IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug .. Petitioner
-versus-
Union of India and others .. Respondents
J U D G M E N T
Markandey Katju, J.
"Marte hain aarzoo mein marne ki
Maut aati hai par nahin aati"
-- Mirza Ghalib
1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General
for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we
had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital,
Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra.
2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world
are facing today. This Court,in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations judicial pronouncements of foreign countries, as well as the
submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the
Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms.Pinki Virani of Mumbai, claiming to be a next friend.
3. It is stated in the writ petition that the petitioner Aruna Ramachandra Shanbaug was a staff
Nurse working in King Edward Memorial Hospital,
Parel, Mumbai. On the evening of 27th November, 1973
she was attacked by a sweeper in the hospital who
wrapped a dog chain around her neck and yanked back with it.
He tried to rape her but finding tha she was menstruating, he sodomized her. To
immobilize her during this act he twisted the chain
around her neck. The next day on 28th November, 1973
at 7.45 a.m. a cleaner found her lying on the floor
with blood all over in an unconscious condition. It
is alleged that due to strangulation by the dog
chain the supply of oxygen to the brain stopped and
the brain got damaged. It is alleged that the
Neurologist in the Hospital found that she had
plantars' extensor, which indicates damage to the
cortex or some other part of the brain. She also had
brain stem contusion injury with associated cervical
cord injury. It is alleged at page 11 of the
petition that 36 years have expired since the
incident and now Aruna Ramachandra Shanbaug is about
60 years of age. She is featherweight and her
brittle bones could break if her hand or leg are
awkwardly caught, even accidentally, under her
lighter body. She has stopped menstruating and her
skin is now like papier mache' stretched over a
skeleton. She is prone to bed sores. Her wrists are
twisted inwards. Her teeth had decayed causing her
immense pain. She can only be given mashed food, on
which she survives. It is alleged that Aruna
Ramachandra Shanbaug is in a persistent negetative
state (p.v.s.) and virtually a dead person and has
no state of awareness, and her brain is virtually
dead. She can neither see, nor hear anything nor can
she express herself or communicate, in any manner
whatsoever. Mashed food is put in her mouth, she is
not able to chew or taste any food. She is not even
aware that food has been put in her mouth. She is
not able to swallow any liquid food, which shows
that the food goes down on its own and not because
of any effort on her part. The process of digestion
goes on in this way as the mashed food passes
through her system. However, Aruna is virtually a
skeleton. Her excreta and the urine is discharged on
the bed itself. Once in a while she is cleaned up
but in a short while again she goes back into the
same sub-human condition. Judged by any parameter,
Aruna cannot be said to be a living person and it is
only on account of mashed food which is put into
mouth that there is a facade of life which is
totally devoid of any human element. It is alleged
that there is not the slightest possibility of any
improvement in her condition and her body lies on
the bed in the KEM Hospital, Mumbai like a dead
animal, and this has been the position for the last
36 years. The prayer of the petitioner is that the
respondents be directed to stop feeding Aruna, and
let her die peacefully.
4. We could have dismissed this petition on the
short ground that under Article 32 of the
Constitution of India (unlike Article 226) the
petitioner has to prove violation of a fundamental
right, and it has been held by the Constitution
Bench decision of this Court in Gian Kaur vs.
State of Punjab, 1996(2) SCC 648 (vide paragraphs 22
and 23) that the right to life guaranteed by Article
21 of the Constitution does not include the right to
die. Hence the petitioner has not shown violation
of any of her fundamental rights. However, in view
of the importance of the issues involved we decided
to go deeper into the merits of the case.
5. Notice had been issued by this Court on
16.12.2009 to all the respondents in this petition.
A counter affidavit was earlier filed on behalf of
the respondent nos.3 and 4, the Mumbai Municipal
Corporation and the Dean, KEM Hospital by Dr. Amar
Ramaji Pazare, Professor and Head in the said
hospital, stating in paragraph 6 that Aruna accepts
the food in normal course and responds by facial
expressions. She responds to commands intermittently
by making sounds. She makes sounds when she has to
pass stool and urine which the nursing staff
identifies and attends to by leading her to the
toilet. Thus, there was some variance between the
allegations in the writ petition and the counter
affidavit of Dr. Pazare.
6. Since there was some variance in the allegation
in the writ petition and the counter affidavit of
Dr. Pazare, we, by our order dated 24 January, 2011
appointed a team of three very distinguished doctors
of Mumbai to examine Aruna Shanbaug thoroughly and
submit a report about her physical and mental
condition. These three doctors were :
(1) Dr. J. V. Divatia, Professor and Head,
Department of
Anesthesia, Critical Care and Pain at Tata
Memorial
Hospital, Mumbai;
(2) Dr. Roop Gursahani, Consultant Neurologist at
P.D.Hinduja, Mumbai; and
(3) Dr. Nilesh Shah, Professor and Head,
Department of Psychiatry at Lokmanya Tilak
Municipal Corporation
Medical College and General Hospital.
7. In pursuance of our order dated 24th January,
2011, the team of three doctors above mentioned
examined Aruna Shanbuag in KEM Hospital and has
submitted us the following report:
" Report of Examination of Ms. Aruna Ramachandra Shanbaug
Jointly prepared and signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
9
(Professor and Head, Department of Psychiatry at Lokmanya
Tilak Municipal Corporation Medical College and General
Hospital).
I. Background
As per the request of Hon. Justice Katju and Hon.
Justice Mishra of the Supreme Court of India, Ms. Aruna
Ramachandra Shanbaug, a 60-year-old female patient was
examined on 28th January 2011, morning and 3rd February
2011, in the side-room of ward-4, of the K. E. M. Hospital
by the team of 3 doctors viz. Dr. J.V. Divatia (Professor
and Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai), Dr. Roop
Gursahani (Consultant Neurologist at P.D. Hinduja
Hospital, Mumbai) and Dr. Nilesh Shah (Professor and
Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General
Hospital).
This committee was set up because the Court found
some variance between the allegations in the writ petition
filed by Ms. Pinki Virani on behalf of Aruna Ramchandras
Shanbaug and the counter affidavit of Dr. Pazare. This
team of three doctors was appointed to examine Aruna
Ramachandra Shanbaug thoroughly and give a report to
the Court about her physical and mental condition
It was felt by the team of doctors appointed by the
Supreme Court that longitudinal case history and
observations of last 37 years along with findings of
examination will give a better, clear and comprehensive
picture of the patient's condition.
This report is based on:
1. The longitudinal case history and observations obtained
from the Dean and the medical and nursing staff of K. E.
M. Hospital,
10
2. Case records (including nursing records) since January
2010
3. Findings of the physical, neurological and mental status
examinations performed by the panel.
4. Investigations performed during the course of this
assessment (Blood tests, CT head, Electroencephalogram)
II. Medical history
Medical history of Ms. Aruna Ramachandra
Shanbaug was obtained from the Dean, the Principal of the
School of Nursing and the medical and nursing staff of
ward-4 who has been looking after her.
It was learnt from the persons mentioned above that
1. Ms. Aruna Ramachandra Shanbaug was admitted in the
hospital after she was assaulted and strangulated by a
sweeper of the hospital on November 27, 1973.
2. Though she survived, she never fully recovered from the
trauma and brain damage resulting from the assault and
strangulation.
3. Since last so many years she is in the same bed in the
side-room of ward-4.
4. The hospital staff has provided her an excellent nursing
care since then which included feeding her by mouth,
bathing her and taking care of her toilet needs. The care
was of such an exceptional nature that she has not
developed a single bed-sore or fracture in spite of her bed-
ridden state since 1973.
5. According to the history from them, though she is not
very much aware of herself and her surrounding, she
somehow recognizes the presence of people around her
and expresses her like or dislike by making certain types of
vocal sounds and by waving her hands in certain manners.
She appears to be happy and smiles when she receives her
favorite food items like fish and chicken soup. She accepts
feed which she likes but may spit out food which she
doesn't like. She was able to take oral feeds till 16th
September 2010, when she developed a febrile illness,
probably malaria. After that, her oral intake reduced and a
feeding tube (Ryle's tube) was passed into her stomach via
her nose. Since then she receives her major feeds by the
Ryle's tube, and is only occasionally able to accept the oral
liquids. Malaria has taken a toll in her physical condition
but she is gradually recuperating from it.
6. Occasionally, when there are many people in the room
she makes vocal sounds indicating distress. She calms
down when people move out of her room. She also seems
to enjoy the devotional songs and music which is played in
her room and it has calming effect on her.
7. In an annual ritual, each and every batch of nursing
students is introduced to Ms. Aruna Ramachandra
Shanbaug, and is told that "She was one of us"; "She was a
very nice and efficient staff nurse but due to the mishap
she is in this bed-ridden state".
8. The entire nursing staff member and other staff members
have a very compassionate attitude towards Ms. Aruna
Ramachandra Shanbaug and they all very happily and
willingly take care of her. They all are very proud of their
achievement of taking such a good care of their bed-ridden
colleague and feel very strongly that they want to continue
to take care of her in the same manner till she succumbs
naturally. They do not feel that Ms. Aruna Ramachandra
Shanbaug is living a painful and miserable life.
III. Examination
IIIa. Physical examination
She was conscious, unable to co-operate and
appeared to be unaware of her surroundings.
Her body was lean and thin. She appeared neat and
clean and lay curled up in the bed with movements of the
left hand and made sounds, especially when many people
were present in the room.
12
She was afebrile, pulse rate was 80/min, regular, and
good volume. Her blood pressure recorded on the nursing
charts was normal. Respiratory rate was 15/min, regular,
with no signs of respiratory distress or breathlessness.
There was no pallor, cyanosis, clubbing or icterus.
She was edentulous (no teeth).
Skin appeared to be generally in good condition,
there were no bed sores, bruises or evidence of old healed
bed sores. There were no skin signs suggestive of
nutritional deficiency or dehydration.
Her wrists had developed severe contractures, and
were fixed in acute flexion. Both knees had also developed
contractures (right more than left).
A nasogastric feeding tube (Ryles tube) was in situ.
She was wearing diapers.
Abdominal, respiratory and cardiovascular
examination was unremarkable.
IIIb. Neurological Examination
When examined she was conscious with eyes open
wakefulness but without any apparent awareness (see
Table 1 for detailed assessment of awareness). From the
above examination, she has evidence of intact auditory,
visual, somatic and motor primary neural pathways.
However no definitive evidence for awareness of auditory,
visual, somatic and motor stimuli was observed during our
examinations.
There was no coherent response to verbal commands
or to calling her name. She did not turn her head to the
direction of sounds or voices. When roused she made non-
specific unintelligible sounds ("uhhh, ahhh") loudly and
continuously but was generally silent when undisturbed.
13
Menace reflex (blinking in response to hand
movements in front of eyes) was present in both eyes and
hemifields but brisker and more consistent on the left.
Pupillary reaction was normal bilaterally. Fundi could not
be seen since she closed her eyes tightly when this was
attempted. At rest she seemed to maintain preferential gaze
to the left but otherwise gaze was random and undirected
(roving) though largely conjugate. Facial movements were
symmetric. Gag reflex (movement of the palate in response
to insertion of a tongue depressor in the throat) was present
and she does not pool saliva. She could swallow both
teaspoonfuls of water as well as a small quantity of mashed
banana. She licked though not very completely sugar
smeared on her lips, suggesting some tongue control.
She had flexion contractures of all limbs and seemed
to be incapable of turning in bed spontaneously. There was
what appeared to be minimal voluntary movement with the
left upper limb (touching her wrist to the eye for instance,
perhaps as an attempt to rub it). When examined/disturbed,
she seemed to curl up even further in her flexed foetal
position. Sensory examination was not possible but she did
seem to find passive movement painful in all four limbs
and moaned continuously during the examination. Deep
tendon reflexes were difficult to elicit elsewhere but were
present at the ankles. Plantars were withdrawal/extensor.
Thus neurologically she appears to be in a state of
intact consciousness without awareness of
self/environment. No cognitive or communication abilities
could be discerned. Visual function if present is severely
limited. Motor function is grossly impaired with
quadriparesis.
IIIc. Mental Status Examination
1. Consciousness, General Appearance, Attitude and Behavior :
Ms. Aruna Ramachandra Shanbaug was resting
quietly in her bed, apparently listening to the devotional
music, when we entered the room. Though, her body built
14
is lean, she appeared to be well nourished and there were
no signs of malnourishment. She appeared neat and clean.
She has developed contractures at both the wrist joints and
knee joints and so lied curled up in the bed with minimum
restricted physical movements.
She was conscious but appeared to be unaware of
herself and her surroundings. As soon as she realized the
presence of some people in her room, she started making
repetitive vocal sounds and moving her hands. This
behavior subsided as we left the room. She did not have
any involuntary movements. She did not demonstrate any
catatonic, hostile or violent behavior.
Her eyes were wide open and from her behavior it
appeared that she could see and hear us, as when one
loudly called her name, she stopped making vocal sounds
and hand movements for a while. She was unable to
maintain sustained eye-to eye contact but when the hand
was suddenly taken near her eyes, she was able to blink
well.
When an attempt was made to feed her by mouth,
she accepted a spoonful of water, some sugar and mashed
banana. She also licked the sugar and banana paste
sticking on her upper lips and swallowed it. Thus, at times
she could cooperate when fed.
2. Mood and affect :
It was difficult to assess her mood as she was unable
to communicate or express her feelings. She appeared to
calm down when she was touched or caressed gently. She
did not cry or laugh or expressed any other emotions
verbally or non-verbally during the examination period.
When not disturbed and observed quietly from a distance,
she did not appear to be in severe pain or misery. Only
when many people enter her room, she appears to get a bit
disturbed about it.
15
3. Speech and thoughts :
She could make repeated vocal sounds but she could
not utter or repeat any comprehensible words or follow and
respond to any of the simple commands (such as "show me
your tongue"). The only way she expressed herself was by
making some sounds. She appeared to have minimal
language comprehension or expression.
4. Perception :
She did not appear to be having any perceptual
abnormality like hallucinations or illusions from her
behavior.
5. Orientation, memory and intellectual capacity :
Formal assessment of orientation in time, place and
person, memory of immediate, recent and remote events
and her intellectual capacity could not be carried out.
6. Insight :
As she does not appear to be fully aware of herself
and her surroundings, she is unlikely to have any insight
into her illness.
IV. Reports of Investigations
IVa. CT Scan Head (Plain)
This is contaminated by movement artefacts. It
shows generalized prominence of supratentorial sulci and
ventricles suggestive of generalized cerebral atrophy.
Brainstem and cerebellum seem normal. Ischemic foci are
seen in left centrum semi-ovale and right external capsule.
In addition a small left parieto-occipital cortical lesion is
also seen and is probably ischemic.
16
IVb. EEG
The dominant feature is a moderately rhythmic alpha
frequency at 8-10 Hz and 20-70 microvolts which is
widely distributed and is equally prominent both anteriorly
and posteriorly. It is not responsive to eye-opening as seen
on the video. Beta at 18-25 Hz is also seen diffusely but
more prominently anteriorly. No focal or paroxysmal
abnormalities were noted
IVc. Blood
Reports of the hemoglobin, white cell count, liver
function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels
are unremarkable. (Detailed report from KEM hospital
attached.)
V. Diagnostic impression
1) From the longitudinal case history and
examination it appears that Ms. Aruna Ramachandra
Shanbaug has developed non-progressive but irreversible
brain damage secondary to hypoxic-ischemic brain injury
consistent with the known effects of strangulation. Most
authorities consider a period exceeding 4 weeks in this
condition, especially when due to hypoxic-ischemic injury
as confirming irreversibility. In Ms. Aruna's case, this
period has been as long as 37 years, making her perhaps
the longest survivor in this situation.
2) She meets most of the criteria for being in a
permanent vegetative state (PVS). PVS is defined as a
clinical condition of unawareness (Table 1) of self and
environment in which the patient breathes spontaneously,
has a stable circulation and shows cycles of eye closure
and opening which may simulate sleep and waking (Table
2). While she has evidence of intact auditory, visual,
somatic and motor primary neural pathways, no definitive
evidence for awareness of auditory, visual, somatic and
motor stimuli was observed during our examinations.
17
VI. Prognosis
Her dementia has not progressed and has remained
stable for last many years and it is likely to remain same
over next many years. At present there is no treatment
available for the brain damage she has sustained.
VII. Appendix
VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS
STIMULUS
(Wade DT, Johnston C. British Med RESPONSE
Journal 1999; 319:841-844) DOMAIN
OBSERVED
AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements
Meaningful noise (rattled steel tumbler and spoon, filmNon-specific head and body movements
songs
of 1970s)
Spoken commands ("close your eyes", "lift left hand ": inUnable to obey commands. No specific or reproducible
English, Marathi and Konkani) response
VISUAL AWARENESS Bright light to eyes Pupillary responses present
Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly
rattle) reproducible
Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right
Written command (English, Marathi: close your eyes) No response
SOMATIC AWARENESS Painful stimuli to limbs (light prick with
Withdrawal, maximal in left upper limb
sharp end of tendon hammer)
Painful stimuli to face Distress but no co-ordinated response to remove stimulus
Routine sensory stimuli during care (changing position Generalized non specific response presence but no coordinated
in bed
and feeding) attempt to assist in process
MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal
directed lifting left hand to left side of face,
apparently to rub her left eye.
Responsive Non-specific undirected without any goal directed activities.
Conclusion:
From the above examination, she has evidence of intact auditory, visual, somatic and
motor primary neural pathways. However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed during our examinations.
VIIb. Table 2. Application of Criteria for Vegetative State
(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):
Examination findings : whether she meets Criteria
S33-S38) Criteria (Yes /No / Probably)
Unaware of self and environment Yes, Unaware
No interaction with others Yes, no interaction
No sustained, reproducible or purposeful voluntary no sustained, reproducible or purposeful
Yes,
behavioural response to visual, auditory, tactilebehavioural response, but :
or
noxious stimuli 1. Resisted examination of fundus
2. Licked sugar off lips
No language comprehension or expression Yes, no comprehension
No blink to visual threat Blinks, but more consistent on left than right
18
Present sleep wake cycles Yes (according to nurses)
Preserved autonomic and hypothalamic function
Yes
Preserved cranial nerve reflexes Yes
Bowel and bladder incontinence Yes
VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl
J Med 1994; 330: 1499-508
2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and
management. Brit Med J 1999; 319:8414
3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and
diagnostic criteria. Neurology 2002;58:349353
4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology
2010;75;S33"
8. On 18th February, 2011, we then passed the following
order :
"In the above case Dr. J.V. Divatia on
17.02.2011 handed over the report of the
team of three doctors whom we had appointed
by our order dated 24th January, 2011. He has
also handed over a CD in this connection.
Let the report as well as the CD form part
of the record.
On mentioning, the case has been
adjourned to be listed on 2 nd March, 2011 at
the request of learned Attorney General of
India, Mr. T.R. Andhyarujina, learned Senior
Advocate, whom we have appointed as amicus
curiae in the case as well as Mr. Shekhar
Naphade, learned Senior Advocate for the
petitioner.
We request the doctors whom we had
appointed viz., Dr. J.V. Divatia, Dr. Roop
Gurshani and Dr. Nilesh Shah to appear
before us on 2nd March, 2011 at 10.30 A.M. in
the Court, since it is quite possible that
we may like to ask them questions about the
19
report which they have submitted, and in
general about their views in connection with
euthanasia.
On perusal of the report of the
committee of doctors to us we have noted
that there are many technical terms which
have been used therein which a non-medical
man would find it difficult to understand.
We, therefore, request the doctors to submit
a supplementary report by the next date of
hearing (by e-mailing copy of the same two
days before the next date of hearing) in
which the meaning of these technical terms
in the report is also explained.
The Central Government is directed to
arrange for the air travel expenses of all
the three doctors as well as their stay in a
suitable accommodation at Delhi and also to
provide them necessary conveyance and other
facilities they require, so that they can
appear before us on 02.03.2011.
An honorarium may also be given to the
doctors, if they so desire, which may be
arranged mutually with the learned Attorney
General.
The Dean of King Edward Memorial
Hospital as well as Ms. Pinky Virani (who
claims to be the next friend of the
petitioner) are directed to intimate the
brother(s)/sister(s) or other close
relatives of the petitioner that the case
will be listed on 2nd March, 2011 in the
Supreme Court and they can put forward their
views before the Court, if they so desire.
Learned counsel for the petitioner and the
Registry of this Court shall communicate a
copy of this Order forthwith to the Dean,
KEM Hospital. The Dean, KEM Hospital is
requested to file an affidavit stating his
20
views regarding the prayer in this writ
petition, and also the condition of the
petitioner.
Copy of this Order shall be given
forthwith to learned Attorney General of
India, Mr. Shekhar Naphade and Mr.
Andhyarujina, learned Senior Advocates.
Let the matter be listed as the first
item on 2nd March, 2011".
9. On 2.3.2011, the matter was listed again before
us and we first saw the screening of the CD
submitted by the team of doctors along with their
report. We had arranged for the screening of the CD
in the Courtroom, so that all present in Court could
see the condition of Aruna Shanbaug. For doing so,
we have relied on the precedent of the Nuremburg
trials in which a screening was done in the
Courtroom of some of the Nazi atrocities during the
Second World War. We have heard learned counsel for
the parties in great detail. The three doctors
nominated by us are also present in Court. As
requested by us, the doctors team submitted a
supplementary report before us which states :
Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug
21
ointly prepared and signed by
. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
(Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital).
Mumbai
February 26, 2011
INDEX
Introduction 3
Terminology 4
Glossary of Technical terms 7
Opinion 11 3
Introduction
This document is a supplement to the Report of Examination of
Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011.
On perusal of the report, the Hon. Court observed that there
were many technical terms which a non-medical man would find it
difficult to understand, and requested us to submit a
supplementary report in which the meaning of these technical
terms in the report is also explained.
We have therefore prepared this Supplement to include a
glossary of technical terms used in the earlier Report, and
also to clarify some of the terminology related to brain
damage. Finally, we have given our opinion in the case of Aruna
Shanbaug.
Terminology
The words coma, brain death and vegetative state are often used
in common language to describe severe brain damage. However, in
medical terminology, these terms have specific meaning and
significance.
Brain death
22
A state of prolonged irreversible cessation of all brain
activity, including lower brain stem function with the complete
absence of voluntary movements, responses to stimuli, brain
stem reflexes, and spontaneous respirations.
Explanation: This is the most severe form of brain damage. The
patient is unconscious, completely unresponsive, has no reflex
activity from centres in the brain, and has no breathing
efforts on his own. However the heart is beating. This patient
can only be maintained alive by advanced life support
(breathing machine or ventilator, drugs to maintain blood
pressure, etc). These patients can be legally declared dead
(`brain dead') to allow their organs to be taken for donation.
Aruna Shanbaug is clearly not brain dead.
Coma
Patients in coma have complete failure of the arousal system
with no spontaneous eye opening and are unable to be awakened
by application of vigorous sensory stimulation.
Explanation: These patients are unconscious. They cannot be
awakened even by application of a painful stimulus. They have
normal heart beat and breathing, and do not require advanced
life support to preserve life.
Aruna Shanbaug is clearly not in Coma.
Vegetative State (VS)
The complete absence of behavioral evidence for self or
environmental awareness. There is preserved capacity for
spontaneous or stimulus-induced arousal, evidenced by sleep
wake cycles. .i.e. patients are awake, but have no awareness.
Explanation: Patients appear awake. They have normal heart beat
and breathing, and do not require advanced life support to
preserve life. They cannot produce a purposeful, co-ordinated,
voluntary response in a sustained manner, although they may
have primitive reflexive responses to light, sound, touch or
pain. They cannot understand, communicate, speak, or have
emotions. They are unaware of self and environment and have no
interaction with others. They cannot voluntarily control
passing of urine or stools. They sleep and awaken. As the
centres in the brain controlling the heart and breathing are
intact, there is no threat to life, and patients can survive
for many years with expert nursing care. The following
behaviours may be seen in the vegetative state :
23
Sleep-wake cycles with eyes closed, then open
Patient breathes on her own
Spontaneous blinking and roving eye movements
Produce sounds but no words
Brief, unsustained visual pursuit (following an object with her
eyes)
Grimacing to pain, changing facial expressions
Yawning; chewing jaw movements
Swallowing of her own spit
Nonpurposeful limb movements; arching of back
Reflex withdrawal from painful stimuli
Brief movements of head or eyes toward sound or movement
without apparent localization or fixation
Startles with a loud sound
Almost all of these features consistent with the diagnosis of
permanent vegetative state were present during the medical
examination of Aruna Shanbaug.
Minimally Conscious State
Some patients with severe alteration in consciousness have
neurologic findings that do not meet criteria for VS. These
patients demonstrate some behavioral evidence of conscious
awareness but remain unable to reproduce this behavior
consistently. This condition is referred to here as the
minimally conscious state (MCS). MCS is distinguished from VS
by the partial preservation of conscious awareness.
To make the diagnosis of MCS, limited but clearly discernible
evidence of self or environmental awareness must be
demonstrated on a reproducible or sustained basis by one or
more of the following behaviors:
· Following simple commands.
· Gestural or verbal yes/no responses (regardless of accuracy).
· Intelligible sounds
· Purposeful behavior, including movements or emotional
behaviors (smiling, crying) that occur in relation to relevant
environmental stimuli and are not due to reflexive activity.
Some examples of qualifying purposeful behavior include:
appropriate smiling or crying in response to the linguistic
24
or visual content of emotional but not to neutral topics or
stimuli
vocalizations or gestures that occur in direct response to
the linguistic content of questions
reaching for objects that demonstrates a clear relationship
between object location and direction of reach
touching or holding objects in a manner that accommodates the
size and shape of the object
pursuit eye movement or sustained fixation that occurs in
direct response to moving or salient stimuli
None of the above behaviours suggestive of a Minimally
Conscious State were observed during the examination of Aruna
Shanbaug.
GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT
(In Alphabetical order) Term in text Meaning
Affect Feeling conveyed though
expressions and behavior
Afebrile No fever
Auditory Related to hearing
Bedsore A painful wound on the body
caused by having to lie in bed
for a long time
Bilaterally On both sides (right and left)
Bruise An injury or mark where the
skin has not been broken but
is darker in colour, often as
a result of being hit by
something
Catatonic Describes someone who is stiff
and not moving or reacting, as
if dead
Cerebral atrophy Shrinking of the globe
(cortex) of the brain
Clubbing Bulging or prominence of the
nailbed, making base of the
nails look thick. This is
often due to longstanding
infection inside the lungs.
Cognitive Related to ability to
understand and process
information in the brain
Conjugate Synchronised movement (of the
eyeball)
25
Conscious Awake with eyes open. By
itself the term conscious does
not convey any information
about awareness of self and
surroundings, or the ability
to understand, communicate,
have emotions, etc.
Contractures Muscles or tendons that have
become shortened and taut over
a period of time. This causes
deformity and restriction of
movements.
CT Scan A specialized X-ray test where
images of the brain (or other
part of the body) are obtained
in cross-section at different
levels. This allows clear
visualization of different
parts of the brain
Cyanosis Bluish discoloration of the nails, lips or skin.
It may be due to low levels of oxygen in the
blood
Deep tendon reflexes Reflex response of the fleshy part of certain
muscles when its tendon is hit lightly with an
examination hammer
Dementia Disorder in which there is a cognitive defect,
i.e. the patient is unable to understand and
process information in the brain
Electroencephalography, (EEG) Recording of the electrical activity of the
brain
Febrile illness Illness with fever
Fracture A crack or a break in bones
Fundi Plural of fundus. Fundus of the eye is the
interior surface of the eye, opposite the lens.
It is examined with an instrument called the
ophthalmoscope
Gag reflex Movement of the palate in response to
insertion of a tongue depressor in the throat
Hallucinations Perception in the absence of stimuli. (e.g.
hearing voices which are not there or which
are inaudible to others)
Hemifields Right or left part of the field of vision
Hypoxic Related to reduced oxygen levels in the
blood
Icterus Yellowish discoloration of the skin and
eyeballs. This is commonly known as
jaundice, and may be caused by liver disease
Illusions Misperception of stimuli (seeing a rope as a
snake)
Immediate memory Memory of events which have occurred just
a few minutes ago
26
Insight Person's understanding of his or her own
illness
Intellectual capacity Ability to solve problems. The ability to
learn, understand and make judgments or
have opinions that are based on reason
Involuntary movements Automatic movements over which patient
has no control
Ischemic Related to restriction or cutting off of the
blood flow to any part of the body
Malnourishment Weak and in bad health because of having
too little food or too little of the types of
food necessary for good health
Menace reflex Blinking in response to hand movements in
front of eyes
Mood The way one feels at a particular time
Motor Related to movement
Movement artefacts Disturbance in the image seen in the CT scan
due to patient movement
Oral feed Food given through mouth
Orientation Awareness about the time, place and person
Pallor Pale appearance of the skin. Usually this is
due to a low red blood cell count or low
haemoglobin level in the blood.
Passive movement Movement of a limb or part of the body done
by the doctor without any effort by the
patient
Perception Sensory experiences (such as seeing, hearing
etc.)
Perceptual abnormalities Abnormal sensory experiences, e.g, seeing
things that do not exist, hearing sounds when
there are none
Plantars Reflex response of the toes when a sharp
painful stimulus is applied to the sole of the
foot. The normal response is curling
downwards of the toes.
Plantars were withdrawal/extensor When a painful stimulus was applied to the
sole of the foot the toes spread out and there
was reflex movement of the leg (withdrawal)
or upward curling of the great toe and other
toes (extensor). This is an abnormal response
indicating damage in the pathway in the
brain or to the area in the brain controlling
function of the legs.
Primary neural pathways Course of the nerves from a part of the body
to the area in the brain responsible for the
function of that part
Pupillary reaction The pupillary light reflex controls the
diameter of the pupil, in response to the
intensity of light. Greater intensity light
27
causes the pupil to become smaller (allowing
less light in), whereas
Opinion
In our view, the issues in this case (and other similar cases) are:
1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal
of life sustaining therapies (many authorities would include placement of an artificial feeding
tube as a life sustaining intervention) be permissible or `not unlawful' ?
2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of
futile care or a PVS, should his / her wishes be respected when the situation arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin makes
a request to withhold or withdraw futile life-sustaining treatments, should their wishes be
respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37
years by the staff of KEM Hospital. Who should take decisions on her behalf?
Questions such as these come up at times in the course of medical practice. We realize that
answers to these questions are difficult, and involve several ethical, legal and social issues. Our
opinion is based on medical facts and on the principles of medical ethics. We hope that the
Honourable Court will provide guidance and clarity in this matter.
Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.
1. Autonomy means the right to self-determination, where the informed patient has a right to
choose the manner of his treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent to make choices, his wishes
expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his
behalf ('substituted judgment') are to be respected.
The surrogate is expected to represent what the patient may have decided had he / she been
competent, or to act in the patient's best interest. It is expected that a surrogate acting in the
patient's best interest follows a course of action because it is best for the patient, and is not
influenced by personal convictions, motives or other considerations.
2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the
patient's best interest means following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations. In some cases, the doctor's
expanded goals may include allowing the natural dying process (neither hastening nor delaying
death, but `letting nature take its course'), thus avoiding or reducing the sufferings of the
patient and his family, and providing emotional support. This is not to be confused with
euthanasia, which involves the doctor's deliberate and intentional act through administering a
lethal injection to end the life of the patient.
28
In the present case under consideration:-
1. We have no indication of Aruna Shanbaug's views or wishes with respect to life-sustaining
treatments for a permanent vegetative state.
2. Any decision regarding her treatment will have to be taken by a surrogate
3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by
her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is
an appropriate surrogate.
4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that life sustaining treatments should continue, their
decision should be respected.
5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is
the appropriate course of action, they should be allowed to do so, and their actions should not
be considered unlawful.
10. To complete the narration of facts and before
we come to the legal issues involved, we may mention
that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has
issued a statement on 24.1.2011 opposing euthanasia
for the petitioner :-
"She means a lot to KEM hospital. She
is on liquid diet and loves listening to
music. We have never subjected her to
intravenous food or fed her via a tube. All
these years, she hasn't had even one
bedsore. When those looking after her do not
have a problem, I don't understand why a
third party who has nothing to do with her
[Pinky Virani who has moved the apex court
to seek euthanasia for Shanbaug] needs to
worry," added Dr Oak, who, when he took over
as dean of KEM hospital in 2008, visited her
29
first to take her blessings. "I call on her
whenever I get time. I am there whenever she
has dysentery or any another problem. She is
very much alive and we have faith in the
judiciary," said Dr Oak."
11. Dr. Sanjay Oak has subsequently filed an
affidavit in this Court which states :
"a) Smt. Aruna Ramchandra Shanbaug has
been admitted in a single room in Ward No.4
which is a ward of general internal medicine
patients and she has been there for last 37
years. She is looked after entirely by
doctors, nurses and para-medical staff of
KEM Hospital. She has been our staff nurse
and the unfortunate tragic incidence has
happened with her in KEM Hospital and I must
put on record that the entire medical,
administrative, nursing and para-medical
staff is extremely attached to her and
consider her as one of us. Her relatives
and a gentleman (her fiancee) used to visit
her in the initial period of her illness but
subsequently she has been left to the care
of KEM staff. I visit her frequently and my
last visit to her was on 22nd February, 2011.
I give my observations as a Clinician about
Smt. Aruna Shanbaug as under :
b) It would be incorrect to say that
Smt. Aruna Shanbaug is an appropriate case
for Coma. It appears that for a crucial,
critical period her brain was deprived of
Oxygen supply and this has resulted in her
present state similar to that of Cerebral
Palsy in the newborn child. It is a
condition where brain looses it's co-
ordinatory, sensory as well as motor
functions and this includes loss of speech
30
and perception. This has resulted into a
state which in a layman's words "Aruna lives
in her own world for last 37 years". She is
lying in a bed in a single room for 33
years. She has not been able to stand or
walk, nor have we attempted to do that of
late because we fear that she is fragile and
would break her bones if she falls. Her
extremities and fingers have developed
contractures and subsequent to non-use;
there is wasting of her body muscles. Her
eyes are open and she blinks frequently;
however, these movements are not pertaining
to a specific purpose or as a response to a
question. At times she is quiet and at
times she shouts or shrieks. However, I
must say that her shouts and shrieks are
completely oblivious to anybody's presence
in her room. It is not true that she shouts
after seeing a man. I do not think Aruna
can distinguish between a man and a woman,
nor can she even distinguish between
ordinate and inordinate object. We play
devotional songs rendered by Sadguru
Wamanrao Pai continuously in her room and
she lies down on her bed listening to them.
She expresses her displeasure by grimaces
and shouts if the tape recorder is switched
off. All these years she was never fed by
tube and whenever a nurse used to take food
to her lips, she used to swallow it. It is
only since September 2010 she developed
Malaria and her oral intake dropped. In
order to take care of her calorie make need,
nurses cadre resorted to naso-gastric tube
feed and now she is used to NG feeding.
However, if small morsels are held near her
lips, Aruna accepts them gladly. It appears
that she relishes fish and occasionally
smiles when she is given non-vegetarian
food. However, I am honest in admitting
that her smiles are not purposeful and it
would be improper to interpret them as a
31
signal of gratification. I must put on
record that in the world history of medicine
there would not be another single case where
such a person is cared and nurtured in bed
for 33 long years and has not developed a
single bed sore. This speaks of volumes of
excellence of nursing care that KEM Nursing
staff has given to her.
c) This care is given not as a part of
duty but as a part of feeling of oneness.
With every new batch of entrants, the
student nurses are introduced to her and
they are told that she was one of us and she
continues to be one of us and then they
whole-heartedly take care of Aruna. In my
opinion, this one is finest example of love,
professionalism, dedication and commitment
to one of our professional colleagues who is
ailing and cannot support herself. Not
once, in this long sojourn of 33 years,
anybody has thought of putting an end to her
so called vegetative existence. There have
been several Deans and Doctors of KEM
Hospital who have cared her in succession.
Right from illustrious Dr. C.K. Deshpande in
whose tenure the incidence happened in 1973,
Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai,
Dr. R.J. Shirahatti, Dr. Smt. N.A.
Kshirsagar, Dr. M.E. Yeolekar and now myself
Dr. Sanjay N. Oak, all of us have visited
her room time and again and have cared for
her and seen her through her ups and downs.
The very idea of withholding food or putting
her to sleep by active medication (mercy
killing) is extremely difficult for anybody
working in Seth GSMC & KEM Hospital to
accept and I sincerely make a plea to the
Learned Counsel and Hon'ble Judges of
Supreme Court of India that this should not
be allowed. Aruna has probably crossed 60
years of life and would one day meet her
32
natural end. The Doctors, Nurses and staff
of KEM, are determined to take care of her
till her last breath by natural process.
d) I do not think it is proper on my
part to make a comment on the entire case.
However, as a clinical surgeon for last 3
decades and as an administrator of the
hospitals for last 7 years and as a student
of legal system of India (as I hold
"Bachelor of Law" degree from Mumbai
University), I feel that entire society has
not matured enough to accept the execution
of an Act of Euthanasia or Mercy Killing. I
fear that this may get misused and our
monitoring and deterring mechanisms may fail
to prevent those unfortunate incidences. To
me any mature society is best judged by it's
capacity and commitment to take care of it's
"invalid" ones. They are the children of
Lesser God and in fact, developing nation as
we are, we should move in a positive manner
of taking care of several unfortunate ones
who have deficiencies, disabilities and
deformities."
12. The Hospital staff of KEM Hospital, Mumbai e.g.
the doctors, sister-in-charge ward no. 4 KEM
hospital Lenny Cornielo, Assistant Matron Urmila
Chauhan and others have also issued statements that
they were looking after Aruna Shanbaug and want her
to live. "Aruna is the bond that unites us", the KEM
Hospital staff has stated. One retired nurse, Tidi
Makwana, who used to take care of Aruna while in
33
service, has even offered to continue to take care
of her without any salary and without charging any
traveling expenses.
13. We have referred to these statements because it
is evident that the KEM Hospital staff right from
the Dean, including the present Dean Dr. Sanjay Oak
and down to the staff nurses and para-medical staff
have been looking after Aruna for 38 years day and
night. What they have done is simply marvelous.
They feed Aruna, wash her, bathe her, cut her nails,
and generally take care of her, and they have been
doing this not on a few occasions but day and night,
year after year. The whole country must learn the
meaning of dedication and sacrifice from the KEM
hospital staff. In 38 years Aruna has not developed
one bed sore.
14. It is thus obvious that the KEM hospital staff
has developed an emotional bonding and attachment to
Aruna Shanbaug, and in a sense they are her real
family today. Ms. Pinki Virani who claims to be next friend of Aruna Shanbaug and has filed this
petition on her behalf is not a relative of Aruna
Shanbaug nor can she claim to have such close
emotional bonding with her as the KEM hospital
staff. Hence, we are treating the KEM hospital
staff as the next friend of Aruna Shanbaug and we
decline to recognize Ms. Pinki Virani as her next
friend. No doubt Ms. Pinki Virani has written a
book about Aruna Shanbaug and has visited her a few
times, and we have great respect for her for the
social causes she has espoused, but she cannot claim
to have the extent of attachment or bonding with
Aruna which the KEM hospital staff, which has been
looking after her for years, claims to have.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES
15. Mr. Shekhar Naphade, learned senior counsel for
the petitioner has relied on the decision of this
Court in Vikram Deo Singh Tomar vs. State of Bihar
1988 (Supp) SCC 734 (vide para 2) where it was
oserved by this Court :
"We live in an age when this Court has
demonstrated, while interpreting Article 21
of the Constitution, that every person is
entitled to a quality of life consistent
with his human personality. The right to
live with human dignity is the fundamental
right of every Indian citizen".
16. He has also relied on the decision of this Court
in P. Rathinam vs. Union of India and another (1994)
3 SCC 394 in which a two-Judge bench of this Court
quoted with approval a passage from an article by
Dr. M. Indira and Dr. Alka Dhal in which it was
mentioned :
"Life is not mere living but living in
health. Health is not the absence of
illness but a glowing vitality".
17. The decision in Rathinam's case (supra) was,
however, overruled by a Constitution Bench decision
of this Court in Gian Kaur vs. State of Punjab
1996) 2 SCC 648.
18. Mr. Naphade, however, has invited our attention
to paras 24 & 25 of the aforesaid decision
it was observed :
"(24) Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the patient of
a terminal illness being unrelated to the principle of 'sanctity of
life' or the right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of right to life' therein includes the right to die'. The
right to life' including the right to live with human dignity would
mean the existence of such a right upto the end of natural life.
This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. In other words,
this may include the right of a dying man to also die with dignity
when his life is ebbing out. But the 'right to die' with dignity at
the end of life is not to be confused or equated with the right to
die' an unnatural death curtailing the natural span of life.
(25) A question may arise, in the context of a dying man, who
is, terminally ill or in a persistent vegetative state that he may be
permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within the
ambit of the 'right to die' with dignity as a part of right to live
with dignity, when death due to termination of natural life is
certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only of
accelerating conclusion of the process of natural death which has
already commenced. The debate even in such cases to permit
physician assisted termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the view of
permitting termination of life in such cases to reduce the period
of suffering during the process of certain natural death is not
available to interpret Article 21 to include therein the right to
curtail the natural span of life".
37
He has particularly emphasized paragraph 25 of the
said judgment in support of his submission that
Aruna Shanbaug should be allowed to die.
19. We have carefully considered paragraphs 24 and
25 in Gian Kaur's case (supra) and we are of the
opinion that all that has been said therein is that
the view in Rathinam's case (supra) that the right
to life includes the right to die is not correct.
We cannot construe Gian Kaur's case (supra) to mean
anything beyond that. In fact, it has been
specifically mentioned in paragraph 25 of the
aforesaid decision that "the debate even in such
cases to permit physician assisted termination of
life is inconclusive". Thus it is obvious that no
final view was expressed in the decision in Gian
Kaur's case beyond what we have mentioned above.
20. Mr. Naphade, learned senior counsel submitted
that Ms. Pinky Virani is the next friend of Aruna as
she has written a book on her life called `Aruna's
story' and has been following Aruna's case from 1980
and has done whatever possible and within her means
to help Aruna. Mr. Naphade has also invited our
attention to the report of the Law Commission of
India, 2006 on `Medical Treatment to Terminally Ill
Patients'. We have perused the said report
carefully.
21. Learned Attorney General appearing for the Union
of India after inviting our attention to the
relevant case law submitted as under :
(i) Aruna Ramchandra Shanbaug has the right to
live in her present state.
(ii) The state that Aruna Ramchandra Shanbaug is
presently in does not justify terminating
her life by withdrawing
hydration/food/medical support.
(iii) The aforesaid acts or series of acts
and/or such omissions will be cruel, inhuman
and intolerable.
(iv) Withdrawing/withholding of
hydration/food/medical support to a patient
is unknown to Indian law and is contrary to
law.
(v) In case hydration or food is
39
withdrawn/withheld from Aruna Ramchandra
Shanbaug, the efforts which have been put in
by batches after batches of nurses of KEM
Hospital for the last 37 years will be
undermined.
(vi) Besides causing a deep sense of resentment
in the nursing staff as well as other well
wishers of Aruna Ramchandra Shanbaug in KEM
Hospital including the management, such
acts/omissions will lead to disheartenment
in them and large scale disillusionment.
(vii) In any event, these acts/omissions
cannot be permitted at the instance of Ms.
Pinky Virani who desires to be the next
friend of Aruna Ramchandra Shanbaug without
any locus.
Learned Attorney General stated that the report of
the Law Commission of India on euthanasia has not
been accepted by the Government of India. He
further submitted that Indian society is emotional
and care-oriented. We do not send our parents to
old age homes, as it happens in the West. He stated
that there was a great danger in permitting
euthanasia that the relatives of a person may
conspire with doctors and get him killed to inherit
his property. He further submitted that tomorrow
there may be a cure to a medical state perceived as
incurable today.
22. Mr. T. R. Andhyarujina, learned senior counsel
whom we had appointed as Amicus Curiae, in his
erudite submissions explained to us the law on the
point. He submitted that in general in common law
it is the right of every individual to have the
control of his own person free from all restraints
or interferences of others. Every human being of
adult years and sound mind has a right to determine
what shall be done with his own body. In the case
of medical treatment, for example, a surgeon who
performs an operation without the patient's consent
commits assault or battery.
23. It follows as a corollary that the patient
possesses the right not to consent i.e. to refuse
treatment. (In the United States this right is
reinforced by a Constitutional right of privacy).
Ts is known as the principle of self-determination
or informed consent.
24. Mr. Andhyarujina submitted that the principle of
self-determination applies when a patient of sound
mind requires that life support should be
discontinued. The same principle applies where a
patient's consent has been expressed at an earlier
date before he became unconscious or otherwise
incapable of communicating it as by a `living will'
or by giving written authority to doctors in
anticipation of his incompetent situation.
Mr. Andhyarujina differed from the view of the
learned Attorney General in that while the latter
opposed even passive euthanasia, Mr. Andhyarujina
was in favour of passive euthanasia provided the
decision to discontinue life support was taken by
responsible medical practitioners.
25. If the doctor acts on such consent there is no
question of the patient committing suicide or of the
doctor having aided or abetted him in doing so. It
is simply that the patient, as he is entitled to do,
declines to consent to treatment which might or
would have the effect of prolonging his life and the
42
doctor has in accordance with his duties complied
with the patient's wishes.
26. The troublesome question is what happens when
the patient is in no condition to be able to say
whether or not he consents to discontinuance of the
treatment and has also given no prior indication of
his wishes with regard to it as in the case of
Aruna. In such a situation the patient being
incompetent to express his self-determination the
approach adopted in some of the American cases is of
"substituted judgment" or the judgment of a
surrogate. This involves a detailed inquiry into
the patient's views and preferences. The surrogate
decision maker has to gather from material facts as
far as possible the decision which the incompetent
patient would have made if he was competent.
However, such a test is not favoured in English law
in relation to incompetent adults.
27. Absent any indication from a patient who is
incompetent the test which is adopted by Courts is
43
what is in the best interest of the patient whose
life is artificially prolonged by such life support.
This is not a question whether it is in the best
interest of the patient that he should die. The
question is whether it is in the best interest of
the patient that his life should be prolonged by the
continuance of the life support treatment. This
opinion must be formed by a responsible and
competent body of medical persons in charge of the
patient.
28. The withdrawal of life support by the doctors is
in law considered as an omission and not a positive
step to terminate the life. The latter would be
euthanasia, a criminal offence under the present law
in UK, USA and India.
29. In such a situation, generally the wishes of the
patient's immediate family will be given due weight,
though their views cannot be determinative of the
carrying on of treatment as they cannot dictate to
responsible and competent doctors what is in the
44
best interest of the patient. However, experience
shows that in most cases the opinions of the doctors
and the immediate relatives coincide.
30. Whilst this Court has held that there is no
right to die (suicide) under Article 21 of the
Constitution and attempt to suicide is a crime vide
Section 309 IPC, the Court has held that the right
to life includes the right to live with human
dignity, and in the case of a dying person who is
terminally ill or in a permanent vegetative state he
may be permitted to terminate it by a premature
extinction of his life in these circumstances and it
is not a crime vide Gian Kaur's case (supra).
31. Mr. Andhyarujina submitted that the decision to
withdraw the life support is taken in the best
interests of the patient by a body of medical
persons. It is not the function of the Court to
evaluate the situation and form an opinion on its
own. In England for historical reasons the parens
patriae jurisdiction over adult mentally
45
incompetent persons was abolished by statute and the
Court has no power now to give its consent. In this
situation, the Court only gives a declaration that
the proposed omission by doctors is not unlawful.
32. In U.K., the Mental Capacity Act, 2005 now makes
provision relating to persons who lack capacity and
to determine what is in their best interests and the
power to make declaration by a special Court of
Protection as to the lawfulness of any act done in
relation to a patient.
33. Mr. Andhyarujina submitted that the withdrawal
of nutrition by stopping essential food by means of
nasogastric tube is not the same as unplugging a
ventilator which artificially breathes air into the
lungs of a patient incapable of breathing resulting
in instant death. In case of discontinuance of
artificial feeding the patient will as a result
starve to death with all the sufferings and pain and
distress associated with such starving. This is a
very relevant consideration in a PVS patient like
46
Aruna who is not totally unconscious and has sensory
conditions of pain etc. unlike Antony Bland in
Airedale vs. Director MHD (1993) 2 WLR 316 who was
totally unconscious. Would the doctor be able to
avoid such pain or distress by use of sedatives
etc.? In such a condition would it not be more
appropriate to continue with the nasogastric feeding
but not take any other active steps to combat any
other illness which she may contract and which may
lead to her death?
34. Mr. Andhyarujina further submitted that in a
situation like that of Aruna, it is also necessary
to recognize the deep agony of nurses of the
hospital who have with deep care looked after her
for over 37 years and who may not appreciate the
withdrawal of the life support. It may be necessary
that their views should be considered by the Court
in some appropriate way.
35. Mr. Andhyarujina, in the course of his
submission stated that some Courts in USA have
47
observed that the view of a surrogate may be taken
to be the view of the incompetent patient for
deciding whether to withdraw the life support,
though the House of Lords in Airedale's case has not
accepted this. He submitted that relatives of Aruna
do not seem to have cared for her and it is only the
nursing staff and medical attendants of KEM
hospital who have looked after her for 37 years. He
has also submitted that though the humanistic
intention of Ms. Pinky Virani cannot be doubted, it
is the opinion of the attending doctors and nursing
staff which is more relevant in this case as they
have looked after her for so many years.
36. Mr. Pallav Shishodia, learned senior counsel for
the Dean, KEM hospital, Mumbai submitted that Ms.
Pinky Virani has no locus standi in the matter and
it is only the KEM hospital staff which could have
filed such a writ petition.
37. We have also heard learned counsel for the State
of Maharashtra, Mr. Chinmoy Khaldkar and other
48
assisting counsel whose names have been mentioned in
this judgment. They have been of great assistance
to us as we are deciding a very sensitive and
delicate issue which while requiring a humanistic
approach, also requires great case and caution to
prevent misuse. We were informed that not only the
learned counsel who argued the case before us, but
also the assistants (whose names have been mentioned
in the judgment) have done research on the subject
for several weeks, and indeed this has made our task
easier in deciding this case. They therefore
deserve our compliment and thanks.
Legal Issues : Active and Passive Euthanasia
38. Coming now to the legal issues in this case, it
may be noted that euthanasia is of two types :
active and passive. Active euthanasia entails the
use of lethal substances or forces to kill a person
e.g. a lethal injection given to a person with
terminal cancer who is in terrible agony. Passive
euthanasia entails withholding of medical treatment
49
for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is
likely to die, or removing the heart lung machine,
from a patient in coma.
39. The general legal position all over the world
seems to be that while active euthanasia is illegal
unless there is legislation permitting it, passive
euthanasia is legal even without legislation
provided certain conditions and safeguards are
maintained.
40. A further categorization of euthanasia is
between voluntary euthanasia and non voluntary
euthanasia. Voluntary euthanasia is where the
consent is taken from the patient, whereas non
voluntary euthanasia is where the consent is
unavailable e.g. when the patient is in coma, or is
otherwise unable to give consent. While there is no
legal difficulty in the case of the former, the
latter poses several problems, which we shall
address.
50
ACTIVE EUTHANASIA
41. As already stated above active euthanasia is a
crime all over the world except where permitted by
legislation. In India active euthanasia is illegal
and a crime under section 302 or at least section
304 IPC. Physician assisted suicide is a crime
under section 306 IPC (abetment to suicide).
42. Active euthanasia is taking specific steps to
cause the patient's death, such as injecting the
patient with some lethal substance, e.g. sodium
pentothal which causes a person deep sleep in a few
seconds, and the person instantaneously and
painlessly dies in this deep sleep.
43. 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
51
suicide it is the patient himself who does it,
though on the advice of the doctor. In many
countries/States the latter is legal while the
former is not.
44. The difference between "active" and "passive"
euthanasia is that in active euthanasia, something
is done to end the patient's life' while in passive
euthanasia, something is not done that would have
preserved the patient's life.
45. An important idea behind this distinction is
that in "passive euthanasia" the doctors are not
actively killing anyone; they are simply not saving
him. While we usually applaud someone who saves
another person's life, we do not normally condemn
someone for failing to do so. If one rushes into a
burning building and carries someone out to safety,
he will probably be called a hero. But if one sees a
burning building and people screaming for help, and
he stands on the sidelines -- whether out of fear
for his own safety, or the belief that an
52
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.)
46. Thus, proponents of euthanasia say that while we
can debate whether active euthanasia should be
legal, there can be no debate about passive
euthanasia: You cannot prosecute someone for failing
to save a life. Even if you think it would be good
for people to do X, you cannot make it illegal for
people to not do X, or everyone in the country who
did not do X today would have to be arrested.
47. Some persons are of the view that the
distinction is not valid. They give the example of
the old joke about the child who says to his
teacher, "Do you think it's right to punish someone
for something that he didn't do?" "Why, of course
not," the teacher replies. "Good," the child says,
53
"because I didn't do my homework."
48. In fact we have many laws that penalize people
for what they did not do. A person cannot simply
decide not to pay his income taxes, or not bother to
send his/her children to school (where the law
requires sending them), or not to obey a policeman's
order to put down one's gun.
49. However, we are of the opinion that the
distinction is valid, as has been explained in some
details by Lord Goff in Airedale's case (infra)
which we shall presently discuss.
LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA
OR PHYSICIAN ASSISTED DEATH
50. Although in the present case we are dealing with
a case related to passive euthanasia, it would be of
some interest to note the legislations in certain
countries permitting active euthanasia. These are
given below.
Netherlands:
54
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
55
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
56
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 options
· 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
57
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 :
· 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
58
remains technically illegal; however, Dr. Eduard
Verhagen has documented several cases and,
together with colleagues and prosecutors, has
developed a protocol to be followed in those
cases. Prosecutors will refrain from pressing
charges if this Groningen Protocol is followed.
Switzerland:
Switzerland has an unusual position on assisted
suicide: it is legally permitted and can be
performed by non-physicians. However,
euthanasia is illegal, the difference between
assisted suicide and euthanasia being that while
in the former the patient administers the 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
59
assisting suicide; although, they are most
likely to have access to suitable drugs.
Ethical guidelines have cautioned physicians
against prescribing deadly drugs.
Switzerland seems to be the only country in
which the law limits the circumstances in which
assisted suicide is a crime, thereby
decriminalising it in other cases, without
requiring the involvement of a physician.
Consequently, non-physicians have participated
in assisted suicide. However, legally, active
euthanasia e.g. administering a lethal injection
by a doctor or some other person to a patient is
illegal in Switzerland (unlike in Holland where
it is legal under certain conditions).
The Swiss law is unique because (1) the
recipient need not be a Swiss national, and (2)
a physician need not be involved. Many persons
from other countries, especially Germany, go to
Switzerland to undergo euthanasia.
60
Belgium:
Belgium became the second country in Europe
after Netherlands to legalize the practice of
euthanasia in September 2002.
The Belgian law sets out conditions under which
suicide can be practised without giving doctors
a licence to kill.
Patients wishing to end their own lives must be
conscious when the demand is made and repeat
their request for euthanasia. They have to be
under "constant and unbearable physical or
psychological pain" resulting from an accident
or incurable illness.
The law gives patients the right to receive
ongoing treatment with painkillers -- the
authorities have to pay to ensure that poor or
isolated patients do not ask to die because they
do not have money for such treatment.
Unlike the Dutch legislation, minors cannot seek
assistance to die.
61
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
62
the states of Oregon, Washington and Montana.
As already pointed out above, the difference
between euthanasia and physician assisted
suicide lies in who administers the lethal
medication. In the former, the physician or
someone else administers it, while in the latter
the patient himself does so, though on the
advice of the doctor.
Oregon:
Oregon was the first state in U.S.A. to legalize
physician assisted death.
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:
· 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.
63
· 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.
· Counselling has to be provided if the patient is
64
suffering from depression or a mental disorder
which may impact his judgment.
· 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
65
vs Oregon decided in 2006.
After the Oregon Law was enacted about 200
persons have had euthanasia in Oregon.
Washington:
Washington was the second state in U.S.A. which
allowed the practice of physician assisted death
in the year 2008 by passing the Washington Death
with Dignity Act, 2008.
Montana:
Montana was the third state (after Oregon and
Washington) in U.S.A. to legalize physician
assisted deaths, but this was done by the State
judiciary and not the legislature. On December
31, 2009, the Montana Supreme Court delivered
its verdict in the case of Baxter v. Montana
permitting physicians to prescribe lethal
indication. The court held that there was
"nothing in Montana Supreme Court precedent or
Montana statutes indicating that physician aid
66
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
67
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.
Canada:
In Canada, physician assisted suicide is illegal
vide Section 241(b) of the Criminal Code of
68
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 :
69
"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
51. Passive euthanasia is usually defined as
withdrawing medical treatment with a deliberate
intention of causing the patient's death. For
example, if a patient requires kidney dialysis to
survive, not giving dialysis although the machine is
available, is passive euthanasia. Similarly, if a
patient is in coma or on a heart lung machine,
withdrawing of the machine will ordinarily result in
passive euthanasia. Similarly not giving life
saving medicines like antibiotics in certain
70
situations may result in passive euthanasia.
Denying food to a person in coma or PVS may also
amount to passive euthanasia.
52. As already stated above, euthanasia can be both
voluntary or non voluntary. In voluntary passive
euthanasia a person who is capable of deciding for
himself decides that he would prefer to die (which
may be for various reasons e.g., that he is in great
pain or that the money being spent on his treatment
should instead be given to his family who are in
greater need, etc.), and for this purpose he
consciously and of his own free will refuses to take
life saving medicines. In India, if a person
consciously and voluntarily refuses to take life
saving medical treatment it is not a crime. Whether
not taking food consciously and voluntarily with the
aim of ending one's life is a crime under section
309 IPC (attempt to commit suicide) is a question
which need not be decided in this case.
53. Non voluntary passive euthanasia implies that
71
the person is not in a position to decide for
himself e.g., if he is in coma or PVS. The present
is a case where we have to consider non voluntary
passive euthanasia i.e. whether to allow a person to
die who is not in a position to give his/her
consent.
54. There is a plethora of case law on the subject
of the Courts all over the world relating to both
active and passive euthanasia. It is not necessary
to refer in detail to all the decisions of the
Courts in the world on the subject of euthanasia
or physically assisted dead (p.a.d.) but we think it
appropriate to refer in detail to certain landmark
decisions, which have laid down the law on the
subject.
THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993)
All E.R. 82) (H.L.)
55. In the Airedale case decided by the House of
Lords in the U.K., the facts were that one Anthony
Bland aged about 17 went to the Hillsborough Ground
72
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
73
distinct from other conditions sometimes known as
"irreversible coma", "the Guillain-Barre syndrome",
"the locked-in syndrome" and "brain death".
56. The distinguishing characteristic of PVS is that
the brain stem remains alive and functioning while
the cortex has lost its function and activity. Thus
the PVS patient continues to breathe unaided and his
digestion continues to function. But although his
eyes are open, he cannot see. He cannot hear.
Although capable of reflex movement, particularly in
response to painful stimuli, the patient is
uncapable of voluntary movement and can feel no
pain. He cannot taste or smell. He cannot speak or
communicate in any way. He has no cognitive
function and thus can feel no emotion, whether
pleasure or distress. The absence of cerebral
function is not a matter of surmise; it can be
scientifically demonstrated. The space which the
brain should occupy is full of watery fluid.
57. In order to maintain Mr. Bland in his condition,
74
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 was continued.
58. In this state of affairs the medical men in
charge of Anthony Bland case took the view, which
was supported by his parents, that no useful purpose
would be served by continuing medical care, and that
artificial feeding and other measures aimed at
prolonging his existence should be stopped. Since
however, there was a doubt as to whether this course
might constitute a criminal offence, the hospital
authorities sought a declaration from the British
High Court to resolve these doubts.
59. The declaration was granted by the Family
75
Division of the High Court on 19.11.1992 and that
judgment was affirmed by the Court of Appeal on
9.12.1992. A further appeal was made to the House
of Lords which then decided the case.
60. The broad issued raised before the House of
Lords in the Airedale case (supra) was "In what
circumstances, if ever, can those having a duty to
feed an invalid lawfully stop doing so?" In fact
this is precisely the question raised in the present
case of Aruna Shanbaug before us.
61. In Airedale's case (supra), Lord Keith of
Kinkel, noted that it was unlawful to administer
treatment to an adult who is conscious and of sound
mind, without his consent. Such a person is
completely at liberty to decline to undergo
treatment, even if the result of his doing so will
be that he will die. This extends to the situation
where the person in anticipation of his entering
into a condition such as PVS, gives clear
instructions that in such an event he is not to be
76
given medical care, including artificial feeding,
designed to keep him alive.
62. It was held that if a person, due to accident or
some other cause becomes unconscious and is thus not
able to give or withhold consent to medical
treatment, in that situation it is lawful for
medical men to apply such treatment as in their
informed opinion is in the best interests of the
unconscious patient. That is what happened in the
case of Anthony Bland when he was first dealt with
by the emergency services and later taken to
hospital.
63. When the incident happened the first imperative
was to prevent Anthony from dying, as he would
certainly have done in the absence of the steps that
were taken. For a time, no doubt, there was some
hope that he might recover sufficiently for him to
be able to live a life that had some meaning. Some
patients who have suffered damage to the cerebral
cortex have, indeed, made a complete recovery. It
77
all depends on the degree of damage. But sound
medical opinion takes the view that if a P.V.S.
patient shows no signs of recovery after six months,
or at most a year, then there is no prospect
whatever of any recovery.
64. There are techniques available which make it
possible to ascertain the state of the cerebral
cortex, and in Anthony Bland's case these indicated
that, it had degenerated into a mass of watery
fluid. In this situation the question before the
House of Lords was whether the doctors could
withdraw medical treatment or feeding Anthony Bland
thus allowing him to die.
65. It was held by Lord Keith that a medical
practitioner is under no duty to continue to treat
such a patient where a large body of informed and
responsible medical opinion is to the effect that no
benefit at all would be conferred by continuance of
the treatment. Existence in a vegetative state with
no prospect of recovery is by that opinion regarded
78
as not being of benefit to the patient.
66. Given that existence in the persistent
vegetative state is of no benefit to the patient,
the House of Lords then considered whether the
principle of the sanctity of life which is the
concern of the State (and the Judiciary is one of
the arms of the State) required the Court to hold
that medical treatment to Bland could not be
discontinued.
67. Lord Keith observed that the principle of
sanctity of life is not an absolute one. For
instance, it does not compel the medical
practitioner on pain of criminal sanction to treat a
patient, who will die, if he does not, according to
the express wish of the patient. It does not
authorize forcible feeding of prisoners on hunger
strike. It does not compel the temporary keeping
alive of patients who are terminally ill where to do
so would merely prolong their suffering. On the
other hand, it forbids the taking of active measures
79
to cut short the life of a terminally-ill patient
(unless there is legislation which permits it).
68. Lord Keith observed that although the decision
whether or not the continued treatment and cure of a
PVS patient confers any benefit on him is
essentially one for the medical practitioners in
charge of his case to decide, as a matter of routine
the hospital/medical practitioner should apply to
the Family Division of the High Court for endorsing
or reversing the said decision. This is in the
interest of the protection of the patient,
protection of the doctors, and for the reassurance
of the patient's family and the public.
69. In Airdale's case (Supra) another Judge on the
Bench, Lord Goff of Chievely observed:-
"The central issue in the present case
has been aptly stated by the Master of
the Rolls to be whether artificial
feeding and antibiotic drugs may
lawfully be withheld from an insensate
patient with no hope of recovery when
it is known that if that is done the
patient will shortly thereafter die.
The Court of Appeal, like the
President, answered this question
generally in the affirmative, and (in
80
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
81
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
82
J. (1914); S. v . McC. (Orse S.) and M
(D.S. Intervene); W v . W [1972] A.C.
24, 43, per Lord Reid; and Sidaway v .
Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital
[1985] AC 871, 882, per Lord Scarman).
To this extent, the principle of the
sanctity of human life must yield to
the principle of self- determination
(see Court of Appeal Transcript in the
present case, at p. 38F per Hoffmann
L.J.), and, for present purposes
perhaps more important, the doctor's
duty to act in the best interests of
his patient must likewise be qualified.
On this basis, it has been held that a
patient of sound mind may, if properly
informed, require that life support
should be discontinued: see Nancy B.
v. Hotel Dieu de Quebec (1992) 86
D.L.R. (4th) 385. Moreover the same
principle applies where the patient's
refusal to give his consent has been
expressed at an earlier date, before he
became unconscious or otherwise
incapable of communicating it; though
in such circumstances especial care may
be necessary to ensure that the prior
refusal of consent is still properly to
be regarded as applicable in the
circumstances which have subsequently
occurred (see, e.g. In re T. (Adult:
Refusal of treatment) [1992] 3 W.L.R.
782). I wish to add that, in cases of
this kind, there is no question of the
patient having committed suicide, nor
therefore of the doctor having aided or
abetted him in doing so. It is simply
that the patient has, as he is entitled
to do, declined to consent to treatment
which might or would have the effect of
prolonging his life, and the doctor
has, in accordance with his duty,
83
complied with his patient's wishes.
But in many cases not only may the
patient be in no condition to be able
to say whether or not he consents to
the relevant treatment or care, but
also he may have given no prior
indication of his wishes with regard to
it. In the case of a child who is a
ward of court, the court itself will
decide whether medical treatment should
be provided in the child's best
interests, taking into account medical
opinion. But the court cannot give its
consent on behalf of an adult patient
who is incapable of himself deciding
whether or not to consent to treatment.
I am of the opinion that there is
nevertheless no absolute obligation
upon the doctor who has the patient in
his care to prolong his life,
regardless of the circumstances.
Indeed, it would be most startling, and
could lead to the most adverse and
cruel effects upon the patient, if any
such absolute rule were held to exist.
It is scarcely consistent with the
primacy given to the principle of self-
determination in those cases in which
the patient of sound mind has declined
to give his consent, that the law
should provide 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:
84
"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
85
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
86
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
87
categorised as an omission.
The distinction appears, therefore, to
be useful in the present context in
that it can be invoked to explain how
discontinuance of life support can be
differentiated from ending a patient's
life by a lethal injection. But in the
end the reason for that difference is
that, whereas the law considers that
discontinuance of life support may be
consistent with the doctor's duty to
care for his patient, it does not, for
reasons of policy, consider that it
forms any part of his duty to give his
patient a lethal injection to put him
out of his agony.
I return to the patient who, because
for example he is of unsound mind or
has been rendered unconscious by
accident or by illness, is incapable of
stating whether or not he consents to
treatment or care. In such
circumstances, it is now established
that a doctor may lawfully treat such a
patient if he acts in his best
interests, and indeed that, if the
patient is already in his care, he is
under a duty so to treat him: see In re
F [1990] 2 AC 1, in which the legal
principles governing treatment in such
circumstances were stated by this
House. For my part I can see no reason
why, as a matter of principle, a
decision by a doctor whether or not to
initiate, or to 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
88
likely to require that treatment of
this kind, if available, should be
given to a patient. But this may not
always be so. To take a simple example
given by Thomas J. in Re J.H.L.
(Unreported) (High Court of New
Zealand) 13 August 1992, at p. 35), to
whose judgment in that case I wish to
pay tribute, it cannot be right that a
doctor, who has under his care a
patient suffering painfully from
terminal cancer, should be under an
absolute obligation to perform upon him
major surgery to abate another
condition which, if unabated, would or
might shorten his life still further.
The doctor who is caring for such a
patient cannot, in my opinion, be under
an absolute obligation to prolong his
life by any means available to him,
regardless of the quality of the
patient's life. Common humanity
requires otherwise, as do medical
ethics and good medical practice
accepted in this country and overseas.
As I see it, the doctor's decision
whether or not to take any such step
must (subject to his patient's ability
to give or withhold his consent) be
made in the best interests of the
patient. It is this principle too
which, in my opinion, underlies the
established rule that a doctor may,
when caring for a patient who is, for
example, dying of cancer, lawfully
administer painkilling drugs despite
the fact that he knows that an
incidental effect of that application
will be to abbreviate the patient's
life. Such a decision may properly be
made as part of the care of the living
patient, in his best interests; and, on
this basis, the treatment will be
89
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
90
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
91
question is whether it is in the best
interests of the patient that his life
should be prolonged by the continuance
of this form of medical treatment or
care.
The correct formulation of the question
is of particular importance in a case
such as the present, where the patient
is totally unconscious and where there
is no hope whatsoever of any
amelioration of his condition. In
circumstances such as these, it may be
difficult to say that it is in his best
interests that the treatment should be
ended. But if the question is asked, as
in my opinion it should be, whether it
is in his best interests that treatment
which has the effect of artificially
prolonging his life should be
continued, that question can sensibly
be answered to the effect that it is
not in his best interests to do so.
(emphasis supplied)
70. In a Discussion Paper on Treatment of Patients
in Persistent Vegetative State issued in September
1992 by the Medical Ethics Committee of the British
Medical Association certain safeguards were
mentioned which
should be observed before constituting life support
for such patients:-
92
"(1) Every effort should be made at
rehabilitation for at least six months
after the injury; (2) The diagnosis of
irreversible PVS should not be
considered confirmed until at least
twelve months after the injury, with
the effect that any decision to
withhold life prolonging treatment will
be delayed for that period; (3) The
diagnosis should be agreed by two other
independent doctors; and (4) Generally,
the wishes of the patient's immediate
family will be given great weight."
71. Lord Goff observed that discontinuance of
artificial feeding in such cases is not equivalent
to cutting a mountaineer's rope, or severing the air
pipe of a deep sea diver. The true question is not
whether the doctor should take a course in which he
will actively kill his patient, but rather whether
he should continue to provide his patient with
medical treatment or care which, if continued, will
prolong his life.
72. Lord Browne-Wilkinson was of the view that
removing the nasogastric tube in the case of Anthony
Bland cannot be regarded as a positive act causing
the death. The tube itself, without the food being
93
supplied through it, does nothing. Its non removal
itself does not cause the death since by itself, it
does not sustain life. Hence removal of the tube
would not constitute the actus reus of murder,
since such an act would not cause the death.
73. Lord Mustill observed:-
"Threaded through the technical
arguments addressed to the House were
the strands of a much wider position,
that it is in the best interests of the
community at large that Anthony Bland's
life should now end. The doctors have
done all they can. Nothing will be
gained by going on and much will be
lost. The distress of the family will
get steadily worse. The strain on the
devotion of a medical staff charged
with the care of a patient whose
condition will never improve, who may
live for years and who does not even
recognize that he is being cared for,
will continue to mount. The large
resources of skill, labour and money
now being devoted to Anthony Bland
might in the opinion of many be more
fruitfully employed in improving the
condition of other patients, who if
treated may have useful, healthy and
enjoyable lives for years to come."
74. Thus all the Judges of the House of Lords in the
Airedale case (supra) were agreed that Anthony Bland
94
should be allowed to die.
75. Airedale (1993) decided by the House of Lords
has been followed in a number of cases in U.K., and
the law is now fairly well settled that in the case
of incompetent patients, if the doctors act on the
basis of informed medical opinion, and withdraw the
artificial life support system if it is in the
patient's best interest, the said act cannot be
regarded as a crime.
76. The question, however, remains as to who is to
decide what is the patient's best interest where he
is in a persistent vegetative state (PVS)? Most
decisions have held that the decision of the
parents, spouse, or other close relative, should
carry weight if it is an informed one, but it is not
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).
95
77. It is ultimately for the Court to decide, as
parens patriae, as to what is is in the best
interest of the patient, though the wishes of close
relatives and next friend, and opinion of medical
practitioners should be given due weight in coming
to its decision. As stated by Balcombe, J. in In Re
J ( A Minor Wardship : Medical Treatment) 1990(3)
All E.R. 930, the Court as representative of the
Sovereign as parens patriae will adopt the same
standard which a reasonable and responsible parent
would do.
78. The parens patriae (father of the country)
jurisdiction was the jurisdiction of the Crown,
which, as stated in Airedale, could be traced to the
13th Century. This principle laid down that as the
Sovereign it was the duty of the King to protect the
person and property of those who were unable to
protect themselves. The Court, as a wing of the
State, has inherited the parens patriae jurisdiction
which formerly belonged to the King.
U.S. decisions
96
79. The two most significant cases of the U.S.
Supreme Court that addressed the issue whether there
was a federal constitutional right to assisted
suicide arose from challenges to State laws banning
physician assisted suicide brought by terminally ill
patients and their physicians. These were Washington
vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs.
Quill 521 U.S. 793 (1997).
80. In Glucksberg's case, the U.S. Supreme Court
held that the asserted right to assistance in
committing suicide is not a fundamental liberty
interest protected by the Due Process Clause of the
Fourteenth Amendment. The Court observed :
"The decision to commit suicide with
the assistance of another may be just
as personal and profound as the
decision to refuse unwanted medical
treatment, but it has never enjoyed
similar legal protection. Indeed the
two acts are widely and reasonably
regarded as quite distinct."
81. The Court went on to conclude that the
Washington statute being challenged was rationally
97
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."
82. In Vacco's case (supra) the U.S. Supreme Court
again recognized the distinction between refusing
life saving medical treatment and giving lethal
medication. The Court disagreed with the view of
the Second Circuit Federal Court that ending or
refusing lifesaving medical treatment is nothing
more nor less than assisted suicide. The Court held
that "the distinction between letting a patient die
and making that patient die is important, logical,
98
rational, and well established". The Court held
that the State of New York could validly ban the
latter.
83. In Cruzan v. Director, MDH, 497 U.S.
261(1990) decided by the U.S. Supreme Court the
majority opinion was delivered by the Chief Justice
Rehnquist.
84. In that case, the petitioner Nancy Cruzan
sustained injuries in an automobile accident and lay
in a Missouri State hospital in what has been
referred to as a persistent vegetative state (PVS),
a condition in which a person exhibits motor
reflexes but evinces no indication of significant
cognitive function. The state of Missouri was
bearing the cost of her care. 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
99
clear and convincing evidence that the incompetent
person had wanted, while competent, withdrawal of
life support treatment in such an eventuality. The
only evidence led on that point was the alleged
statement of Nancy Cruzan to a housemate about a
year before the accident that she did not want life
as a `vegetable'. The State Supreme Court was of
the view that this did not amount to saying that
medical treatment or nutrition or hydration should
be withdrawn.
85. Chief Justice Rehnquist delivering the opinion
of the Court (in which Justices White, O'Connor,
Scalia, and Kennedy, joined) in his judgment first
noted the facts:-
"On the night of January 11, 1983,
Nancy Cruzan lost control of her car as
she traveled down Elm Road in Jasper
County, Missouri. The vehicle
overturned, and Cruzan was discovered
lying face down in a ditch without
detectable respiratory or cardiac
function. Paramedics were able to
restore her breathing and heartbeat at
the accident site, and she was
transported to a hospital in an
unconscious state. An attending
10
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. 1 The State of Missouri is
bearing the cost of her care. [497 U.S.
261, 267]
After it had become apparent that Nancy
Cruzan had virtually no chance of
regaining her mental faculties, her
parents asked hospital employees to
terminate the artificial nutrition and
hydration procedures. All agree that
such a [497 U.S. 261, 268] removal
would cause her death. The employees
refused to honor the request without
court approval. The parents then sought
and received authorization from the
state trial court for termination."
10
86. While the trial Court allowed the petition the
State Supreme Court of Missouri reversed. The US
Supreme Court by majority affirmed the verdict of
the State Supreme Court
87. Chief Justice Rehnquist noted that in law even
touching of one person by another without consent
and without legal justification was a battery, and
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
10
consent is that the patient generally possesses the
right not to consent, that is to refuse treatment.
88. The question, however, arises in cases where the
patient is unable to decide whether the treatment
should continue or not e.g. if he is in coma or PVS.
Who is to give consent to terminate the treatment in
such a case? The learned Chief Justice referred to
a large number of decisions of Courts in U.S.A. in
this connection, often taking diverse approaches.
89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen
Quinlan suffered severe brain damage as a result of
anoxia, and entered into PVS. Her father 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.
10
90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985),
however, the New Jersey Supreme Court, in a case of
an 84 year old incompetent nursing home resident who
had suffered irreversible mental and physical
ailments, contrary to its decision in Quinlan's
case, decided to base its decision on the common law
right to self determination and informed consent.
This right can be exercised by a surrogate decision
maker when there was a clear evidence that the
incompetent person would have exercised it. Where
such evidence was lacking the Court held that an
individual's right could still be invoked in certain
circumstances under objective `best interest'
standards. Where no trustworthy evidence existed
that the individual would have wanted to terminate
treatment, and a person's suffering would make the
administration of life sustaining treatment
inhumane, a pure objective standard could be used to
terminate the treatment. If none of these
conditions obtained, it was best to err in favour of
preserving life.
10
91. What is important to note in Cruzan's case
(supra) is that there was a statute of the State of
Missouri, unlike in Airedale's case (where there was
none), which required clear and convincing evidence
that while the patient was competent she had desired
that if she becomes incompetent and in a PVS her
life support should be withdrawn.
92. In Cruzan's case (supra) the learned Chief Justice
observed :
"Not all incompetent patients will
have loved ones available to serve as
surrogate decision makers. And even
where family members are present, there
will be, of course, some unfortunate
situations in which family members will
not act to protect a patient. A State
is entitled to guard against potential
abuses in such situations."
93. The learned Chief Justice further observed :
"An erroneous decision not to
terminate results in maintenance of the
status quo; the possibility of
subsequent developments such as
advancements in medical science, the
discovery of new evidence regarding the
10
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."
94. No doubt Mr. Justice Brennan (with whom Justices
Marshall and Blackmun joined) wrote a powerful
dissenting opinion, but it is not necessary for us
to go into the question whether the view of the
learned Chief Justice or that of Justice Brennan, is
correct.
95. It may be clarified that foreign decisions have
only persuasive value in our country, and are not
binding authorities on our Courts. Hence we can
even prefer to follow the minority view, rather than
the majority view, of a foreign decision, or follow
an overruled foreign decision.
96. Cruzan's case (supra) can be distinguished on
10
the simple ground that there was a statute in the
State of Missouri, whereas there was none in the
Airedale's case nor in the present case before us.
We are, therefore, of the opinion that the
Airedale's case (supra) is more apposite as a
precedent for us. No doubt foreign decisions are
not binding on us, but they certainly have
persuasive value.
LAW IN INDIA
97. In India abetment of suicide (Section 306 Indian
Penal Code) and attempt to suicide (Section 309 of
Indian Penal Code) are both criminal offences. This
is in contrast to many countries such as USA where
attempt to suicide is not a crime.
98. The Constitution Bench of the Indian Supreme
Court in Gian Kaur vs. State of Punjab, 1996(2)
SCC 648 held that both euthanasia and assisted
suicide are not lawful in India. That decision
overruled the earlier two Judge Bench decision of
the Supreme Court in P. Rathinam vs. Union of
10
India, 1994(3) SCC 394. The Court held that the
right to life under Article 21 of the Constitution
does not include the right to die (vide para 33).
In Gian Kaur's case (supra) the Supreme Court
approved of the decision of the House of Lords in
Airedale's case (supra), and observed that
euthanasia could be made lawful only by legislation.
99. Sections 306 and 309 IPC read as under :
"306. Abetment of suicide -If any
person commits suicide, whoever abets
the commission of such suicide, shall
be punished with imprisonment of either
description for a term which may extend
to ten years, and shall also be liable
to fine.
309.Attempt to commit suicide -
Whoever attempts to commit suicide
and does any act towards the commission
of such offence, shall be punished with
simple imprisonment for a term which
may extend to one year or with fine, or
with both."
100. We are of the opinion that although Section 309
Indian Penal Code (attempt to commit suicide) has
been held to be constitutionally valid in Gian
10
Kaur's case (supra), the time has come when it
should be deleted by Parliament as it has become
anachronistic. A person attempts suicide in a
depression, and hence he needs help, rather than
punishment. We therefore recommend to Parliament to
consider the feasibility of deleting Section 309
from the Indian Penal Code.
101. It may be noted that in Gian Kaur's case (supra)
although the Supreme Court has quoted with approval
the view of the House of Lords in Airedale's case
(supra), it has not clarified who can decide whether
life support should be discontinued in the case of
an incompetent person e.g. a person in coma or PVS.
This vexed question has been arising often in India
because there are a large number of cases where
persons go into coma (due to an accident or some
other reason) or for some other reason are unable to
give consent, and then the question arises as to who
should give consent for withdrawal of life support.
102. This is an extremely important question in India
10
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.
103. Also, since medical science is advancing fast,
doctors must not declare a patient to be a hopeless
case unless there appears to be no reasonable
possibility of any improvement by some newly
discovered medical method in the near future. In
this connection we may refer to a recent news item
which we have come across on the internet of an
Arkansas man Terry Wallis, who was 19 years of age
and newly married with a baby daughter when in 1984
his truck plunged through a guard rail, falling 25
feet. He went into coma in the crash in 1984, but
after 24 years he has regained consciousness. This
was perhaps because his brain spontaneously rewired
itself by growing tiny new nerve connections to
11
replace the ones sheared apart in the car crash.
Probably the nerve fibers from Terry Wallis' cells
were severed but the cells themselves remained
intact, unlike Terri Schiavo, whose brain cells had
died (see Terri Schiavo's case on Google).
104. However, we make it clear that it is experts
like medical practitioners who can decide whether
there is any reasonable possibility of a new medical
discovery which could enable such a patient to
revive in the near future.
WHEN CAN A PERSON IS SAID TO BE DEAD
105. It is alleged in the writ petition filed by Ms.
Pinky Virani (claiming to be the next friend of
Aruna Shanbaug) that in fact Aruna Shanbaug is
already dead and hence by not feeding her body any
more we shall not be killing her. The question
hence arises as to when a person can be said to be
dead ?
106. A person's most important organ is his/her
11
brain. This organ cannot be replaced. Other body
parts can be replaced e.g. if a person's hand or leg
is amputed, he can get an artificial limb.
Similarly, we can transplant a kidney, a heart or a
liver when the original one has failed. However, we
cannot transplant a brain. If someone else's brain
is transplanted into one's body, then in fact, it
will be that other person living in one's body. The
entire mind, including one's personality, cognition,
memory, capacity of receiving signals from the five
senses and capacity of giving commands to the other
parts of the body, etc. are the functions of the
brain. Hence one is one's brain. It follows that
one is dead when one's brain is dead.
107. As is well-known, the brain cells normally do
not multiply after the early years of childhood
(except in the region called hippocampus), unlike
other cells like skin cells, which are regularly
dying and being replaced by new cells produced by
multiplying of the old cells. This is probably
because brain cells are too highly specialized to
11
multiply. Hence if the brain cells die, they
usually cannot be replaced (though sometimes one
part of the brain can take over the function of
another part in certain situations where the other
part has been irreversibly damaged).
108. Brain cells require regular supply of oxygen
which comes through the red cells in the blood. If
oxygen supply is cut off for more than six minutes,
the brain cells die and this condition is known as
anoxia. Hence, if the brain is dead a person is
said to be dead.
BRAIN DEATH
109. The term `brain death' has developed various
meanings. While initially, death could be defined as
a cessation of breathing, or, more scientifically, a
cessation of heart-beat, recent medical advances
have made such definitions obsolete. In order to
understand the nature and scope of brain death, it
is worthwhile to look at how death was understood.
11
Historically, as the oft-quoted definition in
Black's Law Dictionary suggests, death was:
"The cessation of life; the ceasing to exist;
defined by physicians as a total stoppage of the
circulation of the blood, and a cessation of the
animal and vital functions consequent thereon, such
as respiration, pulsation, etc.".1 This definition
saw its echo in numerous other texts and legal case
law. This includes many American precedents- such as
Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961)
("Black's Law Dictionary, 4th Ed., defines death as
`the cessation of life; the ceasing to
exist ...."'); and Sanger v. Butler, 101 S.W. 459,
462 (Tex. Civ. App. 1907) ("The Encyclopaedic
Dictionary, among others, gives the following
definitions of [death]: `The state of being dead;
the act or state of dying; the state or condition of
the dead.' The Century Dictionary defines death as
`cessation of life; that state of a being, animal or
vegetable, in which there is a total and permanent
1 Black's Law Dictionary 488 (4th ed., rev. 1968).
11
cessation of all the vital functions."').2
110. This understanding of death emerged from a
cardiopulmonary perspective. In such cases, the
brain was usually irrelevant -- being understood
that the cessation of circulation would
automatically lead to the death of brain cells,
which require a great deal of blood to survive.
111. The invention of the ventilator and the
defibrillator in the 1920s altered this
understanding, it being now possible that the
cessation of respiration and circulation, though
critical, would no longer be irreversible3. Hence, a
present-day understanding of death as the
irreversible end of life must imply total brain
failure, such that neither breathing, nor
circulation is possible any more. The question of
the length of time that may determine such death is
significant, especially considering a significant
2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many
Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).
3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for
Determination of Death: A Comparative Analysis of the United States and
Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).
11
increase in organ donations across jurisdictions
over the last few years.
112. Brain death, may thus, be defined as "the
irreversible cessation of all functions of the
entire brain, including the brain stem".4 It is
important to understand that this definition goes
beyond acknowledging consciousness -- a person who
is incapable of ever regaining consciousness will
not be considered to be brain dead as long as parts
of the brain e.g. brain stem that regulate
involuntary activity (such as response to light,
respiration, heartbeat etc.) still continue to
function. Likewise, if consciousness, albeit
severely limited, is present, then a person will be
considered to be alive even if he has suffered brain
stem death, wherein breathing and heartbeat can no
longer be regulated and must be mechanically
determined. Hence, the international standard for
brain death is usually considered to include "whole-
4 Section 1, Universal Determination of Death Act, (The United States
Legislation)
11
brain death", i.e., a situation where the higher
brain (i.e. the part of the brain that regulates
consciousness and thought), the cerebellum or mid-
brain, and the brain-stem have all ceased to
demonstrate any electrical activity whatsoever for a
significant amount of time. To say, in most cases,
that only the death of the higher brain would be a
criteria for `brain death' may have certain serious
consequences -- for example, a foetus, technically
under this definition, would not be considered to be
alive at all. Similarly, as per this, different
definitions of death would apply to human and non-
human organisms.
113. Brain death, thus, is different from a
persistent vegetative state, where the brain stem
continues to work, and so some degree of reactions
may occur, though the possibility of regaining
consciousness is relatively remote. Even when a
person is incapable of any response, but is able to
sustain respiration and circulation, he cannot be
said to be dead. The mere mechanical act of
11
breathing, thus, would enable him or her to be
"alive".
114. The first attempt to define death in this manner
came about in 1968, as a result of a Harvard
Committee constituted for the purpose.5 This
definition, widely criticized for trying to maximize
organ donations, considered death to be a situation
wherein "individuals who had sustained traumatic
brain injury that caused them to be in an
irreversible coma, and had lost the ability to
breathe spontaneously"6, would be considered dead.
This criticism led to the Presidents' Committee, set
up for the purpose, in 1981, defining death more
vaguely as the point "where the body's physiological
system ceases to contribute a uniform whole".
This definition of whole brain death, however, is
not without its critics. Some argue that the brain
is not always responsible for all bodily
5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of
Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40
(1968).
6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal
Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).
11
functioning- digestion, growth, and some degree of
movement (regulated by the spinal cord) may not
require any electrical activity in the brain. In
order to combat this argument, and further explain
what brain death could include, the President's
Committee on Bio-ethics in the United States of
America in 2008 came up with a new definition of
brain death, according to which a person was
considered to be brain dead when he could no longer
perform the fundamental human work of an organism.
These are:
"(1) "openness to the world, that is receptivity to
stimuli and signals from the surrounding
environment,"
(2) "the ability to act upon the world to obtain
selectively what it needs.
and (3) "the basic felt need that drives the
organism to act ... to obtain what it needs."7
115. When this situation is reached, it is possible
to assume that the person is dead, even though he or
she, through mechanical stimulation, may be able to
breathe, his or her heart might be able to beat, and
7 Ibid.
11
he or she may be able to take some form of
nourishment. It is important, thus, that it be
medically proved that a situation where any human
functioning would be impossible should have been
reached for there to be a declaration of brain
death--situations where a person is in a persistent
vegetative state but can support breathing, cardiac
functions, and digestion without any mechanical aid
are necessarily those that will not come within the
ambit of brain death.
116. In legal terms, the question of death would
naturally assume significance as death has a set of
legal consequences as well. As per the definition in
the American Uniform Definition of Death Act, 1980.
an individual who "sustain[s] . . . irreversible
cessation of all functions of the entire brain,
including the brain stem, is dead." This stage,
thus, is reached at a situation where not only
consciousness, but every other aspect of life
regulated from the brain can no longer be so
regulated.
12
117. In the case of `euthanasia', however, the
situation is slightly different. In these cases, it
is believed, that a determination of when it would
be right or fair to disallow resuscitation of a
person who is incapable of expressing his or her
consent to a termination of his or her life depends
on two circumstances:
a.when a person is only kept alive
mechanically, i.e. when not only
consciousness is lost, but the person is
only able to sustain involuntary
functioning through advanced medical
technology--such as the use of heart-lung
machines, medical ventilators etc.
b.when there is no plausible possibility of
the person ever being able to come out of
this stage. Medical "miracles" are not
unknown, but if a person has been at a
stage where his life is only sustained
through medical technology, and there has
been no significant alteration in the
person's condition for a long period of
time--at least a few years--then there can
be a fair case made out for passive
12
euthanasia.
To extend this further, especially when a person is
incapable of being able to give any consent, would
amount to committing judicial murder.
118. In this connection we may refer to the
Transplantation of Human Organs Act, 1994 enacted by
the Indian Parliament. Section 2(d) of the Act
states :
"brain-stem death" means the stage at which
all functions of the brain-stem have
permanently and irreversibly ceased and is
so certified under sub-section (6) of
section 3:"
119. Section 3(6) of the said Act states:
"(6) Where any human organ is to be removed
from the body of a person in the event of his brain-
stem death, no such removal shall be undertaken
unless such death is certified, in such form and in
such manner and on satisfaction of such conditions
and requirements as may be prescribed, by a Board of
medical experts consisting of the following,
12
namely:-
(i) the registered medical
practitioner, in charge of the
hospital in which brain-stem death
has occurred;
(ii) an independent registered medical
practitioner, being a specialist,
to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority;
(iii) a neurologist or a neurosurgeon
to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority; and
(iv) the registered medical practitioner
treating the person whose brain-
stem death has occurred".
120. Although the above Act was only for the purpose
of regulation of transplantation of human organs it
throws some light on the meaning of brain death.
121. From the above angle, it cannot be said that
Aruna Shanbaug is dead. Even from the report of
Committee of Doctors which we have quoted above it
appears that she has some brain activity, though
12
very little.
122. She recognizes that persons are around her and
expresses her like or dislike by making some vocal
sound and waving her hand by certain movements. She
smiles if she receives her favourite food, fish and
chicken soup. She breathes normally and does not
require a heart lung machine or intravenous tube for
feeding. Her pulse rate and respiratory rate and
blood pressure are normal. She was able to blink
well and could see her doctors who examined her.
When an attempt was made to feed her through mouth
she accepted a spoonful of water, some sugar and
mashed banana. She also licked the sugar and banana
paste sticking on her upper lips and swallowed it.
She would get disturbed when many people entered her
room, but she appeared to calm down when she was
touched or caressed gently.
123. Aruna Shanbaug meets most of the criteria for
being in a permanent vegetative state which has
resulted for 37 years. However, her dementia has
12
not progressed and has remained stable for many
years.
124. From the above examination by the team of
doctors, it cannot be said that Aruna Shanbaug is
dead. Whatever the condition of her cortex, her
brain stem is certainly alive. She does not need a
heart--lung machine. She breathes on her own
without the help of a respirator. She digests food,
and her body performs other involuntary function
without any help. From the CD (which we had
screened in the courtroom on 2.3.2011 in the
presence of counsels and others) it appears that she
can certainly not be called dead. She was making
some sounds, blinking, eating food put in her mouth,
and even licking with her tongue morsels on her
mouth.
125. However, there appears little possibility of her
coming out of PVS in which she is in. In all
probability, she will continue to be in the state in
which she is in till her death. The question now is
12
whether her life support system (which is done by
feeding her) should be withdrawn, and at whose
instance?
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT
VEGETATIVE STATE (PVS)
126. There is no statutory provision in our country
as to the legal procedure for withdrawing life
support to a person in PVS or who is otherwise
incompetent to take a decision in this connection.
We agree with Mr. Andhyarujina that passive
euthanasia should be permitted in our country in
certain situations, and we disagree with the learned
Attorney General that it should never be permitted.
Hence, following the technique used in Vishakha's
case (supra), we are laying down the law in this
connection which will continue to be the law until
Parliament makes a law on the subject.
(i) A decision has to be taken to
discontinue life support either by the
parents or the spouse or other close
12
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
12
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
12
involvement of the KEM hospital staff who
have been taking care of Aruna day and night
for 38 years.
However, assuming that the KEM hospital
staff at some future time changes its mind,
in our opinion in such a situation the KEM
hospital would have to apply to the Bombay
High Court for approval of the decision
to withdraw life support.
(ii) Hence, even if a decision is taken by
the near relatives or doctors or next
friend to withdraw life support, such a
decision requires approval from the
High Court concerned as laid down in
Airedale's case (supra).
In our opinion, this is even more
necessary in our country as we cannot rule
out the possibility of mischief being done
by relatives or others for inheriting the
property of the patient.
12
127. In our opinion, if we leave it solely to the
patient's relatives or to the doctors or next friend
to decide whether to withdraw the life support of an
incompetent person there is always a risk in our
country that this may be misused by some
unscrupulous persons who wish to inherit or
otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our
society today and the rampant commercialization and
corruption, we cannot rule out the possibility that
unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show
that it is a terminal case with no chance of
recovery. There are doctors and doctors. While
many doctors are upright, there are others who can
do anything for money (see George Bernard Shaw's
play `The Doctors Dilemma'). The commercialization
of our society has crossed all limits. Hence we
have to guard against the potential of misuse (see
Robin Cook's novel `Coma'). In our opinion, while
giving great weight to the wishes of the parents,
13
spouse, or other close relatives or next friend of
the incompetent patient and also giving due weight
to the opinion of the attending doctors, we cannot
leave it entirely to their discretion whether to
discontinue the life support or not. We agree with
the decision of the Lord Keith in Airedale's case
(supra) that the approval of the High Court should
be taken in this connection. This is in the
interest of the protection of the patient,
protection of the doctors, relative and next friend,
and for reassurance of the patient's family as well
as the public. This is also in consonance with the
doctrine of parens patriae which is a well known
principle of law.
DOCTRINE OF PARENS PATRIAE
128. The doctrine of Parens Patriae (father of the
country) had originated in British law as early as
the 13th century. It implies that the King is the
father of the country and is under obligation to
look after the interest of those who are unable to
13
look after themselves. The idea behind Parens
Patriae is that if a citizen is in need of someone
who can act as a parent who can make decisions and
take some other action, sometimes the State is best
qualified to take on this role.
129. In the Constitution Bench decision of this Court
in Charan Lal Sahu vs. Union of India (1990) 1 SCC
613 (vide paras 35 and 36), the doctrine has been
explained in some details as follows :
"In the "Words and Phrases"
Permanent Edition, Vol. 33 at page 99,
it is stated that parens patriae is the
inherent power and authority of a
legislature to provide protection to
the person and property of persons non
sui juris, such as minor, insane, and
incompetent persons, but the words
parens patriae meaning thereby `the
father of the country', were applied
originally to the King and are used to
designate the State referring to its
sovereign power of guardianship over
persons under disability. Parens
patriae jurisdiction, it has been
explained, is the right of the
sovereign and imposes a duty on the
sovereign, in public interest, to
protect persons under disability who
have no rightful protector. The
connotation of the term parens patriae
differs from country to country, for
instance, in England it is the King, in
13
America it is the people, etc. The
government is within its duty to
protect and to control persons under
disability".
The duty of the King in feudal times to act as
parens patriae (father of the country) has been
taken over in modern times by the State.
130. In Heller vs. DOE (509) US 312 Mr. Justice
Kennedy speaking for the U.S. Supreme Court observed
:
"the State has a legitimate interest
under its parens patriae powers in
providing care to its citizens who are
unable to care for themselves".
131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR
906 (at page 951) Mr. Justice Mathew observed :
" The Court also is `state' within the
meaning of Article 12 (of the
Constitution).".
132. In our opinion, in the case of an incompetent
person who is unable to take a decision whether to
withdraw life support or not, it is the Court alone,
13
as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due
weight.
UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT
APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON
133. In our opinion, it is the High Court under
Article 226 of the Constitution which can grant
approval for withdrawal of life support to such an
incompetent person. Article 226(1) of the
Constitution states :
"Notwithstanding anything in article
32, every High Court shall have power,
throughout the territories in relation
to which it exercises jurisdiction, to
issue to any person or authority,
including in appropriate cases, any
Government, within those territories
directions, orders or writs, including
writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any other
purpose".
134. A bare perusal of the above provisions shows
13
that the High Court under Article 226 of the
Constitution is not only entitled to issue writs,
but is also entitled to issue directions or orders.
135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide
paragraph 4) this Court observed :
"This article is couched in
comprehensive phraseology and it ex
facie confers a wide power on the High
Courts to reach injustice wherever it
is found. The Constitution designedly
used a wide language in describing the
nature of the power, the purpose for
which and the person or authority
against whom it can be exercised. It
can issue writs in the nature of
prerogative writs as understood in
England; but the scope of those writs
also is widened by the use of the
expression "nature", for the said
expression does not equate the writs
that can be issued in India with those
in England, but only draws an analogy
from them. 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
13
unitary form of Government to a vast
country like India functioning under a
federal structure."
136. The above decision has been followed by this
Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani
AIR 1989 SC 1607 (vide para 18).
137. No doubt, the ordinary practice in our High
Courts since the time of framing of the Constitution
in 1950 is that petitions filed under Article 226 of
the Constitution pray for a writ of the kind
referred to in the provision. However, from the
very language of the Article 226, and as explained
by the above decisions, a petition can also be made
to the High Court under Article 226 of the
Constitution praying for an order or direction, and
ot 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
PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH
AN APPLICATION IS FILED
138. When such an application is filed the Chief
Justice of the High Court should forthwith
constitute a Bench of at least two Judges who should
decide to grant approval or not. Before doing so
the Bench should seek the opinion of a committee of
three reputed doctors to be nominated by the Bench
after consulting such medical authorities/medical
practitioners as it may deem fit. Preferably one of
the three doctors should be a neurologist, one
should be a psychiatrist, and the third a physician.
For this purpose a panel of doctors in every city
may be prepared by the High Court in consultation
with the State Government/Union Territory and their
fees for this purpose may be fixed.
139. The committee of three doctors nominated by the
Bench should carefully examine the patient and also
consult the record of the patient as well as taking
the views of the hospital staff and submit its
report to the High Court Bench.
140. Simultaneously with appointing the committee of
doctors, the High Court Bench shall also issue
notice to the State and close relatives e.g.
parents, spouse, brothers/sisters etc. of the
patient, and in their absence 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
earing them, the High Court bench should give its
verdict. The above procedure should be followed
all over India until Parliament makes legislation on
this subject.
141. The High Court should give its decision speedily
at the earliest, since delay in the matter may
result in causing great mental agony to the
relatives and persons close to the patient.
142. The High Court should give its decision
assigning specific reasons in accordance with the
principle of `best interest of the patient' laid
down by the House of Lords in Airedale's case
(supra). The views of the near relatives and
committee of doctors should be given due weight by
the High Court before pronouncing a final verdict
which shall not be summary in nature.
143. With these observations, this petition is
dismissed.
144. Before parting with the case, we would like to
express our gratitude to Mr. Shekhar Naphade,
learned senior counsel for the petitioner, assisted
by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal
Chandra S. Dave, advocates, the learned Attorney
General for India Mr. G. E. Vahanvati, assisted by
Mr. Chinmoy P. Sharma, advocate, Mr. T. R.
Andhyarujina, learned Senior Counsel, whom we had
appointed as amicus curiae assisted by Mr. Soumik
Ghoshal, advocate, Mr. Pallav Shishodia, learned
senior counsel, assisted by Ms. Sunaina Dutta and
Mrs. Suchitra Atul Chitale, advocates for the KEM
Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel
for the State of Maharashtra, assisted by Mr. Sanjay
V. Kharde and Ms. Asha Gopalan Nair, advocates, who
were of great assistance to us. We wish to express
our appreciation of Mr. Manav Kapur, Advocate, who
is Law-Clerk-cum-Research Assistant of one of us
(Katju, J.) as well as Ms. Neha Purohit, Advocate,
who is Law-Clerk-cum-Research Assistant of Hon'ble
Justice Gyan Sudha Mishra. We also wish to mention
the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav
Rangarajan, final year law students in the School of
Excellence, Dr. B.R. Ambedkar Law University,
Chennai, who were the interns of one of us (Katju,
J.) and who were of great help in doing research in
this case.
145. We wish to commend the team of doctors of Mumbai
who helped us viz. Dr. J. V. Divatia, Professor and
Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai; Dr. Roop
Gursahani, Consultant Neurologist at P.D. Hinduja,
Mumbai; and Dr. Nilesh Shah, Professor and Head,
Department of Psychiatry at Lokmanya Tilak Municipal
Corporation Medical College and General Hospital.
They did an excellent job.
146. We also wish to express our appreciation of Ms.
Pinki Virani who filed this petition. Although we
have dismissed the petition for the reasons given
above, we regard her as a public spirited person who
filed the petition for a cause she bona fide
regarded as correct and ethical. We hold her in high esteem.
147. We also commend the entire staff of KEM
Hospital, Mumbai (including the retired staff) for
their noble spirit and outstanding, exemplary and
unprecedented dedication in taking care of Aruna for
so many long years. Every Indian is proud of them.
...................................J.
(Markandey Katju)
..................................J.
(Gyan Sudha Misra)
14
New Delhi:
March 07, 2011
