Report No. 196
(B) Section 76reads as follows:
"Section 76: Act done by a person bound by mistake of fact believing him bound by law: Nothing is an offence which is done by a person who is, cited by reason of a mistake of fact and not by reason of a mistake of law in good faith believe himself to be, bound by law to do it."
We are referring to this section because the "Guidelines for limiting life-prolonging interventions and providing palliative care towards the end of life in Indian Intensive Care Units" (Extensive study of the Position Statement of the Ethics Committee of India Society of Critical Care Medicine) contains an appendix (Legal Provisions in Indian Law for Limiting Life Support), in which section 76 has been discussed. (Appendix was prepared by Sri S. Balakrishnan, Senior Advocate, Supreme Court and Sri R.K. Mani, Consultant Pulmunologist and Intensivist.
In our view, section 76 is attracted to the case of doctors taking action to withhold or withdraw treatment in the case of refusal to medical treatment by a competent patient. Such refusal being binding on the doctor (provided, of course, the doctor is satisfied that the patient is competent and the patient's decision is an informed one). In such cases section 76 brings the doctor's action under the exception.
(C) Section 79: (exception) "Section 79: Nothing is an offence which is done by any person who is justified by law or by reason of mistake of fact and not by reason of mistake of law in good faith, believes himself to be justified by law in doing it."
The act of withholding or withdrawing medical treatment in all the cases (i), (ii) and (iii) above will fall under the exception if the said act is "justified by law".
This section applies to the doctor's action in the case of both competent and incompetent patients.
In our view, in the light of the judgment in Gian Kaur of the Supreme Court, Airedale of the House of Lords and Cruzan of the American Supreme Court and judgments in Canada, Australia and New Zealand, the common law confers a duty on the doctor to withhold or withdraw treatment if so instructed by a competent patient.
In the case of a competent patient who has not taken an informed decision and in the case of an incompetent patient, the doctors are justified, under the circumstances to withdraw treatment if it is in the best interests of the patient. Hence the action is 'justified by law' and in all cases (i), (ii) and (iii), he is protected by section 79 first part. If he is mistaken in his decision to withdraw life support, and the decision is in good faith, he is protected by second part of section 79, both in the case of competent and incompetent patients.
In respect of section 79, Raj Kapoor vs. Laxman: AIR 1980 SC 605 decided the meaning of the words "justified by law". It was observed:
"The position that emerges is this. Jurisprudentially viewed, an act may be an offence, definitionally speaking: but a forbidden act may not spell inevitable guilt if the law itself declares that in certain circumstances, it is not to be regarded as an offence. The Chapter on General Exception operates in this provision. Section 79 makes an offence a non-offence. When? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified.
It is also stated, after referring to dictionary that "Lexically the sense is clear. An act is justified by law if it is warranted, validated and made blameless by law."
In the light of the Judgment in Gian Kaur, Airedale, Cruzan & other cases referred to in the previous Chaper read with Raj Kapoor, the withholding or withdrawal of life support system in the case of competent patient on account of the patient's refusal to treatment, and in the case of incompetent patients (and 'competent patients' whose decision is not informed) if the action was in the patient's best interests,- then the act of omission of the doctor is lawful, i.e. 'justified by law'. Hence the doctors are protected.