AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 196

(A) Criminal Law:

We have, in a way dealt with the questions briefly in Chapter II where we referred to Gian Kaur v. State of Punjab, 1996 (6) SCC 648. We have dealt with 'Euthanasia' and its various forms and 'Assisted Suicide' in various countries in this Chapter. We have again referred in the same Chapter VI to the scope and effect of a declaration by the Court that withdrawal of life support systems, in certain circumstances is lawful.

We shall first refer to the specific provisions of the Indian Penal Code, 1860 which are relevant in this connection.

Inasmuch as the Supreme Court in Gian Kaur specifically stated that Euthanasia and Assisted Suicide are not lawful, it is obvious that so far as Euthanasia and Assisted Suicide are concerned, they will fall within one or other of the penal provisions and continue to be unlawful and we do not propose going to Euthanasia and Assisted Suicide.

We shall confine ourselves to discussing the cases of stoppage of life sustaining treatment to patients.

As seen in the foregoing chapters, the issue arises with regard to different categories of patients as stated below:

(a) Competent patients: position o f patients and doctors: No offence committed under Indian Penal Code, 1860:

The discussion under (a) must necessarily start with the principle repeatedly laid down in several countries that under common law that a patient has to give his consent (informed consent) to medical treatment, including invasive treatment. Likewise, if a patient refuses medical treatment and wants nature to take its own course, his right to refuse such treatment is accepted by the common law and is binding on the doctors, provided the decision is an informed decision. We shall elaborate..

If a competent patient states that the medical treatment being given to him or her is to be continued, the doctors are bound by the patient's decision and cannot discontinue the treatment. At the same time, it is well settled that it is not for the patient to require a doctor to give him a particular medical treatment where the doctor is of the view that that is not the appropriate treatment.

When the patient is competent and wants withholding or withdrawal of treatment, that decision is also binding on the doctors provided the doctor is satisfied that the patient is competent and that this decision of the patient is an informed one, i.e. that the patient has been informed about the granting or otherwise of the ailment, and the medicine or treatment available, patient is able to retain the information, weigh the pros and cons, and take an informed decision.

But where the doctor is satisfied that the competent patient's decision is not an informed decision, or that it is based on wrong assumption or prejudices, phobia or hallucinations, then the doctor can ignore the patient's decision and decide what is in the best interests of the patient according to the view of a body of medical experts.

The common law accepts that once the patient instructs the doctor that he is not willing for treatment, that decision is binding on the doctor and if a doctor attempts to treat or treats a patient against his will, it will amount to battery and in some cases, if death ensures, he may also be liable for the offence of murder. While it is true that doctors have a duty by virtue of their profession to treat a patient and omission to treat may, in certain circumstances, be an offence still, where the doctor obeys the competent patient's instructions, he is absolved of his professional duty and his omission will not be an offence.

In case the patient who refuses medical treatment and the doctor's precluded from administering medical treatment, the doctor must however be satisfied that the patient has taken an informed decision or the decision is voluntary. We have seen cases where a patient refuses blood transfusion on ground that such blood is evil, or because of needle phobia.

If such is the case, the patient's refusal is not binding on the doctor and if he thinks that the best interests of the patient requires treatment, he is not committing any offence even if the treatment is contrary to the patient's desire. There may also be cases like Jehovah's witnesses who abhor blood transfusion but if a patient has no such faith but his parent belongs to that faith and has forced his or her views on the patient, then the refusal of the patient is not binding.

With reference to competent patients under category (a), let us see if the patient or the doctor is guilty when these principles are correctly applied.

Criminal Law



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




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys