TaxTMI 
TaxTMI 
2011 (3) TMI 1729
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....he 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' 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 all....
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....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. 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 repo....
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....ondition. 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 3. Findings of the physical, neurological and mental status examinations performed by the panel. 4. Investigations performed during the course of this assessment (Blood tests, CT head, Electroencephalogram) II. Medical history Medical history of Ms. Aruna Ramachandra Shanbaug was obtained from the Dean, the Principal of the School of Nursing and the medical and nursing staff of ward-4 who has been looking after her. It was learnt from the persons mentioned above that 1. Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was assaulted and strangulated by a sweeper of the hospital on November 27, 1973. 2. Though she survived, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation. 3. Since last so many years she is in the same bed in the side-room of ward-4. 4. The hospital staff has provided her an excellent nursing....
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.... 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). 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 ....
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....g 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 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 p....
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....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, somatic and motor stimuli was observed during our examina....
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....al response to visual, auditory, tactile or behavioural 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 ....
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....eral of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates. 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 Sh....
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.... 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, c....
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....d 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 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 Bluis....
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....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 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....
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....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 withdr....
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.... 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 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 s....
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....ural 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 Urmila Chauhan and others have also issued statements th....
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....ht of every Indian citizen". 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 di....
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....t 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. (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 H....
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....ed from the view of the learned Attorney General in that while the latter opposed even passive euthanasia, Mr. 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 surr....
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....y 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. 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....
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....thal 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 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 legisl....
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....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. 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 ....
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....e 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. 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 ille....
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....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. 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 ....
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....on. 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 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 h....
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....onsisting 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 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 savi....
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....rom other 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 ....
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....he 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 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....
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....e 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 the sanctity of ....
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....e, 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 c....
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....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 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 ....
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.... 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 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 c....
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.... 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 corr....
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....; 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. ....
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.... 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 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....
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....o 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 cerebral contusions compounded by significant anoxia (lac....
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.... 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 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, contr....
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....e 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 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....
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....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 p....
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....in 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 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."'). 110. This understanding of death emerged from a cardiopulmonary perspect....
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.... 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 Irreversibl....
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....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 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--....
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....d 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. 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 he....
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....y 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. 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 t....
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...." 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". 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 legi....
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....m. 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 fo....
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.... 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, 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 R....