1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug .. Petitioner
-versus-
Union of India and others .. Respondents
J U D G M E N T
Markandey Katju, J.
"Marte hain aarzoo mein marne ki
Maut aati hai par nahin aati"
-- Mirza Ghalib
1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner,
learned Attorney General for India for the Union of India Mr. Vahanvati,
Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as
amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean,
KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for
the State of Maharashtra.
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2. Euthanasia is one of the most perplexing issues which the courts and
legislatures all over the world are facing today. This Court, in this case, is
facing the same issue, and we feel like a ship in an uncharted sea, seeking
some guidance by the light thrown by the legislations and judicial
pronouncements of foreign countries, as well as the submissions of learned
counsels before us. The case before us is a writ petition under Article 32 of
the Constitution, and has been filed on behalf of the petitioner Aruna
Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be
a next friend.
3. It is stated in the writ petition that the petitioner Aruna Ramachandra
Shanbaug was a staff Nurse working in King Edward Memorial Hospital,
Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by
a sweeper in the hospital who wrapped a dog chain around her neck and
yanked her back with it. He tried to rape her but finding that she was
menstruating, he sodomized her. To immobilize her during this act he
twisted the chain around her neck. The next day on 28th November, 1973 at
7.45 a.m. a cleaner found her lying on the floor with blood all over in an
unconscious condition. It is alleged that due to strangulation by the dog
chain the supply of oxygen to the brain stopped and the brain got damaged.
It is alleged that the Neurologist in the Hospital found that she had plantars'
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extensor, which indicates damage to the cortex or some other part of the
brain. She also had brain stem contusion injury with associated cervical cord
injury. It is alleged at page 11 of the petition that 36 years have expired since
the incident and now Aruna Ramachandra Shanbaug is about 60 years of
age. She is featherweight, and her brittle bones could break if her hand or leg
are awkwardly caught, even accidentally, under her lighter body. She has
stopped menstruating and her skin is now like papier mache' stretched over a
skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth
had decayed causing her immense pain. She can only be given mashed food,
on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in
a persistent negetative state (p.v.s.) and virtually a dead person and has no
state of awareness, and her brain is virtually dead. She can neither see, nor
hear anything nor can she express herself or communicate, in any manner
whatsoever. Mashed food is put in her mouth, she is not able to chew or
taste any food. She is not even aware that food has been put in her mouth.
She is not able to swallow any liquid food, which shows that the food goes
down on its own and not because of any effort on her part. The process of
digestion goes on in this way as the mashed food passes through her system.
However, Aruna is virtually a skeleton. Her excreta and the urine is
discharged on the bed itself. Once in a while she is cleaned up but in a short
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while again she goes back into the same sub-human condition. Judged by
any parameter, Aruna cannot be said to be a living person and it is only on
account of mashed food which is put into her mouth that there is a facade of
life which is totally devoid of any human element. It is alleged that there is
not the slightest possibility of any improvement in her condition and her
body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and
this has been the position for the last 36 years. The prayer of the petitioner is
that the respondents be directed to stop feeding Aruna, and let her die
peacefully.
4. We could have dismissed this petition on the short ground that under
Article 32 of the Constitution of India (unlike Article 226) the petitioner has
to prove violation of a fundamental right, and it has been held by the
Constitution Bench decision of this Court in Gian Kaur vs. State of
Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life
guaranteed by Article 21 of the Constitution does not include the right to die.
Hence the petitioner has not shown violation of any of her fundamental
rights. However, in view of the importance of the issues involved we
decided to go deeper into the merits of the case.
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5. Notice had been issued by this Court on 16.12.2009 to all the
respondents in this petition. A counter affidavit was earlier filed on behalf
of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the
Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the
said hospital, stating in paragraph 6 that Aruna accepts the food in normal
course and responds by facial expressions. She responds to commands
intermittently by making sounds. She makes sounds when she has to pass
stool and urine which the nursing staff identifies and attends to by leading
her to the toilet. Thus, there was some variance between the allegations in
the writ petition and the counter affidavit of Dr. Pazare.
6. Since there was some variance in the allegation in the writ petition
and the counter affidavit of Dr. Pazare, we, by our order dated 24 January,
2011 appointed a team of three very distinguished doctors of Mumbai to
examine Aruna Shanbaug thoroughly and submit a report about her physical
and mental condition. These three doctors were :
(1) Dr. J. V. Divatia, Professor and Head, Department of
Anesthesia, Critical Care and Pain at Tata Memorial
Hospital, Mumbai;
(2) Dr. Roop Gursahani, Consultant Neurologist at P.D.
Hinduja, Mumbai; and
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(3) Dr. Nilesh Shah, Professor and Head, Department of
Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital.
7. In pursuance of our order dated 24th January, 2011, the team of three
doctors above mentioned examined Aruna Shanbuag in KEM Hospital and
has submitted us the following report:
" Report of Examination of Ms. Aruna Ramachandra Shanbaug
Jointly prepared and signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
(Professor and Head, Department of Psychiatry at Lokmanya
Tilak Municipal Corporation Medical College and General
Hospital).
I. Background
As per the request of Hon. Justice Katju and Hon.
Justice Mishra of the Supreme Court of India, Ms. Aruna
Ramachandra Shanbaug, a 60-year-old female patient
was examined on 28th January 2011, morning and 3rd
February 2011, in the side-room of ward-4, of the K. E.
M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical
Care and Pain at Tata Memorial Hospital, Mumbai), Dr.
Roop Gursahani (Consultant Neurologist at P.D. Hinduja
Hospital, Mumbai) and Dr. Nilesh Shah (Professor and
Head, Department of Psychiatry at Lokmanya Tilak
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Municipal Corporation Medical College and General
Hospital).
This committee was set up because the Court
found some variance between the allegations in the writ
petition filed by Ms. Pinki Virani on behalf of Aruna
Ramchandras Shanbaug and the counter affidavit of Dr.
Pazare. This team of three doctors was appointed to
examine Aruna Ramachandra Shanbaug thoroughly and
give a report to the Court about her physical and mental
condition
It was felt by the team of doctors appointed by the
Supreme Court that longitudinal case history and
observations of last 37 years along with findings of
examination will give a better, clear and comprehensive
picture of the patient's condition.
This report is based on:
1. The longitudinal case history and observations
obtained from the Dean and the medical and nursing staff
of K. E. M. Hospital,
2. Case records (including nursing records) since January
2010
3. Findings of the physical, neurological and mental
status examinations performed by the panel.
4. Investigations performed during the course of this
assessment (Blood tests, CT head,
Electroencephalogram)
II. Medical history
Medical history of Ms. Aruna Ramachandra
Shanbaug was obtained from the Dean, the Principal of
the School of Nursing and the medical and nursing staff
of ward-4 who has been looking after her.
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It was learnt from the persons mentioned above that
1. Ms. Aruna Ramachandra Shanbaug was admitted in
the hospital after she was assaulted and strangulated by a
sweeper of the hospital on November 27, 1973.
2. Though she survived, she never fully recovered from
the trauma and brain damage resulting from the assault
and strangulation.
3. Since last so many years she is in the same bed in the
side-room of ward-4.
4. The hospital staff has provided her an excellent
nursing care since then which included feeding her by
mouth, bathing her and taking care of her toilet needs.
The care was of such an exceptional nature that she has
not developed a single bed-sore or fracture in spite of her
bed-ridden state since 1973.
5. According to the history from them, though she is not
very much aware of herself and her surrounding, she
somehow recognizes the presence of people around her
and expresses her like or dislike by making certain types
of vocal sounds and by waving her hands in certain
manners. She appears to be happy and smiles when she
receives her favorite food items like fish and chicken
soup. She accepts feed which she likes but may spit out
food which she doesn't like. She was able to take oral
feeds till 16th September 2010, when she developed a
febrile illness, probably malaria. After that, her oral
intake reduced and a feeding tube (Ryle's tube) was
passed into her stomach via her nose. Since then she
receives her major feeds by the Ryle's tube, and is only
occasionally able to accept the oral liquids. Malaria has
taken a toll in her physical condition but she is gradually
recuperating from it.
6. Occasionally, when there are many people in the room
she makes vocal sounds indicating distress. She calms
down when people move out of her room. She also seems
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to enjoy the devotional songs and music which is played
in her room and it has calming effect on her.
7. In an annual ritual, each and every batch of nursing
students is introduced to Ms. Aruna Ramachandra
Shanbaug, and is told that "She was one of us"; "She was
a very nice and efficient staff nurse but due to the mishap
she is in this bed-ridden state".
8. The entire nursing staff member and other staff
members have a very compassionate attitude towards Ms.
Aruna Ramachandra Shanbaug and they all very happily
and willingly take care of her. They all are very proud of
their achievement of taking such a good care of their bed-
ridden colleague and feel very strongly that they want to
continue to take care of her in the same manner till she
succumbs naturally. They do not feel that Ms. Aruna
Ramachandra Shanbaug is living a painful and miserable
life.
III. Examination
IIIa. Physical examination
She was conscious, unable to co-operate and
appeared to be unaware of her surroundings.
Her body was lean and thin. She appeared neat and
clean and lay curled up in the bed with movements of the
left hand and made sounds, especially when many people
were present in the room.
She was afebrile, pulse rate was 80/min, regular,
and good volume. Her blood pressure recorded on the
nursing charts was normal. Respiratory rate was 15/min,
regular, with no signs of respiratory distress or
breathlessness.
There was no pallor, cyanosis, clubbing or icterus.
She was edentulous (no teeth).
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Skin appeared to be generally in good condition,
there were no bed sores, bruises or evidence of old healed
bed sores. There were no skin signs suggestive of
nutritional deficiency or dehydration.
Her wrists had developed severe contractures, and
were fixed in acute flexion. Both knees had also
developed contractures (right more than left).
A nasogastric feeding tube (Ryles tube) was in
situ. She was wearing diapers.
Abdominal, respiratory and cardiovascular
examination was unremarkable.
IIIb. Neurological Examination
When examined she was conscious with eyes open
wakefulness but without any apparent awareness (see
Table 1 for detailed assessment of awareness). From the
above examination, she has evidence of intact auditory,
visual, somatic and motor primary neural pathways.
However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed
during our examinations.
There was no coherent response to verbal
commands or to calling her name. She did not turn her
head to the direction of sounds or voices. When roused
she made non-specific unintelligible sounds ("uhhh,
ahhh") loudly and continuously but was generally silent
when undisturbed.
Menace reflex (blinking in response to hand
movements in front of eyes) was present in both eyes and
hemifields but brisker and more consistent on the left.
Pupillary reaction was normal bilaterally. Fundi could
not be seen since she closed her eyes tightly when this
was attempted. At rest she seemed to maintain
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preferential gaze to the left but otherwise gaze was
random and undirected (roving) though largely
conjugate. Facial movements were symmetric. Gag reflex
(movement of the palate in response to insertion of a
tongue depressor in the throat) was present and she does
not pool saliva. She could swallow both teaspoonfuls of
water as well as a small quantity of mashed banana. She
licked though not very completely sugar smeared on her
lips, suggesting some tongue control.
She had flexion contractures of all limbs and
seemed to be incapable of turning in bed spontaneously.
There was what appeared to be minimal voluntary
movement with the left upper limb (touching her wrist to
the eye for instance, perhaps as an attempt to rub it).
When examined/disturbed, she seemed to curl up even
further in her flexed foetal position. Sensory examination
was not possible but she did seem to find passive
movement painful in all four limbs and moaned
continuously during the examination. Deep tendon
reflexes were difficult to elicit elsewhere but were
present at the ankles. Plantars were withdrawal/extensor.
Thus neurologically she appears to be in a state of
intact consciousness without awareness of
self/environment. No cognitive or communication
abilities could be discerned. Visual function if present is
severely limited. Motor function is grossly impaired with
quadriparesis.
IIIc. Mental Status Examination
1. Consciousness, General Appearance, Attitude and Behavior :
Ms. Aruna Ramachandra Shanbaug was resting
quietly in her bed, apparently listening to the devotional
music, when we entered the room. Though, her body
built is lean, she appeared to be well nourished and there
were no signs of malnourishment. She appeared neat and
clean. She has developed contractures at both the wrist
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joints and knee joints and so lied curled up in the bed
with minimum restricted physical movements.
She was conscious but appeared to be unaware of
herself and her surroundings. As soon as she realized the
presence of some people in her room, she started making
repetitive vocal sounds and moving her hands. This
behavior subsided as we left the room. She did not have
any involuntary movements. She did not demonstrate any
catatonic, hostile or violent behavior.
Her eyes were wide open and from her behavior it
appeared that she could see and hear us, as when one
loudly called her name, she stopped making vocal sounds
and hand movements for a while. She was unable to
maintain sustained eye-to eye contact but when the hand
was suddenly taken near her eyes, she was able to blink
well.
When an attempt was made to feed her by mouth,
she accepted a spoonful of water, some sugar and mashed
banana. She also licked the sugar and banana paste
sticking on her upper lips and swallowed it. Thus, at
times she could cooperate when fed.
2. Mood and affect :
It was difficult to assess her mood as she was
unable to communicate or express her feelings. She
appeared to calm down when she was touched or
caressed gently. She did not cry or laugh or expressed
any other emotions verbally or non-verbally during the
examination period. When not disturbed and observed
quietly from a distance, she did not appear to be in severe
pain or misery. Only when many people enter her room,
she appears to get a bit disturbed about it.
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3. Speech and thoughts :
She could make repeated vocal sounds but she
could not utter or repeat any comprehensible words or
follow and respond to any of the simple commands (such
as "show me your tongue"). The only way she expressed
herself was by making some sounds. She appeared to
have minimal language comprehension or expression.
4. Perception :
She did not appear to be having any perceptual
abnormality like hallucinations or illusions from her
behavior.
5. Orientation, memory and intellectual capacity :
Formal assessment of orientation in time, place
and person, memory of immediate, recent and remote
events and her intellectual capacity could not be carried
out.
6. Insight :
As she does not appear to be fully aware of herself
and her surroundings, she is unlikely to have any insight
into her illness.
IV. Reports of Investigations
IVa. CT Scan Head (Plain)
This is contaminated by movement artefacts. It
shows generalized prominence of supratentorial sulci and
ventricles suggestive of generalized cerebral atrophy.
Brainstem and cerebellum seem normal. Ischemic foci
are seen in left centrum semi-ovale and right external
capsule. In addition a small left parieto-occipital cortical
lesion is also seen and is probably ischemic.
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IVb. EEG
The dominant feature is a moderately rhythmic
alpha frequency at 8-10 Hz and 20-70 microvolts which
is widely distributed and is equally prominent both
anteriorly and posteriorly. It is not responsive to eye-
opening as seen on the video. Beta at 18-25 Hz is also
seen diffusely but more prominently anteriorly. No focal
or paroxysmal abnormalities were noted
IVc. Blood
Reports of the hemoglobin, white cell count, liver
function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels
are unremarkable. (Detailed report from KEM hospital
attached.)
V. Diagnostic impression
1) From the longitudinal case history and
examination it appears that Ms. Aruna Ramachandra
Shanbaug has developed non-progressive but irreversible
brain damage secondary to hypoxic-ischemic brain injury
consistent with the known effects of strangulation. Most
authorities consider a period exceeding 4 weeks in this
condition, especially when due to hypoxic-ischemic
injury as confirming irreversibility. In Ms. Aruna's case,
this period has been as long as 37 years, making her
perhaps the longest survivor in this situation.
2) She meets most of the criteria for being in a
permanent vegetative state (PVS). PVS is defined as a
clinical condition of unawareness (Table 1) of self and
environment in which the patient breathes spontaneously,
has a stable circulation and shows cycles of eye closure
and opening which may simulate sleep and waking
(Table 2). While she has evidence of intact auditory,
visual, somatic and motor primary neural pathways, no
definitive evidence for awareness of auditory, visual,
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somatic and motor stimuli was observed during our
examinations.
VI. Prognosis
Her dementia has not progressed and has remained
stable for last many years and it is likely to remain same
over next many years. At present there is no treatment
available for the brain damage she has sustained.
VII. Appendix
VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS
(Wade DT, Johnston C. British Med
STI
MULUS RESPONSE
Journal 1999; 319:841-844) DOMAIN
OBSERVED
AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements
Meaningful noise (rattled steel tumbler and spoon, film songs
Non-specific head and body movements
of 1970s)
Spoken commands ("close your eyes", "lift left hand ": in
Unable to obey commands. No specific or reproducible
English, Marathi and Konkani) response
VISUAL AWARENESS Bright light to eyes Pupillary responses present
Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly
rattle) reproducible
Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right
Written command (English, Marathi: close your eyes) No response
SOMATIC AWARENESS Painful stimuli to limbs (light prick with
Wi
thdrawal, maximal in left upper limb
sharp end of tendon hammer)
Painful stimuli to face Distress but no co-ordinated response to remove stimulus
Routine sensory stimuli during care (changing position in bed
Generalized non specific response presence but no coordinated
and feeding) attempt to assist in process
MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal
directed - lifting left hand to left side of
face, apparently to rub her left eye.
Responsive Non-specific undirected without any goal directed activities.
Conclusion:
From the above examination, she has evidence of intact auditory, visual, somatic
and motor primary neural pathways. However no definitive evidence for awareness
of auditory, visual, somatic and motor stimuli was observed during our
examinations.
VIIb. Table 2. Application of Criteria for Vegetative State
(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):
Exa
mination findings : whether she meets Criteria
S33-S38) Criteria (Yes /No / Probably)
Unaware of self and environment Yes, Unaware
No interaction with others Yes, no interaction
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No sustained, reproducible or purposeful voluntary
Yes
, no sustained, reproducible or purposeful
behavioural response to visual, auditory, tactile or
b
ehavioural response, but :
noxious stimuli 1. Resisted examination of fundus
2. Licked sugar off lips
No language comprehension or expression Yes, no comprehension
No blink to visual threat Blinks, but more consistent on left than right
Present sleep wake cycles Yes (according to nurses)
Preserved autonomic and hypothalamic function
Yes
Preserved cranial nerve reflexes Yes
Bowel and bladder incontinence Yes
VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N
Engl J Med 1994; 330: 1499-508
2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis
and management. Brit Med J 1999; 319:841-4
3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and
diagnostic criteria. Neurology 2002;58:349-353
4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology
2010;75;S33"
8. On 18th February, 2011, we then passed the following order :
"In the above case Dr. J.V. Divatia on 17.02.2011 handed
over the report of the team of three doctors whom we had
appointed by our order dated 24th January, 2011. He has also
handed over a CD in this connection. Let the report as well as
the CD form part of the record.
On mentioning, the case has been adjourned to be listed
on 2nd March, 2011 at the request of learned Attorney General
of India, Mr. T.R. Andhyarujina, learned Senior Advocate,
whom we have appointed as amicus curiae in the case as well
as Mr. Shekhar Naphade, learned Senior Advocate for the
petitioner.
We request the doctors whom we had appointed viz., Dr.
J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear
before us on 2nd March, 2011 at 10.30 A.M. in the Court, since
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it is quite possible that we may like to ask them questions about
the report which they have submitted, and in general about their
views in connection with euthanasia.
On perusal of the report of the committee of doctors to us
we have noted that there are many technical terms which have
been used therein which a non-medical man would find it
difficult to understand. We, therefore, request the doctors to
submit a supplementary report by the next date of hearing (by
e-mailing copy of the same two days before the next date of
hearing) in which the meaning of these technical terms in the
report is also explained.
The Central Government is directed to arrange for the air
travel expenses of all the three doctors as well as their stay in a
suitable accommodation at Delhi and also to provide them
necessary conveyance and other facilities they require, so that
they can appear before us on 02.03.2011.
An honorarium may also be given to the doctors, if they
so desire, which may be arranged mutually with the learned
Attorney General.
The Dean of King Edward Memorial Hospital as well as
Ms. Pinky Virani (who claims to be the next friend of the
petitioner) are directed to intimate the brother(s)/sister(s) or
other close relatives of the petitioner that the case will be
listed on 2nd March, 2011 in the Supreme Court and they can
put forward their views before the Court, if they so desire.
Learned counsel for the petitioner and the Registry of this Court
shall communicate a copy of this Order forthwith to the Dean,
KEM Hospital. The Dean, KEM Hospital is requested to file an
affidavit stating his views regarding the prayer in this writ
petition, and also the condition of the petitioner.
Copy of this Order shall be given forthwith to learned
Attorney General of India, Mr. Shekhar Naphade and Mr.
Andhyarujina, learned Senior Advocates.
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Let the matter be listed as the first item on 2nd March,
2011".
9. On 2.3.2011, the matter was listed again before us and we first saw
the screening of the CD submitted by the team of doctors along with their
report. We had arranged for the screening of the CD in the Courtroom, so
that all present in Court could see the condition of Aruna Shanbaug. For
doing so, we have relied on the precedent of the Nuremburg trials in which a
screening was done in the Courtroom of some of the Nazi atrocities during
the Second World War. We have heard learned counsel for the parties in
great detail. The three doctors nominated by us are also present in Court.
As requested by us, the doctors team submitted a supplementary report
before us which states :
Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug
Jointly prepared and signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial
Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
(Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital).
Mumbai
February 26, 2011
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INDEX
Introduction 3
Terminology 4
Glossary of Technical terms 7
Opinion 11 3
Introduction
This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra
Shanbaug, dated February 14, 2011.
On perusal of the report, the Hon. Court observed that there were many technical terms
which a non-medical man would find it difficult to understand, and requested us to submit a
supplementary report in which the meaning of these technical terms in the report is also
explained.
We have therefore prepared this Supplement to include a glossary of technical terms used in
the earlier Report, and also to clarify some of the terminology related to brain damage.
Finally, we have given our opinion in the case of Aruna Shanbaug.
Terminology
The words coma, brain death and vegetative state are often used in common language to
describe severe brain damage. However, in medical terminology, these terms have specific
meaning and significance.
Brain death
A state of prolonged irreversible cessation of all brain activity, including lower brain stem
function with the complete absence of voluntary movements, responses to stimuli, brain stem
reflexes, and spontaneous respirations.
Explanation: This is the most severe form of brain damage. The patient is unconscious,
completely unresponsive, has no reflex activity from centres in the brain, and has no
breathing efforts on his own. However the heart is beating. This patient can only be
maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain
blood pressure, etc). These patients can be legally declared dead (`brain dead') to allow their
organs to be taken for donation.
Aruna Shanbaug is clearly not brain dead.
Coma
Patients in coma have complete failure of the arousal system with no spontaneous eye
opening and are unable to be awakened by application of vigorous sensory stimulation.
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Explanation: These patients are unconscious. They cannot be awakened even by application
of a painful stimulus. They have normal heart beat and breathing, and do not require
advanced life support to preserve life.
Aruna Shanbaug is clearly not in Coma.
Vegetative State (VS)
The complete absence of behavioral evidence for self or environmental awareness. There is
preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake
cycles. .i.e. patients are awake, but have no awareness.
Explanation: Patients appear awake. They have normal heart beat and breathing, and do not
require advanced life support to preserve life. They cannot produce a purposeful, co-
ordinated, voluntary response in a sustained manner, although they may have primitive
reflexive responses to light, sound, touch or pain. They cannot understand, communicate,
speak, or have emotions. They are unaware of self and environment and have no interaction
with others. They cannot voluntarily control passing of urine or stools. They sleep and
awaken. As the centres in the brain controlling the heart and breathing are intact, there is no
threat to life, and patients can survive for many years with expert nursing care. The following
behaviours may be seen in the vegetative state :
Sleep-wake cycles with eyes closed, then open
Patient breathes on her own
Spontaneous blinking and roving eye movements
Produce sounds but no words
Brief, unsustained visual pursuit (following an object with her eyes)
Grimacing to pain, changing facial expressions
Yawning; chewing jaw movements
Swallowing of her own spit
Nonpurposeful limb movements; arching of back
Reflex withdrawal from painful stimuli
Brief movements of head or eyes toward sound or movement without apparent localization or
fixation
Startles with a loud sound
Almost all of these features consistent with the diagnosis of permanent vegetative state were
present during the medical examination of Aruna Shanbaug.
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Minimally Conscious State
Some patients with severe alteration in consciousness have neurologic findings that do not
meet criteria for VS. These patients demonstrate some behavioral evidence of conscious
awareness but remain unable to reproduce this behavior consistently. This condition is
referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by
the partial preservation of conscious awareness.
To make the diagnosis of MCS, limited but clearly discernible evidence of self or
environmental awareness must be demonstrated on a reproducible or sustained basis by one
or more of the following behaviors:
7 Following simple commands.
7 Gestural or verbal yes/no responses (regardless of accuracy).
7 Intelligible sounds
7 Purposeful behavior, including movements or emotional behaviors (smiling, crying) that
occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some
examples of qualifying purposeful behavior include:
- appropriate smiling or crying in response to the linguistic or visual content of emotional but
not to neutral topics or stimuli
- vocalizations or gestures that occur in direct response to the linguistic content of questions
- reaching for objects that demonstrates a clear relationship between object location and
direction of reach
- touching or holding objects in a manner that accommodates the size and shape of the object
- pursuit eye movement or sustained fixation that occurs in direct response to moving or
salient stimuli
None of the above behaviours suggestive of a Minimally Conscious State were observed
during the examination of Aruna Shanbaug.
GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT
(In Alphabetical order) Term in text Meaning
Affect Feeling conveyed though expressions and
behavior
Afebrile No fever
Auditory Related to hearing
Bedsore A painful wound on the body caused by
having to lie in bed for a long time
Bilaterally On both sides (right and left)
Bruise An injury or mark where the skin has not
been broken but is darker in colour, often as
22
a result of being hit by something
Catatonic Describes someone who is stiff and not
moving or reacting, as if dead
Cerebral atrophy Shrinking of the globe (cortex) of the brain
Clubbing Bulging or prominence of the nailbed,
making base of the nails look thick. This is
often due to longstanding infection inside the
lungs.
Cognitive Related to ability to understand and process
information in the brain
Conjugate Synchronised movement (of the eyeball)
Conscious Awake with eyes open. By itself the term
conscious does not convey any information
about awareness of self and surroundings, or
the ability to understand, communicate, have
emotions, etc.
Contractures Muscles or tendons that have become
shortened and taut over a period of time. This
causes deformity and restriction of
movements.
CT Scan A specialized X-ray test where images of the
brain (or other part of the body) are obtained
in cross-section at different levels. This
allows clear visualization of different parts of
the brain
Cyanosis Bluish discoloration of the nails, lips or skin.
It may be due to low levels of oxygen in the
blood
Deep tendon reflexes Reflex response of the fleshy part of certain
muscles when its tendon is hit lightly with an
examination hammer
Dementia Disorder in which there is a cognitive defect,
i.e. the patient is unable to understand and
process information in the brain
Electroencephalography, (EEG) Recording of the electrical activity of the
brain
Febrile illness Illness with fever
Fracture A crack or a break in bones
Fundi Plural of fundus. Fundus of the eye is the
interior surface of the eye, opposite the lens.
It is examined with an instrument called the
ophthalmoscope
Gag reflex Movement of the palate in response to
insertion of a tongue depressor in the throat
Hallucinations Perception in the absence of stimuli. (e.g.
hearing voices which are not there or which
are inaudible to others)
Hemifields Right or left part of the field of vision
23
Hypoxic Related to reduced oxygen levels in the
blood
Icterus Yellowish discoloration of the skin and
eyeballs. This is commonly known as
jaundice, and may be caused by liver disease
Illusions Misperception of stimuli (seeing a rope as a
snake)
Immediate memory Memory of events which have occurred just
a few minutes ago
Insight Person's understanding of his or her own
illness
Intellectual capacity Ability to solve problems. The ability to
learn, understand and make judgments or
have opinions that are based on reason
Involuntary movements Automatic movements over which patient
has no control
Ischemic Related to restriction or cutting off of the
blood flow to any part of the body
Malnourishment Weak and in bad health because of having
too little food or too little of the types of
food necessary for good health
Menace reflex Blinking in response to hand movements in
front of eyes
Mood The way one feels at a particular time
Motor Related to movement
Movement artefacts Disturbance in the image seen in the CT scan
due to patient movement
Oral feed Food given through mouth
Orientation Awareness about the time, place and person
Pallor Pale appearance of the skin. Usually this is
due to a low red blood cell count or low
haemoglobin level in the blood.
Passive movement Movement of a limb or part of the body done
by the doctor without any effort by the
patient
Perception Sensory experiences (such as seeing, hearing
etc.)
Perceptual abnormalities Abnormal sensory experiences, e.g, seeing
things that do not exist, hearing sounds when
there are none
Plantars Reflex response of the toes when a sharp
painful stimulus is applied to the sole of the
foot. The normal response is curling
downwards of the toes.
Plantars were withdrawal/extensor When a painful stimulus was applied to the
sole of the foot the toes spread out and there
was reflex movement of the leg (withdrawal)
or upward curling of the great toe and other
24
toes (extensor). This is an abnormal response
indicating damage in the pathway in the
brain or to the area in the brain controlling
function of the legs.
Primary neural pathways Course of the nerves from a part of the body
to the area in the brain responsible for the
function of that part
Pupillary reaction The pupillary light reflex controls the
diameter of the pupil, in response to the
intensity of light. Greater intensity light
causes the pupil to become smaller (allowing
less light in), whereas
Opinion
In our view, the issues in this case (and other similar cases) are:
1. In a person who is in a permanent vegetative state (PVS), should withholding or
withdrawal of life sustaining therapies (many authorities would include placement of an
artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful' ?
2. If the patient has previously expressed a wish not to have life-sustaining treatments in case
of futile care or a PVS, should his / her wishes be respected when the situation arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin
makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes
be respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37
years by the staff of KEM Hospital. Who should take decisions on her behalf?
Questions such as these come up at times in the course of medical practice. We realize that
answers to these questions are difficult, and involve several ethical, legal and social issues.
Our opinion is based on medical facts and on the principles of medical ethics. We hope that
the Honourable Court will provide guidance and clarity in this matter.
Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.
1. Autonomy means the right to self-determination, where the informed patient has a right to
choose the manner of his treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent to make choices, his wishes
expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his
behalf ('substituted judgment') are to be respected.
The surrogate is expected to represent what the patient may have decided had he / she been
competent, or to act in the patient's best interest. It is expected that a surrogate acting in the
25
patient's best interest follows a course of action because it is best for the patient, and is not
influenced by personal convictions, motives or other considerations.
2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the
patient's best interest means following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations. In some cases, the
doctor's expanded goals may include allowing the natural dying process (neither hastening
nor delaying death, but `letting nature take its course'), thus avoiding or reducing the
sufferings of the patient and his family, and providing emotional support. This is not to be
confused with euthanasia, which involves the doctor's deliberate and intentional act through
administering a lethal injection to end the life of the patient.
In the present case under consideration
1. We have no indication of Aruna Shanbaug's views or wishes with respect to life-sustaining
treatments for a permanent vegetative state.
2. Any decision regarding her treatment will have to be taken by a surrogate
3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned
by her family. We believe that the Dean of the KEM Hospital (representing the staff of
hospital) is an appropriate surrogate.
4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting
in the best interest of the patient, feel that life sustaining treatments should continue, their
decision should be respected.
5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting
in the best interest of the patient, feel that withholding or withdrawing life-sustaining
treatments is the appropriate course of action, they should be allowed to do so, and their
actions should not be considered unlawful.
10. To complete the narration of facts and before we come to the legal
issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital
Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the
petitioner :-
"She means a lot to KEM hospital. She is on liquid diet
and loves listening to music. We have never subjected her to
intravenous food or fed her via a tube. All these years, she
hasn't had even one bedsore. When those looking after her do
26
not have a problem, I don't understand why a third party who
has nothing to do with her [Pinky Virani who has moved the
apex court to seek euthanasia for Shanbaug] needs to worry,"
added Dr Oak, who, when he took over as dean of KEM
hospital in 2008, visited her first to take her blessings. "I call on
her whenever I get time. I am there whenever she has dysentery
or any another problem. She is very much alive and we have
faith in the judiciary," said Dr Oak."
11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which
states :
"a) Smt. Aruna Ramchandra Shanbaug has been
admitted in a single room in Ward No.4 which is a ward of
general internal medicine patients and she has been there for
last 37 years. She is looked after entirely by doctors, nurses
and para-medical staff of KEM Hospital. She has been our
staff nurse and the unfortunate tragic incidence has happened
with her in KEM Hospital and I must put on record that the
entire medical, administrative, nursing and para-medical staff is
extremely attached to her and consider her as one of us. Her
relatives and a gentleman (her fiancee) used to visit her in the
initial period of her illness but subsequently she has been left to
the care of KEM staff. I visit her frequently and my last visit to
her was on 22nd February, 2011. I give my observations as a
Clinician about Smt. Aruna Shanbaug as under :
b) It would be incorrect to say that Smt. Aruna
Shanbaug is an appropriate case for Coma. It appears that for a
crucial, critical period her brain was deprived of Oxygen supply
and this has resulted in her present state similar to that of
Cerebral Palsy in the newborn child. It is a condition where
brain looses it's co-ordinatory, sensory as well as motor
functions and this includes loss of speech and perception. This
has resulted into a state which in a layman's words "Aruna
lives in her own world for last 37 years". She is lying in a
bed in a single room for 33 years. She has not been able to
stand or walk, nor have we attempted to do that of late because
27
we fear that she is fragile and would break her bones if she
falls. Her extremities and fingers have developed contractures
and subsequent to non-use; there is wasting of her body
muscles. Her eyes are open and she blinks frequently;
however, these movements are not pertaining to a specific
purpose or as a response to a question. At times she is quiet
and at times she shouts or shrieks. However, I must say that her
shouts and shrieks are completely oblivious to anybody's
presence in her room. It is not true that she shouts after seeing
a man. I do not think Aruna can distinguish between a man and
a woman, nor can she even distinguish between ordinate and
inordinate object. We play devotional songs rendered by
Sadguru Wamanrao Pai continuously in her room and she lies
down on her bed listening to them. She expresses her
displeasure by grimaces and shouts if the tape recorder is
switched off. All these years she was never fed by tube and
whenever a nurse used to take food to her lips, she used to
swallow it. It is only since September 2010 she developed
Malaria and her oral intake dropped. In order to take care of
her calorie make need, nurses cadre resorted to naso-gastric
tube feed and now she is used to NG feeding. However, if
small morsels are held near her lips, Aruna accepts them gladly.
It appears that she relishes fish and occasionally smiles when
she is given non-vegetarian food. However, I am honest in
admitting that her smiles are not purposeful and it would be
improper to interpret them as a signal of gratification. I must
put on record that in the world history of medicine there would
not be another single case where such a person is cared and
nurtured in bed for 33 long years and has not developed a single
bed sore. This speaks of volumes of excellence of nursing care
that KEM Nursing staff has given to her.
c) This care is given not as a part of duty but as a part
of feeling of oneness. With every new batch of entrants, the
student nurses are introduced to her and they are told that she
was one of us and she continues to be one of us and then they
whole-heartedly take care of Aruna. In my opinion, this one is
finest example of love, professionalism, dedication and
commitment to one of our professional colleagues who is ailing
28
and cannot support herself. Not once, in this long sojourn of 33
years, anybody has thought of putting an end to her so called
vegetative existence. There have been several Deans and
Doctors of KEM Hospital who have cared her in succession.
Right from illustrious Dr. C.K. Deshpande in whose tenure the
incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt.
Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar,
Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us
have visited her room time and again and have cared for her
and seen her through her ups and downs. The very idea of
withholding food or putting her to sleep by active medication
(mercy killing) is extremely difficult for anybody working in
Seth GSMC & KEM Hospital to accept and I sincerely make a
plea to the Learned Counsel and Hon'ble Judges of Supreme
Court of India that this should not be allowed. Aruna has
probably crossed 60 years of life and would one day meet her
natural end. The Doctors, Nurses and staff of KEM, are
determined to take care of her till her last breath by natural
process.
d) I do not think it is proper on my part to make a
comment on the entire case. However, as a clinical surgeon for
last 3 decades and as an administrator of the hospitals for last 7
years and as a student of legal system of India (as I hold
"Bachelor of Law" degree from Mumbai University), I feel that
entire society has not matured enough to accept the execution
of an Act of Euthanasia or Mercy Killing. I fear that this may
get misused and our monitoring and deterring mechanisms may
fail to prevent those unfortunate incidences. To me any mature
society is best judged by it's capacity and commitment to take
care of it's "invalid" ones. They are the children of Lesser God
and in fact, developing nation as we are, we should move in a
positive manner of taking care of several unfortunate ones who
have deficiencies, disabilities and deformities."
12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister-
in-charge ward no. 4 KEM hospital Lenny Cornielo, Assistant Matron
29
Urmila Chauhan and others have also issued statements that they were
looking after Aruna Shanbaug and want her to live. "Aruna is the bond that
unites us", the KEM Hospital staff has stated. One retired nurse, Tidi
Makwana, who used to take care of Aruna while in service, has even offered
to continue to take care of her without any salary and without charging any
traveling expenses.
13. We have referred to these statements because it is evident that the
KEM Hospital staff right from the Dean, including the present Dean Dr.
Sanjay Oak and down to the staff nurses and para-medical staff have been
looking after Aruna for 38 years day and night. What they have done is
simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and
generally take care of her, and they have been doing this not on a few
occasions but day and night, year after year. The whole country must learn
the meaning of dedication and sacrifice from the KEM hospital staff. In 38
years Aruna has not developed one bed sore.
14. It is thus obvious that the KEM hospital staff has developed an
emotional bonding and attachment to Aruna Shanbaug, and in a sense they
are her real family today. Ms. Pinki Virani who claims to be the next friend
of Aruna Shanbaug and has filed this petition on her behalf is not a relative
30
of Aruna Shanbaug nor can she claim to have such close emotional bonding
with her as the KEM hospital staff. Hence, we are treating the KEM
hospital staff as the next friend of Aruna Shanbaug and we decline to
recognize Ms. Pinki Virani as her next friend. No doubt Ms. Pinki Virani
has written a book about Aruna Shanbaug and has visited her a few times,
and we have great respect for her for the social causes she has espoused, but
she cannot claim to have the extent of attachment or bonding with Aruna
which the KEM hospital staff, which has been looking after her for years,
claims to have.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES
15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has
relied on the decision of this Court in Vikram Deo Singh Tomar vs. State
of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this
Court :
"We live in an age when this Court has demonstrated, while
interpreting Article 21 of the Constitution, that every person is
entitled to a quality of life consistent with his human
personality. The right to live with human dignity is the
fundamental right of every Indian citizen".
31
16. He has also relied on the decision of this Court in P. Rathinam vs.
Union of India and another (1994) 3 SCC 394 in which a two-Judge bench
of this Court quoted with approval a passage from an article by Dr. M. Indira
and Dr. Alka Dhal in which it was mentioned :
"Life is not mere living but living in health. Health is not the
absence of illness but a glowing vitality".
17. The decision in Rathinam's case (supra) was, however, overruled by
a Constitution Bench decision of this Court in Gian Kaur vs. State of
Punjab (1996) 2 SCC 648.
18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of
the aforesaid decision in which it was observed :
"(24) Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the patient
of a terminal illness being unrelated to the principle of 'sanctity
of life' or the right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of right to life' therein includes the right to die'. The
right to life' including the right to live with human dignity
would mean the existence of such a right upto the end of natural
life. This also includes the right to a dignified life upto the point
of death including a dignified procedure of death. In other
words, this may include the right of a dying man to also die
with dignity when his life is ebbing out. But the 'right to die'
with dignity at the end of life is not to be confused or equated
32
with the right to die' an unnatural death curtailing the natural
span of life.
(25) A question may arise, in the context of a dying man, who
is, terminally ill or in a persistent vegetative state that he may
be permitted to terminate it by a premature extinction of his life
in those circumstances. This category of cases may fall within
the ambit of the 'right to die' with dignity as a part of right to
live with dignity, when death due to termination of natural life
is certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only
of accelerating conclusion of the process of natural death which
has already commenced. The debate even in such cases to
permit physician assisted termination of life is inconclusive. It
is sufficient to reiterate that the argument to support the view of
permitting termination of life in such cases to reduce the period
of suffering during the process of certain natural death is not
available to interpret Article 21 to include therein the right to
curtail the natural span of life".
He has particularly emphasized paragraph 25 of the said judgment in support
of his submission that Aruna Shanbaug should be allowed to die.
19. We have carefully considered paragraphs 24 and 25 in Gian Kaur's
case (supra) and we are of the opinion that all that has been said therein is
that the view in Rathinam's case (supra) that the right to life includes the
right to die is not correct. We cannot construe Gian Kaur's case (supra) to
mean anything beyond that. In fact, it has been specifically mentioned in
paragraph 25 of the aforesaid decision that "the debate even in such cases to
33
permit physician assisted termination of life is inconclusive". Thus it is
obvious that no final view was expressed in the decision in Gian Kaur's
case beyond what we have mentioned above.
20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani
is the next friend of Aruna as she has written a book on her life called
`Aruna's story' and has been following Aruna's case from 1980 and has
done whatever possible and within her means to help Aruna. Mr. Naphade
has also invited our attention to the report of the Law Commission of India,
2006 on `Medical Treatment to Terminally Ill Patients'. We have
perused the said report carefully.
21. Learned Attorney General appearing for the Union of India after
inviting our attention to the relevant case law submitted as under :
(i) Aruna Ramchandra Shanbaug has the right to live in her present
state.
(ii) The state that Aruna Ramchandra Shanbaug is presently in does
not justify terminating her life by withdrawing
hydration/food/medical support.
(iii) The aforesaid acts or series of acts and/or such omissions will
be cruel, inhuman and intolerable.
(iv) Withdrawing/withholding of hydration/food/medical support to
a patient is unknown to Indian law and is contrary to law.
34
(v) In case hydration or food is withdrawn/withheld from Aruna
Ramchandra Shanbaug, the efforts which have been put in by
batches after batches of nurses of KEM Hospital for the last 37
years will be undermined.
(vi) Besides causing a deep sense of resentment in the nursing staff
as well as other well wishers of Aruna Ramchandra Shanbaug
in KEM Hospital including the management, such
acts/omissions will lead to disheartenment in them and large
scale disillusionment.
(vii) In any event, these acts/omissions cannot be permitted at the
instance of Ms. Pinky Virani who desires to be the next friend
of Aruna Ramchandra Shanbaug without any locus.
Learned Attorney General stated that the report of the Law Commission of
India on euthanasia has not been accepted by the Government of India. He
further submitted that Indian society is emotional and care-oriented. We do
not send our parents to old age homes, as it happens in the West. He stated
that there was a great danger in permitting euthanasia that the relatives of a
person may conspire with doctors and get him killed to inherit his property.
He further submitted that tomorrow there may be a cure to a medical state
perceived as incurable today.
22. Mr. T. R. Andhyarujina, learned senior counsel whom we had
appointed as Amicus Curiae, in his erudite submissions explained to us the
law on the point. He submitted that in general in common law it is the right
35
of every individual to have the control of his own person free from all
restraints or interferences of others. Every human being of adult years and
sound mind has a right to determine what shall be done with his own body.
In the case of medical treatment, for example, a surgeon who performs an
operation without the patient's consent commits assault or battery.
23. It follows as a corollary that the patient possesses the right not to
consent i.e. to refuse treatment. (In the United States this right is reinforced
by a Constitutional right of privacy). This is known as the principle of self-
determination or informed consent.
24. Mr. Andhyarujina submitted that the principle of self-determination
applies when a patient of sound mind requires that life support should be
discontinued. The same principle applies where a patient's consent has been
expressed at an earlier date before he became unconscious or otherwise
incapable of communicating it as by a `living will' or by giving written
authority to doctors in anticipation of his incompetent situation.
Mr. Andhyarujina differed from the view of the learned Attorney
General in that while the latter opposed even passive euthanasia, Mr.
36
Andhyarujina was in favour of passive euthanasia provided the decision to
discontinue life support was taken by responsible medical practitioners.
25. If the doctor acts on such consent there is no question of the patient
committing suicide or of the doctor having aided or abetted him in doing so.
It is simply that the patient, as he is entitled to do, declines to consent to
treatment which might or would have the effect of prolonging his life and
the doctor has in accordance with his duties complied with the patient's
wishes.
26. The troublesome question is what happens when the patient is in no
condition to be able to say whether or not he consents to discontinuance of
the treatment and has also given no prior indication of his wishes with
regard to it as in the case of Aruna. In such a situation the patient being
incompetent to express his self-determination the approach adopted in some
of the American cases is of "substituted judgment" or the judgment of a
surrogate. This involves a detailed inquiry into the patient's views and
preferences. The surrogate decision maker has to gather from material facts
as far as possible the decision which the incompetent patient would have
made if he was competent. However, such a test is not favoured in English
law in relation to incompetent adults.
37
27. Absent any indication from a patient who is incompetent the test
which is adopted by Courts is what is in the best interest of the patient
whose life is artificially prolonged by such life support. This is not a
question whether it is in the best interest of the patient that he should die.
The question is whether it is in the best interest of the patient that his life
should be prolonged by the continuance of the life support treatment. This
opinion must be formed by a responsible and competent body of medical
persons in charge of the patient.
28. The withdrawal of life support by the doctors is in law considered as
an omission and not a positive step to terminate the life. The latter would be
euthanasia, a criminal offence under the present law in UK, USA and India.
29. In such a situation, generally the wishes of the patient's immediate
family will be given due weight, though their views cannot be determinative
of the carrying on of treatment as they cannot dictate to responsible and
competent doctors what is in the best interest of the patient. However,
experience shows that in most cases the opinions of the doctors and the
immediate relatives coincide.
38
30. Whilst this Court has held that there is no right to die (suicide) under
Article 21 of the Constitution and attempt to suicide is a crime vide Section
309 IPC, the Court has held that the right to life includes the right to live
with human dignity, and in the case of a dying person who is terminally ill
or in a permanent vegetative state he may be permitted to terminate it by a
premature extinction of his life in these circumstances and it is not a crime
vide Gian Kaur's case (supra).
31. Mr. Andhyarujina submitted that the decision to withdraw the life
support is taken in the best interests of the patient by a body of medical
persons. It is not the function of the Court to evaluate the situation and form
an opinion on its own. In England for historical reasons the parens patriae
jurisdiction over adult mentally incompetent persons was abolished by
statute and the Court has no power now to give its consent. In this situation,
the Court only gives a declaration that the proposed omission by doctors is
not unlawful.
32. In U.K., the Mental Capacity Act, 2005 now makes provision relating
to persons who lack capacity and to determine what is in their best interests
and the power to make declaration by a special Court of Protection as to the
lawfulness of any act done in relation to a patient.
39
33. Mr. Andhyarujina submitted that the withdrawal of nutrition by
stopping essential food by means of nasogastric tube is not the same as
unplugging a ventilator which artificially breathes air into the lungs of a
patient incapable of breathing resulting in instant death. In case of
discontinuance of artificial feeding the patient will as a result starve to death
with all the sufferings and pain and distress associated with such starving.
This is a very relevant consideration in a PVS patient like Aruna who is not
totally unconscious and has sensory conditions of pain etc. unlike Antony
Bland in Airedale vs. Director MHD (1993) 2 WLR 316 who was totally
unconscious. Would the doctor be able to avoid such pain or distress by use
of sedatives etc.? In such a condition would it not be more appropriate to
continue with the nasogastric feeding but not take any other active steps to
combat any other illness which she may contract and which may lead to her
death?
34. Mr. Andhyarujina further submitted that in a situation like that of
Aruna, it is also necessary to recognize the deep agony of nurses of the
hospital who have with deep care looked after her for over 37 years and who
40
may not appreciate the withdrawal of the life support. It may be necessary
that their views should be considered by the Court in some appropriate way.
35. Mr. Andhyarujina, in the course of his submission stated that some
Courts in USA have observed that the view of a surrogate may be taken to
be the view of the incompetent patient for deciding whether to withdraw the
life support, though the House of Lords in Airedale's case has not accepted
this. He submitted that relatives of Aruna do not seem to have cared for her
and it is only the nursing staff and medical attendants of KEM hospital who
have looked after her for 37 years. He has also submitted that though the
humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion
of the attending doctors and nursing staff which is more relevant in this case
as they have looked after her for so many years.
36. Mr. Pallav Shishodia, learned senior counsel for the Dean, KEM
hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi in the
matter and it is only the KEM hospital staff which could have filed such a
writ petition.
37. We have also heard learned counsel for the State of Maharashtra, Mr.
Chinmoy Khaldkar and other assisting counsel whose names have been
41
mentioned in this judgment. They have been of great assistance to us as we
are deciding a very sensitive and delicate issue which while requiring a
humanistic approach, also requires great case and caution to prevent misuse.
We were informed that not only the learned counsel who argued the case
before us, but also the assistants (whose names have been mentioned in the
judgment) have done research on the subject for several weeks, and indeed
this has made our task easier in deciding this case. They therefore deserve
our compliment and thanks.
Legal Issues : Active and Passive Euthanasia
38. Coming now to the legal issues in this case, it may be noted that
euthanasia is of two types : active and passive. Active euthanasia entails the
use of lethal substances or forces to kill a person e.g. a lethal injection given
to a person with terminal cancer who is in terrible agony. Passive euthanasia
entails withholding of medical treatment for continuance of life, e.g.
withholding of antibiotics where without giving it a patient is likely to die,
or removing the heart lung machine, from a patient in coma.
39. The general legal position all over the world seems to be that while
active euthanasia is illegal unless there is legislation permitting it, passive
42
euthanasia is legal even without legislation provided certain conditions and
safeguards are maintained.
40. A further categorization of euthanasia is between voluntary euthanasia
and non voluntary euthanasia. Voluntary euthanasia is where the consent is
taken from the patient, whereas non voluntary euthanasia is where the
consent is unavailable e.g. when the patient is in coma, or is otherwise
unable to give consent. While there is no legal difficulty in the case of the
former, the latter poses several problems, which we shall address.
ACTIVE EUTHANASIA
41. As already stated above active euthanasia is a crime all over the world
except where permitted by legislation. In India active euthanasia is illegal
and a crime under section 302 or at least section 304 IPC. Physician assisted
suicide is a crime under section 306 IPC (abetment to suicide).
42. Active euthanasia is taking specific steps to cause the patient's death,
such as injecting the patient with some lethal substance, e.g. sodium
pentothal which causes a person deep sleep in a few seconds, and the person
instantaneously and painlessly dies in this deep sleep.
43
43. A distinction is sometimes drawn between euthanasia and physician
assisted dying, the difference being in who administers the lethal
medication. In euthanasia, a physician or third party administers it, while in
physician assisted suicide it is the patient himself who does it, though on the
advice of the doctor. In many countries/States the latter is legal while the
former is not.
44. The difference between "active" and "passive" euthanasia is that in
active euthanasia, something is done to end the patient's life' while in
passive euthanasia, something is not done that would have preserved the
patient's life.
45. An important idea behind this distinction is that in "passive
euthanasia" the doctors are not actively killing anyone; they are simply not
saving him. While we usually applaud someone who saves another person's
life, we do not normally condemn someone for failing to do so. If one rushes
into a burning building and carries someone out to safety, he will probably
be called a hero. But if one sees a burning building and people screaming for
help, and he stands on the sidelines -- whether out of fear for his own safety,
or the belief that an inexperienced and ill-equipped person like himself
would only get in the way of the professional firefighters, or whatever -- if
44
one does nothing, few would judge him for his inaction. One would surely
not be prosecuted for homicide. (At least, not unless one started the fire in
the first place.)
46. Thus, proponents of euthanasia say that while we can debate whether
active euthanasia should be legal, there can be no debate about passive
euthanasia: You cannot prosecute someone for failing to save a life. Even if
you think it would be good for people to do X, you cannot make it illegal for
people to not do X, or everyone in the country who did not do X today
would have to be arrested.
47. Some persons are of the view that the distinction is not valid. They
give the example of the old joke about the child who says to his teacher, "Do
you think it's right to punish someone for something that he didn't do?"
"Why, of course not," the teacher replies. "Good," the child says, "because I
didn't do my homework."
48. In fact we have many laws that penalize people for what they did not
do. A person cannot simply decide not to pay his income taxes, or not
bother to send his/her children to school (where the law requires sending
them), or not to obey a policeman's order to put down one's gun.
45
49. However, we are of the opinion that the distinction is valid, as has
been explained in some details by Lord Goff in Airedale's case (infra)
which we shall presently discuss.
LEGISLATION IN SOME COUNTRIES RELATING TO
EUTHANASIA OR PHYSICIAN ASSISTED DEATH
50. Although in the present case we are dealing with a case related to
passive euthanasia, it would be of some interest to note the legislations in
certain countries permitting active euthanasia. These are given below.
Netherlands:
Euthanasia in the Netherlands is regulated by the "Termination of Life
on Request and Assisted Suicide (Review Procedures) Act", 2002. It
states that euthanasia and physician-assisted suicide are not
punishable if the attending physician acts in accordance with the
criteria of due care. These criteria concern the patient's request, the
patient's suffering (unbearable and hopeless), the information
provided to the patient, the presence of reasonable alternatives,
consultation of another physician and the applied method of ending
life. To demonstrate their compliance, the Act requires physicians to
report euthanasia to a review committee.
46
The legal debate concerning euthanasia in the Netherlands took off
with the "Postma case" in 1973, concerning a physician who had
facilitated the death of her mother following repeated explicit requests
for euthanasia. While the physician was convicted, the court's
judgment set out criteria when a doctor would not be required to keep
a patient alive contrary to his will. This set of criteria was formalized
in the course of a number of court cases during the 1980s.
Termination of Life on Request and Assisted Suicide (Review
Procedures) Act took effect on April 1, 2002. It legalizes euthanasia
and physician assisted suicide in very specific cases, under very
specific circumstances. The law was proposed by Els Borst, the
minister of Health. The procedures codified in the law had been a
convention of the Dutch medical community for over twenty years.
The law allows a medical review board to suspend prosecution of
doctors who performed euthanasia when each of the following
conditions is fulfilled:
7 the patient's suffering is unbearable with no prospect of improvement
7 the patient's request for euthanasia must be voluntary and persist over
time (the request cannot be granted when under the influence of
others, psychological illness, or drugs)
47
7 the patient must be fully aware of his/her condition, prospects and
options
7 there must be consultation with at least one other independent doctor
who needs to confirm the conditions mentioned above
7 the death must be carried out in a medically appropriate fashion by the
doctor or patient, in which case the doctor must be present
7 the patient is at least 12 years old (patients between 12 and 16 years of
age require the consent of their parents)
The doctor must also report the cause of death to the municipal
coroner in accordance with the relevant provisions of the Burial and
Cremation Act. A regional review committee assesses whether a case
of termination of life on request or assisted suicide complies with the
due care criteria. Depending on its findings, the case will either be
closed or, if the conditions are not met, brought to the attention of the
Public Prosecutor. Finally, the legislation offers an explicit
recognition of the validity of a written declaration of the will of the
patient regarding euthanasia (a "euthanasia directive"). Such
declarations can be used when a patient is in a coma or otherwise
unable to state if they wish to be euthanized.
48
Euthanasia remains a criminal offense in cases not meeting the law's
specific conditions, with the exception of several situations that are
not subject to the restrictions of the law at all, because they are
considered normal medical practice. These are :
7 stopping or not starting a medically useless (futile) treatment
7 stopping or not starting a treatment at the patient's request
7 speeding up death as a side-effect of treatment necessary for
alleviating serious suffering
Euthanasia of children under the age of 12 remains technically illegal;
however, Dr. Eduard Verhagen has documented several cases and,
together with colleagues and prosecutors, has developed a protocol to
be followed in those cases. Prosecutors will refrain from pressing
charges if this Groningen Protocol is followed.
Switzerland:
Switzerland has an unusual position on assisted suicide: it is legally
permitted and can be performed by non-physicians. However,
euthanasia is illegal, the difference between assisted suicide and
euthanasia being that while in the former the patient administers the
49
lethal injection himself, in the latter a doctor or some other person
administers it.
Article 115 of the Swiss penal code, which came into effect in 1942
(having been approved in 1937), considers assisting suicide a crime if,
and only if, the motive is selfish. The code does not give physicians a
special status in assisting suicide; although, they are most likely to
have access to suitable drugs. Ethical guidelines have cautioned
physicians against prescribing deadly drugs.
Switzerland seems to be the only country in which the law limits the
circumstances in which assisted suicide is a crime, thereby
decriminalising it in other cases, without requiring the involvement of
a physician. Consequently, non-physicians have participated in
assisted suicide. However, legally, active euthanasia e.g.
administering a lethal injection by a doctor or some other person to a
patient is illegal in Switzerland (unlike in Holland where it is legal
under certain conditions).
The Swiss law is unique because (1) the recipient need not be a Swiss
national, and (2) a physician need not be involved. Many persons
from other countries, especially Germany, go to Switzerland to
undergo euthanasia.
50
Belgium:
Belgium became the second country in Europe after Netherlands to
legalize the practice of euthanasia in September 2002.
The Belgian law sets out conditions under which suicide can be
practised without giving doctors a licence to kill.
Patients wishing to end their own lives must be conscious when the
demand is made and repeat their request for euthanasia. They have to
be under "constant and unbearable physical or psychological pain"
resulting from an accident or incurable illness.
The law gives patients the right to receive ongoing treatment with
painkillers -- the authorities have to pay to ensure that poor or isolated
patients do not ask to die because they do not have money for such
treatment.
Unlike the Dutch legislation, minors cannot seek assistance to die.
In the case of someone who is not in the terminal stages of illness, a
third medical opinion must be sought.
Every mercy killing case will have to be filed at a special commission
to decide if the doctors in charge are following the regulations.
51
U.K., Spain, Austria, Italy, Germany, France, etc.
In none of these countries is euthanasia or physician assisted death
legal. In January 2011 the French Senate defeated by a 170-142 vote
a bill seeking to legalize euthanasia. In England, in May 2006 a bill
allowing physician assisted suicide, was blocked, and never became
law.
United States of America:
Active Euthanasia is illegal in all states in U.S.A., but physician
assisted dying is legal in the states of Oregon, Washington and
Montana. As already pointed out above, the difference between
euthanasia and physician assisted suicide lies in who administers the
lethal medication. In the former, the physician or someone else
administers it, while in the latter the patient himself does so, though
on the advice of the doctor.
Oregon:
Oregon was the first state in U.S.A. to legalize physician assisted
death.
52
The Oregon legislature enacted the Oregon Death with Dignity Act, in
1997. Under the Death With Dignity Act, a person who sought
physician-assisted suicide would have to meet certain criteria:
7 He must be an Oregon resident, at least 18 years old, and must have
decision making capacity.
7 The person must be terminally ill, having six months or less to live.
7 The person must make one written and two oral requests for
medication to end his/her life, the written one substantially in the form
provided in the Act, signed, dated, witnessed by two persons in the
presence of the patient who attest that the person is capable, acting
voluntarily and not being coerced to sign the request. There are
stringent qualifications as to who may act as a witness.
7 The patient's decision must be an `informed' one, and the attending
physician is obligated to provide the patient with information about
the diagnosis, prognosis, potential risks, and probable consequences
of taking the prescribed medication, and alternatives, including, but
not limited to comfort care, hospice care and pain control. Another
physician must confirm the diagnosis, the patient's decision making
capacity, and voluntariness of the patient's decisions.
53
7 Counselling has to be provided if the patient is suffering from
depression or a mental disorder which may impact his judgment.
7 There has to be a waiting period of 15 days, next of kin have to be
notified, and State authorities have to be informed.
7 The patient can rescind his decision at any time
In response to concerns that patients with depression may seek to end
their lives, the 1999 amendment provides that the attending physician
must determine that the patient does not have `depression causing
impaired judgment' before prescribing the medication.
Under the law, a person who met all requirements could receive a
prescription of a barbiturate that would be sufficient to cause death.
However, the lethal injection must be administered by the patient
himself, and physicians are prohibited from administering it.
The landmark case to declare that the practice of euthanasia by
doctors to help their patients shall not be taken into cognizance was
Gonzalez vs Oregon decided in 2006.
After the Oregon Law was enacted about 200 persons have had
euthanasia in Oregon.
54
Washington:
Washington was the second state in U.S.A. which allowed the practice
of physician assisted death in the year 2008 by passing the
Washington Death with Dignity Act, 2008.
Montana:
Montana was the third state (after Oregon and Washington) in U.S.A.
to legalize physician assisted deaths, but this was done by the State
judiciary and not the legislature. On December 31, 2009, the Montana
Supreme Court delivered its verdict in the case of Baxter v. Montana
permitting physicians to prescribe lethal indication. The court held
that there was "nothing in Montana Supreme Court precedent or
Montana statutes indicating that physician aid in dying is against
public policy."
Other States in U.S.A.:
In no other State in U.S.A. is euthanasia or physician assisted death
legal. Michigan banned euthanasia and assisted suicide in 1993, after
Dr. Kevorkian (who became known as `doctor death') began
encouraging and assisting in suicides. He was convicted in 1999 for
55
an assisted suicide displayed on television, his medical licence
cancelled, and he spent 8 years in jail.
In 1999 the State of Texas enacted the Texas Futile Care Law which
entitles Texas hospitals and doctors, in some situations, to withdraw
life support measures, such as mechanical respiration, from terminally
ill patient when such treatment is considered futile and inappropriate.
However, Texas has not legalized euthanasia or physician assisted
death. In California, though 75 of people support physician assisted
death, the issue is highly controversial in the State legislature. Forty
States in USA have enacted laws which explicitly make it a crime to
provide another with the means of taking his or her life.
In 1977 California legalized living wills, and other States soon
followed suit. A living will (also known as advance directive or
advance decision) is an instruction given by an individual while
conscious specifying what action should be taken in the event he/she
is unable to make a decision due to illness or incapacity, and appoints
a person to take such decisions on his/her behalf. It may include a
directive to withdraw life support on certain eventualities.
56
Canada:
In Canada, physician assisted suicide is illegal vide Section 241(b) of
the Criminal Code of Canada.
The leading decision of the Canadian Supreme Court in this
connection is Sue Rodriguez v. British Columbia (Attorney
General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was
diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested
the Canadian Supreme Court to allow someone to aid her in ending
her life. Her condition was deteriorating rapidly, and the doctors told
her that she would soon lose the ability to swallow, speak, walk, and
move her body without assistance. Thereafter she would lose her
capacity to breathe without a respirator, to eat without a gastrotomy,
and would eventually be confined to bed. Her life expectancy was 2
to 14 months.
The Canadian Supreme Court was deeply divided. By a 5 to 4
majority her plea was rejected. Justice Sopinka, speaking for the
majority (which included Justices La Forest, Gonthier, Iacobucci and
Major) observed :
"Sanctity of life has been understood historically
as excluding freedom of choice in the self infliction of
57
death, and certainly in the involvement of others in
carrying out that choice. At the very least, no new
consensus has emerged in society opposing the right of
the State to regulate the involvement of others in
exercising power over individuals ending their lives."
The minority, consisting of Chief Justice Lamer and Justices
L'Heureux-Dube, Cory and McLachlin, dissented.
PASSIVE EUTHANASIA
51. Passive euthanasia is usually defined as withdrawing medical
treatment with a deliberate intention of causing the patient's death. For
example, if a patient requires kidney dialysis to survive, not giving dialysis
although the machine is available, is passive euthanasia. Similarly, if a
patient is in coma or on a heart lung machine, withdrawing of the machine
will ordinarily result in passive euthanasia. Similarly not giving life saving
medicines like antibiotics in certain situations may result in passive
euthanasia. Denying food to a person in coma or PVS may also amount to
passive euthanasia.
52. As already stated above, euthanasia can be both voluntary or non
voluntary. In voluntary passive euthanasia a person who is capable of
deciding for himself decides that he would prefer to die (which may be for
58
various reasons e.g., that he is in great pain or that the money being spent on
his treatment should instead be given to his family who are in greater need,
etc.), and for this purpose he consciously and of his own free will refuses to
take life saving medicines. In India, if a person consciously and voluntarily
refuses to take life saving medical treatment it is not a crime. Whether not
taking food consciously and voluntarily with the aim of ending one's life is a
crime under section 309 IPC (attempt to commit suicide) is a question which
need not be decided in this case.
53. Non voluntary passive euthanasia implies that the person is not in a
position to decide for himself e.g., if he is in coma or PVS. The present is a
case where we have to consider non voluntary passive euthanasia i.e.
whether to allow a person to die who is not in a position to give his/her
consent.
54. There is a plethora of case law on the subject of the Courts all over
the world relating to both active and passive euthanasia. It is not necessary
to refer in detail to all the decisions of the Courts in the world on the
subject of euthanasia or physically assisted dead (p.a.d.) but we think it
appropriate to refer in detail to certain landmark decisions, which have laid
down the law on the subject.
59
THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82)
(H.L.)
55. In the Airedale case decided by the House of Lords in the U.K., the
facts were that one Anthony Bland aged about 17 went to the Hillsborough
Ground on 15th April 1989 to support the Liverpool Football Club. In the
course of the disaster which occurred on that day, his lungs were crushed
and punctured and the supply to his brain was interrupted. As a result, he
suffered catastrophic and irreversible damage to the higher centres of the
brain. For three years, he was in a condition known as `persistent vegetative
state (PVS). This state arises from the destruction of the cerebral cortex on
account of prolonged deprivation of oxygen, and the cerebral cortex of
Anthony had resolved into a watery mass. The cortex is that part of the
brain which is the seat of cognitive function and sensory capacity. Anthony
Bland could not see, hear or feel anything. He could not communicate in
any way. His consciousness, which is an essential feature of an individual
personality, had departed forever. However, his brain-stem, which controls
the reflective functions of the body, in particular the heart beat, breathing
and digestion, continued to operate. He was in persistent vegetative state
(PVS) which is a recognized medical condition quite distinct from other
60
conditions sometimes known as "irreversible coma", "the Guillain-Barre
syndrome", "the locked-in syndrome" and "brain death".
56. The distinguishing characteristic of PVS is that the brain stem remains
alive and functioning while the cortex has lost its function and activity.
Thus the PVS patient continues to breathe unaided and his digestion
continues to function. But although his eyes are open, he cannot see. He
cannot hear. Although capable of reflex movement, particularly in response
to painful stimuli, the patient is uncapable of voluntary movement and can
feel no pain. He cannot taste or smell. He cannot speak or communicate in
any way. He has no cognitive function and thus can feel no emotion,
whether pleasure or distress. The absence of cerebral function is not a
matter of surmise; it can be scientifically demonstrated. The space which
the brain should occupy is full of watery fluid.
57. In order to maintain Mr. Bland in his condition, feeding and hydration
were achieved by artificial means of a nasogastric tube while the excretory
functions were regulated by a catheter and enemas. According to eminent
medical opinion, there was no prospect whatsoever that he would ever make
a recovery from his condition, but there was every likelihood that he would
61
maintain this state of existence for many years to come provided the
artificial means of medical care was continued.
58. In this state of affairs the medical men in charge of Anthony Bland
case took the view, which was supported by his parents, that no useful
purpose would be served by continuing medical care, and that artificial
feeding and other measures aimed at prolonging his existence should be
stopped. Since however, there was a doubt as to whether this course might
constitute a criminal offence, the hospital authorities sought a declaration
from the British High Court to resolve these doubts.
59. The declaration was granted by the Family Division of the High Court
on 19.11.1992 and that judgment was affirmed by the Court of Appeal on
9.12.1992. A further appeal was made to the House of Lords which then
decided the case.
60. The broad issued raised before the House of Lords in the Airedale
case (supra) was "In what circumstances, if ever, can those having a duty to
feed an invalid lawfully stop doing so?" In fact this is precisely the question
raised in the present case of Aruna Shanbaug before us.
62
61. In Airedale's case (supra), Lord Keith of Kinkel, noted that it was
unlawful to administer treatment to an adult who is conscious and of sound
mind, without his consent. Such a person is completely at liberty to decline
to undergo treatment, even if the result of his doing so will be that he will
die. This extends to the situation where the person in anticipation of his
entering into a condition such as PVS, gives clear instructions that in such an
event he is not to be given medical care, including artificial feeding,
designed to keep him alive.
62. It was held that if a person, due to accident or some other cause
becomes unconscious and is thus not able to give or withhold consent to
medical treatment, in that situation it is lawful for medical men to apply such
treatment as in their informed opinion is in the best interests of the
unconscious patient. That is what happened in the case of Anthony Bland
when he was first dealt with by the emergency services and later taken to
hospital.
63. When the incident happened the first imperative was to prevent
Anthony from dying, as he would certainly have done in the absence of the
steps that were taken. For a time, no doubt, there was some hope that he
might recover sufficiently for him to be able to live a life that had some
63
meaning. Some patients who have suffered damage to the cerebral cortex
have, indeed, made a complete recovery. It all depends on the degree of
damage. But sound medical opinion takes the view that if a P.V.S. patient
shows no signs of recovery after six months, or at most a year, then there is
no prospect whatever of any recovery.
64. There are techniques available which make it possible to ascertain the
state of the cerebral cortex, and in Anthony Bland's case these indicated
that, it had degenerated into a mass of watery fluid. In this situation the
question before the House of Lords was whether the doctors could withdraw
medical treatment or feeding Anthony Bland thus allowing him to die.
65. It was held by Lord Keith that a medical practitioner is under no duty
to continue to treat such a patient where a large body of informed and
responsible medical opinion is to the effect that no benefit at all would be
conferred by continuance of the treatment. Existence in a vegetative state
with no prospect of recovery is by that opinion regarded as not being of
benefit to the patient.
66. Given that existence in the persistent vegetative state is of no benefit
to the patient, the House of Lords then considered whether the principle of
64
the sanctity of life which is the concern of the State (and the Judiciary is one
of the arms of the State) required the Court to hold that medical treatment to
Bland could not be discontinued.
67. Lord Keith observed that the principle of sanctity of life is not an
absolute one. For instance, it does not compel the medical practitioner on
pain of criminal sanction to treat a patient, who will die, if he does not,
according to the express wish of the patient. It does not 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 terminally-ill patient (unless there is
legislation which permits it).
68. Lord Keith observed that although the decision whether or not the
continued treatment and cure of a PVS patient confers any benefit on him is
essentially one for the medical practitioners in charge of his case to decide,
as a matter of routine the hospital/medical practitioner should apply to the
Family Division of the High Court for endorsing or reversing the said
decision. This is in the interest of the protection of the patient, protection of
the doctors, and for the reassurance of the patient's family and the public.
65
69. In Airdale's case (Supra) another Judge on the Bench, Lord Goff of
Chievely observed:-
"The central issue in the present case has been aptly
stated by the Master of the Rolls to be whether artificial
feeding and antibiotic drugs may lawfully be withheld
from an insensate patient with no hope of recovery when
it is known that if that is done the patient will shortly
thereafter die. The Court of Appeal, like the President,
answered this question generally in the affirmative, and
(in the declarations made or approved by them)
specifically also in the affirmative in relation to Anthony
Bland . I find myself to be in agreement with the
conclusions so reached by all the judges below,
substantially for the reasons given by them. But the
matter is of such importance that I propose to express my
reasons in my own words.
I start with the simple fact that, in law, Anthony is still
alive. It is true that his condition is such that it can be
described as a living death; but he is nevertheless still
alive. This is because, as a result of developments in
modern medical technology, doctors no longer associate
death exclusively with breathing and heart beat, and it
has come to be accepted that death occurs when the
brain, and in particular the brain stem, has been destroyed
(see Professor Ian Kennedy's Paper entitled "Switching
off Life Support Machines: The Legal Implications"
reprinted in Treat Me Right, Essays in Medical Law and
Ethics, (1988)), especially at pp. 351-2, and the material
there cited). There has been no dispute on this point in
the present case, and it is unnecessary for me to consider
it further. The evidence is that Anthony's brain stem is
still alive and functioning and it follows that, in the
present state of medical science, he is still alive and
should be so regarded as a matter of law.
It is on this basis that I turn to the applicable principles of
law. Here, the fundamental principle is the principle of
66
the sanctity of human life - a principle long recognized
not only in our own society but also in most, if not all,
civilized societies throughout the modern world, as is
indeed evidenced by its recognition both in article 2 of
the European Convention of Human Rights, and in article
6 of the International Covenant of Civil and Political
Rights.
But this principle, fundamental though it is, is not
absolute. Indeed there are circumstances in which it is
lawful to take another man's life, for example by a lawful
act of self-defence, or (in the days when capital
punishment was acceptable in our society) by lawful
execution. We are not however concerned with cases
such as these. We are concerned with circumstances in
which it may be lawful to withhold from a patient
medical treatment or care by means of which his life may
be prolonged. But here too there is no absolute rule that
the patient's life must be prolonged by such treatment or
care, if available, regardless of the circumstances.
First, it is established that the principle of self-
determination requires that respect must be given to the
wishes of the patient, so that if an adult patient of sound
mind refuses, however unreasonably, to consent to
treatment or care by which his life would or might be
prolonged, the doctors responsible for his care must give
effect to his wishes, even though they do not consider it
to be in his best interests to do so (see Schloendorff v .
Society of New York Hospital 105 N.E. 92, 93, per
Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S.
Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid;
and Sidaway v . Board of Governors of the Bethlem
Royal Hospital and the Maudsley Hospital [1985] AC
871, 882, per Lord Scarman). To this extent, the principle
of the sanctity of human life must yield to the principle of
self- determination (see Court of Appeal Transcript in the
present case, at p. 38F per Hoffmann L.J.), and, for
present purposes perhaps more important, the doctor's
duty to act in the best interests of his patient must
67
likewise be qualified. On this basis, it has been held that
a patient of sound mind may, if properly informed,
require that life support should be discontinued: see
Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R.
(4th) 385. Moreover the same principle applies where the
patient's refusal to give his consent has been expressed at
an earlier date, before he became unconscious or
otherwise incapable of communicating it; though in such
circumstances especial care may be necessary to ensure
that the prior refusal of consent is still properly to be
regarded as applicable in the circumstances which have
subsequently occurred (see, e.g. In re T. (Adult: Refusal
of treatment) [1992] 3 W.L.R. 782). I wish to add that, in
cases of this kind, there is no question of the patient
having committed suicide, nor therefore of the doctor
having aided or abetted him in doing so. It is simply that
the patient has, as he is entitled to do, declined to consent
to treatment which might or would have the effect of
prolonging his life, and the doctor has, in accordance
with his duty, complied with his patient's wishes.
But in many cases not only may the patient be in no
condition to be able to say whether or not he consents to
the relevant treatment or care, but also he may have given
no prior indication of his wishes with regard to it. In the
case of a child who is a ward of court, the court itself will
decide whether medical treatment should be provided in
the child's best interests, taking into account medical
opinion. But the court cannot give its consent on behalf
of an adult patient who is incapable of himself deciding
whether or not to consent to treatment. I am of the
opinion that there is nevertheless no absolute obligation
upon the doctor who has the patient in his care to prolong
his life, regardless of the circumstances. Indeed, it would
be most startling, and could lead to the most adverse and
cruel effects upon the patient, if any such absolute rule
were held to exist. It is scarcely consistent with the
primacy given to the principle of self-determination in
those cases in which the patient of sound mind has
declined to give his consent, that the law should provide
68
no means of enabling treatment to be withheld in
appropriate circumstances where the patient is in no
condition to indicate, if that was his wish, that he did not
consent to it. The point was put forcibly in the judgment
of the Supreme Judicial Court of Massachusetts in
Superintendent of Belchertown State School v.
Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows:
"To presume that the incompetent person must always be
subjected to what many rational and intelligent persons
may decline is to downgrade the status of the
incompetent person by placing a lesser value on his
intrinsic human worth and vitality."
I must however stress, at this point, that the law draws a
crucial distinction between cases in which a doctor
decides not to provide, or to continue to provide, for his
patient treatment or care which could or might prolong
his life, and those in which he decides, for example by
administering a lethal drug, actively to bring his patient's
life to an end. As I have already indicated, the former
may be lawful, either because the doctor is giving effect
to his patient's wishes by withholding the treatment or
care, or even in certain circumstances in which (on
principles which I shall describe) the patient is
incapacitated from stating whether or not he gives his
consent. But it is not lawful for a doctor to administer a
drug to his patient to bring about his death, even though
that course is prompted by a humanitarian desire to end
his suffering, however great that suffering may be: see
Reg. v. Cox (Unreported), Ognall J., Winchester Crown
Court, 18 September 1992. So to act is to cross the
Rubicon which runs between on the one hand the care of
the living patient and on the other hand euthanasia -
actively causing his death to avoid or to end his suffering.
Euthanasia is not lawful at common law. It is of course
well known that there are many responsible members of
our society who believe that euthanasia should be made
lawful; but that result could, I believe, only be achieved
by legislation which expresses the democratic will that so
69
fundamental a change should be made in our law, and
can, if enacted, ensure that such legalised killing can only
be carried out subject to appropriate supervision and
control. It is true that the drawing of this distinction may
lead to a charge of hypocrisy; because it can be asked
why, if the doctor, by discontinuing treatment, is entitled
in consequence to let his patient die, it should not be
lawful to put him out of his misery straight away, in a
more humane manner, by a lethal injection, rather than
let him linger on in pain until he dies. But the law does
not feel able to authorize euthanasia, even in
circumstances such as these; for once euthanasia is
recognized as lawful in these circumstances, it is difficult
to see any logical basis for excluding it in others.
At the heart of this distinction lies a theoretical question.
Why is it that the doctor who gives his patient a lethal
injection which kills him commits an unlawful act and
indeed is guilty of murder, whereas a doctor who, by
discontinuing life support, allows his patient to die, may
not act unlawfully - and will not do so, if he commits no
breach of duty to his patient? Professor Glanville
Williams has suggested (see his Textbook of Criminal
Law, 2nd ed., p. 282) that the reason is that what the
doctor does when he switches off a life support machine
'is in substance not an act but an omission to struggle,
and that 'the omission is not a breach of duty by the
doctor because he is not obliged to continue in a hopeless
case'.
I agree that the doctor's conduct in discontinuing life
support can properly be categorized as an omission. It is
true that it may be difficult to describe what the doctor
actually does as an omission, for example where he takes
some positive step to bring the life support to an end. But
discontinuation of life support is, for present purposes, no
different from not initiating life support in the first place.
In each case, the doctor is simply allowing his patient to
die in the sense that he is desisting from taking a step
which might, in certain circumstances, prevent his patient
70
from dying as a result of his pre-existing condition; and
as a matter of general principle an omission such as this
will not be unlawful unless it constitutes a breach of duty
to the patient. I also agree that the doctor's conduct is to
be differentiated from that of, for example, an interloper
who maliciously switches off a life support machine
because, although the interloper may perform exactly the
same act as the doctor who discontinues life support, his
doing so constitutes interference with the life-prolonging
treatment then being administered by the doctor.
Accordingly, whereas the doctor, in discontinuing life
support, is simply allowing his patient to die of his pre-
existing condition, the interloper is actively intervening
to stop the doctor from prolonging the patient's life, and
such conduct cannot possibly be categorised as an
omission.
The distinction appears, therefore, to be useful in the
present context in that it can be invoked to explain how
discontinuance of life support can be differentiated from
ending a patient's life by a lethal injection. But in the end
the reason for that difference is that, whereas the law
considers that discontinuance of life support may be
consistent with the doctor's duty to care for his patient, it
does not, for reasons of policy, consider that it forms any
part of his duty to give his patient a lethal injection to put
him out of his agony.
I return to the patient who, because for example he is of
unsound mind or has been rendered unconscious by
accident or by illness, is incapable of stating whether or
not he consents to treatment or care. In such
circumstances, it is now established that a doctor may
lawfully treat such a patient if he acts in his best interests,
and indeed that, if the patient is already in his care, he is
under a duty so to treat him: see In re F [1990] 2 AC 1, in
which the legal principles governing treatment in such
circumstances were stated by this House. For my part I
can see no reason why, as a matter of principle, a
decision by a doctor whether or not to initiate, or to
71
continue to provide, treatment or care which could or
might have the effect of prolonging such a patient's life,
should not be governed by the same fundamental
principle. Of course, in the great majority of cases, the
best interests of the patient are likely to require that
treatment of this kind, if available, should be given to a
patient. But this may not always be so. To take a simple
example given by Thomas J. in Re J.H.L. (Unreported)
(High Court of New Zealand) 13 August 1992, at p. 35),
to whose judgment in that case I wish to pay tribute, it
cannot be right that a doctor, who has under his care a
patient suffering painfully from terminal cancer, should
be under an absolute obligation to perform upon him
major surgery to abate another condition which, if
unabated, would or might shorten his life still further.
The doctor who is caring for such a patient cannot, in my
opinion, be under an absolute obligation to prolong his
life by any means available to him, regardless of the
quality of the patient's life. Common humanity requires
otherwise, as do medical ethics and good medical
practice accepted in this country and overseas. As I see it,
the doctor's decision whether or not to take any such step
must (subject to his patient's ability to give or withhold
his consent) be made in the best interests of the patient. It
is this principle too which, in my opinion, underlies the
established rule that a doctor may, when caring for a
patient who is, for example, dying of cancer, lawfully
administer painkilling drugs despite the fact that he
knows that an incidental effect of that application will be
to abbreviate the patient's life. Such a decision may
properly be made as part of the care of the living patient,
in his best interests; and, on this basis, the treatment will
be lawful. Moreover, where the doctor's treatment of his
patient is lawful, the patient's death will be regarded in
law as exclusively caused by the injury or disease to
which his condition is attributable.
It is of course the development of modern medical
technology, and in particular the development of life
support systems, which has rendered cases such as the
72
present so much more relevant than in the past. Even so,
where (for example) a patient is brought into hospital in
such a condition that, without the benefit of a life support
system, he will not continue to live, the decision has to be
made whether or not to give him that benefit, if available.
That decision can only be made in the best interests of
the patient. No doubt, his best interests will ordinarily
require that he should be placed on a life support system
as soon as necessary, if only to make an accurate
assessment of his condition and a prognosis for the
future. But if he neither recovers sufficiently to be taken
off it nor dies, the question will ultimately arise whether
he should be kept on it indefinitely. As I see it, that
question (assuming the continued availability of the
system) can only be answered by reference to the best
interests of the patient himself, having regard to
established medical practice. Indeed, if the justification
for treating a patient who lacks the capacity to consent
lies in the fact that the treatment is provided in his best
interests, it must follow that the treatment may, and
indeed ultimately should, be discontinued where it is no
longer in his best interests to provide it. The question
which lies at the heart of the present case is, as I see it,
whether on that principle the doctors responsible for the
treatment and care of Anthony Bland can justifiably
discontinue the process of artificial feeding upon which
the prolongation of his life depends.
It is crucial for the understanding of this question that the
question itself should be correctly formulated. The
question is not whether the doctor should take a course
which will kill his patient, or even take a course which
has the effect of accelerating his death. The question is
whether the doctor should or should not continue to
provide his patient with medical treatment or care which,
if continued, will prolong his patient's life. The question
is sometimes put in striking or emotional terms, which
can be misleading. For example, in the case of a life
support system, it is sometimes asked: Should a doctor be
entitled to switch it off, or to pull the plug? And then it is
73
asked: Can it be in the best interests of the patient that a
doctor should be able to switch the life support system
off, when this will inevitably result in the patient's death?
Such an approach has rightly been criticised as
misleading, for example by Professor Ian Kennedy (in his
paper in Treat Me Right, Essays in Medical Law and
Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-
22. This is because the question is not whether it is in the
best interests of the patient that he should die. The
question is whether it is in the best interests of the patient
that his life should be prolonged by the continuance of
this form of medical treatment or care.
The correct formulation of the question is of particular
importance in a case such as the present, where the
patient is totally unconscious and where there is no hope
whatsoever of any amelioration of his condition. In
circumstances such as these, it may be difficult to say
that it is in his best interests that the treatment should be
ended. But if the question is asked, as in my opinion it
should be, whether it is in his best interests that treatment
which has the effect of artificially prolonging his life
should be continued, that question can sensibly be
answered to the effect that it is not in his best interests to
do so.
(emphasis supplied)
70. In a Discussion Paper on Treatment of Patients in Persistent
Vegetative State issued in September 1992 by the Medical Ethics Committee
of the British Medical Association certain safeguards were mentioned which
should be observed before constituting life support for such patients:-
"(1) Every effort should be made at rehabilitation for at
least six months after the injury; (2) The diagnosis of
irreversible PVS should not be considered confirmed
74
until at least twelve months after the injury, with the
effect that any decision to withhold life prolonging
treatment will be delayed for that period; (3) The
diagnosis should be agreed by two other independent
doctors; and (4) Generally, the wishes of the patient's
immediate family will be given great weight."
71. Lord Goff observed that discontinuance of artificial feeding in such
cases is not equivalent to cutting a mountaineer's rope, or severing the air
pipe of a deep sea diver. The true question is not whether the doctor should
take a course in which he will actively kill his patient, but rather whether he
should continue to provide his patient with medical treatment or care which,
if continued, will prolong his life.
72. Lord Browne-Wilkinson was of the view that removing the
nasogastric tube in the case of Anthony Bland cannot be regarded as a
positive act causing the death. The tube itself, without the food being
supplied through it, does nothing. Its non removal itself does not cause the
death since by itself, it does not sustain life. Hence removal of the tube
would not constitute the actus reus of murder, since such an act would not
cause the death.
73. Lord Mustill observed:-
"Threaded through the technical arguments
addressed to the House were the strands of a much wider
75
position, that it is in the best interests of the community
at large that Anthony Bland's life should now end. The
doctors have done all they can. Nothing will be gained
by going on and much will be lost. The distress of the
family will get steadily worse. The strain on the devotion
of a medical staff charged with the care of a patient
whose condition will never improve, who may live for
years and who does not even recognize that he is being
cared for, will continue to mount. The large resources of
skill, labour and money now being devoted to Anthony
Bland might in the opinion of many be more fruitfully
employed in improving the condition of other patients,
who if treated may have useful, healthy and enjoyable
lives for years to come."
74. Thus all the Judges of the House of Lords in the Airedale case (supra)
were agreed that Anthony Bland should be allowed to die.
75. Airedale (1993) decided by the House of Lords has been followed in a
number of cases in U.K., and the law is now fairly well settled that in the
case of incompetent patients, if the doctors act on the basis of informed
medical opinion, and withdraw the artificial life support system if it is in the
patient's best interest, the said act cannot be regarded as a crime.
76. The question, however, remains as to who is to decide what is the
patient's best interest where he is in a persistent vegetative state (PVS)?
Most decisions have held that the decision of the parents, spouse, or other
close relative, should carry weight if it is an informed one, but it is not
76
decisive (several of these decisions have been referred to in Chapter IV of
the 196th Report of the Law Commission of India on Medical Treatment to
Terminally ill Patients).
77. It is ultimately for the Court to decide, as parens patriae, as to what is
is in the best interest of the patient, though the wishes of close relatives and
next friend, and opinion of medical practitioners should be given due weight
in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor
Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as
representative of the Sovereign as parens patriae will adopt the same
standard which a reasonable and responsible parent would do.
78. The parens patriae (father of the country) jurisdiction was the
jurisdiction of the Crown, which, as stated in Airedale, could be traced to the
13th Century. This principle laid down that as the Sovereign it was the duty
of the King to protect the person and property of those who were unable to
protect themselves. The Court, as a wing of the State, has inherited the
parens patriae jurisdiction which formerly belonged to the King.
U.S. decisions
79. The two most significant cases of the U.S. Supreme Court that
addressed the issue whether there was a federal constitutional right to
77
assisted suicide arose from challenges to State laws banning physician
assisted suicide brought by terminally ill patients and their physicians. These
were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs.
Quill 521 U.S. 793 (1997).
80. In Glucksberg's case, the U.S. Supreme Court held that the asserted
right to assistance in committing suicide is not a fundamental liberty interest
protected by the Due Process Clause of the Fourteenth Amendment. The
Court observed :
"The decision to commit suicide with the assistance of
another may be just as personal and profound as the
decision to refuse unwanted medical treatment, but it has
never enjoyed similar legal protection. Indeed the two
acts are widely and reasonably regarded as quite
distinct."
81. The Court went on to conclude that the Washington statute being
challenged was rationally related to five legitimate government interest :
protection of life, prevention of suicide, protection of ethical integrity of the
medical profession, protection of vulnerable groups, and protection against
the "slippery slope" towards euthanasia. The Court then noted that perhaps
the individual States were more suited to resolving or at least addressing the
78
myriad concerns raised by both proponents and opponents of physician
assisted suicide. The Court observed :
"Throughout the Nation, Americans are engaged in
an earnest and profound debate about the morality,
legality and practicality of physician assisted suicide.
Our holding permits this debate to continue, as it should
in a democratic society."
82. In Vacco's case (supra) the U.S. Supreme Court again recognized the
distinction between refusing life saving medical treatment and giving lethal
medication. The Court disagreed with the view of the Second Circuit
Federal Court that ending or refusing lifesaving medical treatment is nothing
more nor less than assisted suicide. The Court held that "the distinction
between letting a patient die and making that patient die is important,
logical, rational, and well established". The Court held that the State of New
York could validly ban the latter.
83. In Cruzan v. Director, MDH, 497 U.S. 261(1990) decided by the
U.S. Supreme Court the majority opinion was delivered by the Chief Justice
Rehnquist.
84. In that case, the petitioner Nancy Cruzan sustained injuries in an
automobile accident and lay in a Missouri State hospital in what has been
referred to as a persistent vegetative state (PVS), a condition in which a
person exhibits motor reflexes but evinces no indication of significant
cognitive function. The state of Missouri was bearing the cost of her care.
79
Her parents and co-guardians applied to the Court for permission to
withdraw her artificial feeding and hydration equipment and allow her to
die. While the trial Court granted the prayer, the State Supreme Court of
Missouri reversed, holding that under a statute in the State of Missouri it was
necessary to prove by clear and convincing evidence that the incompetent
person had wanted, while competent, withdrawal of life support treatment in
such an eventuality. The only evidence led on that point was the alleged
statement of Nancy Cruzan to a housemate about a year before the accident
that she did not want life as a `vegetable'. The State Supreme Court was of
the view that this did not amount to saying that medical treatment or
nutrition or hydration should be withdrawn.
85. Chief Justice Rehnquist delivering the opinion of the Court (in which
Justices White, O'Connor, Scalia, and Kennedy, joined) in his judgment first
noted the facts:-
"On the night of January 11, 1983, Nancy Cruzan lost
control of her car as she traveled down Elm Road in
Jasper County, Missouri. The vehicle overturned, and
Cruzan was discovered lying face down in a ditch
without detectable respiratory or cardiac function.
Paramedics were able to restore her breathing and
heartbeat at the accident site, and she was transported to a
hospital in an unconscious state. An attending
neurosurgeon diagnosed her as having sustained probable
80
cerebral contusions compounded by significant anoxia
(lack of oxygen). The Missouri trial court in this case
found that permanent brain damage generally results after
6 minutes in an anoxic state; it was estimated that Cruzan
was deprived of oxygen from 12 to 14 minutes. She
remained in a coma for approximately three weeks, and
then progressed to an unconscious state in which she was
able to orally ingest some nutrition. In order to ease
feeding and further the recovery, surgeons implanted a
gastrostomy feeding and hydration tube in Cruzan with
the consent of her then husband. Subsequent
rehabilitative efforts proved unavailing. She now lies in a
Missouri state hospital in what is commonly referred to
as a persistent vegetative state: generally, a condition in
which a person exhibits motor reflexes but evinces no
indications of significant cognitive function. 1 The State
of Missouri is bearing the cost of her care. [497 U.S. 261,
267]
After it had become apparent that Nancy Cruzan had
virtually no chance of regaining her mental faculties, her
parents asked hospital employees to terminate the
artificial nutrition and hydration procedures. All agree
that such a [497 U.S. 261, 268] removal would cause
her death. The employees refused to honor the request
without court approval. The parents then sought and
received authorization from the state trial court for
termination."
86. While the trial Court allowed the petition the State Supreme Court of
Missouri reversed. The US Supreme Court by majority affirmed the verdict
of the State Supreme Court
87. Chief Justice Rehnquist noted that in law even touching of one person
by another without consent and without legal justification was a battery, and
81
hence illegal. The notion of bodily integrity has been embodied in the
requirement that informed consent is generally required for medical
treatment. As observed by Justice Cardozo, while on the Court of Appeals
of New York "Every human being of adult years and sound mind has a right
to determine what shall be done with his own body, and a surgeon who
performs an operation without his patient's consent commits an assault, for
which he is liable in damages." vide Schloendorff vs. Society of New
York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus the
informed consent doctrine has become firmly entrenched in American Tort
Law. The logical corollary of the doctrine of informed consent is that the
patient generally possesses the right not to consent, that is to refuse
treatment.
88. The question, however, arises in cases where the patient is unable to
decide whether the treatment should continue or not e.g. if he is in coma or
PVS. Who is to give consent to terminate the treatment in such a case? The
learned Chief Justice referred to a large number of decisions of Courts in
U.S.A. in this connection, often taking diverse approaches.
89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered
severe brain damage as a result of anoxia, and entered into PVS. Her father
82
sought judicial approval to disconnect her respirator. The New Jersey
Supreme Court granted the prayer, holding that Karen had a right of privacy
grounded in the U.S. Constitution to terminate treatment. The Court
concluded that the way Karen's right to privacy could be exercised would be
to allow her guardian and family to decide whether she would exercise it in
the circumstances.
90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New
Jersey Supreme Court, in a case of an 84 year old incompetent nursing home
resident who had suffered irreversible mental and physical ailments,
contrary to its decision in Quinlan's case, decided to base its decision on the
common law right to self determination and informed consent. This right
can be exercised by a surrogate decision maker when there was a clear
evidence that the incompetent person would have exercised it. Where such
evidence was lacking the Court held that an individual's right could still be
invoked in certain circumstances under objective `best interest' standards.
Where no trustworthy evidence existed that the individual would have
wanted to terminate treatment, and a person's suffering would make the
administration of life sustaining treatment inhumane, a pure objective
83
standard could be used to terminate the treatment. If none of these
conditions obtained, it was best to err in favour of preserving life.
91. What is important to note in Cruzan's case (supra) is that there was a
statute of the State of Missouri, unlike in Airedale's case (where there was
none), which required clear and convincing evidence that while the patient
was competent she had desired that if she becomes incompetent and in a
PVS her life support should be withdrawn.
92. In Cruzan's case (supra) the learned Chief Justice observed :
"Not all incompetent patients will have loved ones
available to serve as surrogate decision makers. And
even where family members are present, there will be, of
course, some unfortunate situations in which family
members will not act to protect a patient. A State is
entitled to guard against potential abuses in such
situations."
93. The learned Chief Justice further observed :
"An erroneous decision not to terminate results in
maintenance of the status quo; the possibility of
subsequent developments such as advancements in
medical science, the discovery of new evidence regarding
the patient's intent, changes in the law, or simply the
unexpected death of the patient despite the administration
of life-sustaining treatment, at least create the potential
that a wrong decision will eventually be corrected or its
impact mitigated. An erroneous decision to withdraw
84
life-sustaining treatment, however, is not susceptible of
correction."
94. No doubt Mr. Justice Brennan (with whom Justices Marshall and
Blackmun joined) wrote a powerful dissenting opinion, but it is not
necessary for us to go into the question whether the view of the learned
Chief Justice or that of Justice Brennan, is correct.
95. It may be clarified that foreign decisions have only persuasive value
in our country, and are not binding authorities on our Courts. Hence we can
even prefer to follow the minority view, rather than the majority view, of a
foreign decision, or follow an overruled foreign decision.
96. Cruzan's case (supra) can be distinguished on the simple ground that
there was a statute in the State of Missouri, whereas there was none in the
Airedale's case nor in the present case before us. We are, therefore, of the
opinion that the Airedale's case (supra) is more apposite as a precedent for
us. No doubt foreign decisions are not binding on us, but they certainly have
persuasive value.
LAW IN INDIA
97. In India abetment of suicide (Section 306 Indian Penal Code) and
attempt to suicide (Section 309 of Indian Penal Code) are both criminal
85
offences. This is in contrast to many countries such as USA where attempt
to suicide is not a crime.
98. The Constitution Bench of the Indian Supreme Court in Gian Kaur
vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and
assisted suicide are not lawful in India. That decision overruled the earlier
two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union
of India, 1994(3) SCC 394. The Court held that the right to life under
Article 21 of the Constitution does not include the right to die (vide para 33).
In Gian Kaur's case (supra) the Supreme Court approved of the decision of
the House of Lords in Airedale's case (supra), and observed that euthanasia
could be made lawful only by legislation.
99. Sections 306 and 309 IPC read as under :
"306. Abetment of suicide - If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine.
309. Attempt to commit suicide - Whoever
attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with
simple imprisonment for a term which may extend to one
year or with fine, or with both."
86
100. We are of the opinion that although Section 309 Indian Penal Code
(attempt to commit suicide) has been held to be constitutionally valid in
Gian Kaur's case (supra), the time has come when it should be deleted by
Parliament as it has become anachronistic. A person attempts suicide in a
depression, and hence he needs help, rather than punishment. We therefore
recommend to Parliament to consider the feasibility of deleting Section 309
from the Indian Penal Code.
101. It may be noted that in Gian Kaur's case (supra) although the
Supreme Court has quoted with approval the view of the House of Lords in
Airedale's case (supra), it has not clarified who can decide whether life
support should be discontinued in the case of an incompetent person e.g. a
person in coma or PVS. This vexed question has been arising often in India
because there are a large number of cases where persons go into coma (due
to an accident or some other reason) or for some other reason are unable to
give consent, and then the question arises as to who should give consent for
withdrawal of life support.
102. This is an extremely important question in India because of the
unfortunate low level of ethical standards to which our society has
descended, its raw and widespread commercialization, and the rampant
87
corruption, and hence, the Court has to be very cautious that unscrupulous
persons who wish to inherit the property of someone may not get him
eliminated by some crooked method.
103. Also, since medical science is advancing fast, doctors must not
declare a patient to be a hopeless case unless there appears to be no
reasonable possibility of any improvement by some newly discovered
medical method in the near future. In this connection we may refer to a
recent news item which we have come across on the internet of an Arkansas
man Terry Wallis, who was 19 years of age and newly married with a baby
daughter when in 1984 his truck plunged through a guard rail, falling 25
feet. He went into coma in the crash in 1984, but after 24 years he has
regained consciousness. This was perhaps because his brain spontaneously
rewired itself by growing tiny new nerve connections to replace the ones
sheared apart in the car crash. Probably the nerve fibers from Terry Wallis'
cells were severed but the cells themselves remained intact, unlike Terri
Schiavo, whose brain cells had died (see Terri Schiavo's case on Google).
104. However, we make it clear that it is experts like medical practitioners
who can decide whether there is any reasonable possibility of a new medical
discovery which could enable such a patient to revive in the near future.
88
WHEN CAN A PERSON IS SAID TO BE DEAD
105. It is alleged in the writ petition filed by Ms. Pinky Virani (claiming to
be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug is
already dead and hence by not feeding her body any more we shall not be
killing her. The question hence arises as to when a person can be said to be
dead ?
106. A person's most important organ is his/her brain. This organ cannot
be replaced. Other body parts can be replaced e.g. if a person's hand or leg
is amputed, he can get an artificial limb. Similarly, we can transplant a
kidney, a heart or a liver when the original one has failed. However, we
cannot transplant a brain. If someone else's brain is transplanted into one's
body, then in fact, it will be that other person living in one's body. The
entire mind, including one's personality, cognition, memory, capacity of
receiving signals from the five senses and capacity of giving commands to
the other parts of the body, etc. are the functions of the brain. Hence one is
one's brain. It follows that one is dead when one's brain is dead.
107. As is well-known, the brain cells normally do not multiply after the
early years of childhood (except in the region called hippocampus), unlike
other cells like skin cells, which are regularly dying and being replaced by
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new cells produced by multiplying of the old cells. This is probably because
brain cells are too highly specialized to multiply. Hence if the brain cells
die, they usually cannot be replaced (though sometimes one part of the brain
can take over the function of another part in certain situations where the
other part has been irreversibly damaged).
108. Brain cells require regular supply of oxygen which comes through the
red cells in the blood. If oxygen supply is cut off for more than six minutes,
the brain cells die and this condition is known as anoxia. Hence, if the brain
is dead a person is said to be dead.
BRAIN DEATH
109. The term `brain death' has developed various meanings. While
initially, death could be defined as a cessation of breathing, or, more
scientifically, a cessation of heart-beat, recent medical advances have made
such definitions obsolete. In order to understand the nature and scope of
brain death, it is worthwhile to look at how death was understood.
Historically, as the oft-quoted definition in Black's Law Dictionary
suggests, death was:
"The cessation of life; the ceasing to exist; defined by physicians as a total
stoppage of the circulation of the blood, and a cessation of the animal and
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vital functions consequent thereon, such as respiration, pulsation, etc.".1
This definition saw its echo in numerous other texts and legal case law. This
includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d
120, 133 (Mo. 1961) ("Black's Law Dictionary, 4th Ed., defines death as
`the cessation of life; the ceasing to exist ...."'); and Sanger v. Butler, 101
S.W. 459, 462 (Tex. Civ. App. 1907) ("The Encyclopaedic Dictionary,
among others, gives the following definitions of [death]: `The state of being
dead; the act or state of dying; the state or condition of the dead.' The
Century Dictionary defines death as `cessation of life; that state of a being,
animal or vegetable, in which there is a total and permanent cessation of all
the vital functions."').2
110. This understanding of death emerged from a cardiopulmonary
perspective. In such cases, the brain was usually irrelevant -- being
understood that the cessation of circulation would automatically lead to the
death of brain cells, which require a great deal of blood to survive.
111. The invention of the ventilator and the defibrillator in the 1920s
altered this understanding, it being now possible that the cessation of
1 Black's Law Dictionary 488 (4th ed., rev. 1968).
2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions
of Death, 61 U. Miami L. Rev. 871. (2007).
91
respiration and circulation, though critical, would no longer be irreversible3.
Hence, a present-day understanding of death as the irreversible end of life
must imply total brain failure, such that neither breathing, nor circulation is
possible any more. The question of the length of time that may determine
such death is significant, especially considering a significant increase in
organ donations across jurisdictions over the last few years.
112. Brain death, may thus, be defined as "the irreversible cessation of all
functions of the entire brain, including the brain stem".4 It is important to
understand that this definition goes beyond acknowledging consciousness --
a person who is incapable of ever regaining consciousness will not be
considered to be brain dead as long as parts of the brain e.g. brain stem that
regulate involuntary activity (such as response to light, respiration, heartbeat
etc.) still continue to function. Likewise, if consciousness, albeit severely
limited, is present, then a person will be considered to be alive even if he has
suffered brain stem death, wherein breathing and heartbeat can no longer be
regulated and must be mechanically determined. Hence, the international
standard for brain death is usually considered to include "whole-brain
death", i.e., a situation where the higher brain (i.e. the part of the brain that
3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A
Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).
4 Section 1, Universal Determination of Death Act, (The United States Legislation)
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regulates consciousness and thought), the cerebellum or mid-brain, and the
brain-stem have all ceased to demonstrate any electrical activity whatsoever
for a significant amount of time. To say, in most cases, that only the death of
the higher brain would be a criteria for `brain death' may have certain
serious consequences -- for example, a foetus, technically under this
definition, would not be considered to be alive at all. Similarly, as per this,
different definitions of death would apply to human and non-human
organisms.
113. Brain death, thus, is different from a persistent vegetative state, where
the brain stem continues to work, and so some degree of reactions may
occur, though the possibility of regaining consciousness is relatively remote.
Even when a person is incapable of any response, but is able to sustain
respiration and circulation, he cannot be said to be dead. The mere
mechanical act of breathing, thus, would enable him or her to be "alive".
114. The first attempt to define death in this manner came about in 1968, as
a result of a Harvard Committee constituted for the purpose.5 This definition,
widely criticized for trying to maximize organ donations, considered death
to be a situation wherein "individuals who had sustained traumatic brain
5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of
Irreversible Coma, 205 JAMA 337, 337-40 (1968).
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injury that caused them to be in an irreversible coma, and had lost the
ability to breathe spontaneously"6, would be considered dead. This
criticism led to the Presidents' Committee, set up for the purpose, in 1981,
defining death more vaguely as the point "where the body's physiological
system ceases to contribute a uniform whole".
This definition of whole brain death, however, is not without its critics.
Some argue that the brain is not always responsible for all bodily
functioning- digestion, growth, and some degree of movement (regulated by
the spinal cord) may not require any electrical activity in the brain. In order
to combat this argument, and further explain what brain death could include,
the President's Committee on Bio-ethics in the United States of America in
2008 came up with a new definition of brain death, according to which a
person was considered to be brain dead when he could no longer perform the
fundamental human work of an organism. These are:
"(1) "openness to the world, that is receptivity to stimuli and signals from
the surrounding environment,"
(2) "the ability to act upon the world to obtain selectively what it needs.
and (3) "the basic felt need that drives the organism to act ... to obtain what
it needs."7
6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of
Death. 36 Am. J.L. & Med. 540 (2010).
7 Ibid.
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115. When this situation is reached, it is possible to assume that the person
is dead, even though he or she, through mechanical stimulation, may be able
to breathe, his or her heart might be able to beat, and he or she may be able
to take some form of nourishment. It is important, thus, that it be medically
proved that a situation where any human functioning would be impossible
should have been reached for there to be a declaration of brain death--
situations where a person is in a persistent vegetative state but can support
breathing, cardiac functions, and digestion without any mechanical aid are
necessarily those that will not come within the ambit of brain death.
116. In legal terms, the question of death would naturally assume
significance as death has a set of legal consequences as well. As per the
definition in the American Uniform Definition of Death Act, 1980. an
individual who "sustain[s] . . . irreversible cessation of all functions of the
entire brain, including the brain stem, is dead." This stage, thus, is reached
at a situation where not only consciousness, but every other aspect of life
regulated from the brain can no longer be so regulated.
117. In the case of `euthanasia', however, the situation is slightly different.
In these cases, it is believed, that a determination of when it would be right
or fair to disallow resuscitation of a person who is incapable of expressing
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his or her consent to a termination of his or her life depends on two
circumstances:
a. when a person is only kept alive mechanically, i.e. when not
only consciousness is lost, but the person is only able to
sustain involuntary functioning through advanced medical
technology--such as the use of heart-lung machines, medical
ventilators etc.
b. when there is no plausible possibility of the person ever
being able to come out of this stage. Medical "miracles" are
not unknown, but if a person has been at a stage where his
life is only sustained through medical technology, and there
has been no significant alteration in the person's condition
for a long period of time--at least a few years--then there
can be a fair case made out for passive euthanasia.
To extend this further, especially when a person is incapable of being able to
give any consent, would amount to committing judicial murder.
118. In this connection we may refer to the Transplantation of Human
Organs Act, 1994 enacted by the Indian Parliament. Section 2(d) of the Act
states :
"brain-stem death" means the stage at which all functions of
the brain-stem have permanently and irreversibly ceased and is
so certified under sub-section (6) of section 3:"
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119. Section 3(6) of the said Act states:
"(6) Where any human organ is to be removed from the body of a
person in the event of his brain-stem death, no such removal shall be
undertaken unless such death is certified, in such form and in such manner
and on satisfaction of such conditions and requirements as may be
prescribed, by a Board of medical experts consisting of the following,
namely:-
(i) the registered medical practitioner, in charge of the
hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner,
being a specialist, to be nominated by the
registered medical practitioner specified in clause
(i), from the panel of names approved by the
Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated
by the registered medical practitioner specified in
clause (i), from the panel of names approved by
the Appropriate Authority; and
(iv) the registered medical practitioner treating the
person whose brain-stem death has occurred".
120. Although the above Act was only for the purpose of regulation of
transplantation of human organs it throws some light on the meaning of
brain death.
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121. From the above angle, it cannot be said that Aruna Shanbaug is dead.
Even from the report of Committee of Doctors which we have quoted above
it appears that she has some brain activity, though very little.
122. She recognizes that persons are around her and expresses her like or
dislike by making some vocal sound and waving her hand by certain
movements. She smiles if she receives her favourite food, fish and chicken
soup. She breathes normally and does not require a heart lung machine or
intravenous tube for feeding. Her pulse rate and respiratory rate and blood
pressure are normal. She was able to blink well and could see her doctors
who examined her. When an attempt was made to feed her through mouth
she accepted a spoonful of water, some sugar and mashed banana. She also
licked the sugar and banana paste sticking on her upper lips and swallowed
it. She would get disturbed when many people entered her room, but she
appeared to calm down when she was touched or caressed gently.
123. Aruna Shanbaug meets most of the criteria for being in a permanent
vegetative state which has resulted for 37 years. However, her dementia has
not progressed and has remained stable for many years.
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124. From the above examination by the team of doctors, it cannot be said
that Aruna Shanbaug is dead. Whatever the condition of her cortex, her
brain stem is certainly alive. She does not need a heart--lung machine. She
breathes on her own without the help of a respirator. She digests food, and
her body performs other involuntary function without any help. From the
CD (which we had screened in the courtroom on 2.3.2011 in the presence of
counsels and others) it appears that she can certainly not be called dead. She
was making some sounds, blinking, eating food put in her mouth, and even
licking with her tongue morsels on her mouth.
125. However, there appears little possibility of her coming out of PVS in
which she is in. In all probability, she will continue to be in the state in
which she is in till her death. The question now is whether her life support
system (which is done by feeding her) should be withdrawn, and at whose
instance?
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS)
126. There is no statutory provision in our country as to the legal procedure
for withdrawing life support to a person in PVS or who is otherwise
incompetent to take a decision in this connection. We agree with Mr.
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Andhyarujina that passive euthanasia should be permitted in our country in
certain situations, and we disagree with the learned Attorney General that it
should never be permitted. Hence, following the technique used in
Vishakha's case (supra), we are laying down the law in this connection
which will continue to be the law until Parliament makes a law on the
subject.
(i) A decision has to be taken to discontinue life support
either by the parents or the spouse or other close
relatives, or in the absence of any of them, such a
decision can be taken even by a person or a body of
persons acting as a next friend. It can also be taken by
the doctors attending the patient. However, the decision
should be taken bona fide in the best interest of the
patient.
In the present case, we have already noted that Aruna
Shanbaug's parents are dead and other close relatives are not
interested in her ever since she had the unfortunate assault on
her. As already noted above, it is the KEM hospital staff, who
have been amazingly caring for her day and night for so many
long years, who really are her next friends, and not Ms. Pinky
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Virani who has only visited her on few occasions and written a
book on her. Hence it is for the KEM hospital staff to take that
decision. The KEM hospital staff have clearly expressed their
wish that Aruna Shanbaug should be allowed to live.
Mr. Pallav Shisodia, learned senior counsel, appearing
for the Dean, KEM Hospital, Mumbai, submitted that Ms.
Pinky Virani has no locus standi in this case. In our opinion it
is not necessary for us to go into this question since we are of
the opinion that it is the KEM Hospital staff who is really the
next friend of Aruna Shanbaug.
We do not mean to decry or disparage what Ms. Pinky
Virani has done. Rather, we wish to express our appreciation of
the splendid social spirit she has shown. We have seen on the
internet that she has been espousing many social causes, and we
hold her in high esteem. All that we wish to say is that however
much her interest in Aruna Shanbaug may be it cannot match
the involvement of the KEM hospital staff who have been
taking care of Aruna day and night for 38 years.
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However, assuming that the KEM hospital staff at some
future time changes its mind, in our opinion in such a situation
the KEM hospital would have to apply to the Bombay High
Court for approval of the decision to withdraw life support.
(ii) Hence, even if a decision is taken by the near relatives or
doctors or next friend to withdraw life support, such a
decision requires approval from the High Court
concerned as laid down in Airedale's case (supra).
In our opinion, this is even more necessary in our country
as we cannot rule out the possibility of mischief being done by
relatives or others for inheriting the property of the patient.
127. In our opinion, if we leave it solely to the patient's relatives or to the
doctors or next friend to decide whether to withdraw the life support of an
incompetent person there is always a risk in our country that this may be
misused by some unscrupulous persons who wish to inherit or otherwise
grab the property of the patient. Considering the low ethical levels
prevailing in our society today and the rampant commercialization and
corruption, we cannot rule out the possibility that unscrupulous persons with
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the help of some unscrupulous doctors may fabricate material to show that it
is a terminal case with no chance of recovery. There are doctors and
doctors. While many doctors are upright, there are others who can do
anything for money (see George Bernard Shaw's play `The Doctors
Dilemma'). The commercialization of our society has crossed all limits.
Hence we have to guard against the potential of misuse (see Robin Cook's
novel `Coma'). In our opinion, while giving great weight to the wishes of
the parents, spouse, or other close relatives or next friend of the incompetent
patient and also giving due weight to the opinion of the attending doctors,
we cannot leave it entirely to their discretion whether to discontinue the life
support or not. We agree with the decision of the Lord Keith in Airedale's
case (supra) that the approval of the High Court should be taken in this
connection. This is in the interest of the protection of the patient, protection
of the doctors, relative and next friend, and for reassurance of the patient's
family as well as the public. This is also in consonance with the doctrine of
parens patriae which is a well known principle of law.
DOCTRINE OF PARENS PATRIAE
128. The doctrine of Parens Patriae (father of the country) had originated
in British law as early as the 13th century. It implies that the King is the
103
father of the country and is under obligation to look after the interest of
those who are unable to look after themselves. The idea behind Parens
Patriae is that if a citizen is in need of someone who can act as a parent who
can make decisions and take some other action, sometimes the State is best
qualified to take on this role.
129. In the Constitution Bench decision of this Court in Charan Lal Sahu
vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine
has been explained in some details as follows :
"In the "Words and Phrases" Permanent Edition,
Vol. 33 at page 99, it is stated that parens patriae is the
inherent power and authority of a legislature to provide
protection to the person and property of persons non sui
juris, such as minor, insane, and incompetent persons,
but the words parens patriae meaning thereby `the father
of the country', were applied originally to the King and
are used to designate the State referring to its sovereign
power of guardianship over persons under disability.
Parens patriae jurisdiction, it has been explained, is the
right of the sovereign and imposes a duty on the
sovereign, in public interest, to protect persons under
disability who have no rightful protector. The
connotation of the term parens patriae differs from
country to country, for instance, in England it is the King,
in America it is the people, etc. The government is
within its duty to protect and to control persons under
disability".
104
The duty of the King in feudal times to act as parens patriae (father of the
country) has been taken over in modern times by the State.
130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for
the U.S. Supreme Court observed :
"the State has a legitimate interest under its parens
patriae powers in providing care to its citizens who are
unable to care for themselves".
131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951)
Mr. Justice Mathew observed :
" The Court also is `state' within the meaning of Article
12 (of the Constitution).".
132. In our opinion, in the case of an incompetent person who is unable to
take a decision whether to withdraw life support or not, it is the Court alone,
as parens patriae, which ultimately must take this decision, though, no
doubt, the views of the near relatives, next friend and doctors must be given
due weight.
UNDER WHICH PROVISION OF THE LAW CAN THE COURT
GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON
105
133. In our opinion, it is the High Court under Article 226 of the
Constitution which can grant approval for withdrawal of life support to such
an incompetent person. Article 226(1) of the Constitution states :
"Notwithstanding anything in article 32, every High
Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose".
134. A bare perusal of the above provisions shows that the High Court
under Article 226 of the Constitution is not only entitled to issue writs, but is
also entitled to issue directions or orders.
135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this
Court observed :
"This article is couched in comprehensive phraseology
and it ex facie confers a wide power on the High Courts
to reach injustice wherever it is found. The Constitution
designedly used a wide language in describing the nature
of the power, the purpose for which and the person or
authority against whom it can be exercised. It can issue
writs in the nature of prerogative writs as understood in
England; but the scope of those writs also is widened by
the use of the expression "nature", for the said expression
does not equate the writs that can be issued in India with
those in England, but only draws an analogy from them.
106
That apart, High Courts can also issue directions, orders
or writs other than the prerogative writs. It enables the
High Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. Any attempt
to equate the scope of the power of the High Court under
Art. 226 of the Constitution with that of the English
Courts to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over the years
in a comparatively small country like England with a
unitary form of Government to a vast country like India
functioning under a federal structure."
136. The above decision has been followed by this Court in Shri Anadi
Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).
137. No doubt, the ordinary practice in our High Courts since the time of
framing of the Constitution in 1950 is that petitions filed under Article 226
of the Constitution pray for a writ of the kind referred to in the provision.
However, from the very language of the Article 226, and as explained by the
above decisions, a petition can also be made to the High Court under Article
226 of the Constitution praying for an order or direction, and not for any
writ. Hence, in our opinion, Article 226 gives abundant power to the High
Court to pass suitable orders on the application filed by the near relatives or
next friend or the doctors/hospital staff praying for permission to withdraw
the life support to an incompetent person of the kind above mentioned.
107
PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN
SUCH AN APPLICATION IS FILED
138. When such an application is filed the Chief Justice of the High Court
should forthwith constitute a Bench of at least two Judges who should
decide to grant approval or not. Before doing so the Bench should seek the
opinion of a committee of three reputed doctors to be nominated by the
Bench after consulting such medical authorities/medical practitioners as it
may deem fit. Preferably one of the three doctors should be a neurologist,
one should be a psychiatrist, and the third a physician. For this purpose a
panel of doctors in every city may be prepared by the High Court in
consultation with the State Government/Union Territory and their fees for
this purpose may be fixed.
139. The committee of three doctors nominated by the Bench should
carefully examine the patient and also consult the record of the patient as
well as taking the views of the hospital staff and submit its report to the
High Court Bench.
140. Simultaneously with appointing the committee of doctors, the High
Court Bench shall also issue notice to the State and close relatives e.g.
parents, spouse, brothers/sisters etc. of the patient, and in their absence
108
his/her next friend, and supply a copy of the report of the doctor's committee
to them as soon as it is available. After hearing them, the High Court bench
should give its verdict. The above procedure should be followed all over
India until Parliament makes legislation on this subject.
141. The High Court should give its decision speedily at the earliest, since
delay in the matter may result in causing great mental agony to the relatives
and persons close to the patient.
142. The High Court should give its decision assigning specific reasons in
accordance with the principle of `best interest of the patient' laid down by
the House of Lords in Airedale's case (supra). The views of the near
relatives and committee of doctors should be given due weight by the High
Court before pronouncing a final verdict which shall not be summary in
nature.
143. With these observations, this petition is dismissed.
144. Before parting with the case, we would like to express our gratitude to
Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by
Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal Chandra S. Dave,
109
advocates, the learned Attorney General for India Mr. G. E. Vahanvati,
assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina,
learned Senior Counsel, whom we had appointed as amicus curiae assisted
by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior
counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale,
advocates for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar,
counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and
Ms. Asha Gopalan Nair, advocates, who were of great assistance to us. We
wish to express our appreciation of Mr. Manav Kapur, Advocate, who is
Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms.
Neha Purohit, Advocate, who is Law-Clerk-cum-Research Assistant of
Hon'ble Justice Gyan Sudha Mishra. We also wish to mention the names of
Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students
in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai,
who were the interns of one of us (Katju, J.) and who were of great help in
doing research in this case.
145. We wish to commend the team of doctors of Mumbai who helped us
viz. Dr. J. V. Divatia, Professor and Head, Department of Anesthesia,
Critical Care and Pain at Tata Memorial Hospital, Mumbai; Dr. Roop
110
Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh
Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital. They did an
excellent job.
146. We also wish to express our appreciation of Ms. Pinki Virani who
filed this petition. Although we have dismissed the petition for the reasons
given above, we regard her as a public spirited person who filed the petition
for a cause she bona fide regarded as correct and ethical. We hold her in
high esteem.
147. We also commend the entire staff of KEM Hospital, Mumbai
(including the retired staff) for their noble spirit and outstanding, exemplary
and unprecedented dedication in taking care of Aruna for so many long
years. Every Indian is proud of them.
...................................J.
(Markandey Katju)
..................................J.
(Gyan Sudha Misra)
New Delhi:
March 07, 2011
