402 (HL): (‘Gillick Competence’)
withdrawal of life support. The test laid down in this case is known as
‘Gillick Competence’.
In this case, the plaintiff who had five daughters under the age of 16,
sought an assurance from the Local Area Health Authority that her
daughters would not be given advice and treatment on contraception
without the plaintiff’s prior knowledge and consent while they were under
16. This she did keeping in mind the circular issued by the Dept. of Health
and Social Security that, while normally a doctor should not advice use of
contraceptives to girls under 16 without consent of the parents, in
exceptional circumstances if they advised in that regard without the consent
of the parents, it may not be unlawful keeping in view the principle of
confidentiality between doctors and their clients. Initially, she approached
the local Area Health Authority but they refused to respond. She then filed
the present action. According to her, the circular amounted to advice to
doctors to commit the offence of causing or encouraging unlawful sexual
intercourse between males and girls under 16, contrary to sec 28(1) of the
Sexual Offences Act, 1956 or the abetting of it.
The learned Judge (Woolf J, as he then was) held that a doctor acting
as per the circular would not be committing any offence of causing or
encouraging unlawful sexual intercourse. The Court of appeal, however,
reversed the judgment (1985(1) All ER 533).
The House of Lords was approached by the Deptt. Of Health and the
appeal was allowed. It was held that, having regard to the reality that a
child became increasingly independent as it grew older, parental authority
97
can be recognized only as long as they were in need of the protection and
such rights yielded to the child’s right to make its own decisions when it
(or) reached a sufficient understanding and intelligence to be capable of
making up its own mind. A girl under 16 did not, merely by reason of her
age, lack legal capacity to consent to contraceptive advice and treatment by
a doctor. (Lord Templeman dissented).
Therefore, a doctor had such discretion provided the girl had reached
an age where she had a sufficient understanding and intelligence to enable
her to understand fully what was proposed, that being a question of fact in
each case. The Deptt’s circular could be followed by a doctor without
involving him in any infringement of parental rights or breach of criminal
law. (Lord Brandon and Lord Templeman dissenting).
between normal behaviour and psychosis. The local authority placed her in
an adolescent psychiatric unit where she was sedated from time to time with
her consent. This it did because the patient was behaving in a paranoid,
argumentative and hostile manner. Although she had clear intervals when
her mental illness was in recession, the prognosis was that if the medication
was not administered, she would return to her psychotic state. However, in
rational and lucid periods, when she had sufficient understanding to make
the decision, she objects to taking the drugs. In those circumstances, the
Local Authority refused to authorize the administration of drugs against her
will, while the unit was not prepared to continue to care for her unless it had
authority to administer appropriate medication to control her. The Area
Local Authority commenced wardship proceedings and applied for leave for
the unit to administer medication, including anti-psychotic drugs, whether
or not the ward consented. The question arose (i) whether the Judge had
power to override the decision of the ward who was a minor to refuse
medication and treatment irrespective of whether the minor was competent
to give her consent and (ii) whether he had the requisite capacity to accept
or refuse such medication or treatment.
holding that the Judge was right in granting the application for the unit to
administer medication irrespective of whether the ward consented.
In the body of the Judgment, it was held that if a ‘Gillick Competent’ person
consents, there can be no problem but where such person refuses, “Consent
can be given by someone else who has parental rights or responsibilities.
The failure or refusal of the ‘Gillick competent’ child is a very important
factor in the doctor’s decision whether or not to treat, but does not prevent
the necessary consent being obtained from another competent source.”
Lord Donaldson then laid down six principles, which read as follows:
(3) A ‘Gillick Competent’ child or one over the age of 16 will have
power to consent but this will be concurrent with that of a parent
or guardian.
(4) ‘Gillick Competence’ is a development concept and will not be
lost or acquired on a day-to-day or week-to-week basis. In the
case of mental disability, that disability must also be taken into
account, particularly where it is fluctuating in its effect.
(5) The Court in the exercise of its wardship or statutory jurisdiction
has power to override the decisions of a ‘Gillick Competent’ child
as much as those of parents or guardians.
(6) Waite J, was right to hold that R was not ‘Gillick Competent’ and,
even if R had been (the Judge), was right to consent to her
undergoing treatment which might involve compulsory
modification.”
There the appellant attended the clinic when she was 33 weeks
pregnant. She refused to allow blood samples to be taken because of her
102
‘fear of needles’. When she was 40 weeks pregnant, it was found that the
foetus was in the breach position. It was explained to the patient that a
normal delivery would pose serious risk of death or brain damage to the
baby. She initially gave consent in writing and so did her partner but later
she panicked on account of ‘needle phobia’ and withdrew consent. Finally
she agreed but refused to allow anaesthesia. The health authority applied to
court and the court granted leave to the gyanecologist to operate on her,
using reasonable force, if necessary.
On 18.2.97, after she finally refused at 9.00 pm, the hospital sought a
court order at 9.25 pm and Hollis J made a declaration at 9.55 pm permitting
the operation. Earlier in the day, the lady was provided with her own
lawyers. After decision of Hollis J, Mr. Francis Q.C again spoke to her and
she asked him to file an appeal. On the following morning, she signed
another consent form and co-operated fully in the operation as well as for
induction of anaesthesia. A boy child was born after the caesarian
operation. The appeal was filed – perhaps to settle the issues arising in the
case.
was believed that the adult patient lacked the capacity to decide and the
treatment was in the patient’s best interests’. The court did not have the
jurisdiction to take into account the interests of the unborn child at risk from
refusal of a competent mother to consent for medical intervention.
(3) On the facts, the evidence of the obstetrician and the consultant
psychiatrist established that the patient could not bring herself to undergo
the caesarian section she desired because a panic – fear of needles
dominated everything and, at the critical point she was not capable of
making a decision at all. On that basis, it was clear that she was at the time
suffering from an impairment of her mental functioning which disabled her
and was temporarily incompetent.
(4) Furthermore, since the mother (pregnant lady) and father wanted the
child to be born alive and the mother (the pregnant lady) was in favour of
the operation, subject only to her needle phobia, and was likely to suffer
long term damage if the child was born handicapped or dead, it must follow
that medical intervention was in the patient’s best interests, with the use of
force if necessary for it to be carried out. In these circumstances, the judge
was right in granting the declaration.
“Capacity to decide:
The right to decide one’s own fate presupposes a capacity to do so.
Every adult is presumed to have that capacity, but it is a presumption
which can be rebutted. This is not a question of the degree of
intelligence or education of the adult concerned. However, a small
minority of the population lack the necessary mental capacity due to
mental illness or retarded development (see, for example Re F
(Mental Patient) (Sterilisation) 1990 (2) AC1). This is a permanent
or at least a long term state. Others who would normally have that
capacity may be deprived of it or have it reduced by reason of
105
(a) In Tameside and Glossap Acute Services Trust v. CH: 1996 (1) 7
FLR 762, the patient was suffering from paranoid schizophrenia and was
admitted under sec. 3 of the Mental Health Act, 1893. She was found to be
pregnant and the foetus was in danger if the pregnancy continued. There
107
“… although she was not suffering from a mental disorder within the
meaning of the statute, she lacked the mental competence to make a
decision about the treatment that was proposed because she was
incapable of weighing up the considerations that were involved. She
was called upon to make that decision at a time of acute emotional
stress; and (the) physical pain in the ordinary course of labour made
108
even more difficult for her because of her own particular mental
history.”
The judge was satisfied that the operation was in her best interests
and that, in the circumstances, the court had power, at common law, to
authorize the use of reasonable force.
“The patient was in the throes of labour with all that is involved in
terms of pain and emotional stress. I concluded that a patient who
could, in those circumstances speak in terms which seemed to accept
the inevitability of her own death, was not a patient who was able
properly to weigh-up the considerations that arose so as to make any
109
valid decision, about anything of even the most trivial kind, still one
which involved her own life.”
The learned Judge held that she was incapable of weighing the
relevant treatment information in the balance and thus lacked the relevant
mental competence to make a treatment decision. He further held that it
was in her best interests to have the operation and he granted the declaration
sought by the hospital.
“I do not propose to say any more at this stage, except that I wholly
accept the evidence of Mr P as to the desperate nature of this
situation, and I grant the declaration as sought.”
(2) A competent woman who has the capacity to decide, may, for
religious reasons, (or) other reasons, (or) for rational or irrational reasons or
for no reason at all, choose not to have medical intervention, even though
the consequence may be the death or serious handicap of the child she bears,
or her own death. In that event, the courts do not have the jurisdiction to
declare medical intervention lawful and the question of her own best
interests objectively considered, does not arise.
(6) Another such influence may be panic induced by fear. Again, careful
scrutiny of the evidence is necessary because fear of an operation may be a
rational reason for refusal to undergo it. Fear may also, however, paralyse
the will and thus destroy the capacity to make a decision.
113
The learned Judge observed that the above guideline correctly reflects the
present state of the law. “The only situation in which it is lawful for the
doctors to intervene is if it is believed that the adult patient lacks the
capacity to decide.” “If the competent mother refuses to have the medical
intervention, the doctors may not lawfully do more than attempt to persuade
her. If that persuasion is unsuccessful, there are no further steps towards
medical intervention to be taken. We recognize that the effect of these
conclusions is that there will be situations in which the child may die or may
be seriously handicapped because the mother said no and the obstetrician
may not be able to take the necessary steps to avoid the death or handicap.
The mother may indeed later reject the outcome, but the alternative would
be an unwarranted invasion of the right of the woman to make the decision.
114
The problem there was, in the case two conjointed twins, whether
invasive surgery and their separation was necessary if one of them (Jodic)
could be made to live longer while it was absolutely certain that the same
surgery would leave the other one, Mary, dead. Jodic was stronger and in
fact she was supplying oxygen to Mary. The parents were not in favour of
separating them. But, if operation was not done in six months, both will
die.. The twins could not obviously decide. Johnson J granted a declaration
to the hospital to separate the twins. The twins were born on 8.8.2000.
Johnson J granted declaration on 25.8.2000. Johnson J took video-evidence
of doctors to save time. Mary was provided nutrition by tube. If separated
in six months, Mary would die but Jodic could live with a good quality of
life, with defects which could be corrected. There were several medical
reports on these issues placed before the Court. (pp 1 to 18).
1997(2) FLR 426 (439). In Re A (Male Sterilisation) 2000 (1) FLR 55, she
stated
Mary’s best welfare & best interests: As Mary would instantly die, this
question was crucial to the case. The first question was ‘what are the gains
and losses to her from the intervention. In Re F, Lord Brandson of
Oakbrook did say that “the operation or other treatment will be in her best
interests, if, but only if, it is carried out in order either to save their lives, or
to ensure improvement or prevent deterioration in their physical or mental
health”. This test does not help as Mary will die immediately after the
operation.
The Judge then sought aid from the principles laid down in Airedale.
That was a case in which termination was granted in respect of a PVS
patient. Airedale has been subjected to academic scrutiny. See:-
“(i) There was some recognition that the intention was to cause death.
(ii) Actively to bring a patient’s life to an end 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” – per Lord Goff at p. 865 F.
(iii) Withdrawal of treatment was, however, properly to be
characterized as an omission.
(iv) An omission to act would nonetheless be culpable if there was a
duty to act,
(v) There was no duty to treat if treatment was not in the best interests
of the patient.
(vi) Since there was no prospect of the treatment improving his
condition the treatment was futile and there was no interest for
Tony Bland (in Airedale) in continuing the process of artificially
feeding him upon which the prolongation of his life depends.”
Quality of life:
Proposition (iv) and (v) were taken up by Ward LJ in the context of Mary.
Would Mary’s life, if not separated from his twin, “be worth nothing to
her”? ‘Quality of life’ that would continue after surgery was treated as
relevant in Re B in 1981: 1981(1) WLR 1424 where Templeman & Dunn
LJJ referred to it. The former said the test to be adopted was
120
After referring to the above, Ward L J quoted the case decided by him in In
Re C (A Minor) (Wardship: Medical Treatment)(dt. 14.4.89) 1990 Fam 26
(on appeal see Re C: 1989(2) All ER 782, dt. 20.4.89) where he approached
the question as follows: firstly that no treatment would alter the
hopelessness of the child’s position and secondly, that in so far as he was
able to assess the quality of life “which as a test in itself raises as many
questions as it can answer”. He judged the quality of the child’s life as
demonstrably “awful and intolerable”, following Re B.
After referring to the views of academics and others and to the ‘right
to life’, Ward LJ said that he would not agree that ‘Mary’s life would be
worth nothing to her’. Her life had its own “eneliminable” value and
dignity.
Then Ward LJ took up criminal law and agreed with Brooke LJ’s
separate opinion in the same case as to why doctors could not be found fault
with on the criminal side if the twins were separated. He went into the
definition of murder, the meaning of ‘intention’, the ‘doctrine of double
effect’ (the act which produces a bad effect is nevertheless morally
permissible if the action is good in itself), killing, unlawfulness, doctrine of
necessity, policy of the law, legal duties; offending the sanctity of life
principle, and concluded (pp 41-46)
Then Ward LJ considered the Human Rights Act, 1988 (which was yet to
come into force) and the judgment of the European Commission Paton vs.
124
United Kingdom (1980)3 EHRR 408, which construed Art 2 and he stated
that the action proposed complied with that Act too.
the mother into playing a crucial part in the aftermath of the operation and
thereafter.
21) Ms. B vs. An NHS Hospital Trust: 2002 EWHC 429. (Dame
Elizabeth Butler Sloss (President of the Family Court) (d. 22.3.2002)
In that case Kenneth pleaded for his release from a life of paralysis held
intact by the ‘life sustaining properties of a respirator’.
“The fact that (a patient) periodically wavered from this posture (i.e
preferring death to his intolerable life on the ventilator) because of
severe depression or for any other reason, does not justify the
conclusion of (the hospital) and his treating physicians that his
capacity to make such a decision was impaired to the point of legal
incapacity. (Lane vs. Candura: (1997) NE (2d), 1232, 1234).”
She also referred to a similar ambivalence in the case before her, the
medical evidence of number of doctors, and concluded that Ms B was
130
competent to make all relevant decisions about her treatment including the
decision about withdrawal of artificial ventilation and granted her prayer for
withdrawal, after distinguishing St Geroge’s Health Care NHS Trust Vs J
(1999) Fam 20(63). She gave 10 guidelines on mental capacity:
ii) If mental capacity is not in issue and the patient, having been
given the relevant information and offered the available
options, chooses to refuse the treatment, that decision has to be
respected by the doctors. Considerations that the best interests
of the patient would indicate that the decision should be to
consent to treatment are irrelevant.
vii) If the hospital is faced with a dilemma which the doctors do not
know how to resolve, it must be recognized and further steps
taken as a matter of priority. Those in charge must not allow a
situation of deadlock or drift to occur.
This case related to two patients from different families, where the
patients, a boy of 18 and a girl of 16 each were suffering from a variant of
Creutzfeldt – Jakob disease. Both sets of parents wanted a particular
treatment, so far untested on human beings, be given as the patients did not
have the mental capacity to think. The patients were lying in bed totally
invalid.
“to exercise a choice in exactly the same way as would the Court or
reasonable parent in relation to a child, making due allowance, of
course, for the fact that the patient is not a child, and I am satisfied
that is what the law does in fact require.”
Best interests are not necessarily medical, they include emotional and all
other welfare issues: (Re MB – 1997(2) FLR 426).
The learned Judge then posed the question whether the high doses of
PPS have the support of a responsible body of medical opinion in UK.
After referring to Bolam test, and Sidaway (1985) AC 871 (893), that there
was a view in favour of the treatment, if any, suggested by a responsible
134
body of professionals. She analysed the risks and benefits and the best
interests. After holding that it was in their best interest and there was no
alternative treatment available and that the parents wanted it and the pain of
the surgery was to be short-lived, she permitted the PPS treatment be given
and held that it was lawful to do so.
held that it was not necessary to seek the special approval of the High Court
before the termination of a pregnancy, provided the three conditions in sec 1
of the Abortion Act were complied with. (Stephen Brown J had said the
same thing in Re GF (medical treatment) 1992(1) FLR 293) He, however,
said that this was a developing branch of law and that the Law Commission
or the Medical Ethics Committee of the British Medical Association could
go into the matter.
In this case, Dame Elizabeth Butler Sloss said that the criteria
accepted by Stephen Brown in Re GF (1992)(1) FLR 293 ought to be
cautiously interpreted and applied. In a separate judgment, Thorpe LJ said
that, if there was a case near the boundary line, the parties could approach
the Court.
It was stated that, however, after the coming into force of Human
Rights Act, 1998, questions arose as to whether Sec 1 of the Abortion Act,
137
The advent of the Human Rights Act, 1998 has enhanced the
responsibility of the Court to protect positively the welfare of these
patients, and in particular to protect the patient’s right to respect for
her private and family life under Art 8(1) of the European Convention
on Human Rights.”
138
Even so, in pregnancy cases, “where the issues of capacity and best interests
are clear and beyond doubt, an application to the Court is not necessary.”
(iii) where the procedures under Sec 1 of the Abortion Act, 1967 have
not been followed (i.e. where two medical practitioners have not
provided a certificate);
(iv) where the patient, members of her immediate family or the foetus’
father have opposed or expressed views inconsistent with a
termination of the pregnancy; or
(v) where there are other exceptional circumstances (including where
the termination may be the patient’s last chance to bear a child)”
Even if a case is filed anywhere near the boundary line of any one of
the above criteria, it should be referred to the Court, to avoid doubts, as
stated by Thorpe LJ in Re S (adult patient sterlisation) 2001 Fam 15.
Further, as stated by Wall J in Re SS: 2002 (1) FCR 73, the importance of
139
28) An NHS Hospital Trust v. S & others: (2003) EWHC 365 (Fam)
(Dame Elizabeth Butler-Sloss P) (6th March 2003):
“(1) S cannot make his own decisions as to his future medical care
since he does not have capacity to do so;
(2) I am satisfied that it is in his best interests to continue his
present haemodialysis treatment;
(3) I consider that the possibility of an AV fistula should not be
excluded after he has settled into the adult way of life;
(4) When haemodialysis is considered by the medical team caring
for him (as) no longer to be effective, I agree with the medical
evidence that he should move to peritoneal dialysis;
(5) The possibility of a kidney transplantation should not be
excluded on non-medical grounds.”
29) HE v. Hospital NHS Trust & Anor: (2003) EWHC 1017 (Justice
Munby) (7th May 2003)
In this case, the claimant, the father (HE) and his family were
Muslims, and the 2nd defendant (AE) was his daughter, aged 24 years, was
born and brought up as a Muslim. But when her parents separated, she and
her brother went to live with their mother. The mother became a Jehovah’s
Witness and her children followed suit. AE was then brought up as a
Jehovah’s Witness. AE suffered from congenital heart problem, which
required surgery when she was a child and she knew that further surgery
would be necessary when she became an adult. On 13th February 2001, she
signed a printed Advance Medical Directive/Release and her signatures
being witnessed by two Ministers of her Church, excluding, among others,
blood transfusion. In November 2002, the doctors felt that as she was a
Jehovah’s witness, she could be given surgery using erythroprotein to
stimulate blood production but on 20th November 2003, AE became ill
suddenly, and the doctors felt that surgery was necessary and some partial
amputation was also necessary on her hands, which was not possible
without blood transfusion. Her mother and brother objected in spite of
being told that there was risk of death to AE.
AE was sedated from 20th April 2003 till 2nd May, when the father
moved the present application, as her position became extremely critical.
The father stated in writing giving seven reasons why the Advance
Directive of AE should not be acted upon.
Justice Munby heard the case at 2.20 PM on 2nd May 2003 and he
read the statement of the father and the doctor’s faxed statement. The
Official Solicitor agreed to act as her litigation-friend as AE was not
conscious. The Judge consulted Kennedy and Grubb; Principles of Medical
144
Law (Ed 1998) (paras 3009 and 4.105 - 4.114) and referred to Re T (Adult:
Refusal of Treatment) 1993 Fam 95 and Re AK (Medical Treatment:
Consent) 2001 (1) FLR 129 and soon thereafter granted a declaration that it
would be lawful to give blood transfusion in spite of the Advance Directive.
On 7th May 2003, the Judge gave reasons. These are quite important.
(iii) Depending upon the lapse of time and the known changes in the
patient’s circumstances during that time, the validity of the
advance directive has to be examined. See In re T: (Adult:
Refusal of Treatment) 1993 Fam 95, Lord Donaldson MR (p 103)
where he referred to two ‘ys’ for the validity of an advance
directive or anticipatory choice. He said that there is:
146
“… a conflict between two interests, that of the patient and that of the
society in which he lives. The patient’s interest consists of his right
to self-determination – his right to live his own life, how he wishes,
even if it will damage his health or lead to his premature death.
Society’s interest is in upholding the concept that all human life is
sacred and that it should be preserved if at all possible. It is well-
established that in the ultimate, the right of the individual is
paramount. But this merely shifts the problem where the conflict
occurs and calls for a very careful examination of whether, and if so
the way in which, the individual is exercising that right. In case of
doubt, that doubt falls to be resolved in favour of the preservation of
life for if the individual is to override the public interest, he must do
so in clear terms”.
Yet another proposition laid down by Munby J was that if there was an
advance directive, none except the person who made it can revoke it and it
remains effective if the person has later become incompetent due to his
health condition. But, he cannot impose formal or other conditions upon its
revocation and they would be void as being contrary to public policy.
Hence, paragraph (2d) of the Advance Directive which reads as:
“that the Advance Directive shall remain in force and bind all those
treating me unless and until I expressly revoke it in writing”
149
This then becomes a question of fact. On that question, the burden of proof
lies in those who assert the continuing validity and applicability of the
advance directive.
“the longer the time which has elapsed since an advance directive was
made, and the greater the apparent changes in the patient’s
circumstances since then, as I have seen, there will need to be
especially close, rigorous and anxious scrutiny”
Relying on these facts, the learned Judge held that the Advance
Directive was based solely on the then religious faith of AE as a Jehovah’s
witness and once that faith ceased to influence her and she turned back to
her original Muslim faith, the basis of the Advance Directive stood knocked
down. It ceased to be ‘effective’ as stated by Donaldson MR in In re T.
Even otherwise, there is doubt as to whether the Advance Directive
continued to be valid and those doubts must be resolved in favour of
preservation of life. The best interests of AE also required blood
transfusion be given.
153
Finally, the learned Judge observed that where the facts come to the
knowledge of the hospital authorities which require urgent medical
intervention in respect of a patient, the hospital authorities and doctors
could take expeditious action in the Court, rather than leave to one of the
relatives of the patient to move the Court. (quoting Lord Donaldson in In
re T (p.115).
After holding that under the new C.P.R. (Civil Procedure Rules),
interim declarations can be given and referring to circumstances in which, in
a given case, a declaration may be too premature having regard to the
capacity of the patient at the moment or the lack of emergency, Charles J
held that, on the medical evidence before him, the lady Ms. T lacked
capacity when she signed the Advance Directive, that as in Re MB she was
unable to weigh the relevant information and competing factors. Her
position, at the present moment when she again refused, was no different.
gains’ in the balance sheet were more than the losses, as enumerated by
Thorpe LJ.
31) Doncaster & Basset Law Hospitals NHS Trust & Anor v. C: (2004)
EWHC 1657
(Sumner J) (12th July 2004)
information presented to her and then the decision may not be a true one. It
was, therefore, in her interests to administer anaesthetic for a CT scan.
This judgment, running into 224 paras (in 95 pages), reviews the
entire law on the subject. That part of the judgment which strikes down
some of the guidelines given by the General Medical Council of England as
being contrary to several Articles of the European Convention has since
been set aside by the Court of Appeal.
The learned Judge has given an index of the headings, in the opening
part of the judgment, for convenience. Of importance are the following
headings:
The case deals with Mr. Burke, aged 44 years, who suffered from
cerebellar ataxia, (a congenital brain disorder), but was mentally sound.
Food was sometimes given by artificial means (artificial nutrition and
hydration : ANH).
It was the patient who sought clarification from the Court for the
purpose of continuing the ANH and wanted guidance as to the exceptional
circumstances under which ANH could be withdrawn. He contended that
certain paras (namely paras 32, 38, 81 and 82) (as also para 13, 16, 42) of
the Guidance issued by the General Medical Council of England (2002)
(GMC) with regard to withholding or withdrawing Life Prolonging
Treatments – are inconsistent with Arts 2, 3 and 8 of the European
Convention. He referred to judicial review under the Human Rights Act,
1998 (which came into force from 2.10.2000). The guidance was issued by
the GMC under sec 35 of the Medical Act, 1983.
Report. So far as the common law principles referred to in the Judgment are
concerned, we do not propose to refer to them in as much as most of the
decisions quoted in the Judgment have already been discussed by us in this
Chapter.
(33) Portsmouth NHS Trust vs. Wyatt & Others: (2004) EWHC 2247
(Hedley J) (7th October 2004)
The child was born on 21st October 2003 at 26 weeks gestation and
weighing about 1 lb. She was placed in an incubator and had, in fact, never
left the hospital. She had severe respiratory failure requiring ventilation for
most of her first 3 months. She had pulmonary hypertension resulting in
damage to the lungs with recurrent urinary tract infection and worsening
kidney function. Her heart size was small. There was not much possibility
of brain growth. She was experiencing pain. In July 2004, she suffered
severe infection and was in ICU in Southampton Hospital. She was
assessed there and also at Portsmouth.
which covered her head with a transparent plastic box and from it she
received maximum oxygen. This method itself damaged the lungs. She
therefore required ventilation. Kidneys were deteriorating, there was no
chance of transplant. She could only have dialysis.
But here, the child had these rights but she was not able to exercise a
choice of her own. That was done usually by her parents, but here it could
be done by the Court, as to what was in her best interests. But interest
encompasses medical, emotional and all other welfare issues (Re A : 2000
(1) FLR 549 (President) and Re S: 2001 Jan 15 (Thorpe LJ). He said that
the “infinite variety of the human conditions never cease to surprise and it is
that fact that defeats any attempt to be more precise in a definition of best
interests.” He referred then to Lord Donaldson MR and Taylor LJ in Re J:
1991 Fam 33 on the balancing exercise by the Court. He stated that it
becomes necessary to find out if the condition would become ‘intolerable’
for the patient so as to require stoppage of treatment in its best interests. He
referred to Thorpe LJ in Re A: 2000(1) FLR 549 (at 560).
Hedley J then said: “Given that death is the one experience (other
than birth) that all humanity must share, no view of life that does not
include a contemplation of the place of death, even in a child, can be
complete. As a society, we fight shy of pondering in death, yet inherent in
each of us is a deep desire both for oneself and for those we love for a
‘good’ death. It seems to me, therefore, that in any consideration of best
interests in a person at risk of imminent death is that of securing a ‘good’
death. He then refers to Taylor LJ words in Re J (1991) Fam 33 as follows:
162
“….. At what point in the scale of disability and suffering ought the
Court to hold that the best interests of the child do not require further
endurance to be imposed by positive treatment to prolong its life?
Clearly, to justify withholding treatment, the circumstances would
have to be extreme…. I consider the correct approach is for the Court
to judge the quality of life the child would have to endure if given the
treatment and decide whether in all the circumstances such a life
would be so afflicted as to be intolerable to that child. I say “to that
child” because the test should not be whether the life would be
tolerable to the decider. The test must be whether the child in
question, if capable of exercising sound judgment, would consider the
life tolerable.”
This is one of the most useful judgments on the various related aspects of
the subject.
The evidence in the case was that Mr. Burke will remain competent
until the final stage of his disease. He will thus be competent to take
decisions except at the final stages of his case, when he may first lose his
ability to communicate though he will be conscious but later, he will go into
coma. During the final stages, ANH (Artificial Nutrition and Hydration)
will not be capable of prolonging his life. Mr. Burke wanted that ANH
should not be withdrawn at the earlier stages when he is able to
communicate.
The Judges of the Court of Appeal did not agree with Munby J who,
according to them, stated that patient’s view of his best interests must
prevail over the view of the doctors. However, the Court of Appeal held
that ‘best interests’ is an objective test to be applied by the doctors, while
the patient’s view is based on his right of ‘self-determination’. They said
that:
They, however, observed that the patient cannot decide about medical
best interests. They said:
So far as ANH is concerned, there is no need to look far for the duty
to provide this. Once a patient is accepted into a hospital, the medical staff
come under a positive duty at common law to care for the patient. A
fundamental aspect of this positive duty of care is a duty to take such steps
as are reasonable to keep the patient alive. Where ANH is necessary to keep
the patient alive, the duty of care will normally require the doctors to supply
ANH. This duty will not, however, override the competent patient’s wish
not to receive ANH. Where the competent patient makes it plain that he or
she wishes to be kept alive by ANH, this will not be the source of the duty
to provide it. The patient’s wish will merely underscore that duty.
(2) where the patient is not competent and it is not considered to be in the
best interests of the patient to be artificially kept alive. It is with the second
exception that the law has most difficulty. The Courts have accepted that
where life involves an extreme degree of pain, discomfort or indignity to a
patient, who is sentient but not competent and who has manifested no wish
to be kept alive, these circumstances may absolve the doctors of the positive
duty to keep the patient alive. Equally, the Courts have recognized that
there may be no duty to keep alive a patient who is in a persistent vegetative
state (PVS). In each of these examples, the facts of the individual case may
make it difficult to decide whether the duty to keep the patient alive persists.
“Art. 8 1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
The Court of Appeal, therefore, held that the doctor who is in charge of the
Mr. Burke would himself be obliged, so long as the treatment was
170
The Court of Appeal then dealt with the validity of paras 13, 16, 32,
42 and 81 of the Guidelines (hereinafter called ‘Guidance’) issued by the
GMC.
Para 13 of the Guidance deals with the right of adult patients to refuse
treatment. It has no reference to the duty of the doctor to provide ANH. It
has no bearing on the present case.
treatment, taking into account the views of the patient or those close to the
patient. Exceptionally, in an emergency where the senior clinician cannot
be contacted in time, if the doctor is appropriately experienced, a junior
hospital doctor or deputizing general practitioner may take responsibility for
making the decision but it must be discussed with the senior clinician as
soon as possible. On this, the Court of Appeal observed as follows:
Para 42 of the Guidance stated that a doctor should bear in mind that
he is bound to respect an adult patient’s refusal of treatment, made
competently, even where complying with the decision will lead to the
patient’s death. If a specific treatment is requested which, in the doctor’s
considered view is clinically inappropriate, the doctor is not legally or
ethically bound to provide it. However, he should give the patient a clear
172
explanation of the reasons for his view, and respect the patient’s request to
have a second opinion. The Court of Appeal stated:
“We understand that it is the second half of this paragraph that the
Judge considered objectionable. This could only be relevant to Mr.
Burke’s predicament if one postulates that a doctor might consider it
‘clinically inappropriate’ to keep him alive by administering ANH
despite his wishes that this should be done. We consider such a
scenario to be totally unrealistic”
“This is the only paragraph to which the Judge has taken exception
that deals expressly with ANH. The first sentence requires the doctor
to comply with the expressed wishes of a patient with capacity. No
exception can be taken to this. The remainder deals with the
approach to be taken where the patients lack capacity to decide for
themselves and their wishes cannot be determined. We cannot see
that this has any relevance to Mr. Burke’s predicament”
For the above reasons, the Court of Appeal did not consider that
insofar as the Guidance related to Mr. Burke, there was any ground for
declaring them unlawful.
(i) The right of a patient to select the treatment that he will receive;
(ii) The circumstances in which life-prolonging treatment can be
withdrawn from a patient who is incompetent;
(iii) The duty to seek the approval of Court before withdrawing life-
prolonging treatment.
174
He continued:
177
“There are tragic cases where treatment can prolong life for an
indeterminate period, but only at a cost of great suffering while life
continues. Such a case was In re J (a Minor) (Wardship: Medical
Treatment) (1991 Fam 33). There are other cases and these are much
more common, where a patient has lost competence in the final stages
of life and where ANH may prolong these final stages, but an adverse
cost so far as comfort and dignity are concerned, sometimes resulting
in the patient’s last days being spent in a hospital ward rather than at
home, with family around.
After approving the earlier part of the extract, the Court of Appeal
commented on the last two sentences as follows:
“We do not think that any objection could have been taken to this
summary had it not contained the final two sentences, which we have
179
“where the patient is dying, the goal may properly be to ease suffering
and, where appropriate, to ‘ease the passing’ rather than to achieve a
short prolongation of life”
treating the life of a disabled patient as being of less value than the
life of a patient without disability, and rightly does so”
The Court of Appeal held that even assuming that the five situations
mentioned by Munby J are cases where the Court has to be approached, the
Guidance paras 38 and 82 are not unlawful merely because they do not state
that Court sanction is required in such cases.
The Court of Appeal learnt from the Intensive Care Society (ICS) that
each year approximately 50,000 patients are admitted to ICU and out of
these 30% die in ICU or in the wards before discharge. Most of these die
because treatment is withdrawn or limited, where the treatment would have
merely prolonged the process of dying.
182
But, if Munby J’s directions for approaching Court in all the five
contingencies, were to be accepted, the ICS said that every day 10
applications have to be made to the Court and this would be impractical.
The Court of Appeal held:
“In the event, we do not consider that the Judge is right to postulate
that there is a legal duty to obtain Court approval to the withdrawal of
ANH in the circumstances that he identifies”
“We asked the Gordon to explain the nature of the duty to seek the
authorization of the Court and he was not able to give us a coherent
explanation. So far as the Criminal Law is concerned, the Court has
no power to authorize that which would otherwise be unlawful – see
for instance the observation of Lord Goff of Chievley in Bland at p.
785H. Nor can the Court render unlawful that which would
otherwise be lawful. The same is true in relation to a possible
infringement of Civil Law. In Bland, the House of Lords
recommended that, as a matter of good practice, reference should be
made to the Family Court before withdrawing ANH from a patient in
a PVS, until a body of experience and practice had built up. Plainly,
there will be occasions in which it will be advisable for a doctor to
seek the Court’s approval before withdrawing ANH in other
circumstances, but what justification is there for postulating that he
will be under a legal duty to do so”
The Court of Appeal held it was not a matter of ‘legal duty’ but only
of ‘good practice’.
184
Chapter – V
(1) Cruzan vs. Director, MDH: (1990) 497 US 261 (dated 25th June 1990)
Nancy Cruzan met with a motor accident on January 11, 1983, while
she lost control of her car, the vehicle overturned and went down Elm Road
in Jaspar County, Missouri. She has been in Mission State Hospital, in a
Persistent Vegetative State (PVS), where she only exhibits motor reflexes
but evinces no indication of significant cognitive function. The State is
bearing the cost of her care. Cruzan’s parents requested for termination of
her artificial nutrition and hydration but the hospital refused, since that
would result in her death. The State trial Court authorized termination but
the State Supreme Court refused to so authorize. While recognizing a right,
on part of a patient, to refuse treatment under common law doctrine of
informed consent, the Court questioned applicability of the said principle to
185
this case. It declined to read into the State Constitution a broad right to
privacy that would support an unrestricted right to refuse treatment and
expressed doubt if the Federal Constitution embodied such a right. The
Court then decided that the State’s Living Will statute embodied a state
policy strongly favouring the preservation of life and that Cruzan’s
statements to her housemate were unreliable for the purpose of determining
her intent. It rejected the argument that the parents were entitled to order
termination of her medical treatment. It concluded that no person can
assume that choice for an incompetent person, in the absence of the
formalities required by the Living Will Statute or in the absence of clear and
convincing evidence of the patient’s wishes.
The US Supreme Court affirmed the judgment and held that (1) the
State of Missouri was competent to require that the incompetent’s prior
wish as to withdrawal of life sustaining treatment, should be proved by
‘clear and convincing’ evidence. (Here the plea about the patient’s earlier
words, while conscious, that she did not wish to live unless at least one half
of normal life was assured by treatment, was not substantiated by clear and
convincing evidence);
(2) Most State Courts in US have based a right to refuse treatment on the
basis of the common law right to informed consent or on both that right and
a constitutional privacy right. Courts have also turned to guidance from
State statutes;
(6) The State may also decline to make judgments about the ‘quality’ of a
particular individual’s life, and simply assent an unqualified interest in the
preservation of human life to be weighed against the constitutionally
187
(7) On facts, it was held that the State Supreme Court did not commit any
constitutional error in concluding that the evidence adduced at the trial did
not amount to clear and convincing proof of Cruzan’s desire for withdrawal
of hydration and nutrition. The trial Court had not adopted a ‘clear and
convincing’ evidence standard, and Cruzan’s observation that she did not
want to live life as a ‘vegetable’ did not deal in terms with withdrawal of
medical treatment or of hydration and nutrition.
(8) The ‘Due Process’ clause does not require a State to accept the
‘substituted judgment’ of close family members in the absence of
substantial proof that their views reflect the patient’s. The US Supreme
Court’s decision upholding the State’s favoured treatment of traditional
family relationships, Michael H vs. Gerald D 491 US 110, may not be
turned into a constitutional requirement that a State must recognize the
188
Having set out the head-note as it occurs in the law report, we shall
now refer to certain other important principles laid down in the judgment
delivered by Rehinquist CJ:
cases of treatment being refused, but now during the years 1976-1988, there
have been 54 reported cases. According to Prof Tribe, in his American
Constitutional Law, (2nd ed. 1988), such a right is available under Common
Law as also under the Constitutional law. The right to self-determination
was not lost because the patient was incompetent. It would be exercised by
a ‘surrogate’ using a ‘subjective’ standard when there was clear evidence
that the incompetent person would have exercised it. Where such evidence
was lacking, an incompetent person’s right could still be invoked under the
‘objective’ and ‘best interests’ standards.
The Court said: “In sum, we conclude that a State may apply a clear
and convincing evidence standard in proceedings where a guardian seeks to
discontinue nutrition and hydration of a person diagnosed to be in a
190
persistent vegetative state. We note that many Courts which have adopted
some sort of substituted judgment procedure in situations like this, whether
they limit consideration of evidence to the prior expressed wishes of the
incompetent individual or whether they allow more general proof of what
the individual’s decision would have been, require a clear and convincing
standard of proof of such evidence.”
The parents of Cruzan would qualify for being persons who could
make the ‘substituted judgment’ if a State permitted or required such a
judgment but there is no acceptance that the view of close family members
will necessarily be the same as the patient’s would have been, had she been
confronted with the prospect of her situation while competent. The State
law required the clear and convincing evidence of the patient’s wishes
rather than confine the decision to close family members. (The case
obviously was treated as not raising surrogate rights).
sea, but may sit on the beach until submerged by the incoming tide, or
that one may not intentionally lock oneself into a cold storage locker
but may refrain from coming indoors when the temperature drops
below freezing. Even as a legislative matter, in other words, the
intelligent line does not fall between action and inaction, but between
those forms of inaction that consist of abstaining from ‘ordinary’ care
and those that consist of abstaining from ‘excessive’ or ‘heroic’
measures. Unlike action vs inaction, that is not a life to be discerned
by logic or legal analyses and we should not pretend that it is.”
“It is not surprising, therefore, that the early cases considering the
claimed right to refuse medical treatment dismissed as specious, the
nice distinction between “passively submitting to death and actively
seeking it. The distinction may be merely verbal, as it would be if an
adult sought death by starvation instead of a drug. If the State may
interrupt one mode of self-destruction, it may with equal authority
interfere with the other. John F. Kennedy Memorial Hospital vs.
Heston (1971) 58 N.J. 576; see also Application of President &
Directors of Georgetown College Inc: (1964) 118 US App. DC-80:
331 F 2d 1000. The third asserted basis of distinction – that
frustrating Nancy Cruzan’s wish to die in the present case requires
interference with her bodily integrity – is likewise inadequate,
because such interference is impermissible only if one begs the
question whether refusal to undergo the treatment on her own, is
suicide. It has always been lawful not only for the State, but even for
private citizens to interfere with bodily integrity to prevent a
felony….. That general rule has of course been applied to suicide. At
Common Law, even a private person’s use of force to prevent suicide
193
Scalia J then deals with the dissent by Brennan & Stevens JJ and says:
“… the State has no such legitimate interest that could outweigh ‘the
person’s choice to put an end to her life”.….. the State must accede to
her ‘particularized and intense interest in self-determination in her
choice whether to continue living or die.” For, insofar as balancing
the relative interests of the State and the individual is concerned,
there is nothing distinctive about accepting death through the refusal
of ‘medical treatment”, as opposed to accepting it through the refusal
of food, or through the failure to shut off the engine and get out of the
car after parking in one’s garage after work. Suppose that Nancy
Cruzan were in precisely the condition she is in today, except that she
could be fed and digest food and water without artificial assistance,
how is the State’s interest in keeping her alive thereby increased or
her interest in deciding whether she wants to continue living
reduced?” (emphasis supplied)
194
He stated that he could not agree with Brennan & Stevens that a person
could make the choice of death. That view the State has not yet taken. The
Constitution does not say anything on the subject.
declaration that the ban was, on its face, unconstitutional. They assert a
liberty interest protected by the 14th Amendment’s Due Process Clause
which extends to a personal choice by a mentally competent, terminally ill
adult to commit suicide by medical assistance. The trial and first appellate
Courts held the ban was unconstitutional.
Allowing the appeal (see Head Note), the Supreme Court held that the
Washington law against ‘causing’ or ‘aiding’ suicide was not violative of
the Due Process Clause. For over 700 years, assisted suicide had remained
prohibited under Anglo American Common Law and it has been a crime in
almost every State. The President had, in fact, signed the Federal Assisted
Suicide Funding Restriction Act, 1997 which prohibits the use of federal
funds in support of physician assisted suicide. The right to assist suicide is
not a fundamental liberty interest protected by Due Process Clause, in the
light of history. The substantive due process has two features – firstly, it
protects those fundamental rights and liberties which have been, objectively
considered to be deeply rooted in the American history and tradition.
Secondly, the Court has required a ‘careful description’ of the asserted
fundamental interest. The right to assist suicide claimed by the respondents
runs counter to the second requirement. This asserted right has no place in
the traditions of US, even for terminally ill, mentally competent adults. The
contention that the asserted interest is consistent with the Court’s
substantive due process cases, - if not the Country’s history and practice – is
not persuasive. On the other hand, the constitutionally protected right to
refuse treatment by use of lifesaving hydration and nutrition that was
discussed in Cruzan was not simply deduced from abstract concepts of
personal autonomy, but was, in fact, based on the country’s history and
tradition, given the Common Law rule that forced medication was a battery
196
and the long traditions protecting the decision to refuse unwanted medical
treatment. Although, Planned Parenthood vs. Casey (1992) 505 US 833
recognised that many of the rights and liberties protected by the Due
Process Clause sound in personal autonomy, it does not follow that any and
all important, intimate and personal decisions are so protected (see A San
Antonio Independent School District vs. Rodriguez: (1973) 411 US 1. The
ban is rationally related to legitimate government interests in prohibiting
intentional killing and preserving human life; preventing the serious public
health problem of suicide, especially among the young and elderly and those
suffering from unrelated pain or depression or other mental disorders, for
protecting the medical profession’s integrity and ethics and maintaining
physician’s role as healers of patients, protecting the terminally ill and
vulnerable groups and for avoiding a possible slide towards voluntary and
perhaps even involuntary euthanasia.
In the main opinion delivered by Rehnquist CJ, it was stated that the
majority of States in US have laws imposing criminal penalties on those
who assist suicide. In fact, over a period of 700 years, the Anglo American
Common Law punished or disapproved suicide and assisted suicide.
“Because of advances in medicine and technology, Americans today are
increasingly likely to die in institutions, from chronic illness….Public
concern and democratic action are therefore sharply focused on how best to
protect dignity and independence at the end of life, with the result that there
have been many significant changes in State laws and in the attitudes these
laws reflect. Many States, for example, now permit ‘living wills’, surrogate
health-care decision making, and the withdrawal or refusal of life sustaining
medical treatment. …At the same time, however, voters and legislators
197
continue for the most part to re-affirm their States ‘prohibitions on assisting
suicide.”
and that
(Washington Laws, Ch. 112, sec 8(1)). The Washington statute at issue in
this case, i.e. banning assisted suicide is in the Washington Rev Code see
9A.36.060 1994) (see Wash Rev Code ss 70.112.070(1), 70.122.100)(1994).
(However, Oregan enacted in 1994 a Death With Dignity Act, which
legalized physicians assisted suicide for competent, terminally ill adults.
See Oregan Rev Stet. MC 127.8N. The Act was upheld in Lee vs. Oregan:
107 F.3d 1382 (A 9, 1997). Iowa and Rhode Island too rejected assisted
suicide (1997). President Clinton signed the Federal Assisted Suicide
Funding Restrictive Act 1997 which prohibits the use of federal funds in
support of physician assisted suicide. (Pub. L. 105-12, 111 Stat 23 codified
at 42 USC para 14401 etc)”.
by the Due Process Clause ‘includes a right to commit suicide which itself
includes a right to assistance in doing so’.
In Cruzan, it was only stated that at common law there was the right
to refuse medical treatment in the absence of which such medical intrusion
would be ‘battery’. Informed consent is necessary for medical treatment.
The Court there said that ‘the principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted medical
treatment’. The Court assumed that the US Constitution would grant a
competent person a constitutionally protected right to refuse life-saving
hydration and nutrition’. The Court concluded that, notwithstanding that
right, the Constitution permitted Missouri State to require a clear and
convincing evidence of an incompetent patient’s wishes concerning
withdrawal of life sustaining treatment. Rehnquist CJ said
Though the Due Process protection for abortion in certain situations and
personal decisions regarding marriage, contraception, family relationships,
child rearing, education etc. were based on a right to personal autonomy, it
‘does not warrant the sweeping conclusion that any and all important,
intimate and personal decisions are so protected. “The history of the law’s
treatment of assisted suicide in this country has been and continues to be
one of the rejection of nearly all efforts to permit it. That being the case,
our decisions lead us to conclude that the assisted ‘right’ to assistance in
committing suicide is not a fundamental liberty interest protected by the
Due process clause. The Constitution also requires, however, that
Washington’s assisted suicide ban be rationally related to legitimate
government interests…. This requirement is unquestionably met here. As
the Court below recognized, Washington’s assisted suicide ban implicates a
number of state interests. First, Washington has an ‘unqualified interest in
the preservation of human life. The State’s prohibition on assisted suicide,
like all homicide laws, both reflects and advances its commitment to this
interest… This interest is symbolic and aspirational as well as practical…
The State has an interest in preventing suicide…. Research indicates,
however, that many people who request physician assisted suicide withdraw
that request if their depression or pain are treated…”
200
Rehnquist CJ also pointed out that the State has an interest in protecting the
integrity and ethics of the medical profession and physician’s groups and
concluded that ‘physician assisted suicide is fundamentally incompatible
with the physician’s role as healer’. And physician assisted suicide could
undermine the trust that is essential to the doctor patient relationship, by
blurring the time-honoured line between healing and harming.
The State may fear that permitting assisted suicide will start it down
the path to voluntary and perhaps even involuntary euthanasia. The Court
of Appeal, no doubt, struck down the ban in so far as it applied to
“competent, terminally ill adults who wish to hasten their deaths by
obtaining medication prescribed by their doctors. But the Washington law
rightly insists that if the protection is a matter of constitutional right, it must
apply to all persons. But, if in the process of physician assisted suicide, the
family members and loved ones will inevitably participate, then it could
201
prove extremely difficult to police and contain. The Act prevents such
erosion.”
(We are not referring to the reasons given in the other concurring opinions
in this case.)
3) Vacco, Attorney General of New York et al vs. Quill et al: (1997) 117
SCt 2293.
This case refers to the validity of the New York’s statute prohibiting
assisted suicide and as to how its validity was upheld after rejecting the plea
that the Act violated the Equal Protection Clause.
The main opinion was given by Rehnquist CJ, with whom O’Connor,
Scalia, Kennedy and Thomas joined. O’Connor filed a concurring opinion
202
The New York statute prohibits assisted suicide. (N.Y. Penal Law,
sec. 125.19). Section 120.30 makes it an offence if a person intentionally
causes or aids a person to attempt suicide. Promoting suicide attempt is a E
class felony. However, N.Y. law permits refusal of medical treatment, even
if the withdrawal of such treatment will result in death. N.Y. Public Health
Law Art 29-B.
This plea was not accepted by the US Supreme Court. The Equal
Protection Clause states that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws’. This provision creates no
substantive rights. It embodies a general rule that the State must treat like
cases alike but may however, treat unlike cases differently. Everyone,
regardless of physical condition is entitled, if competent, to refuse unwanted
life-saving medical treatment, but no one is permitted to assist a suicide.
The “distinction between assisted suicide and withdrawing life-sustaining
treatment, a distinction widely recognized and endorsed in the medical
profession and in our legal traditions, is both important and logical. It is
certainly rational’. ‘The distinction comports with fundamental legal
principles of causation and intent. First, when a patient refuses life-
203
The Court then said that the New York State enacted the current
assisted suicide statutes in 1965 prohibiting assisted suicide. Since then,
New York has acted several times to protect patient’s common law-rights to
refuse treatment. Act of Aug 7, 1987, Ch 818, ss. 1,; 1987 NY Laws 3140
(‘Do not Resuscitate Orders’)(Codified as amended at NY Pub Health Law,
see 2960-2979 (McKinney 1994 U Supp. 1997); Act of July 22, 1990, Ch
752, sec 2, 1990 NY Law, 3547 (Health Care Agents and Proxies)(Codified
as amended NY Pub. Health Law, paras 2980-2994 (McKinney 1994 &
205
Suppl 1997). In so doing, however, the State has neither endorsed a general
right to ‘hasten death’ nor approved physician assisted suicide. Quite the
opposite: The State has reaffirmed the line between ‘killing’ and ‘letting
die’. See NY Pub. Health Law Art 2989 (3)(McKinney 1994) (“This article
is not intended to permit or promote suicide, assisted suicide or euthanasia”)
…. More recently the New York Task Force on ‘life and the law’, studied
assisted suicide and euthanasia and, in 1994, unanimously recommended
against legalization…. In the Task Force’s view, ‘allowing decisions to
forego life sustaining treatment and allowing assisted suicide or euthanasia
have radically different consequences and meanings for public policy.”
The Court declared that they were disagreeing with the respondent’s
claim that the distinction between refusing life saving medical treatment and
assisted suicide is ‘arbitrary’ and ‘irrational’. Granted, in some cases, the
line between the two may not be clear, but certainly is not required, even if
it were possible. Logic and contemporary practice support New York’s
judgment that the two acts are different and New York may therefore,
consistent with the Constitution, treat them differently. By permitting
everyone to refuse unwanted medical treatment while prohibiting anyone
from assisting a suicide, New York law follows a long standing and rational
distinction.
For the above reasons, the Supreme Court reversed the Court of
Appeal and upheld the New York ban against assisted suicide.
The Supreme Court, in this case, upheld the Oregon law of 1994 on
assisted suicide not on merits but on the question of non-repugnancy with
Federal Law of 1970.
The Oregon Death With Dignity Act, 1994 exempts from civil or
criminal liability state-licensed physicians who, in compliance with the said
Act’s specific safeguards, dispense or prescribe a lethal dose of drugs upon
the request of a terminally ill-patient. In 2001, the Attorney General of US
issued an Interpretative Rule to address the implementation and
enforcement of the Controlled Substances Act, 1970 with respect to the
Oregon Act of 1994, declaring that using controlled substances to ‘assist
suicide’ is not a legitimate medical practice and that dispensing or
prescribing them for this purpose is unlawful under the 1970 Act.
Some Legislations in US
(1) The Patient Self Determination Act, 1990: (42 USC 1395 cc(a))
Under sec. 1902(2)(w)(1) of the Act (see sec 1902), the above
institutions have:
(2) National Pain Care Policy Act, 2005 (US) (introduced in House
(Federal)
Section 2 states that not later than 30.6.2006, the President shall
convene a conference to be known as the ‘White House Conference on Pain
Care) – The purpose of the Conference shall be to
(2) assess the adequacy of diagnosis and treatment for primary and
secondary pain including acute, chronic, intractable and end-of-
life pain;
212
(C) gaps in basic and clinical research on the symptoms and causes
of, and potential treatments to improve, pain care; and
(D) establish an agenda for action in both public and private sectors
that will reduce such barriers and significantly improve the
state of pain-care research, education and clinical care in US by
2010.
(B) States in US
California
(4) How much treatment would I want if there were little chance of
recovery from a serious side-effect?
Some other issues which one should think in making decisions on treatment
are:
(8) Dependency
216
Some suggestions which patients may give to their family or friends are as
follows:
(3) I do not want treatment that might postpone death but probably
would not restore me to a quality of life that I find acceptable.
(4) I do/do not want a treatment if there is some small, remote chance
that it might help me.
If one does not want to approve another to make decisions for him, he
can sign a National Death Act Declaration to direct that life-saving measure
may not be used if certain situations arise.
South Carolina:
(http://www.state.sc.us/dmh/804-97.htm)
Chapter –VI
In this chapter, we shall refer to the case law and connected statutes
on the subject of withholding or withdrawing medical treatment to
terminally ill patients in Canada, Australia, New Zealand and South Africa.
Canada
In this case, a 57 years old woman who was seriously injured in a car
accident was taken to the hospital and she was unconscious. A nurse
discovered in the woman’s handbag, a card signed by the woman
identifying her as a Jehovah’s Witness and requesting that no blood-
transfusions be given to her under any circumstances, that she fully realized
the implications of that position but did not object to the case of non-blood
alternatives.
The doctor was informed of the contents of the card but he personally
administered blood transfusion to the woman as he was of the opinion that it
was necessary to replace the blood that was lost and her life had to be saved.
The woman made ‘a very good recovery from her injuries’. She was
discharged from hospital after 6 weeks. She then sued the doctor for
negligence, assault, battery and religious discrimination.
221
The trial judge Donnelly J accepted the plea of battery only and
awarded damages of $20,000. This was affirmed by the Court of Appeal.
The case demonstrates that doctors must respect their patient’s wishes
provided that the patients were in a fit state to make it plain or indicate in
advance as to what treatment they do not want. Doctors cannot substitute
their decision from a validly made decision of the patient.
(2) Nancy B vs. Hotel-Dieu de Quebec: (1992) 86 DLR (4th) 385 = 1992
DLR Lexis 1762 decided by the Quebec Supreme Court. (Dufour J)
The plaintiff, aged 25, suffered for two and a half years from Guillian –
Barre Syndrome, an incurable neurological disorder that left her incapable
of movement. She could breathe only with the assistance of a respirator.
With it, of course, she could live a longer time, but without it, her life would
be shorter. Her intellectual capacity and mental competence were
unaffected. She wanted discontinuance of the treatment. To establish her
right to refuse further treatment, (including the continued use of the
respirator), she commenced an action for an injunction against the hospital
and as also her physician to require them to comply with her decision for
stopping the respiratory support. The hospital entered appearance but did
not contest her claim. Her physician did not appear. The Judge, of his own
motion, made the Attorney General of Quebec a party. All other parties
were represented at the hearing.
The Court held that the plaintiff was entitled to the injunction.
Permission should be given to her physician to cease treatment with the
222
The Court referred to the Articles of Civil Code and certain sections
of the Criminal Code.
Civil Code:
Art 18 of the Civil Code states that ‘every human being possesses
juridical personality. Whether citizen or alien, he has the full enjoyment of
civil rights, except as otherwise expressly provided by law’. Art 19 states
that the ‘human person is inviolable and no one may cause harm to the
person of another, without his consent or without being authorized by law to
do so. Art 19.1 states that ‘no person may be made to undergo care of any
nature, whether for examination, specimen taking, removal of tissue,
treatment or any other act, except with his consent. Where the person
concerned is unable to consent to or refuse care, a person authorized by law
or by mandate shall replace him. (Art 19.1 was added on 22nd June, 1989).
Even before Art 19.1 was inserted, one could infer from sec 42 of the
Public Health Protection Act, 1977 (RSQ 1977C p.35) that an institution or
a physician had to obtain the consent of the person whose life was in
danger, before providing care or treatment.
In Art 19.1 of the Civil Code, the legislature has made no distinction
between beneficial and non-beneficial care.
After referring to these provisions, the Judge in Nancy said that using
a respirator was part of ‘medical treatment’. Putting a person on a respirator
and constantly keeping her on it without her consent, surely constitutes
intrusion and interference which violates the person of Nancy B. She can
require the respiratory system to be removed.
The Judge referred to sec 217 of the Criminal Code, which says:
It should not be forgotten that sec 217 follows sec 216 which reads:
Section 217 which comes immediately after sec. 216 cannot be read
independently of sec 216 which requires that a physician act with
reasonable knowledge, skill and care when he undertakes to administer
surgical or medical treatment to another person or does any other lawful act
that may endanger the life of another person, sec 217 logically follows from
sec 216.
One must read sec 217 in conjunction with sec 45 and 219 of the
same Code:
In the above section 219, the notion of conduct which shows wanton or
reckless disregard is introduced.
The Judge asked the question: ‘Can the conduct of a physician who
stops the respiratory support treatment of his patient – at the freely given
and informed request of the patient, and so that nature may take its course,
be characterized as unreasonable? Or does conduct denote wanton and
reckless disregard?’
He then referred to ss 222 to 241 of the Criminal Code which deals with a
different form of homicide and he stated that what he had just reviewed was
sufficient to conclude that the person who would have to stop Nancy B’s
respiratory support treatment in order to allow nature to take its course,
would not in any manner commit the crimes prohibited by these sections.
The same applied to sec 241, aiding suicide.
He adds, however, that homicide and suicide are not natural deaths,
whereas in the present case, if the plaintiff’s death takes place after the
respiratory support treatment is stopped at her request, it could be the result
of nature taking its own course.
This is a judgment of the Canadian Supreme Court and deals with the
validity of consent given by patients during the course of the treatment.
complete. Dr. Keller, administered the final injection. The patient suffered
an immediate reaction to the injection of the dye which rendered her a
quadriplegic. Dr. Keller testified that such a reaction was extremely rare
and that never before or since, had she seen such a reaction.
The point in issue was the nature and extent of the duty of disclosure
owed by a doctor to a patient where the patient withdraws the consent given
to a medical procedure during the course of that procedure.
It was held by Cory J, speaking for the Canadian Supreme Court, that
there was a sound factual basis for concluding that the patient consented to
the continuation of the angiogram and that she was giving consent to
continuing the procedure. There was neither fraud nor misinformation in
obtaining her consent. The procedure was the one anticipated and was
identical to one performed a week earlier.
they are apparently clear, the circumstances under which they are spoken
may render them ambiguous. On some occasions, the doctors conducting
the process may reasonably take the words spoken by the patient to be an
expression of pain rather than a withdrawal of consent.
The doctor must bear the burden of showing that the patient
understood the explanation and instructions, given. The conclusion that the
patient here understood and had given valid consent to continue the
procedure, notwithstanding the absence of an interpreter, could be drawn
from her demonstrated ability to comprehend the language adequately.
There was complete and proper disclosure made by the respondents of all
the risk involved in the procedure. The appellant’s action in negligence
must fail.
On facts, it was held that the patient consented to both the angiograms
and to the continuation of the second one. There was no fraud in
representation. The action must fail.
The appellant in the case was 42 years old and was suffering from
amyotrophic lateral sclerosis. Her condition was rapidly deteriorating and
she would soon loose her ability to swallow, speak, walk and move her
body without assistance. Thereafter she will lose the capacity to breathe
without a respirator, to eat without a gastronomy and will eventually
become confined to bed. Her life expectancy was between 2 to 14 months.
The appellant did not wish to die so long as she still had the capacity
to enjoy life, but wished that a qualified physician be allowed to set up
233
technological means by which she might, when she will be no longer able to
enjoy life, by her own hand, at the time of her choosing, end her life. She
wanted to be assisted in suicide.
Sec. 241 of the Criminal Code (RSC 1985, c. C-46) reads as follows:
Article 7: Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.
Article 12: Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
Article 15 (1): Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law
without dissemination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.”
It was argued that for the terminally ill, the choice was one of time
and the manner of death rather than death itself since the latter was
inevitable. Sopinka J disagreed stating that “it is one of choosing death
instead of allowing natural forces to run their course. The time and precise
manner of death remains unknown until death actually occurs. There can be
no certainty in forecasting the precise circumstances of death. Death is, for
all mortals, inevitable. Even when death appears imminent, seeking to
control the manner and timing of one’s death constitutes a conscious choice
of death over life. It follows that life, as a value, is engaged even in the case
of the terminally ill who seek to choose death over life. Indeed, it has been
abundantly pointed out that such persons are particularly vulnerable as to
their life and will to live and great concern has been expressed as to their
adequate protection, ….”
236
The Canadian case law leads to the conclusion that state interference
with bodily integrity and serious state-imposed psychological stress, at least
in the criminal law context, constitute a breach of the security of the person.
But does this lead to any deprivation thereof that is not in accordance
with the principles of fundamental justice?
238
“Although these notions have taken hold in the courts, the judiciary’s
silence regarding such constitutional principles probably reflects a
concern that, once recognized, rights to die might be uncontainable
and might prove susceptible to grave abuse, more than it suggests that
courts cannot be persuaded that self-determination and personhood
may include a right to dictate the circumstances under which life is to
be ended. In any event, whatever the reason for the absence in the
courts of expansive notions about self-determination, the resulting
deference to legislatures may prove wise in light of complex character
of the right at stake and the significant potential that, without careful
statutory guidelines and gradually evolved procedural controls,
legalizing euthanasia, rather then respecting people, may endanger
personhood.”
The learned Judge also stated that in this case, it is not disputed that, in
general, sec 241(b) is valid and is a desirable legislation which fulfils the
239
“So far as the contrary school of thought is concerned, there has been
no consensus, the Roman Stoics supporting suicide (Velasquez at p 40)
while Chancellor Francis Bacon preferred leaving to the doctors the duty of
lessening or even ending, the suffering of their patients (L. Depaule, ‘Le
Droit a la mort: rapport juridique’, (1974), 7 Human Rights Journal 464 at p
467).”
offence of assisting suicide on the same lines as sec 241 of the Criminal
Code, 1985. Attempted suicide as an offence as per sec 238 of the original
Code until its repeal by statute SO in 1972 (C 13, sec 16). But the fact of
decriminalization of ‘attempted suicide’ has no bearing on protection of
assisted suicide.
Sopinka J then quoted from Lord Goff’s judgment at pp 368-369 and said:
Sopinka J continued:
“First of all, the prohibition in (sec 241) is not restricted solely to the
case of the terminally ill-patient, for whom we can only have
sympathy, or solely to his physician or a member of his family who
helps to put an end to his suffering. The section is more general and
applies to a variety of situations for which it is much more difficult to
feel sympathy….. To decriminalise completely the act of aiding,
abetting or counseling suicide would therefore not be a valid
legislative policy. But could it be in the case of the terminally ill?
In its Working Paper (28) earlier referred to, the Law Reforms Commission
had originally recommended that the consent of the Attorney General
should be required before prosecution could be brought under sec 241(b).
245
Sopinka J stated, that, therefore, while both the House of Lords and the Law
Reform Commission of Canada have great sympathy for the plight of those
who wish to end their lives so as to avoid significant suffering, neither has
been prepared to recognise that the active assistance of a third party in
carrying out this desire should be condoned, even for the terminally ill. The
basis of this refusal is twofold, it seems – first, the active participation by
one individual in the death of another is intrinsically morally and legally
wrong, and second, there is no uncertainty that abuses can be prevented by
anything less than a complete prohibition. Creating an exception for the
terminally ill might frustrate the purpose of the legislation of protecting the
vulnerable because adequate guidelines to control abuse are difficult or
impossible to develop.”
scrutiny for its impact on human rights prior to the present case. In
Application No 10083/82, R vs. UK, (4th July, 1983)(D.R. 33, at p 270), the
European Commission of Human Rights considered whether sec 2 of the
Suicide Act, violated either the right of privacy in Art 8 or freedom of
expression in Art 10 of the Convention for the Protection of Human Rights
and Fundamental Freedoms. The applicant, who was a member of a
voluntary euthanasia organisation, had been convicted on several counts of
conspiracy to aid and abet suicide for his actions in placing persons with a
desire to kill themselves in touch with his co-accused who then assisted
them in committing suicide. The European Commission held (at pp 271-
272) that the acts of aiding, abetting, counselling or procuring suicide were
‘excluded from the concept of privacy by virtue of their trespass on the
public interest of protecting life, as reflected in the criminal provisions of
the 1961 Act’, and upheld the applicant’s conviction for the offence.
Further, the Commission upheld the restriction on the applicant’s freedom
of expression, recognizing (at p 272).
Although the factual scenario in that decision was somewhat different from
the one at bar in (Canada), it is significant that neither the European
Commission of Human Rights nor any other judicial tribunal has ever held
247
The fact that doctors may deliver palliative care to terminally ill
patients without fear of sanction, it is argued, attenuates to an even
greater degree any legitimate distinction which can be drawn between
assisted suicide and what are currently acceptable forms of medical
treatment. The administration of drugs designed for pain control in
dosages which the physician knows will hasten death constitutes
active contribution to death by any standard. However, the
distinction drawn here is one based on intention – in the case of
palliative care, the intention is to ease pain, which has the effect of
hastening death, while in the case of assisted suicide, the intention is
undeniably to cause death. The Law Reform Commission, although it
recommended the continued criminal prohibition of both euthanasia
and assisted suicide, stated, at p 70 of the Working Paper, that a
doctor should never refuse palliative care to a terminally ill person
only because it may hasten death. In my view, distinctions based
upon intent are important, and, in fact, form the basis of our criminal
law. While factually, the distinction may, at times, be difficult to
draw, legally it is clear. The fact that in some cases, the third party
will, under the guise of palliative care commit euthanasia or assist in
suicide and go unsanctioned due to the difficulty of proof, cannot be
said to render the existence of the prohibition fundamentally unjust.”
252
(6) The office of the Public Guardian & Trustee should clarify its
policy on circumstances in which it considers it has jurisdiction to
consent or refuse consent to ‘Do Not Resuscitate Orders (DNR),
bearing in mind that a plan of treatment can legitimately provide
for ‘the withdrawing or withdrawal of treatment in the light of the
person’s current health condition’. (Health Care Consent Act
1996, sec 2(1) being Schedule to the Advocacy, Consent and
Substitute Decisions Statute Law Amendment Act, 1996, S.O.
1996 C. 2). This may require making decisions in advance of an
255
(7) Education and training about pain management and control should
be expanded and improved for health care professionals. This
should include a clear statement that properly managing the
patient’s pain (subject to the limits of what can currently be
achieved), is a duty owed to the patient and one of the standards of
practice of the profession. Professional guidelines should be
amended to reflect this position as well.
(11) It is essential that needed health and social services are adequately
supported by government. A broad based approach should be
adopted in identifying determinants of health. Regardless of
256
Australia
that remained was the Natural Death Act, 1988 which permits a person to
make a direction that he or she does not wish to have ‘extraordinary
measures’ used if he or she is suffering from a terminal illness. The Act
does not provide for the appointment of medical powers of attorney.
In 1993, the NSW Health Deptt. issued guidelines called ‘Dying with
Dignity : Interim Guidelines on Management’. In November 2000, it gave
the “Dying with Dignity : Revised draft guidelines for clinical decision-
making at the end of life, Discussion Document.” See also, NSW Health
Dept, Patient, Patient Information and Consent to Medical Treatment
(Circular No. 99/10).
(b) If the patient cannot take part in the decisions, then his or
her advocate should be involved.
The Northern Territory Act 1988 is virtually identical with the South
Australia Act, 1995. It does not provide for ‘agents’.
Only South Australia has statutory provisions that classify the law on
the issue. The provisions reflect the English legal rules and the primary
initiative of the doctor to relieve pain. Sec. 17(1) of the Consent to
Medical Treatment and Palliative Care Act, 1995 (SA) applies to the
situation where a doctor or other health care professionals, acting under a
doctor’s supervision, administers medical treatment ‘with the intention of
relieving pain or distress’, even though ‘an incidental effect of the treatment
is to hasten the death of the patient’. This section provides that the doctor
or other healthcare professional will incur no civil or criminal liability in
this situation provided he or she acts:
(a) with the consent of the patient or the patient’s representative; and
In Victoria, the Medical Treatment Act, 1988 (Vic) provides that its
operation ‘does not affect any right, power or duty which a medical
practitioner or any other person has in relation to palliative care’. The
definition of ‘palliative care’ includes ‘the provision of reasonable medical
procedures for the relief of pain, suffering and discomfort’. The Victorian
law does not expressly provide for immunity from civil or criminal law.
The Natural Death Act, 1988 (NT) is also unhelpful in not providing
immunity. It provides that its operation ‘does not affect the legal
consequences (if any) of taking therapeutic measures (not being
265
Queensland passed the Criminal Code Act 1995 (Qld) which provides
in sec. 82 that a person is absolved from criminal responsibility for
providing ‘medical treatment’ (defined as including pain relief) when it is
provided ‘in good faith and with reasonable care and skill’ for the patient’s
benefit and is ‘reasonable, having regard to the patient’s state at the time of
and all the circumstances’. The section is loosely worded and may
authorize ‘shorter life’ in circumstances not fully within the ‘exceptions’
stated in English law. Further, the words ‘doctor or any other person’ can
create problems.
But her husband, Mr. Q moved the Board for appointment of a Public
Guardian. Persons can be placed under ‘limited guardianship’ when they
suffer disability and are not capable of reasonable judgment (sec 33 of the
Guardianship & Administrative Board Act, 1986).
The Board was not shown the advance directive but was shown an
earlier ‘enduring power of attorney’ which was not in accordance with the
MTA. It was not told why Mrs. Q refused blood transfusion. It was shown
a consent form executed in hospital but that was limited to administering
blood during anaesthesia. They appointed a Public Advocate as temporary
guardian and made orders delegating the temporary guardianship to Mr. Q.
the Board said they were not auhorising blood transfusion but that they were
authorizing Mr. Q to decide on that.
She was given blood transfusion and recovered and then sued the
Board under sec 7 of the Administrative Law Act, 1970 (Vic) to set aside
the Board’s decision. Beach J summarily dismissed it.
On appeal, Wunneke J told the Board had justification since the
refusal contained in the consent form only related to the administering blood
during anaesthesia. That the Board could ignore. The Board had only
auhorised Mr. Q. The Court would be loath to create a rift between husband
and wife.
In the judgment dated 29th Dec, 2000, Justice O’Keefe traced the
subsequent history of the disagreement between the Thompson family and
the RPAH medical staff regarding the termination of antibiotic treatment for
the patient on 9th March 2000 and subsequent health care decisions. It was
explained that the medical staff had formed the view that Mr. Thompson
was in a ‘chronic vegetative state’ and that any further treatment would be
‘futile’. Due to the Court’s intervention, treatment was resumed and at the
date of judgment the patient was ‘unarguably alive’. The Court referred to
the Practice Note (1996 (4) ALL ER 766) of UK.
O’Keefe first referred to ‘jurisdiction’ of the Court and held that the
‘parens patriae’ jurisdiction was available to the Court to deal with person
and property of those under disability. He referred to the history of this
jurisdiction and also relied on the judgment of the House of Lords in Re F
(Mental Patient: Sterilisation) 1990(2) AC. 11 in that behalf and applied to
unconscious patients. He referred to Mariam’s case (1991-2) 175 CLR 218)
268
O’Keefe pointed out that it was ‘precisely because of such a risk that a
standard and guidelines have been adopted in the United Kingdom in
relation to vegetative state, continuing vegetative state and permanent
vegetative state.” “In addition, transferring Mr. Thompson into a renal
transplant ward after treatment and ‘feeding had been discontinued and a
‘Not for Resuscitation order’ imposed, could not help but give rise to a
269
The Judge found that, by 29th Dec. 2000, the patient admitted in
March 2000 was still alive, he moves, responds, is able to walk, articulate
and to control a number of muscular and bodily functions. According to the
material last put before the Court, he was then in a nursing home under the
control of the defendant (hospital).
The Practice Note 1996(4) All ER 766 points out that the standard
form of relief recognizes that there may be a material change in the existing
270
The Judge held that there was a requirement to get court sanction in
every case where the ANH is proposed to be terminated (this appears to be
not correct in view of the Judgment of the Court of Appeal in Burke in
2005).
3. Issac Messiha vs. South East Health = 2004 NSW SC 1061 (11th Nov
2004 (Howie J).
on the ground that the patient was PVS and not likely to revive, was
accepted by the Court. The Court accepted this view and the application on
behalf of the patient was rejected.
The learned Judge held, following Northridge that the Court has
parens patria jurisdiction in such cases.
After considering the views of Dr. Jacques and other experts, the
Court held that there was no eye-movement observed and that the present
state was that the patient (a) was mechanically ventilated through a tube in
his mouth and passing down his trachea, (b) being fed and hydrated through
a tube in his mouth and through his arm, (c) was not able to pass urine
artificially, (d) incontinent of faeces, (e) was unable to swallow his own
272
saliva requiring suctioning of his mouth, nose and throat and (f) his eyes are
taped down in order to prevent corneal ulcers. The medical evidence was
unanimous that there was no real prospect of recovery. The Court was
satisfied that there was no medical evidence to say that he was not in a PVS
state. The application by family members to restrain the doctors from
withdrawing medical treatment was rejected.
273
New Zealand
Section 179 of the Crimes Act, 1961 (NZ) stipulated a prison term of
14 years to every person who
(g) incites, counsels or procures any person to commit suicide,
if that person commits or attempts to commit suicide in
consequence thereof; or
(h) aids or abets any person in the commission of suicide.
Section 151stated that every one who has charge of any other person unable,
by reason of detention, age, sickness, insanity, or any other cause, to
withdraw himself from such charge, and unable to provide himself with the
necessaries of life, is (whether such charge is undertaken by him under any
contract or is imposed upon him by law or by reason of his unlawful act or
otherwise howsoever) under a legal duty to supply that person with the
necessaries of life, and is criminally responsible for omitting without lawful
274
excuse to perform such duty if the death of that person is caused, or if his
life is endangered or his health is permanently injured, by such omission.
Under sec 8 of the NZ Bill of Rights Act, 1996, ‘No one shall be
deprived of life except on such grounds as are established by law and are
consistent with the principles of fundamental justice’.
Auckland Area Health Board vs. Attorney General =1993(1) NZLR 235
(13.8.92) (Thomas J)
This is one of the best judgments on the subject and received praise
from the House of Lords in Airedale.
recovery. However, because the brain, though damaged, was not dead, the
patient was not medically ‘brain-stem dead’ as per the medical definition of
‘death. The patient existed in that condition for 12 months. Eight
specialists were unanimous that the ventilatory support could not be
medically justified. In that approach, the medical team had the informed
concurrence of the patient’s family and the approval of the hospital ethical
committee. If the life support system was withdrawn, death would be
instantaneous.
The issue before the Court was whether in the circumstances, the
doctors’ action in withdrawing the artificial ventilatory-support system from
Mr. L would make them guilty of culpable homicide. As part of the issue,
the Court had also to consider whether a doctor was obliged to continue
treatment which had no therapeutic benefit. The Court had also to
determine a threshold issue as to the appropriate involvement of the
Attorney-General.
It was also held that the Court had jurisdiction to grant a declaratory
relief even though the declaration related to a matter which could be the
subject of criminal proceedings. Such jurisdiction should be sparingly
exercised. Any civil ruling on an issue which fell for consideration in any
276
Whitlam (1978) 142 CLR. 1, referred to with approval in R vs. Sloan (1990)
(1) NZLR 474 by Hardie Boys J.
First is that a decision of the Court would tend to have the effect of
usurping the function of the criminal Court. “In most cases, I agree, it
would be totally inappropriate to make a declaration in the Court’s civil
jurisdiction which would pre-empt a decision of the Court in its criminal
jurisdiction. In this case, however, the doctors are in an invidious position.
On the one hand, they have that duty to their patient and their professional
responsibility to adhere to good medical practice; on the other hand, if they
act in accordance with their conscience, they face the threat of criminal
proceedings alleging that they are guilty of unlawful killing. This point
outweighs the general importance of not intervening in a criminal
proceeding in a manner which might displace or affect the exercise of the
Court’s criminal jurisdiction.”
of its criminal jurisdiction. Lord Lane put it in this way in Imperial Tobacco
Ltd. vs. AG: 1980(1) All ER 866 (HL):
Viscount Dilhorne also spoke of the use which might be made at the
criminal trial of a declaration in a civil Court that no crime had been
committed. It is clear from his Lordship’s remarks that he used the word
‘used’ in the sense of ‘misuse’ and considered that the integrity of the
criminal proceedings would be adversely affected.
The fact that a declaratory order of the Court would not be binding in
any criminal proceeding must be a telling factor against making any order at
all. Nor is it appropriate that a ruling of the Court on its civil jurisdiction
should be available to be used or misused, by the combatants at the criminal
trial. But, these unsatisfactory features are again outweighed by the
desirability of providing the doctors in the circumstances of this case, with a
ruling as to the lawfulness of their actions.
one thing, the facts are settled. Mr. L is not going to recover, nor will his
condition even improve. Moreover, it is expected that if there is a material
change in the facts, such as Mrs. L changing her mind or the ethics
Committee receiving their earlier endorsement, the doctors would act
responsibly, any declaration can be worded in such a way as to overcome
the difficulty. Whatever be the form, the doctors are entitled to an
indication from the Court as to whether or not their action will be lawful.”
The learned Judge observed that that was not to say that the sanctity of life
represented an absolute value. Few, if any, value could be stated in absolute
terms. The qualification in sec 8 itself conferred that to be the case. It was
also illustrated by the fact that a person might refuse medical treatment.
Section 11 of the N.Z. Bill of Rights Act, 1990 states: “Everyone has the
right to refuse to undergo any medical treatment”. It has been held also that
where one cannot accord with the view that this right enabled a patient,
properly informed, to require life-support systems to be discontinued. In
Nancy B vs. Hotel – Dieu de Quebec (1992) 86 DLR (4th) 385, the Quebec
Supreme Court was faced with the same problem. The patient suffered from
280
Nancy B also highlights another set of values which are central to our
concept of life; values of human dignity and personal privacy. See also
Matter of Nancy Ellen Jobes (1987) 529 A 2d 434.
The problem arises when life passes into death but obscurely. It is a
problem made acute by the enormous advances in technology and medical
science in recent decades. With the use of sophisticated life support
systems, life may be perpetuated well beyond the reach of the natural
disease. The process of living can become the process of dying so that it is
unclear whether life is being sustained or death being deferred.
The learned Judge then discussed the issue under the heading ‘The
living dead’. Over time, the medical community’s perception of what
constitutes ‘death’ has changed. The general community’s principles has
also changed but has lagged somewhat behind that of the doctor’s.
Originally, it was thought that the absence of the ‘vital functions’, (absence
of) a heart beat and breathing, signified death. That is not the view doctors
share today. With the advances in technology and medical skills which
have occurred, the medical profession has rejected the notion that death is to
be equated with the cessation of a person’s heartbeat. In open heart surgery,
for example, the patient’s heart is temporarily stopped, but it is not thought
that he or she has died. Instead, the medical community has preferred the
concept of what is called ‘brain death’. In England, the Conference of
Medical Colleges and their Faculties of the UK has resolved that, when
irreversible brain damage is diagnosed and it is established by tests that
none of the vital centres in the brain system are still functioning, the patient
is to be accounted dead: (1979)(1) British Medical Journal p 332). Though
this definition is not formally adopted in New Zealand, it is widely accepted
throughout the medical profession as being a more accurate indication as to
when death occurs.
282
The learned Judge then referred to sec 151 of the (NZ) Crimes Act,
1961 which deals with ‘Duty to provide necessaries of life’. It reads:
283
If the doctor was not under a legal duty to provide or continue with
life-support system, or he had a ‘lawful excuse, for discontinuing it, it may
then be said that he or she had not legally caused the death of the patient,
the Judge said.
even limited exercise of human life. Natural death may be deferred but it
need not be postponed indefinitely. For example, in case of patients
suffering from cancer where there is no hope of recovery, doctors can
administer palliative drugs even if they have the effect of hastening death.
If the ‘cause of death’ is not the criminal intent of the doctor but is based on
good medical practice and if that is good for sec 151, it is also good for sec
288
164. The withdrawal of support is not an ‘unlawful’ act for purpose of sec
160 in determining whether a homicide is culpable or not. It cannot be
regarded as an unlawful act when the doctors concerned are not in breach of
duty and have a lawful excuse.
Again, the victim must have, for purpose of sec 164, suffered a
‘bodily injury’ at the hands of the accused. It strains sec 164 while applied
to a patient already in ‘irreversible’ condition. A ventilator mechanically
ventilates, its withdrawal cannot be treated as inflicting ‘bodily injury’.
The Judge finally granted a declaration and declared that the action
did not amount to ‘culpable homicide’ within sections 151, 164 of the
Crimes Act, 1961. He declared:
“If:
(i) the doctors responsible for the care of Mr. L, taking into
account a responsible body of medical opinion, conclude
that there is no reasonable opportunity of Mr. L ever
recovering from his present condition;
(ii) there is no therapeutic or medical benefit to be gained by
continuing to maintain Mr. L on artificial ventilatory
support, and to withdraw that support accords with good
289
The Judge also directed, in his judgment dated 13th Aug. 1992,
prohibition of publication of any part of his judgment till 28 Aug., 1992.
We are of the view that these principles must be brought into the
proposed draft Bill in India.
South Africa:
The Report was preceded by a Discussion Paper (No. 71) (Project 86)
of 1997 running into 86 pages.
290
Summary of Recommendations
Chapter VII
being one concerning ‘life’, serious concerns of human rights of the patient
arise. The doctors and hospitals would want to know in what circumstances
they might become vulnerable to civil or criminal action. In fact, unless the
factual background of each case is fully presented, the Report, if it merely
contained legal propositions, would not be of any help.
In USA, in McKay vs. Bugstedt: (1990) 801 P. ed. 617 (Nev Sup. Ct)
Kenneth, aged 31 years, who was suffering from tetraplegia from the age of
10 wanted to be released from being artificially kept alive by life sustaining
device of respirator. Justice Steffen said (at p 5):
“Not long ago, the realms of life and death were delineated by a
bright line. Now this line is blurred by wondrous advances in
medical technology – advances that until recent years were only ideas
conceivable by such science fiction visionaries as Jules Verne and
H.G. Wells. Medical technology has entered a twilight zone of
suspended animation where death commences while life, in some
form, continues. Some patients, however, want no part of a life
sustained only by medical technology. Instead, they prefer a plan of
medical treatment that allows nature to take its course and permits
them to die in dignity.”
‘active’ means the positive act of another person. The word ‘passive’ means
an omission of another person which results in a patient’s death.
Only one or two States across the world have legalized Euthanasia or
Assisted Suicide. Netherlands became the first country to legalise
Euthanasia on April 10, 2001. Active Euthanasia and assisted suicide
became part of Dutch medical procedures, though controlled by regulations
and limitations. The law there gives importance to individual autonomy and
freedom of choice when faced with the prospect of a life marked by
suffering or deprived of hope. The legislature in those countries allows
patients experiencing unbearable suffering to request euthanasia, and
doctors who carry out such mercy killing are to be free from threats of
prosecution, provided they have followed the strict procedure. Request to
die must be voluntary and after full consideration, and doctor and patient
305
There is a long list of obligations of the doctor in regard to what the parties
should be informed, and it is stated that patient’s will must be free, the
doctor must be sure about the suffering, a second independent doctor must
be consulted, there must be discussion with family members and the doctor
must even consult a psychiatrist. The physician has to declare his decision
306
Oregon in USA passed the Death With Dignity Act, 1994 by which it
legalized ‘assisted suicide’. A patient could request for a prescription from
an attending physician that the patient has an incurable and irreversible
disease and that he may die in six months, within reasonable medical
judgment. The request must be voluntary. The patients could be referred to
counseling also. A second consulting physician must examine and confirm
the attending physician’s conclusions. The doctors will then prescribe a
lethal dose of medicine. Assisted Suicide is also legalized in Netherlands,
as stated earlier.
Our Supreme Court in Gian Kaur’s case 1996 (2) SCC 648 clearly
held that euthanasia and assisted suicide are not lawful in our country. The
court, however, referred to the principles laid down by the House of Lords
in Airedale 1993(1) All ER 821 (HL) where the House of Lords accepted
that withdrawal of life supporting systems on the basis of informed medical
opinion, would be lawful because such withdrawal would only allow the
patient who is beyond recovery to die a normal death, where there is no
308
longer any duty to prolong life. Thus, it is accepted that this is different
from euthanasia and assisted suicide. It is not necessary to expressly
provide in the proposed Bill that Euthanasia and Assisted Suicide are not
lawful because that is the law, as settled by the Supreme Court in Gian
Kaur.
On facts, it was however held, that the patient’s faculties were not so
impaired by schizophrenia and that the presumption in favour of self-
determination was not displaced. Reference was made to Re T (adult:
refusal of medical treatment) 1992 (4) All ER 649 and to Airedale: 1993 (1)
All ER 821 (HL).
The Court of Appeal held that the lady had a needle phobia and was
in panic and not capable of taking a decision and hence was to be treated as
‘temporarily incompetent’. Caesarian operation allowed by Hollis J was
affirmed. The operation was in best of medical interests of the patient. The
Court of Appeal approved the principles laid down by Lord Donaldson in
Re T (An Adult) (Refusal of Medical Treatment): 1992 (4) All ER 649; Re
T (An Adult: Consent to Medical Treatment): 1992 (2) FCR 458 (case of
pregnant lady involved in car accident who required blood transfusion) and
by Justice Thorpe in Re C (Refusal of Medical Treatment): 1994 (1) All ER
819.
The patient was wavering but the Court held on facts, that the patient was
competent. Ten guidelines were laid down to judge competence. They are
as follows:
(ii)If mental capacity is not in issue and the patient, having been
given the relevant information and offered the available options,
chose to refuse the treatment, that decision has to be respected by
the doctors. Considerations that the best interests of the patient
would indicate that the decision should be to consent to treatment
are irrelevant.
they take a decision which is in the best interests of the patient, it is lawful.
A patient cannot also compel a doctor to give him a particular line of
treatment for it is for the doctors what treatment is necessary in the best
interests of the patient. These aspects are proposed to be brought into
proposed Bill.
This issue is our off-shoot of the issue discussed under (3) above.
Under (3), we have referred to the right of self-determination of a patient
who is competent and who is in a mental frame to take an informed
decision. We have also referred to the exceptional cases where the patient’s
view will not be binding on the doctors, namely, where the patient is not
competent after weighing and balancing the advantages and disadvantages
of the treatment or where even if competent, his decision is not an informed
decision. In that event, the doctors can take a decision keeping in mind
what is in the patient’s best interests.
murder – if it does not fall within the exception referred to under (3). It is
so held in Airedale.
should not be given medical treatment when he or she is terminally ill and
not in a position to take a medical decision.
But in UK, the House of Lords in Airedale 1993(1) All ER 821 (HL)
has rejected the Medical Power Of Attorney procedure and said it is not
recognized in UK. In Ireland also O’Haherty did not approve powers of
attorney in Ward of Court, Re a: (1995) 1 LRM 401, in the particular case.
given. It can also be oral. We are not dealing with such directions given at
the time of giving or omitting to give invasive treatment. We are here
dealing with directives given at a distant point of time which are called
‘Advance Directives’.
(1) In Airedale Lord Goff stated that “it has been held that a patient of
sound mind may, if properly informed, require that life support should be
discontinued (Nancy B v. Hotel-Dieu de Quebec: (1992) 86 DLR (4th) 385).
Moreover, the same principle applies when the patient’s refusal to give
consent has been expressed at an earlier date long before he had become
unconscious or he became incapable of communicating it. In such cases, it
is necessary to take notice of such prior directives and are applicable in the
circumstances which have subsequently occurred. (Re T (Adult): Refusal of
Treatment) 1992 (3) WLR 782 = 1992 (4) All ER 649. If a patient had
decided not to have medical treatment, the patient is not guilty of suicide
and the doctors are not guilty of murder or abetment of suicide.
(3) In Re C: 1994 (1) All ER 819, it was held that the previously
expressed view of a patient will be an important component in the decision
of the doctors and the Court.
(4) HE vs. Hospital NHS and Anr: 2003 EWHC 1017 is an important
decision by Munby J on Advance Directives and their continued validity.
We get the hint from Airedale that the doctors or Court must see if an earlier
directive continues to be applicable or be valid in the circumstances that
might occur several years later.
In HE, the patient was born in a Muslim family, her parents separated,
her mother became a Jehovah’s witness (who did not agree for blood-
transfusion). The patient suffered a heart problem, executed an Advance
Medical Directive on 13.2.2001, witnessed by two Church Ministers. On
20.11.2003, she became ill and surgery was felt necessary by the doctors but
blood-transfusion was a problem because of the 2 year old Advance
Directive. She was sedated on 20.4.2003 and while her mother and brother
opposed blood transfusion, her father, who continued to be a Muslim
applied to the Court on 2.5.2003 for permission to give blood transfusion.
Munby J permitted blood transfusion on 2.5.2003 when he heard the case
and gave judgment on 7.5.2003 notwithstanding the Advance Directive.
322
Thus, Advance Directive can also create complex legal and factual issues.
(5) In NHS Trust v. T: 2004 EWHC 1279, Charles J was dealing with a
lady who had psychological problems and would cut herself for blood-
326
Charles J held that the lady lacked capacity when she executed the
Advance Directive.
(6) More recently in GMC v. Burke: (2005) EWCA (Civ) 1003 (CA),
Lord Phillips stated that to keep a PVS (permanent vegetative state) patient
alive merely because of his advance directive, will violate the Mental
Capacity Act, 2005. He said that under sec. 26 of this Act, though
compliance with reference to advance directive is necessary, still sec. 4 does
no more than require this (the Advance Directive) to be taken into
consideration when considering what is in the best interests of a patient.
(7) Obviously, the Act of 2005 has made a change in the law by stating
that in the case of patients lacking mental capacity, the Advance Directive is
only a matter to be taken into account – but not implicitly obeyed – while
considering the best interests of a patient.
327
In our view, there is not only scope for contentious and complex
issues of fact and law being raised in every case relating to oral or written
Advance Directives, but in a country where there is considerable illiteracy
and lack of knowledge of developments in medicine and technology, there
is scope for Advance Directives being based on wrong assumptions or
requiring proof that they were, as a fact, made or that they continue to be
applicable and valid or have not been withdrawn and there is large scope for
abuse and litigation. A lot of evidence will be oral and may be conflicting.
Doctor’s consequential actions can give rise to any amount of litigation.
medical powers of attorney, Lord Goff in Airedale, 1993 (1) All ER 821
rejected the delegation of decision making to power of attorney agents (see
In re Quinian : (1976) 355 A. 2d 647 and Superintendent of Belchertown
State School v. Saikewicz: 370 NE 2d 417. He stated:
“…. I do not consider that any such test forms of English law in
relation to incompetent adults on whose behalf nobody has power to
consent to medical treatment. Certainly in In re F: (1990) (2) HCI,
your Lordship’s House adopted a straightforward test of best interests
of the patient.”
We are, therefore, of the view that both Advance Directives and Medical
Powers of Attorney should not be valid in our country on ground of public
policy. A provision is proposed in this behalf to make them void.
(6) State’s interest in protecting life and principle of sanctity of life are
not absolute: Indian Penal Code affirms this view.
maintain the health and well-being of its citizens. The medical profession
has an important role in taking care of the health of the people. The
profession is regulated by professional bodies like Medical Councils.
As pointed out earlier, only in a few countries there are laws which
permit voluntary termination of life. In Netherlands, there is a law made
w.e.f. April 10, 2001, where Euthanasia and Assisted Suicide have been
legalized; in Belgium where w.e.f. 23.9.2002, euthanasia has been legalized;
the Northern Territory of Australia made a law in 1996 for making
Euthanasia valid but it became unenforceable after the Federal legislature
passed the Rights of Terminally Ill Act, 1998 w.e.f. 27.3.1998. In USA,
Oregon alone passed the Death with Dignity Act, 1994 legalising ‘Assisted
Suicide’. These are exceptions.
“Sec. 309: 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.”
331
(We shall deal with the question whether refusal to have medical
treatment amounts to ‘attempt to suicide’, separately).
Likewise, the Penal Code in sec. 306 also states that ‘abetment of
suicide’ is an offence. Sec. 306 states as follows:
The State makes ‘murder’ an offence under sec. 302 of the Penal
Code, 1860. Sec. 299 defines ‘culpable homicide’. Sec. 300 defines when
‘culpable homicide’ amounts to ‘murder’. Sec. 304 mentions about
punishment for culpable homicide not amounting to murder.
Thus, the Indian Penal Code, 1860 upholds the sanctity of life in
several respects.
In Gian Kaur’s case: 1996 (2) SCC 648, adverting to PVS patients,
the Supreme Court of India quoted with approval the observations of the
House of Lords in Airedale that the principle of sanctity of life is not
absolute. Lord Keith stated in Airedale: “Given that existence in the
persistent vegetative state is not a benefit to the patient, it remains to
consider whether the principle of the sanctity of life, which is the concern of
the State, and the judiciary as one of the arms of the State, to maintain,
requires this House to hold that the judgment of the Court of Appeal was
incorrect. In my opinion it does not. The principle is not an absolute one.
It does not compel a medical practitioner on pain of criminal sanctions to
treat a patient, who will die if he does not, contrary to the express wishes of
the patient. It does not authorize 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
333
Lord Goff also stated that the ‘principle of sanctity of life must yield
to the principle of self-determination and for present purposes more
important, the doctor’s duty to act in the best interests of his patient must
likewise be qualified. He also stated that there is no absolute obligation
upon a doctor who has the patient in his care to prolong his life, regardless
of circumstances.
A ward, with the type of future as was in store for J, would obviously not
invite reventilation and survival having regard to the future prospect of total
disability. Therefore, the State’s right of preserving life is not absolute.
All these show that while life is sacrosanct and the State has a duty to
protect life, the principle is not absolute and there are, in reality, cases
where attempts to prolong life may amount to perpetrating acute suffering
on patients, and therefore in the case of incompetent patients, doctors can
take decision to stop life support systems if it is in the best interests of the
335
Under the last heading, we have referred to the broad principle that
sanctity of life is not absolute and that while the State, of which judiciary is
a part, is also interested in prolonging life, there are grave cases in which
this principle has to be excepted.
interests to live longer and that the life supporting systems could be
withheld or withdrawn.
(i) In such situations, two questions arise. So far as the patient who is an
adult and competent who refuses treatment, does it amount to ‘attempt to
commit suicide’?
(ii) So far as the doctors are concerned, in the case of an adult where they
obey the patient’s refusal or where in the case of competent patient whose
decision to refuse treatment is not an informed one and where the patient is
a minor or incompetent or a PVS they take a bona fide decision to stop
artificial life support, on the basis of ‘best interests’ of the patient, question
arises whether they are guilty of ‘abetment of suicide’?
The Supreme Court in Gian Kaur v. State of Punjab 1996 (2) SCC
648 while upholding the validity of sec. 309 of the Indian Penal Code, 1860
which speaks of ‘attempt to commit suicide’, also considered, towards the
end of the judgment, the decision of the House of Lords in Airedale: 1993
(1) All ER 821 which related to a patient in a PVS state. While declaring
that Euthanasia and Assisted Suicide are prohibited under our law and are
not lawful, the Supreme Court dealt with persons in a vegetative state, as in
Airedale, and held that sanctity of life is not absolute, and that in cases of
persons in persistent vegetative state where further living is of no benefit to
337
This passage from Gian Kaur supports the view that stoppage of medical
treatment to allow the patient to ‘die with dignity’ is part of the ‘right to
life’ under Art. 21 and hence not unlawful. It is not unlawful both for the
patient who wants to die by directing stoppage of treatment and it is not
unlawful for the doctor either to obey a directive of a competent patient or
to take such a decision in the best interests of a minor or incompetent
patient. This is further clear from another passage in Gian Kaur, where the
distinction is made between ‘accelerating the process of natural death’ (by
338
(1) may lawfully discontinue all life sustaining treatment and medical
supportive measures designed to keep the defendant alive in his
existing persistent vegetative state including the termination of
ventilation, nutrition and hydration by artificial means; and
(2) may lawfully discontinue and thereafter need not furnish medical
treatment to the defendant except for the sole purpose of enabling
him to end his life and die with the greatest dignity and the least
pain, suffering and distress”
Lord Browne-Wilkinson pointed out (p. 881) that ‘apart from the act
of removing the nasogastric tube, the mere failure to continue to do what
you have previously done, is not, in any ordinary sense, to do anything
340
“if there comes a stage where the responsible doctor comes to the
reasonable conclusion (which accords with the views of a responsible
body of medical opinion (Bolam Test), that further continuance of an
intensive life support system is not in the ‘best interests’ of the
patient, he can no longer lawfully continue that life support system; to
do so would constitute the crime of battery and the tort of trespass to
the person”.
Thus, refusing treatment and allowing the body to die a natural death is also
not an offence. In the same case, O’Flaherty J after referring to ‘right to
life’ and Art 2 and 6 of the European Convention and Art 6 of the ICCPR
stated:
‘This case is not about terminating a life but only to allow nature to
take its course which would have happened even a short number of
years ago and still in places where medical technology has not
advanced so much as in this country’.
offence. ‘Gillick test’ depends on the stage of development of the child who
is given the advice.
“It is not surprising, therefore, that the early cases considering the
claimed right to refuse medical treatment dismissed as specious, the
nice distinction between “passively submitting to death and actively
seeking it. The distinction may be merely verbal, as it would be if an
adult sought death by starvation instead of a drug. If the State may
344
Scalia J then deals with the dissent by Brennan & Stevens JJ and says:
345
“… the State has no such legitimate interest that could outweigh ‘the
person’s choice to put an end to her life”.….. the State must accede to
her ‘particularized and intense interest in self-determination in her
choice whether to continue living or die.” For, insofar as balancing
the relative interests of the State and the individual is concerned,
there is nothing distinctive about accepting death through the refusal
of ‘medical treatment”, as opposed to accepting it through the refusal
of food, or through the failure to shut off the engine and get out of the
car after parking in one’s garage after work. Suppose that Nancy
Cruzan were in precisely the condition she is in today, except that she
could be fed and digest food and water without artificial assistance,
how is the State’s interest in keeping her alive thereby increased or
her interest in deciding whether she wants to continue living
reduced?” (emphasis supplied)
He stated that he could not agree with Brennan & Stevens that a person
could make the choice of death. That view the State has not yet taken. The
Constitution does not say anything on the subject.
Summary
From the above principles almost uniformly laid down by the Courts
in several countries, it is clear that (i) in the case of a patient who is
seriously ill, but competent, his refusal, not to take medical treatment and
allow nature to take its own course, it is lawful and does not amount to
‘attempt to commit suicide’, (ii) Likewise, (a) where doctors do not start or
continue medical treatment in such cases because of such patients’ refusal,
they are not guilty of abetment of suicide or murder or culpable homicide
and (b) if the patient is a minor or is incompetent or is in a permanent
vegetative state, or (c) if the patient was competent but his decision was not
an informed one, and if the doctors consider that there are no chances of
recovery and that it was in the best interests of the patient that medical
treatment be withheld or discontinued, the doctor’s action would be lawful
and they will not be guilty of any offence of abetting suicide or murder or
culpable homicide.
(In the case of minors, the doctor’s decision as to ‘best interests’ can
override the decision of the guardian.)
350
doctor should take a course which would kill a patient, but the question is
“whether in the best interests of the patient that his life should be prolonged
by the continuance of this form of medical treatment and care”. In the case
of an incompetent patient, the straight forward test laid down in In re F
(1990)(2) AC1 was whether that was in the best interests of the patient.
This case was decided by Thorpe J and lays down the C-Test. The
patient was 68 years old and was suffering from schizophrenia, developed
gangrene and his leg below knee, required to be operated. C refused
amputation. The Court considered whether his capacity to take a decision
was impaired by schizophrenia and that the presumption of lack of capacity
was not displaced and hence his refusal was not binding. In fact, we
propose to put these words into the definition of ‘incompetent patient’.
354
Frenchay Health Care NHS Trust vs. S: 1994(2) All ER 403 (CA)
was a case where S a healthy adult took a drug overdose which resulted in
acute and extreme brain damage. Medical treatment was of no avail. He
was fed through a nasogastric tube, through the stomach. At one stage that
was removed and re-insertion was likely to result in his death. The hospital
moved the Court. The Judge declared that in the patient’s interests, the tube
should not be re-inserted. The same was affirmed by the Court of Appeal.
benefit plaintiff was irrelevant, unless such transplant was also in the best
interests of the defendant.
But then, if the plaintiff daughter – suffering from cancer - died for
want of bone marrow transplant, the death would have an adverse affect on
their mother who was caring for both daughters and then the mother’s
ability to take care of disabled defendant would also be seriously affected.
The defendant would benefit, if the plaintiff survived, because of their
emotional, psychological and social benefit. The disadvantages to the
defendant otherwise was small. After referring to Airedale and Canan vs.
Bosze L (1990) 566 NE 2d. 1319 (an American case relating to bone
marrow harvesting decided by the Supreme Court of Illinois), the Court
permitted the bone-marrow transplant. In the American case too, the donor
and the donee were brother and sister. Connel J held that the transplant
was good for all three of them, physically and psychologically.
Furthermore, since the mother (i.e. the pregnant lady) and the father
of the child in the womb wanted that the child be born and the mother was
likely to suffer long term damage if the child was born handicapped or dead,
it was decided that it was in her best interests that caesarean operation be
performed. When the patient did not have the requisite capacity, the doctors
were free to decide what was in the patient’s best interests.
The Court also held that the best interests were not necessarily
medical but they also included the emotional and all other welfare issues.
blood transfusion as she was a Jehovah’s witness. The Court did not go by
her rejection of blood transfusion as it was only a ‘view’ of the patient and
‘not the constructive formulation of an opinion’ on her part which would
occur by way of adult experience. She was still a child. She was not given
all information to understand the seriousness of her condition. Hence her
refusal was not binding and it was in her interests to be given blood
transfusion.
NHS Trust vs. D: 2003 EWHC 2793, it was held that ‘where the
issues of capacity and best interests are clear and beyond doubt, an
application to the Court is not necessary’. Dame Elizabeth Butler-Sloss
referred to the ‘best interests’, sanctity of life and to Justice Thorpe’s dictum
in Re A: 2000(1) FLR 549 as to how the Court should prepare a balance
sheet of the best interests of a patient, the potential gains and losses etc.
358
In GMC vs. Burke 2005 EWCA (CA) 1003 (14) Lord Philips of
Worth Matravers stated that autonomy and self-determination do not entitle
the patient to insist on receiving a particular medical treatment regardless of
the nature of the treatment. The Court of Appeal approved Munby J’s
observations in the Judgment under appeal but took exception to two
sentences in regard to which the Court of Appeal stated thus:
359
Summary
From the above case law, it is clear that where a competent patient
who is adequately informed, refuses treatment, the doctors are bound by his
refusal. But in cases of minors, incompetent persons and PVS patients, the
doctor must consider whether giving or continuing or withdrawing
treatment is in the best interests of the patient. A balance sheet of
advantages and disadvantages has to be drawn as stated by Thorpe J in Re
A: 2000(1) FLR 549. The best interests are not confined to medical
interests but encompass ethical, social, emotional and welfare
considerations. There cannot be any single test of what is in the best
interests of an incompetent patient but it must depend upon a variety of
considerations depending upon the facts of the case. Where a patient is not
competent, it is lawful for doctors to take a decision to give, withhold or
withdraw medical treatment if they consider that to be the appropriate action
to be taken in the best interests of the patient. We propose to define
‘competent’ and ‘incompetent’ patients, ‘informed decision’ and ‘best
interest’ in the proposed Bill.
360
While it is, according to us, mandatory for the doctors to consult three
specialists who are experts in the treatment of the particular disease from
which the terminally ill patient is suffering and while the three experts,
according to us, must have atleast 20 years experience, we cannot allow any
expert to be consulted at the choice of the above experts. The experts must
be selected from a panel which has statutory force. This is intended to
avoid malpractices and abuse of the legal provisions. Experts who are
under disciplinary action or have been found to be guilty of professional
misconduct have to be excluded from he panels. The doctors are allowed to
select the experts from the panel prepared by the Director of Medical and
Health Services in each State or the Director-General of Medical and Health
Services from Union Territories. The nomination of the three experts in a
given case need not be by the Director of Medical and Heath Services of the
States of the Director General of Medical and Health Services but can be
made by the attending doctor.
361
He then pointed out that it is permissible to move the Family Court seeking
a declaration, to protect the interests of patients, doctors and the families of
patients and as a matter of reassurance to the public. This was necessary till
a body of case law relating to just ‘medical practice’ containing legal
principles is evolved. He said:
“…. that despite the inability of (the defendant) to consent thereto, the
plaintiff and the responsible physicians:
But Lord Hope went into the question whether such a declaration
would be binding on the criminal or civil Courts, when the issue arose
before them later. The declaration, of course, was not one asking particular
act to be declared as not being a criminal act. “What it seeks is a
declaration that the pursuers and the medical practitioner ‘may lawfully
discontinue’ the treatment”. In Airedale, in the Family Division, Sir
Stephen Browne stated (see p.833 of All ER) that he did not think it
appropriate to grant a declaration that the action was not criminal. ‘Lawful’
meant lawful according to civil law. Lord Hope also referred to the
observation of Lord Goff of Chievely and Lord Mustill in the House of
Lords in Airedale who expressed strong reservations about granting a
declaration as to criminality in a civil case. Lord Mustill pointed out that
the decision, in any event, would not create an estoppel in the criminal
courts which would form a conclusive bar of prosecution. Nevertheless,
they did proceed to decide the issue and “it is clear from all the speeches
that their Lordships were of the view that the conduct which was proposed
would not amount to crime according to the law of England”.
Having said this, Lord Hope doubted if any declaration that might be
granted would preclude the criminal Court from going into the question. He
held that the Court could not give a declaration that the act was or was not
of a criminal nature. The declaration may be useful in another civil case
but not in a criminal case. He declared that any declaration which the
Court of Sessions, Inner House may make in this matter about the
lawfulness of the action would not be binding on the High Court of
Justiciary. (In Scotland, the Civil Jurisdiction is with the Court of Sessions,
Inner House, while the criminal jurisdiction is with the High Court of
365
The Practice Directive in 1994 (2) All ER 413: of the official Solicitor
spells out the form of declaration:
Applications to Court
3. Applications to court should be by originating summons issued
in the Family Division of the High Court seeking a declaration in the
form set out in para 4 below. Subject to specific provisions below,
the application should follow the procedure laid down for sterlisation
cases by the House of Lords in F v. West Berkshire Health Authority
(Mental Health Act Commission intervening) (1989) 2 All ER 545,
(1990) 2 AC 1 and in the Official Solicitor’s Practice Note of May
1993 [(1993) 3 All ER 222].
4. The originating summons should seek relief in the following
form:
‘It is declared that despite the inability of X to give a valid
consent, the plaintiffs and/or the responsible medical
practitioners: (i) may lawfully discontinue all life-sustaining
treatment and medical support measures designed to keep X
alive in his existing persistent vegetative state including the
termination of ventilation, nutrition and hydration by artificial
means; and (ii) may lawfully discontinue and thereafter need
not furnish medical treatment to X except for the sole purpose
of enabling X to end his life and to die peacefully with the
greatest dignity and the least distress.
It is ordered that in the event of a material change in the
existing circumstances occurring before the withdrawal of
artificial feeding and hydration any party shall have liberty to
apply for such further or other declaration or order as may be
just.’
367
We may, however, point out hat in Burke (2005), the Court of Appeal
clarified that is not mandatory in every case to obtain Court sanction for
withholding or withdrawing treatment. We have already referred to this
case.
independent medical opinion for himself and to ensure that proper material
is placed before the Court. Nevertheless, emergency situations will arise in
which an application to the Court is not possible or where, although an
application to Court is possible, it will not be possible to present the
application in the same leisurely way as in the case where there is no
pressure of time.
But, the Court of Appeal in GMCU vs. Burke: 2005(EWCA) (civ) 1003
(CA) did not agree that in each of these cases the parties must resort to a
declaration before a Court of Law. In practice, this is not feasible because
if these directives are followed at least 10 cases have to go to Court every
day, on an average, in England. The Court of Appeal stated:
“The true position is that the Court does not authorize treatment that
would otherwise be unlawful. The court makes a declaration as to
whether or not proposed treatment, or withdrawal of treatment, will
be lawful. Good practice may require medical practitioners to seek
such a declaration where the legality of the proposed treatment is in
doubt. This is not, however, something that they are required to do
as a matter of law. Declaration 6 made by Munby J misstated the
law.”
In NHS Trust vs. D: 2003 EWHC 2793, it was held that “where the
issues of capacity and best interests are clear and beyond doubt, an
application to the Court is not necessary.”
373
From the above, the circumstances under which doctors or others can
move a civil court for declaration are fairly clear. It is not in every case
that it is necessary where there is a conflict of views etc. as stated by Munby
J. The Court can be approached as a matter of ‘good medical practice’ to
initially build up healthy precedents till a body of ‘experience and practice’
is built up.
13) Confidentiality:
For medical patients, privacy rights are quite important and, therefore,
it is essential, in the matter of serious cases involving life and death related
issues which come before the Courts seeking declaratory remedies, that
utmost secrecy has to be maintained with regard to the names of the
patients, their parents, the hospitals, opinions of experts or doctors, in the
judgments.
Even where the parties do not move the Courts, the media may
publish the legal principles decided or directions given but cannot disclose
facts which will identify the patients, parents, relatives, doctors, experts, or
hospitals.
374
the actual name will have to be given because it is necessary that the
identity of the patient and others be known to the above persons, doctors
and the hospital, so that the order can be implemented. However, such
communications should be put in a sealed cover.
It is also proposed (b) that even in cases where the matters do not go
to Court none including the media should publish facts which will lead to
identification of the patients, parents, relatives, doctors, hospitals, experts
etc.
We shall first deal with (A) the Criminal Law and then with (B) the
Law of Torts.
The discussion under (a) must necessarily start with the principle
repeatedly laid down in several countries that under common law that a
patient has to give his consent (informed consent) to medical treatment,
including invasive treatment. Likewise, if a patient refuses medical
treatment and wants nature to take its own course, his right to refuse such
378
The common law accepts that once the patient instructs the doctor
that he is not willing for treatment, that decision is binding on the doctor
and if a doctor attempts to treat or treats a patient against his will, it will
amount to battery and in some cases, if death ensures, he may also be liable
for the offence of murder. While it is true that doctors have a duty by
379
In case the patient who refuses medical treatment and the doctor’s
precluded from administering medical treatment, the doctor must however
be satisfied that the patient has taken an informed decision or the decision is
voluntary. We have seen cases where a patient refuses blood transfusion on
ground that such blood is evil, or because of needle phobia. If such is the
case, the patient’s refusal is not binding on the doctor and if he thinks that
the best interests of the patient requires treatment, he is not committing any
offence even if the treatment is contrary to the patient’s desire. There may
also be cases like Jehovah’s witnesses who abhor blood transfusion but if a
patient has no such faith but his parent belongs to that faith and has forced
his or her views on the patient, then the refusal of the patient is not binding.
Criminal Law
“Sec. 309: 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”
‘Suicide’ has not been separately defined but generally means ‘a deliberate
termination of one’s own physical existence’.
But, that is different from a patient allowing nature to take its own
course. When a person is suffering from disease, he may take medicine to
cure himself. There are different systems of medicine and he may feel that
none is good enough. Further in the last four or five decades, medical
science and technology have progressed so much but medical facilities
available in other countries may not be available in India, or those available
in India may not be available at the place where the patient is living and his
decision not to take medicine may be based on those facts. Apart from these
considerations, a patient may decide for himself that he will allow the
disease or illness to continue and be not bothered by taking medicines or
invasive procedures. An attitude where a patient prefers nature to take its
course has been held in almost all leading countries governed by common
law, as pointed out in the preceding chapters, as not amounting to an act of
deliberate termination of one’s own physical existence. It is not like an act
of deliberate or intentional hanging or shooting one’s self to death or
attempting to drown in a well or a river or in the sea. In view of the settled
381
law on this aspect, allowing nature to take its course and not taking medical
treatment is not an attempt to commit suicide. Hence there is no offence
under sec. 309. In fact, in Airedale the House of Lords clearly held it is not
suicide.
Once the competent patient decides not to take medicine and allows
nature to take its course, the doctor has to obey the instructions.
Administering medicine contrary to the wishes of a patient is battery and is
an offence. The omission to give medicine is based on the patient’s
direction and hence the doctor’s inaction is not an offence. In fact, when
there is no attempt at suicide or suicide under sec 309, there can be no
abetment of suicide under sec 306.
© Even under sec 107 of the Indian Penal Code (which we have
extracted in Chapter II) which generally deals with ‘abetment’, the position
382
is the same. Under that section ‘abetment’ may be by a positive act or even
by omission. If a doctor omits to give medical treatment at the instructions
of a competent patient, he is not guilty of ‘abetment’ under sec 107, because
under sec 107 the omission must be “illegal”. If under common law, the
doctor is bound by the patient’s instruction for stoppage of treatment, it is
binding on him and his omission is ‘legal’. As there is no requirement
under the law that he can disobey the instruction, he is not guilty of
abetting. In fact, if he disobeys and continues the medical treatment it will
amount to battery or assault.
We have seen in Airedale (UK) and Cruzan (USA) the question of the
doctor’s omission has been considered elaborately and it has been held that
where there is no duty under common law to give or continue the medical
treatment, the omission of the doctor does not amount to an offence. Hence,
the doctor is not guilty of ‘abetment of suicide’ under sec. 306 IPC, even if
we read sec. 306 along with sec. 107 which deals generally with ‘abetment’.
Even if the cases under (a), where the adult patient who is competent
refuses treatment, on the basis of informed decision, does not involve the
offences of ‘attempt to suicide’ (sec. 309) and ‘abetment of suicide’ (sec.
306), it is still necessary to consider whether the action of the doctor in
383
Therefore, if death is caused with the knowledge that he, the doctor,
is likely. by such act to cause death, then, the act amounts to culpable
homicide not amounting to murder and is punishable under sec. 304 which
may extend upto ten years imprisonment, fine or both. It will not be an
offence if the act comes within any exceptions provided in the Penal Code.
Elaborating the above, we may state again that under the main part of
sec 299, the doctor is not guilty because he had no intention to cause death
or bodily injury which is likely to cause death. But where he knows that
withdrawal of life support will cause death, is he guilty under sec 299?
Now under this third part of sec 299, he will be guilty only if the knowledge
above mentioned was that the act of withdrawal would cause death. This
third part gets attracted to the act of the doctor and he will be guilty of
culpable homicide not amounting to murder, punishable under Part II of sec
304. We shall consider separately whether the exceptions in ss 76, 79, 81
and 88 of the Penal Code apply to protect the doctor. We shall consider the
applicability of sec 299 in the case of (i) competent patients, informed
decision, (ii) competent patients, no informed decision and (iii) incompetent
patients, separately
385
The first and second parts of the section 299 do not apply because
there is no ‘intention’ either to cause death or bodily injury likely to cause
death. But, the act may fall under the third part because the doctor has
‘knowledge’ that the act of withdrawal is likely to cause death. Therefore,
there can be an offence under sec 299. (As to exceptions, we shall refer to
it lower down).
Here too, he may not have the intention referred to in the first and
second parts of sec 299 but he has the ‘knowledge’ referred to the third part
of sec 299. Therefore, he may be guilty of an offence under sec 299 (As to
exceptions, we shall refer to it lower down).
Exceptions:
Section 76 (Exception)
(B) Section 76reads as follows:
The act of withholding or withdrawing medical treatment in all the cases (i),
(ii) and (iii) above will fall under the exception if the said act is “justified by
law”.
This section applies to the doctor’s action in the case of both competent and
incompetent patients.
In our view, in the light of the judgment in Gian Kaur of the Supreme
Court, Airedale of the House of Lords and Cruzan of the American Supreme
Court and judgments in Canada, Australia and New Zealand, the common
law confers a duty on the doctor to withhold or withdraw treatment if so
instructed by a competent patient. In the case of a competent patient who
has not taken an informed decision and in the case of an incompetent
388
In respect of sec 79, Raj Kapoor vs. Laxman: AIR 1980 SC 605
decided the meaning of the words “justified by law”. It was observed:
In the light of the Judgment in Gian Kaur, Airedale, Cruzan & other
cases referred to in the previous Chaper read with Raj Kapoor, the
withholding or withdrawal of life support system in the case of competent
patient on account of the patient’s refusal to treatment, and in the case of
389
“Section 81: Act likely to cause harm, but done without criminal intent,
and to prevent other harm:
Section 88: Action not intended to cause death, done by consent in good
faith for person’s benefit
This section applies to competent patients who give consent but the consent
is for acts which will cover ‘benefit’. This section also requires several
facts to be proved and question is of ‘benefit’. We must go to the extent of
saying that death relieves pain or suffering and is beneficial.
In our view, ss 76, 79 are more appropriate that sec 88 and there is no
offence under sec 299 read with sec 304 of the Penal Code.
We next come to sec. 304A which deals with criminal negligence vis-
à-vis the position of doctors, the Supreme Court in Jacob Mathew State of
Punjab 2005 (6) SCC 1.
“Sec. 304A: Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term which
may extend to two years, or with fine or with both.”
The Supreme Court in Jacob Mathew’s case referred to ss. 88, 92, 93
and 304A of the Penal Code and stated that for purposes of criminal law, so
far as doctors are concerned, sec. 304A requires ‘gross negligence’ to be
proved. The Court pointed out that it must be established that no medical
professional in his ordinary senses and prudences would have done or failed
to do the thing which was attributed to the accused-doctor.
Summary:
392
Thus, the provisions of sec 299 even if attracted to the cases of the
doctor, ss 76 and 79 protect that action. Sec 304A is not applicable.
(c) In the case of competent patient who has not taken an informed
decision, the doctor’s action taken in the best interests of the
patient is lawful and what we said under (b) equally applies here.
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken, had he been
acting with ordinary care”
Summary:
In the light of the above principles, the decision of a doctor to
withhold or withdraw life saving treatment based upon the view of an expert
body of medical mean the particular field is therefore not actionable in tort.
Proposal:
Chapter VIII
Summary of Recommendations
1) There is need to have a law to protect patients who are terminally ill,
when they take decisions to refuse medical treatment, including artificial
402
nutrition and hydration, so that they may not be considered guilty of the
offence of ‘attempt to commit suicide’ under sec. 309 of the Indian Penal
Code, 1860.
It is also necessary to protect doctors (and those who act under their
directions) who obey the competent patient’s informed decision or who, in
the case of (i) incompetent patients or (ii) competent patients whose
decisions are not informed decisions, and decide that in the best interests of
such patients, the medical treatment needs to be withheld or withdrawn as it
is not likely to serve any purpose. Such actions of doctors must be declared
by statute to be ‘lawful’ in order to protect doctors and those who act under
their directions if they are hauled up for the offence of ‘abetment of suicide’
under sections 305, 306 of the Indian Penal Code, 1860, or for the offence
of culpable homicide not amounting to murder under sec. 299 read with sec.
304 of the Penal Code, 1860 or in actions under civil law.
(f) There must be a definition of ‘best interests’ of the patient (see sec. 2
(b)) i.e. in regard to (i) an incompetent patient, in regard to whom the doctor
takes a medical decision in the patient’s best interests, (ii) competent
patients whose decision is not an informed one. The definition should
reflect the meaning given by Justice Thorpe, Dame Butler-Sloss and others
in decided cases referred to by us where it is said that the best interests are
not confined to medical interests but include the ethical, social, moral,
emotional and other welfare considerations of the patient.
(ii) who is a competent patient but who has not taken an informed
decision, and
are not limited to medical interests of the patient but include ethical,
social, moral, emotional and other welfare considerations.”
section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and
who is enrolled on a State Medical Register as defined in clause (k) of
that section.”
(j) For the reasons stated in the last chapter, we propose to declare
‘Advance Medical Directives’ as well as ‘Medical Powers of Attorney’
(Living Will) void for the reasons given in Chapter VII and hence both of
these need to be defined. (see sec. 2(a) and sec. 2(h))
At the same time, the doctor must be satisfied that the decision is
made by a competent patient and that it is an informed decision. Such
informed decision must be one taken by the competent patient
independently, all by himself i.e. without undue pressure or influence from
others. This aspect will be contained in the proviso to sec. 3(2).
409
We are also providing that the medical practitioner shall consult the
parents or close relatives (if any) of the patient but that their views shall not
be binding on the medical practitioner because it is the prerogative of the
medical practitioner to take a clinical decision on the basis of expert
medical opinion. (see sec. 5(2))
410
The said authorities may make rules for the purposes of sections 7
and 8 and publish the same in the appropriate Gazette.
413
We are also of the view that the doctors must be protected if civil and
criminal actions are instituted against them. We, therefore, propose that if
the medical practitioner acts in accordance with the provisions of the Act
while withholding or withdrawing medical treatment, his action shall be
deemed to be ‘lawful’. (sec. 11)
7) In the United Kingdom and other common law countries, the patient,
parents or close relatives are entitled to seek declaratory relief in Courts for
preventing the doctors or hospitals from withholding or withdrawing
medical treatment or sometimes for directing such withholding or
withdrawal.
We are also of the view that time is essence in the case of terminally
ill patients when decisions have to be taken under this enabling provision
for withholding or withdrawing treatment. To avoid delays and appeals,
the Court which deals with these cases must, therefore, be a Division Bench
of the High Court and not the ordinary trial Courts. The Division Bench
must deal with the matters with the greatest speed but, at the same time,
after hearing all concerned and after due consideration. In England, we
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find decisions are given sometimes almost immediately, soon after notices
are served and the declaration is given in 2 or 3 days. Sometimes, reasons
are given later. Therefore, we propose that these petitions be filed before a
Division Bench of a High Court and should be disposed of within a
maximum period of one month. We propose a provision for the High
Court to call for further expert evidence or to examine further witnesses.
The High Court can also appoint an amicus curiae. The High Court may
even pass orders first and give reasons later. The High Court will be the
High Court within whose territorial jurisdiction the medical treatment is
proposed to be given or given or withheld or withdrawn.
The declaration given by the High Court must benefit the patient, the
medical practitioner and the concerned hospital also.
(b) Even where the matter has not gone to the High Court, no person or
body including the media can publish the identity of the patient, doctor,
hospital, relatives or experts etc. and must keep identity confidential. If
that is breached, they may be liable for civil or criminal action.
11) As stated earlier, while dealing with sections 5 and 7, there must be
provisions mandating the Medical Council to issue guidelines on the
question of withholding or withdrawing medical treatment to competent or
incompetent patients suffering from terminal illness. It may consult experts
and also experts in critical care medicine, before formulating the guidelines.
We are also providing that it can modify the same from time to time, and
they be published in the Official Gazette. (sec. 14)
We recommend accordingly.
(K.N. Chaturvedi)
Member-Secretary
Annexure
1. Short title, extent and commencement: (1) This Act may be called the
Medical Treatment of Terminally ill Patients (Protection of Patients and
Medical Practitioners) Act, 2006.
(2) It extends to the whole of India except the State of Jammu and
Kashmir.
(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint.
from the three experts selected by him out of the panel referred to in
section 7.
(2) Before withholding or withdrawing medical treatment under sec 5,
the medical practitioner shall inform in writing the patient (if he is
conscious), his parents or other relatives or guardian about the
decision to withhold or withdraw such treatment in the patient’s best
interests.
(3) Where the patient, parents or relatives stated in subsection (2) inform
the medical practitioner of their intention to move the High Court
under sec 14, the medical practitioner shall postpone such
withholding or withdrawal by fifteen days and if no orders are
received from the High within that period, he may proceed with the
withholding or withdrawing of the medical treatment.
(4) A photocopy of the pages in the register with regard to each such
patient shall be lodged immediately, as a matter of information, on the
same date, with the Director General of Health Services or the
Director of Medical Services of the Union Territory or State, as the
case may be, in which the medical treatment is being given or is
proposed or is proposed to be withheld or withdrawn and
acknowledgement obtained and the contents of the register shall be
kept confidential by the medical practitioner and not revealed to the
public or media.
said authorities and shall keep the information confidential and shall not
reveal the same to the public or the media.
(6) The said Authorities may make Rules for the purposes of sections 7
and 8 and publish the said Rules in the appropriate Gazette or on their
websites.
(1) Any patient or his or her parents or his or her relatives or next
friend may move an original petition before a Division Bench
of the High Court seeking a declaration that any act or
omission or proposed act or omission by the medical
practitioner or a hospital in respect of withholding or
withdrawing medical treatment from a patient is lawful or
unlawful and seeking such interim or final directions from the
said Court as they may deem fit.
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(6) Where the High Court is of the view that interim or final
directions have to be passed and implemented urgently, it may
pass such operational orders initially and follow up the same by
giving its reasons therefor, soon thereafter.
(7) Any declarations or final directions given by the Division
Bench of the High Court in a petition filed under subsection (1)
or (2) shall be binding in all other actions civil or criminal
against the medical practitioner or the hospital, in relation to
the said act or omission of the medical practitioner or the
hospital, in relation to the said patient.
(8) Recourse to the High Court for a declaratory relief and for
directions under this section is not a condition precedent for
withholding or withdrawing medical treatment if such
withdrawal or withholding is done in accordance with the
provisions of this Act.
(1)(i) The Division Bench of the High Court shall, whenever a petition
under section 12 is filed, direct that the identity of the patient and of
his or her parents, the identity of the medical practitioner and
hospitals, the identity of the medical experts, referred to in section 6,
or of other experts or witnesses consulted by the Court or who have
given evidence in the Court, shall, during the pendency of the
petition, and after its disposal, be kept confidential and shall be
referred only by the English alphabets as stated in clause (ii)..
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(ii) As soon as the original petition is filed, the Division Bench of the
High Court shall make an order choosing English alphabets for
identifying the patient, parents, doctors, hospitals or experts or other
witnesses referred to in sub clause (i) or other persons connected with
the medical treatment and shall direct that in the further proceedings
of the Court or in any publications in the law reports or in the print or
electronic media or audio-visual media, during and after disposal of
the petition, those alphabets alone shall be used to refer to the
particular patient, person or hospital and that the identity of the
patient, person or hospital shall not be disclosed and the High Court
may, where necessary, hold all or any part of the hearing in camera.
(iii) It shall not be lawful for any person or body to refer to the identity of
the patient, person or hospital or other particulars or matters referred
to in sub clause (i) and (ii) in any law-report or publication in the
print or electronic or audio-visual media, and the alphabets
designated by the Division Bench of the High Court under subsection
(2) alone shall be referred to while publishing the proceedings of the
Court, during the pendency of the petition and after its disposal.
(iv) Any person or body acting in violation of the provisions of sub clause
(iii) may be held liable for contempt of Court for violation of the
orders of Court under sub clause (ii) and be dealt with accordingly.
(vi) The High Court may make Rules of Procedure for the implementation
of provisions of section 12 and this section.
(2) No person or body including media shall, in cases which have not
gone to the High Court under subsection (1), publish the names of the
patients or other information which may disclose the identity of the patient,
relatives, doctor, hospital or experts and if these provisions are violated,
may be proceeded against by way of a civil or criminal action in accordance
with law.
(1) Consistent with the provisions of this Act, the Medical Council
of India shall prepare and issue guidelines, from time to time for the
guidance of medical practitioners in the matter of withholding or
withdrawing of medical treatment to competent or incompetent
patients suffering from terminal illness.
(3) The Medical Council of India may review and modify the
guidelines from time to time.
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