Report No. 196
Proposal in draft Bill:
We, however, propose a section, by way of abundant caution, that in case of a doctor withholds or withdraws medical treatment, i.e. artificial nutrition or hydration, in respect of terminally ill patients, then the act or omission is lawful. If it is 'lawful', it is 'justified by law' for purposes of section 79:-
(a) in the case of competent patient, the patient has refused treatment unless the doctor is satisfied that the patient is not competent or that the patient's decision is not an informed decision.
(b) In the case of an incompetent patient, the doctor has acted in the best interests of the patient and has consulted at least three medical practitioners.
(c) In the case of a competent patient, the patient has not taken an informed decision and the doctor has acted in his best interests, the position is akin to (b).
In fact, in the case of a competent patient whose decision is an informed one, it is the duty of the doctor to go by the patient's refusal as it is binding on him.
(14) a) Guidelines by Medical Council of India: Provisions in proposed Bill is necessary Medical Council may consult expert bodies including Indian Society for Critical Care Medicine:
Medical Council of India has not issued any separate guidelines in relation to the subject under study, except the following:-
The Medical Council of India in exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956, with the previous approval of the Central Government, has made Regulation relating to the Professional conduct, Etiquette and Ethics for medical practitioners, namely, "The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002." Chapter I deals with Code of Medical Ethics.
Regulation 1.1 deals with character of the Physician. According to it, a physician should uphold the dignity and honour of his profession. The prime object of the medical profession is to render service to humanity. Regulation 1.2 deals with the need to maintain good medical practice. It states that he principle of the medical professional is to render service to humanity with full respect for the dignity of profession and man.
Physicians should merit the confidence of patients entrusted to take their care, rendering to each a full measure of service and devotion. Chapter 6 deals with unethical acts. It says that "a physician shall not aid or abet or commit any of the following acts which shall be construed as unethical". Regulation 6.7 declares 'euthanasia' as an unethical act. It reads as follows:
"6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support-system. Such team shall consist of the doctors in charge of the patient, Chief Medical Officer/Medical Officer In- charge of the hospital and a doctor nominated by the in-charge of the hospital staff in accordance with the provisions of the Transplantation of Human Organ Act, 1994."
As per Regulation 7.1, a physician, if he or she commits any violation of these regulations, shall be guilty of professional misconduct and liable for disciplinary action.
Ethics Committee of the Indian Society of Critical Care Medicines has made 'Guidelines for limiting life prolonging interventions and providing palliative care towards the end of life in Indian Intensive care Units. These guidelines are eight in number and read as follows:
i. The physician has a duty to disclose to the capable patient or family, the patient's poor prognosis with honesty and clarity when further aggressive support appears non-beneficial. The physician should initiate discussions on the treatment options available including the option of no specific treatment.
ii. When the fully informed capable patient or family desires to consider palliative care, the physician should offer the available modalities of limiting life-prolonging interventions.
iii. The physician must discuss the implications of forgoing aggressive interventions through formal conferences with the capable patient or family, and work towards a shared decision-making process. Thus, he accepts patient's autonomy in making an informed choice of therapy, while fulfilling his/her obligation to provide beneficent care.
iv. Pending consensus decisions or in the event of conflicts between the physician's recommendations and he family's wishes, all existing supportive interventions should continue. The physician however, is not morally obliged to institute new therapies against his/her better clinical judgment.
v. The discussions leading up to the decision to withhold life-sustaining therapies should be clearly documented in the case records, to ensure transparency and to avoid future misunderstandings. Such documentation should mention the persons who participated in the decisionmaking process and the treatments withheld or withdrawn.
vi. The overall responsibility for the decision rests with the attending physician/intensivist of the patient, who must ensure that all members of the caregiver team including the medical and nursing staff agree with and follow the same approach to the care of the patient.
vii. if the capable patient or family consistently desires that life support be withdrawn, in situations in which the physician considers aggressive treatment non-beneficial, the treating team is ethically bound to consider withdrawal within the limits of existing laws.
viii. In the event of withdrawal or withholding of support, it is the physician's obligation to provide compassionate and effective palliative care to the patient as well as attend to the emotional needs of the family.
We propose a section in the Act requiring medical practitioners to be guided by the Guidelines of the Medical Council of India for purposes of the Act, and the Council may revise and modify the same from time to time. The Guidelines must relate to the principles to be borne in mind by medical practitioners as to the circumstances under which a medical practitioner may withhold or withdraw medical treatment, including artificial nutrition and hydration, in case of patients who are terminally ill. The Guidelines must deal with competent and incompetent patients, informed decisions and best interests and other aspects referred to in this Report and in the draft bill annexed to this Report.
In the Medical Council (Professional Conduct, Etiquette and Ethics) Regulation 2002, a study of Reg. 6.7 gives an impression that a certain procedure indicated there is to be followed. The heading 'Euthanasia' is referable only to the first sentence and does not apply to the rest of Reg. 6.7. No distinction is made between competent and incompetent patients in Reg. 6.7. In fact, it will be useful if a separate set of regulations dealing with 'withholding and withdrawal of life support systems' (which is different from Euthanasia) is prepared and published.
We hope the medical Council of India will make a thorough study of this Report of the Law Commission, the statutes and case law referred to in this Report and in particular in this chapter, before preparing any such guidelines. The guidelines must be consistent with the provisions of the proposed Act.
While evolving guidelines, the Medical Council of India may consult various other expert bodies like the Society for Critical Care Medicine, India Chapter.
We propose a provision in the Bill requiring the Medical Council of India to issue guidelines and publish the same in the Gazette of India.
Draft Medical Treatment (Protection of Patients, Doctors) Bill
We propose a draft of the Bill in the light of the preceding chapters on the subject of 'Medical Treatment (Protection of Patients, Doctors). While preparing this draft, we have kept in mind the Parliamentary legislation on a connected subject, namely, the 'Medical Termination of Pregnancy Act, 1971'.