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Report No. 196

Chapter VIII

Summary of Recommendations

In the previous chapters, we have considered various important issues on the subject of withholding or withdrawing medical treatment (including artificial nutrition and hydration) from terminally ill-patients. In Chapter VII, we have considered what is suitable for our country. Various aspects arise for consideration, namely, as to who are competent and incompetent patients, as to what is meant by 'informed decision', what is meant by 'best interests' of a patient, whether patients, their relations or doctors or hospitals can move a Court of law seeking a declaration that an act or omission or a proposed act or omission of a doctor is lawful, if so, whether such decisions will be binding on the parties and doctors, in future civil and criminal proceedings etc.

Questions have arisen whether a patient who refuses treatment is guilty of attempt to commit suicide or whether the doctors are guilty of abetment of suicide or culpable homicide not amounting to murder etc. On these issues, we have given our views in Chapter VII on a consideration of law and vast comparative literature.

In this chapter, we propose to give a summary of our recommendations and the corresponding sections of the proposed Bill which deal with each of the recommendations. (The draft of the Bill is annexed to this Report). We shall now refer to our recommendations.

(1) There is need to have a law to protect patients who are terminally ill, when they take decisions to refuse medical treatment, including artificial nutrition and hydration, so that they may not be considered guilty of the offence of 'attempt to commit suicide' under section 309 of the Indian Penal Code, 1860.

It is also necessary to protect doctors (and those who act under their directions) who obey the competent patient's informed decision or who, in the case of (i) incompetent patients or (ii) competent patients whose decisions are not informed decisions, and decide that in the best interests of such patients, the medical treatment needs to be withheld or withdrawn as it is not likely to serve any purpose. Such actions of doctors must be declared by statute to be 'lawful' in order to protect doctors and those who act under their directions if they are hauled up for the offence of 'abetment of suicide' under sections 305, 306 of the Indian Penal Code, 1860, or for the offence of culpable homicide not amounting to murder under section 299 read with section 304 of the Penal Code, 1860 or in actions under civil law.

(2) Parliament is competent to make such a law under Entry 26 of List III of the Seventh Schedule of the Constitution of India in regard to patients and medical practitioners. The proposed law, in our view, should be called 'The Medical Treatment of Terminally Ill Patients (Protection of Patients, Medical Practitioners) Act.

(3) So far as 'definitions' of certain important words are concerned, we propose a number of definitions which will reflect the meaning of various important words.

(a) There must be a definition of 'patient' as a patient who is suffering from 'terminal illness', because we are concerned only with such patients in this Report. (See section 2(a))

(b) There must be a definition of a 'competent patient' and also of an 'incompetent patient'. In this context, we felt that it would be advantageous to give a detailed definition of an 'incompetent patient' (see section 2(d)) and define a 'competent patient' (see section 2(c)) as one who is not an 'incompetent patient'.

So far as the definition of an 'incompetent patient' (section 2(d)) is concerned, we are of the view that the definition must reflect the various aspects covered by C-Test of Justice Thorpe. The definition of 'competent' and 'incompetent patients' must, in our view, be as follows:

(a) "competent patient' means a patient who is not an incompetent patient."

(b) "incompetent patient' means a patient who is a minor or person of unsound mind or a patient who is unable to

(i) understand the information relevant to an informed decision about his or her medical treatment;

(ii) retain that information;

(iii) use or weigh that information as part of the process of making his or her informed decision;

(iv) make an informed decision because of impairment of or a disturbance in the functioning of his or her mind or brain; or

(v) communicate his or her informed decision (whether by speech, sign, language or any other mode) as to medical treatment."

(c) There must be a definition of 'terminal illness' because the question of withholding or withdrawal of medical treatment relates only to such patients (see section 2(m)). In our view, the definition must be as follows:

"terminal illness' means

(i) such illness, injury or degeneration of physical or mental condition which is causing extreme pain and suffering to the patient and which, according to reasonable medical opinion, will inevitably cause the untimely death of the patient concerned, or

(ii) which has caused a persistent and irreversible vegetative condition under which no meaningful existence of life is possible for the patient."

(d) The definition of 'medical treatment' (see section 2(i)) as given to terminally ill patients includes artificial nutrition and hydration. In our view, the definition must be as follows:

"medical treatment' means treatment intended to sustain, restore or replace vital functions which, when applied to a patient suffering from terminal illness, would serve only to prolong the process of dying and includes

(i) life-sustaining treatment by way of surgical operation or the administration of medicine or the carrying out of any other medical procedure and

(ii) use of mechanical or artificial means such as ventilation, artificial nutrition and hydration and cardiopulmonary resuscitation."

(e) There must be a definition of an 'informed decision' (see section 2(e)) which a competent patient is supposed to take about his medical treatment. It must reflect the various aspects referred to by us in the earlier chapters.

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

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