Report No. 196
In our view, 'informed decision' must be defined as follows:
"informed decision' means the decision as to starting or continuance or withholding or withdrawing medical treatment taken by a patient who is competent and who is, or has been informed about
(i) the nature of his or her illness,
(ii) any alternative form of treatment that may be available,
(iii) the consequences of those forms of treatment, and
(iv) the consequences of remaining untreated."
(f) There must be a definition of 'best interests' of the patient (see section 2 (b)) i.e. in regard to (i) an incompetent patient, in regard to whom the doctor takes a medical decision in the patient's best interests, (ii) competent patients whose decision is not an informed one. The definition should reflect the meaning given by Justice Thorpe, Dame Butler-Sloss and others in decided cases referred to by us where it is said that the best interests are not confined to medical interests but include the ethical, social, moral, emotional and other welfare considerations of the patient.
In our view, the definition of 'best interests' must be as follows: "best interests' include the best interests of a patient
(i) who is an incompetent patient, or
(ii) who is a competent patient but who has not taken an informed decision, and are not limited to medical interests of the patient but include ethical, social, moral, emotional and other welfare considerations."
(g) 'Palliative care' (see section 2(k)) is permissible to be given by doctors for securing relief from pain and suffering even where the doctor obeys the informed decision of a competent patient to withhold or withdraw the medical treatment. This definition must also be applicable to 'incompetent patients' who are conscious and who are not in a persistent vegetative state. Hence, a definition of 'palliative care' is proposed to be included.
We are of the view that a definition of 'palliative care' must be introduced as follows:
"palliative care' includes
(i) the provision of reasonable medical and nursing procedures for the relief of physical pain, suffering, discomfort or emotional and psycho-social suffering.
(ii) the reasonable provision for food and water."
(h) There should be a definition of 'medical practitioner' (see section 2(g)). We are adopting the definition in the Medical Termination of Pregnancy Act, 1971.
It reads as follows:
"medical practitioner' means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and who is enrolled on a State Medical Register as defined in clause (k) of that section."
(i) There needs to be a definition of 'minor' (see section 2(j)) as defined in the Indian Majority Act, 1875 (4/1875) because a patient who is a minor is 'incompetent'.
"minor' means a person who, under the provisions of an Indian Majority Act, 1875 (4 of 1875) is to be deemed not to have attained majority."
(j) For the reasons stated in the last chapter, we propose to declare 'Advance Medical Directives' as well as 'Medical Powers of Attorney' (Living Will) void for the reasons given in Chapter VII and hence both of these need to be defined. (see section 2(a) and section 2(h))