Report No. 196

(A) Medical Powers of Attorney:

Equally, it is in our view, not desirable to make a statute, execution of "medical powers of attorney" enabling surrogates to take medical decisions on behalf of the patient. Power of Attorney can create too many medical and legal issues and for the reasons for which they have been rejected even in U.K., they are not suitable even for our country. Even in US, they have created lot of legal problems and a large amount of case law. In regard to medical powers of attorney, Lord Goff in Airedale, 1993 (1) All ER 821 rejected the delegation of decision making to power of attorney agents (see In re Quinian: (1976) 355 A. 2d 647 and Superintendent of Belchertown State School v. Saikewicz: 370 NE 2d 417. He stated:

"I do not consider that any such test forms of English law in relation to incompetent adults on whose behalf nobody has power to consent to medical treatment. Certainly in In re F: (1990) (2) HCI, your Lordship's House adopted a straightforward test of best interests of the patient."

We are, therefore, of the view that both Advance Directives and Medical Powers of Attorney should not be valid in our country on ground of public policy. A provision is proposed in this behalf to make them void.

(6) State's interest in protecting life and principle of sanctity of life are not absolute: Indian Penal Code affirms this view.

It is the law in all countries that the State is interested in protecting life and treats life as sacrosanct. Right to life includes right to live with dignity. Our Supreme Court said this in several cases while interpreting the meaning of the words 'right to life' in Art. 21 of the Constitution. However, in all countries life is protected and the Penal codes which are enacted contain a long list of criminal offences which deal with injury to the body of another person or killing of human beings.

The Law of Torts also provides civil remedies for compensation for bodily injury or death. It is one of the fundamental duties of the State to take steps to preserve and maintain the health and well-being of its citizens. The medical profession has an important role in taking care of the health of the people. The profession is regulated by professional bodies like Medical Councils.

As pointed out earlier, only in a few countries there are laws which permit voluntary termination of life. In Netherlands, there is a law made w.e.f. April 10, 2001, where Euthanasia and Assisted Suicide have been legalized; in Belgium where w.e.f. 23.9.2002, euthanasia has been legalized; the Northern Territory of Australia made a law in 1996 for making Euthanasia valid but it became unenforceable after the Federal legislature passed the Rights of Terminally Ill Act, 1998 w.e.f. 27.3.1998. In USA, Oregon alone passed the Death with Dignity Act, 1994 legalising 'Assisted Suicide'. These are exceptions.

In our country, the State prohibits 'suicide' and 'abetment of suicide'. (In some countries like UK, the suicide has been decriminalized but 'abetment of suicide' remains an offence).

As far as 'attempt to commit suicide' is concerned, section 309 of the Indian Penal Code, 1860 prohibits the same. It states:

"section 309: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both."

(We shall deal with the question whether refusal to have medical treatment amounts to 'attempt to suicide', separately). Likewise, the Penal Code in section 306 also states that 'abetment of suicide' is an offence. section 306 states as follows:

"Sec 306: If any person commits suicide, whoever abets the commission of such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

'Abetment' of any offence is defined in section 107. (We shall refer to it separately in detail when we deal with the question whether the withholding or withdrawing medical treatment amounts of abetment of suicide).

The State makes 'murder' an offence under section 302 of the Penal Code, 1860. section 299 defines 'culpable homicide'. section 300 defines when 'culpable homicide' amounts to 'murder'. section 304 mentions about punishment for culpable homicide not amounting to murder.

Thus, the Indian Penal Code, 1860 upholds the sanctity of life in several respects.

In Ms B v. An NHS Hospital Trust: 2002 EWHC 429, Dame Elizabeth Butler-Sloss (President of Family Court) was dealing with a serious case of a lady who suffered damage to the spinal column who executed a living will for discontinuance of medical treatment if her condition became life-threatening. The learned Judge held that the principle of sanctity of life was not absolute but that it is still the concern of the State including the judiciary. At the same time, no medical officer can be compelled to treat a patient against his wishes, even if death was imminent. The principle of sanctity of life was explained by Lord Keith and Lord Goff in Airedale.

In Nancy B v. Hotel-Diem de Quebec (1992) 86 DLR (4th ) 385 where in a case before the Quebec Supreme Court, a 25 year old woman with incurable neurological disorder refused ventilation, the Court accepted her prayer to stop ventilation.

In Gian Kaur's case: 1996 (2) SCC 648, adverting to PVS patients, the Supreme Court of India quoted with approval the observations of the House of Lords in Airedale that the principle of sanctity of life is not absolute. Lord Keith stated in Airedale: "Given that existence in the persistent vegetative state is not a benefit to the patient, it remains to consider whether the principle of the sanctity of life, which is the concern of the State, and the judiciary as one of the arms of the State, to maintain, requires this House to hold that the judgment of the Court of Appeal was incorrect.

In my opinion it does not. The principle is not an absolute one. It does not compel a medical practitioner on pain of criminal sanctions to treat a patient, who will die if he does not, contrary to the express wishes of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering.

On the other hand, it forbids the taking of active measures to cut short the life of a terminally ill-patient. In my judgment, it does no violence to the principle to hold that it is lawful to cease to give medical treatment and care to a PVS patient who has been in that state for over three years, considering that to do so involves invasive manipulation of the patient's body to which he has not consented and which confers no benefit upon him.

Lord Goff also stated that the 'principle of sanctity of life must yield to the principle of self-determination and for present purposes more important, the doctor's duty to act in the best interests of his patient must likewise be qualified. He also stated that there is no absolute obligation upon a doctor who has the patient in his care to prolong his life, regardless of circumstances.

In Re J (a minor: Wardship: medical treatment) 1990 (3) All ER 930, the Judge was dealing with a child who suffered brain damage and was epileptic, and who was likely to develop spastic quadriplegia, blindness and deafness if life was prolonged. He was ventilated but reventilation could make him collapse. The trial Judge refused reventilation.

The Court of Appeal affirmed the judgment because reventilation would lead to the child's collapse, or even survival may be very tortuous for the child. Lord Donaldson quoted the judgment of the British Columbia Court in Re Superintendent of Family and Child Science and Dawson (1983) 145 DLR, 3d, 610. There McKenzie J of the Supreme Court of British Columbia (Canada) referred to the words of Asch J of the New York Court in Re Weberlist (1974) 360 NYS (2d) 783 (at 787) as follows:

"There is a strident cry in America to terminate the lives of other peopl.- deemed physically or mentally defective. Assuredly, one test of a civilization is its concern with the survival of the 'unfittest', a reversal of Darwin's formulation. In this case, the Court must decide what its ward would choose, if he were in a position to make sound judgment."

A ward, with the type of future as was in store for J, would obviously not invite reventilation and survival having regard to the future prospect of total disability. Therefore, the State's right of preserving life is not absolute.

In GMC v. Burke: (2005) EWCA (Civ) 1003 (CA) Lord Phillips of Worth Matravers MR stated that the Courts have accepted that where life involves an extreme degree of pain, discomfort or indignity to a patient, who is sentient but not competent and who has manifested no wish to be kept alive, that circumstance may absolve the doctors of the positive duty to keep the patient alive. Equally, the Courts have recognized that there may be no duty to keep alive a patient who is in a persistent vegetative state. Referring to Re J, he said "there are tragic cases where treatment can prolong life for an indeterminate period, but only at a cost of great suffering while life continues".

All these show that while life is sacrosanct and the State has a duty to protect life, the principle is not absolute and there are, in reality, cases where attempts to prolong life may amount to perpetrating acute suffering on patients, and therefore in the case of incompetent patients, doctors can take decision to stop life support systems if it is in the best interests of the patient. As to the manner of deciding what is in the 'best interests' of a patient; we shall be discussing that aspect separately.

No provision is necessary in the proposed Bill to state that the State's interest in property lies or that principle of sanctity of life is not absolute.

(7) Refusal to obtain medical treatment, in certain circumstances, does not amount to 'attempt to commit suicide'; withholding or withdrawing medical treatment, in certain situations, does not amount to 'abetment of suicide' proposed to be made in Bill treat such actions as 'justified by law': (Indian Penal Code, 1860 considered).

This is the most important aspect on which considerable discussion will be necessary.

Under the last heading, we have referred to the broad principle that sanctity of life is not absolute and that while the State, of which judiciary is a part, is also interested in prolonging life, there are grave cases in which this principle has to be excepted.

We have referred to the patients' right of self-determination where he or she directs at or about the time when treatment is to be given that no treatment be given to him or her when he is in a serious medical condition. Where this is done by an adult who is competent and the decision is an informed one, it is binding on the doctor. In cases where such decision of competent patients are not based on informed consent, and in the case of minors or incompetent persons or persons in a persistent vegetative state, the doctors can take medical decisions that it is not in the patients best interests to live longer and that the life supporting systems could be withheld or withdrawn.

(i) In such situations, two questions arise. So far as the patient who is an adult and competent who refuses treatment, does it amount to 'attempt to commit suicide'?

(ii) So far as the doctors are concerned, in the case of an adult where they obey the patient's refusal or where in the case of competent patient whose decision to refuse treatment is not an informed one and where the patient is a minor or incompetent or a PVS they take a bona fide decision to stop artificial life support, on the basis of 'best interests' of the patient, question arises whether they are guilty of 'abetment of suicide'?

Questions (i) and (ii) are answered by the decisions referred to by us in the preceding Chapters. But we shall briefly recapitulate the cases decided by our Supreme Court and other countries and summarise them.

The Supreme Court in Gian Kaur v. State of Punjab 1996 (2) SCC 648 while upholding the validity of section 309 of the Indian Penal Code, 1860 which speaks of 'attempt to commit suicide', also considered, towards the end of the judgment, the decision of the House of Lords in Airedale: 1993 (1) All ER 821 which related to a patient in a PVS state.

While declaring that Euthanasia and Assisted Suicide are prohibited under our law and are not lawful, the Supreme Court dealt with persons in a vegetative state, as in Airedale, and held that sanctity of life is not absolute, and that in cases of persons in persistent vegetative state where further living is of no benefit to the patient, there is a distinction between euthanasia (mercy killing) and cases where a patient has entered into a state close to death, a physician decides not to provide or continue to provide treatment which could or might prolong the patient's life without any possible state of revival'.

These observations made by the Supreme Court, in contrasting that situation with Euthanasia and Assisted Suicide, gives a clear indication that the Supreme Court did not consider withdrawal or withholding medical treatment in such cases as offences, on par with Euthanasia. The Court also stated in Gian Kaur: 1996(2) SCC 648 after referring to Art. 21 as follows (p 660):

"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."

This passage from Gian Kaur supports the view that stoppage of medical treatment to allow the patient to 'die with dignity' is part of the 'right to life' under Art. 21 and hence not unlawful. It is not unlawful both for the patient who wants to die by directing stoppage of treatment and it is not unlawful for the doctor either to obey a directive of a competent patient or to take such a decision in the best interests of a minor or incompetent patient. This is further clear from another passage in Gian Kaur, where the distinction is made between 'accelerating the process of natural death' (by not administering treatment) and positively accelerating death by a physician who assists in a suicide, is referred to (at p.661):

"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 physicianassisted 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 Art. 21 to include therein the right to curtail the natural span of life."

The last sentence obviously refers to physician-assisted suicide, which is referred to in the previous sentence and which is not part of Article 21. But the first sentence, read with the passage at p 660, refers to the lawfulness of withdrawal of life-support of a PVS patient, which is within Article 21.

Therefore, it is clear that Gian Kaur supports the principle that withholding or withdrawing life support system to PVS patients in whose cases the process of death has started does not amount to an offence.

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