With regard to the legal issues in the case of Aruna Shanbag v. Union of
India, 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
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.
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 the Supreme Court of India addresses.
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).
Active euthanasia is taking specific steps to cause the patient's death, such as
injecting the patient with some lethal substance, e.g. sodium pentothal which
causes a person deep sleep in a few seconds, and the person instantaneously and
painlessly dies in this deep sleep. 43. A distinction is sometimes drawn between
euthanasia and physician assisted dying, 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.
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.
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 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.)
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.
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
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.
However, the Supreme Court is of the opinion that the distinction is valid, as
has been explained in some details by Lord Goff in Airedale's case (infra) which
is being discussed below:
Legislation In Some Countries Relating To Euthanasia Or Physician Assisted Death
Although in the present case the court was 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.
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.
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:
- The patient's suffering is unbearable with no prospect of improvement
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)
- The patient must be fully aware of his/her condition, prospects and
- There must be consultation with at least one other independent doctor
who needs to confirm the conditions mentioned above.
- The death must be carried out in a medically appropriate fashion by the
doctor or patient, in which case the doctor must be present.
- 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.
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:
Prosecutors will refrain from pressing charges if this Groningen Protocol is
- Stopping or not starting a medically useless (futile) treatment
- Stopping or not starting a treatment at the patient's request.
- 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.
Switzerland has an unusual position on assisted suicide: it is legally permitted
and can be performed by non-physicians. However, euthanasia is illegal, the
difference between assisted suicide and euthanasia being that while in the
former the patient administers the lethal injection himself, in the latter a
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
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.
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.
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 was the first state in U.S.A. to legalize physician assisted death.
The Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under
the Death With Dignity Act, a person who sought physician-assisted suicide would
have to meet certain criteria: 7 He must be an Oregon resident, at least 18
years old, and must have decision making capacity.
- The person must be terminally ill, having six months or less to live.
- 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.
- 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.
- Counseling 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.
- 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
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 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 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.
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 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 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.
As already stated above, euthanasia can be both voluntary or non voluntary. In
voluntary passive euthanasia a person who is capable of deciding for himself
decides that he would prefer to die (which may be for various reasons e.g., that
he is in great pain or that the money being spent on his treatment should
instead be given to his family who are in greater need, etc.), and for this
purpose he consciously and of his own free will refuses to take life saving
medicines. In India, if a person consciously and voluntarily refuses to take
life saving medical treatment it is not a crime. Whether not taking food
consciously and voluntarily with the aim of ending one's life is a crime under
section 309 IPC (attempt to commit suicide) is a question which need not be
decided in this case.
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(Aruna
Shanbag v. Union of India) 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.
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 Airedale Case:
(Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.)
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 conditions sometimes known as "irreversible coma", "the
Guillain-Barre syndrome", "the locked-in syndrome" and "brain death".
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 incapable 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
In order to maintain Mr. Bland in his condition, feeding and hydration were
achieved by artificial means of a nasogastric tube while the excretory functions
were regulated by a catheter and enemas. According to eminent medical opinion,
there was no prospect whatsoever that he would ever make a recovery from his
condition, but there was every likelihood that he would maintain this state of
existence for many years to come provided the artificial means of medical care
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.
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.
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. 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.
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.
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
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.
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.
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.
Given that existence in the persistent vegetative state is of no benefit to the
patient, the House of Lords then considered whether the principle of the
sanctity of life which is the concern of the State (and the Judiciary is one of
the arms of the State) required the Court to hold that medical treatment to
Bland could not be discontinued.
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
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.
In Airdale's case (Supra)
another Judge on the Bench, Lord Goff of
"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 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  A.C. 24, 43, per Lord Reid; and Sidaway v . Board of
Governors of the Bethlem Royal Hospital and the Maudsley Hospital  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 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)  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 rules were
held to exist.
It is scarcely consistent with the primacy given to the principle of
self-determination in those cases in which the patient of sound mind has
declined to give his consent, that the law should provide no means of 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 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 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
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  2 AC 1, in which the legal
principles governing treatment in such circumstances were stated by this House.
For my part I can see no reason why, as a matter of principle, a decision by a
doctor whether or not to initiate, or to continue to provide, treatment or care
which could or might have the effect of prolonging such a patient's life, should
not be governed by the same fundamental principle. Of course, in the great
majority of cases, the best interests of the patient are likely to require that
treatment of this kind, if available, should be given to a patient.
But this may not always be so. To take a simple example given by Thomas J. in Re
J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992, at p. 35), to
whose judgment in that case I wish to pay tribute, it cannot be right that a
doctor, who has under his care a patient suffering painfully from terminal
cancer, should be under an absolute obligation to perform upon him major surgery
to abate another condition which, if unabated, would or might shorten his life
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
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 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
Thus all the Judges of the House of Lords in the Airedale case (supra) were
agreed that Anthony Bland should be allowed to die.
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.
The question, however, remains as to who is to decide what the patient's is 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 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).
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.
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
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).
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."
The Court went on to conclude that the Washington statute being challenged was
rationally related to five legitimate government interest : protection of life,
prevention of suicide, protection of ethical integrity of the medical
profession, protection of vulnerable groups, and protection against the
"slippery slope" towards euthanasia. The Court then noted that perhaps the
individual States were more suited to resolving or at least addressing the
myriad concerns raised by both proponents and opponents of physician assisted
suicide. The Court observed :
"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."
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
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.
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. 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
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.
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 (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. 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."
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 CourtChief Justice Rehnquist noted that in law even touching of one
person by another without consent and without legal justification was a battery,
and 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
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.
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.
In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme
Court, in a case of an 84 year old incompetent nursing home resident who had
suffered irreversible mental and physical ailments, contrary to its decision in
Quinlan's case, decided to base its decision on the common law right to self
determination and informed consent. This right can be exercised by a surrogate
decision maker when there was a clear evidence that the incompetent person would
have exercised it.
Where such evidence was lacking the Court held that an individual's right could
still be invoked in certain circumstances under objective `best interest'
standards. Where no trustworthy evidence existed that the individual would have
wanted to terminate treatment and a person's suffering would make the
administration of life sustaining treatment inhumane, a pure objective standard
could be used to terminate the treatment. If none of these conditions obtained,
it was best to err in favour of preserving life.
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.
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
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 life-sustaining treatment, however, is not
susceptible of correction."
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.
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.
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
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
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.
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
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
The Supreme Court of India was 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. The Bench,
therefore recommend to Parliament to consider the feasibility of deleting
Section 309 from the Indian Penal Code.
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.
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 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.
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
However, we make it clear that it is experts like medical practitioners who can
decide whether there is any reasonable possibility of a new medical discovery
which could enable such a patient to revive in the near future.
When Can A Person Is Said To Be Dead
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?
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.
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 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
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.
Withdrawal Of Life Support Of A Patient In Permanent Vegetative State (Pvs)
There is no statutory provision in our country as to the legal procedure for
withdrawing life support to a person in PVS or who is otherwise incompetent to
take a decision in this connection. We agree with Mr. Andhyarujina that passive
euthanasia should be permitted in our country in certain situations, and we
disagree with the learned Attorney General that it should never be permitted.
Hence, following the technique used in Vishakha's case (supra), we are laying
down the law in this connection which will continue to be the law until
Parliament makes a law on the subject.
- 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 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.
However, assuming that the KEM hospital staff at some future time changes its
mind, in the bench opined that in such a situation the KEM hospital would have
to apply to the Bombay High Court for approval of the decision to withdraw life
- 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).
The court observed that, 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.
In our opinion, the court remarked, if we leave it solely to the patient's
relatives or to the doctors or next friend to decide whether to withdraw the
life support of an incompetent person there is always a risk in our country that
this may be misused by some unscrupulous persons who wish to inherit or
otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our society today and the
rampant commercialization and corruption, we cannot rule out the possibility
that unscrupulous persons with the help of some unscrupulous doctors may
fabricate material to show that it is a terminal case with no chance of
recovery. There are doctors and doctors. While many doctors are upright, there
are others who can do anything for money (see George Bernard Shaw's play `The
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
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 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
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".
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.
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".
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
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."
The Bench remarked.
Under Which Provision Of The Law Can The Court Grant Approval For Withdrawing Life Support To An Incompetent Person
The Supreme Court opined, 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".
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.
In Dwarka Nath vs. ITO
AIR 1966 SC 81(vide paragraph 4) this Court
"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.
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).
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.
Procedure To Be Adopted By The High Court When Such An Application Is Filed
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.
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.
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 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.
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.
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.
With these observations, this petition is dismissed.