Report No. 241 of the Law Commission (2012)
We shall start our discussion by taking an overview of the Law Commissionï¿½s
and the main features of legislation suggested by the Law
Commission under the title - Medical Treatment to Terminally ill Patients
(Protection of Patients and Medical Practitioners) Bill 2006
At the risk of repetition, we may mention that the main difference between the
recommendations of the Law Commission (in 196th Report) and the law laid down by
the Supreme Court (pro tempore) lies in the fact that the Law Commission
suggested enactment of an enabling provision for seeking declaratory relief
before the High Court whereas the Supreme Court made it mandatory to get
clearance from the High Court to give effect to the decision to withdraw life
support to an incompetent patient.
The opinion of the Committee of experts should be obtained by the High Court, as
per the Supreme Courtï¿½s judgment whereas according to the Law Commissionï¿½s
recommendations, the attending medical practitioner will have to obtain the
expertsï¿½ opinion from an approved panel of medical experts before taking a
decision to withdraw/withhold medical treatment to such patient. In such an
event, it would be open to the patient, relations, etc. to approach the High
Court for an appropriate declaratory relief.
The following pertinent observations made by the then Chairman of the Law
Commission in the forwarding letter dated 28 August 2006 addressed to the
Honï¿½ble Minister are extracted below:
ï¿½A hundred years ago, when medicine and medical technology had not invented the
artificial methods of keeping a terminally ill patient alive by medical
treatment, including by means of ventilators and artificial feeding, such
patients were meeting their death on account of natural causes. Today, it is
accepted, a terminally ill person has a common law right to refuse modern
medical procedures and allow nature to take its own course
, as was done in
good old times.
It is well-settled law in all countries that a terminally ill patient who is
conscious and is competent, can take an ï¿½informed decisionï¿½ to die a natural
death and direct that he or she be not given medical treatment which may merely
prolong life. There are currently a large number of such patients who have
reached a stage in their illness when according to well-informed body of medical
opinion, there are no chances of recovery.
But modern medicine and technology may yet enable such patients to prolong life
to no purpose and during such prolongation, patients could go through extreme
pain and suffering. Several such patients prefer palliative care for reducing
pain and suffering and do not want medical treatment which will merely prolong
life or postpone death.ï¿½
As Defined In Aruna Ramchandra Shanbaug v. Union of India
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
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 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.
Briefings of the case
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. Her wrists are
twisted inwards. Her teeth had decayed causing her immense pain.
She can only be
given mashed food, on which she survives. It is alleged that Aruna Ramachandra
Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead
person and has no state of awareness, and her brain is virtually dead. She can
neither see, nor hear anything nor can she express herself or communicate, in
any manner whatsoever. Mashed food is put in her mouth, she is not able to chew
or taste any food.
Judged by any parameter, Aruna cannot be said to be a living
person and it is only on account of mashed food which is put into her mouth that
there is a facade of life which is totally devoid of any human element. It is
alleged that there is not the slightest possibility of any improvement in her
condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead
animal, and this has been the position for the last 36 years. The prayer of the
Petitioner is that the Respondents be directed to stop feeding Aruna, and let
her die peacefully.
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. 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.
In our opinion, if we leave it solely to the patient's relatives or to the
doctors or next friend to decide whether to withdraw the life support of an
incompetent person there is always a risk in our country that this may be
misused by some unscrupulous persons who wish to inherit or otherwise grab the
property of the patient.
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.
Under Which Provision Of The Law Can The Court Grant Approval For Withdrawing Life Support To An Incompetent Person
In our opinion, it is the High Court under Article 226 of the Constitution which
can grant approval for withdrawal of life support to such an incompetent person.
Article 226(1) of the Constitution states:
Notwithstanding anything in Article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose.
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.
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 this, the petition was dismissed.
Supreme Court Landmark Judgment Legalising Passive Euthanasia
As defined in
Common Cause (A Regd. Society) Vs. Union of India (UOI) and Ors.
In a landmark judgment (Common Cause (A Regd. Society) v. Union of India & Anr.)
delivered on 9th March, 2018, the Supreme Court of India held that a person in
persistent vegetative state can opt for passive euthanasia, and that a person
can execute a living will to refuse medical treatment in case of a terminal
The Petitioner was a registered society engaged in taking of the common problems
of the people. The present petition was filed to bring to the notice of this
Court the serious problem of violation of fundamental right to life, liberty,
privacy and the right to die with dignity of the people of this country,
guaranteed to them under Article 21 of the Constitution.
It was submitted that
the people who are suffering from chronic diseases and are at the end of their
natural life span are deprived of their rights to refuse cruel and unwanted
medical treatment, like feeding through hydration tubes, being kept on
ventilator and other life supporting machines in order to artificially prolong
their natural life span. It was further pleaded that it was a common law right
of the people, of any civilized country, to refuse unwanted medical treatment
and no person could force him/her to take any medical treatment which the person
did not desire to continue with.
The Two Issues
As already stated above, as of now insofar 'active euthanasia' is concerned, it
is legally impermissible. Our discussion centres around 'passive euthanasia'.
Another aspect which needs to be mentioned at this stage is that in the present
petition filed by the Petitioner, the Petitioner wants that 'advance directive'
or 'living will' should be legally recognised. In this backdrop, two important
questions arise for considerations, viz.,
- whether passive euthanasia, voluntary or even, in certain circumstances,
involuntary, is legally permissible? If so under what circumstances (this
question squarely calls for answer having regards to the reference order
made in the instant petition)? and
- whether a 'living will' or 'advance directive' should be legally
recognised and can be enforced? If so, under what circumstances and what
precautions are required while permitting it?
Guidelines by SC in deciding the case
In our considered opinion, Advance Medical Directive would serve as a fruitful
means to facilitate the fructification of the sacrosanct right to life with
dignity. The said directive, we think, will dispel many a doubt at the relevant
time of need during the course of treatment of the patient. That apart, it will
strengthen the mind of the treating doctors as they will be in a position to
ensure, after being satisfied, that they are acting in a lawful manner. We may
hasten to add that Advance Medical Directive cannot operate in abstraction.
There has to be safeguards. They need to be spelt out. We enumerate them as
Who can execute the Advance Directive and how?
What should it contain?
- The Advance Directive can be executed only by an adult who is of a sound
and healthy state of mind and in a position to communicate, relate and
comprehend the purpose and consequences of executing the document.
- It must be voluntarily executed and without any coercion or inducement
or compulsion and after having full knowledge or information.
- It should have characteristics of an informed consent given without any
undue influence or constraint.
- It shall be in writing clearly stating as to when medical treatment may
be withdrawn or no specific medical treatment shall be given which will only
have the effect of delaying the process of death that may otherwise cause
him/her pain, anguish and suffering and further put him/her in a state of
- It should clearly indicate the decision relating to the circumstances in
which withholding or withdrawal of medical treatment can be resorted to.
- It should be in specific terms and the instructions must be absolutely
clear and unambiguous.
- It should mention that the executor may revoke the
instructions/authority at any time.
- It should disclose that the executor has understood the consequences of
executing such a document.
- It should specify the name of a guardian or close relative who, in the
event of the executor becoming incapable of taking decision at the relevant
time, will be authorized to give consent to refuse or withdraw medical
treatment in a manner consistent with the Advance Directive.
- In the event that there is more than one valid Advance Directive, none
of which have been revoked, the most recently signed Advance Directive will
be considered as the last expression of the patient's wishes and will be
given effect to.
How should it be recorded and preserved?
- The document should be signed by the executor in the presence of two
attesting witnesses, preferably independent, and countersigned by the
jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the
concerned District Judge.
- The witnesses and the jurisdictional JMFC shall record their satisfaction
that the document has been executed voluntarily and without any coercion or
inducement or compulsion and with full understanding of all the relevant
information and consequences.
- The JMFC shall preserve one copy of the document in his office, in
addition to keeping it in digital format.
- The JMFC shall forward one copy of the document to the Registry of the
jurisdictional District Court for being preserved. Additionally, the Registry of
the District Judge shall retain the document in digital format.
- The JMFC shall cause to inform the immediate family members of the executor,
if not present at the time of execution, and make them aware about the execution
of the document.
- A copy shall be handed over to the competent officer of the local
Government or the Municipal Corporation or Municipality or Panchayat, as the
case may be. The aforesaid authorities shall nominate a competent official
in that regard who shall be the custodian of the said document.
- The JMFC shall cause to handover copy of the Advance Directive to the
family physician, if any.
When and by whom can it be given effect to?
- In the event the executor becomes terminally ill and is undergoing
prolonged medical treatment with no hope of recovery and cure of the
ailment, the treating physician, when made aware about the Advance
Directive, shall ascertain the genuineness and authenticity thereof from the
jurisdictional JMFC before acting
upon the same.
- The instructions in the document must be given due weight by the
doctors. However, it should be given effect to only after being fully
satisfied that the executor is terminally ill and is undergoing prolonged
treatment or is surviving on life support and that the illness of the
executor is incurable or there is no hope of him/her being cured.
- If the physician treating the patient (executor of the document) is
satisfied that the instructions given in the document need to be acted upon,
he shall inform the executor or his guardian/close relative, as the case may
be, about the nature of illness, the availability of medical care and
consequences of alternative forms of treatment and the consequences of
remaining untreated. He must also ensure that he believes on reasonable
grounds that the person in question understands the information provided,
has cogitated over the options and has come to a firm view that the option
of withdrawal or refusal of medical treatment is the best choice.
- The physician/hospital where the executor has been admitted for medical
treatment shall then constitute a Medical Board consisting of the Head of
the treating Department and at least three experts from the fields of
general medicine, cardiology, neurology, nephrology, psychiatry or oncology
with experience in critical care and with overall standing in the medical
profession of at least twenty years who, in turn, shall visit the patient in
the presence of his guardian/close relative and form an opinion whether to
certify or not to certify carrying out the instructions of withdrawal or
refusal of further medical treatment. This decision shall be regarded as a
- In the event the Hospital Medical Board certifies that the instructions
contained in the Advance Directive ought to be carried out, the
physician/hospital shall forthwith inform the jurisdictional Collector about
the proposal. The jurisdictional Collector shall then immediately constitute
a Medical Board comprising the Chief District Medical Officer of the
concerned district as the Chairman and three expert doctors from the fields
of general medicine, cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and with overall standing in the
medical profession of at least twenty years (who were not members of the
previous Medical Board of the hospital). They shall jointly visit the
hospital where the patient is admitted and if they concur with the initial
decision of the Medical Board of the hospital, they may endorse the
certificate to carry out the instructions given in the Advance Directive.
- The Board constituted by the Collector must beforehand ascertain the
wishes of the executor if he is in a position to communicate and is capable
of understanding the consequences of withdrawal of medical treatment. In the
event the executor is incapable of taking decision or develops impaired
decision making capacity, then the consent of the guardian nominated by the
executor in the Advance Directive should be obtained regarding refusal or
withdrawal of medical treatment to the executor to the extent of and
consistent with the clear instructions given in the Advance Directive.
- The Chairman of the Medical Board nominated by the Collector, that is,
the Chief District Medical Officer, shall convey the decision of the Board
to the jurisdictional JMFC before giving effect to the decision to withdraw the medical
treatment administered to the executor. The JMFC shall visit the patient at the
earliest and, after examining all aspects, authorise the implementation of the
decision of the Board.
- It will be open to the executor to revoke the document at any stage
before it is acted upon and implemented.
What if permission is refused by the Medical Board?
- If permission to withdraw medical treatment is refused by the Medical
Board, it would be open to the executor of the Advance Directive or his
family members or even the treating doctor or the hospital staff to approach
the High Court by way of writ petition Under Article 226 of the
Constitution. If such application is filed before the High Court, the Chief
Justice of the said High Court shall constitute a Division Bench to decide
upon grant of approval or to refuse the same. The High Court will be free to
constitute an independent Committee consisting of three doctors from the
fields of general medicine, cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and with overall standing in the
medical profession of at least twenty years.
- The High Court shall hear the application expeditiously after affording
opportunity to the State counsel. It would be open to the High Court to
constitute Medical Board in terms of its order to examine the patient and
submit report about the feasibility of acting upon the instructions
contained in the Advance Directive.
- Needless to say that the High Court shall render its decision at the
earliest as such matters cannot brook any delay and it shall ascribe reasons
specifically keeping in mind the principles of "best interests of the
Revocation or inapplicability of Advance Directive:
- An individual may withdraw or alter the Advance Directive at any time
when he/she has the capacity to do so and by following the same procedure as
provided for recording of Advance Directive. Withdrawal or revocation of an
Advance Directive must be in writing.
- An Advance Directive shall not be applicable to the treatment in
question if there are reasonable grounds for believing that circumstances
exist which the person making the directive did not anticipate at the time
of the Advance Directive and which would have affected his decision had he
- If the Advance Directive is not clear and ambiguous, the concerned
Medical Boards shall not give effect to the same and, in that event, the
guidelines meant for patients without Advance Directive shall be made
- Where the Hospital Medical Board takes a decision not to follow an
Advance Directive while treating a person, then it shall make an application
to the Medical Board constituted by the Collector for consideration and
appropriate direction on the Advance Directive.
In case there is no Advanced Directive
It is necessary to make it clear that there will be cases where there is no
Advance Directive. The said class of persons cannot be alienated. In cases where
there is no Advance Directive, the procedure and safeguards are to be same as
applied to cases where Advance Directives are in existence and in addition there
to, the following procedure shall be followed:
- In cases where the patient is terminally ill and undergoing prolonged
treatment in respect of ailment which is incurable or where there is no hope
of being cured, the physician may inform the hospital which, in turn, shall
constitute a Hospital Medical Board in the manner indicated earlier. The
Hospital Medical Board shall discuss with the family physician and the
family members and record the minutes of the discussion in writing. During
the discussion, the family members shall be apprised of the pros and cons of
withdrawal or refusal of further medical treatment to the patient and if
they give consent in writing, then the Hospital Medical Board may certify
the course of action to be taken. Their decision will be regarded as a
- In the event the Hospital Medical Board certifies the option of
withdrawal or refusal of further medical treatment, the hospital shall
immediately inform the jurisdictional Collector. The jurisdictional
Collector shall then constitute a Medical Board comprising the Chief
District Medical Officer as the Chairman and three experts from the fields
of general medicine, cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and with overall standing in the
medical profession of at least twenty years. The Medical Board constituted
by the Collector shall visit the hospital for physical examination of the
patient and, after studying the medical papers, may concur with the opinion
of the Hospital Medical Board. In that event, intimation shall be given by
the Chairman of the Collector nominated Medical Board to the JMFC
and the family members of the patient.
- The JMFC shall visit the patient at the earliest and verify the medical
reports, examine the condition of the patient, discuss with the family members
of the patient and, if satisfied in all respects, may endorse the decision of
the Collector nominated Medical Board to withdraw or refuse further medical
treatment to the terminally ill patient.
- There may be cases where the Board may not take a decision to the effect
of withdrawing medical treatment of the patient on the Collector nominated
Medical Board may not concur with the opinion of the hospital Medical Board.
In such a situation, the nominee of the patient or the family member or the
treating doctor or the hospital staff can seek permission from the High
Court to withdraw life support by way of writ petition Under Article 226 of
the Constitution in which case the Chief Justice of the said High Court
shall constitute a Division Bench which shall decide to grant approval or
not. The High Court may constitute an independent Committee to depute three
doctors from the fields of general medicine, cardiology, neurology,
nephrology, psychiatry or oncology with experience in critical care and with
overall standing in the medical profession of at least twenty years after
consulting the competent medical practitioners. It shall also afford an
opportunity to the State counsel. The High Court in such cases shall render
its decision at the earliest since such matters cannot brook any delay.
Needless to say, the High Court shall ascribe reasons specifically keeping
in mind the principle of "best interests of the patient".
The Euthanasia (Regulation) Bill, 2019 By Shri Bhartruhari Mahtab, M.P.
The present Bill seeks to regulate euthanasia by making the following
- defining active euthanasia and passive euthanasia;
- allowing active euthanasia for terminally ill individuals who are facing
suffering due to such illness;
- allowing passive euthanasia for individuals in permanent vegetative
- providing for constitution of an Evaluation and Review Board to examine
patients requiring active or passive euthanasia;
- providing for constitution of a Committee of three physicians to decide
whether a patient actually requires passive euthanasia; and
- providing that application of euthanasia involving a child shall be
by the Evaluation and Review Board in consultation with a paediatrician to
misuse of law in such case.
- Aruna Ramchandra Shanbaug v. Union of India -
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