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Report No. 196


From the above case law, it is clear that where a competent patient who is adequately informed, refuses treatment, the doctors are bound by his refusal. But in cases of minors, incompetent persons and PVS patients, the doctor must consider whether giving or continuing or withdrawing treatment is in the best interests of the patient. A balance sheet of advantages and disadvantages has to be drawn as stated by Thorpe J in Re A: 2000(1) FLR 549. The best interests are not confined to medical interests but encompass ethical, social, emotional and welfare considerations.

There cannot be any single test of what is in the best interests of an incompetent patient but it must depend upon a variety of considerations depending upon the facts of the case. Where a patient is not competent, it is lawful for doctors to take a decision to give, withhold or withdraw medical treatment if they consider that to be the appropriate action to be taken in the best interests of the patient. We propose to define 'competent and 'incompetent' patients, 'informed decision' and 'best interest' in the proposed Bill.

(9) Three experts to be consulted in the case incompetent persons (or competent persons who did not make informed decision) to be drawn from panel prepared by proposed statutory authority.

In our view, before the doctor takes a decision in 'best interests' of an incompetent patient or of a competent patient whose decision is not an informed one, expert opinion of three experts must be obtained from experts in the field. Such experts must be drawn by from a panel prepared by a high ranking authority.

While it is, according to us, mandatory for the doctors to consult three specialists who are experts in the treatment of the particular disease from which the terminally ill patient is suffering and while the three experts, according to us, must have atleast 20 years experience, we cannot allow any expert to be consulted at the choice of the above experts. The experts must be selected from a panel which has statutory force. This is intended to avoid malpractices and abuse of the legal provisions.

Experts who are under disciplinary action or have been found to be guilty of professional misconduct have to be excluded from he panels. The doctors are allowed to select the experts from the panel prepared by the Director of Medical and Health Services in each State or the Director-General of Medical and Health Services from Union Territories. The nomination of the three experts in a given case need not be by the Director of Medical and Heath Services of the States of the Director General of Medical and Health Services but can be made by the attending doctor.

These three experts to be empanelled as stated above, must be necessarily be medical experts in different subjects or disciplines relating to medicine and surgery with atleast 20 years experience. We, therefore, propose that the above authorities must prepare the panel of experts and that the said authorities may review and modify the panels from time to time. We also propose provision that consultation with three experts is mandatory. If medical treatment is withheld or withdrawn without such consultation, the action will not be lawful under the proposed law.

(10 & 11) Court's power to grant a declaration whether the giving or withholding or withdrawing medical treatment is 'lawful' and whether it is binding on a civil or criminal Court in latter proceedings: Whether it is mandatory to seek declaration from Court in every case?

In England and other countries, the doctors or hospitals approach the Court for a declaration that any decision by hem for withholding or withdrawing medical treatment be declared lawful. Again, parents of a patient, whether the patient is minor or not, can also move the Court, if they disagree with the doctor. The parents may want the artificial treatment be still continued or in some cases, discontinued. They can also approach Courts.

In Airedale, Lord Keith of Kinkel observed that it is permissible for doctors or hospitals to seek declarations from Court on the question of lawfulness or otherwise of withdrawal of life-support systems. Initially he observed:

"It is of some comfort to observe that in other common-law jurisdictions, particularly in the United States where there are many cases on the subject, the Courts have, with near unanimity, concluded that it is not unlawful to discontinue medical treatment and care, including artificial feeding, of PVS patients and other in similar conditions."

He then pointed out that it is permissible to move the Family Court seeking a declaration, to protect the interests of patients, doctors and the families of patients and as a matter of reassurance to the public. This was necessary till a body of case law relating to just 'medical practice' containing legal principles is evolved. He said:

"The decision whether or not the continued treatment and care of a PVS patient confers any benefit on him is essentially one for the practitioners in charge of his case. The question is whether any decision that it does not and that the treatment and care should therefore be discontinued as a matter of routine be brought before the Family Division for endorsement or the reverse.

The view taken by Sir Stephen Brown and the Court of Appeal was that it should, at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case. As Sir Thomas Bingham MR said, this would be in the interests of the protection of patients, the protection of doctors, the reassurance of the patient's families and reassurance of the pubic. I respectfully agree that these considerations render desirable the practice of application."

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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