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Report No. 196

'Advance Medical Directive' is to be defined as follows:

"advance medical directive' (called living will) means a directive given by a person that he or she, as the case may be, shall or shall not be given medical treatment in future when he or she becomes terminally ill."

"Medical Power of Attorney' is to be defined as follows: 407"medical power-of-attorney' means a document executed by a person delegating to another person (called a surrogate), the authority to take decisions in future as to medical treatment which has to be given or not to be given to him or her if he or she becomes terminally ill and becomes an incompetent patient."

Section 4 of the proposed Bill states that the Advance Medical Directive and the Medical Power of Attorney being void and of no effect and shall not be binding on the medical practitioner.

(4) We next come to the substantive provisions of the proposed Bill.

Obviously, the first thing that is to be declared is that every 'competent patient', who is suffering from terminal illness has a right to refuse medical treatment (as defined i.e. including artificial nutrition and respiration) or the starting or continuation of such treatment which has already been started. (section 3(1))

If such informed decision is taken by the competent patient, it is binding on the doctor. (see section 3(2))

At the same time, the doctor must be satisfied that the decision is made by a competent patient and that it is an informed decision. Such informed decision must be one taken by the competent patient independently, all by himself i.e. without undue pressure or influence from others. This aspect will be contained in the proviso to section 3(2).

It must also be made clear that the doctor, notwithstanding the withholding or withdrawal of treatment, is entitled to administer palliative care i.e. to relieve pain or suffering or discomfort or emotional and psychological suffering to the incompetent patient (who is conscious) and also to the competent patient who has refused medical treatment. (section 9)

(5) We next come to (a) 'incompetent patients' and (b) competent patients whose decisions are not informed ones, in respect of whom the doctor is entitled to take a decision for withholding or withdrawal of medical treatment provided it is in the 'best interests' of the patient. (section 5)

Here it is necessary to be very careful so that appropriate decisions are taken and the Act is not abused. We propose to provide that the doctor shall not withhold or withdraw treatment unless he has obtained opinion of a body of three expert medical practitioners from a panel prepared by high ranking Authority. Such a safeguard is necessary in view of the judgment in Bolam. We also wish to provide that where there is a difference of opinion among the three experts, the majority opinion shall prevail. (section 6)

We are also providing that the medical practitioner shall consult the parents or close relatives (if any) of the patient but that their views shall not be binding on the medical practitioner because it is the prerogative of the medical practitioner to take a clinical decision on the basis of expert medical opinion. (see section 5(2))

We also propose another important caution, namely, that the decision to withhold or withdraw must be based on guidelines issued by the Medical Council of India as to the circumstances under which medical treatment in regard to the particular illness or disease, could be withdrawn or withheld. Of course, these guidelines must be consistent with the provisions of the proposed Act. (see section 5(2) and section 14)

We propose in section 14 that it will be necessary for the Medical Council of India to issue guidelines. (The Medical Council of India could consult other expert bodies dealing with critical care such as the Indian Society for Critical Care Medicine which has also issued several guidelines and which, in fact, has requested us to prepare a Report on the subject). The guidelines are to be published in the Gazette of India and on the website of he Medical Council of India.

The attending physician cannot choose experts of his own choice. Here too one has to be careful to see that the experts are duly qualified and have necessary experience. It is, therefore, proposed that the attending physician must choose from a panel prepared by a recognized public authority. This is necessary to ward off complaints of abuse of the system. (section 7)

We propose that the panel of experts must be prepared and published by the Director General of Health Services, Central Government for purposes of the Union Territories and by the Directors of Medicine (or authorities holding equivalent posts) in the States. The panel must contain names of medical experts in different fields who can take decisions on withholding or withdrawing medical treatment.

The experts must have at least 20 years experience and must be of good repute. Those who are subject to disciplinary proceedings or who are found guilty of professional misconduct should not be included by the above Authorities in such panels. But, once the panels are prepared, in our view, the selection of the three experts must be left to the attending medical practitioner. (section 7)

The location of the place of treatment will define the appropriate panel of the relevant State or Union Territory for purposes of selection of experts by the attending medical practitioner. (section 7)

The panel prepared by the above Authorities will be published in the Official Gazette of the Government of India or of the concerned State, as the case may be and also on their respective websites. (section 7)

It shall be necessary for the Medical Practitioner to maintain a register where he obeys the patient's refusal to have the medical treatment or where, in the case of (i) competent or incompetent patient or (ii) a competent patient (who has or has not taken an informed decision) he takes a decision to withhold or withdraw or starting or continuance of medical treatment, he must refer to all these maters in the register.

The register shall contain the reasons as to why he thinks the patient is competent or incompetent, or what the experts have opined, as to why he thinks the medical treatment has to be withheld or withdrawn in the best interests of the patient. He must also record age, sex, address and other particulars of the patient or the expert advice given under section 6 from the panel referred to in section 7.

Before withholding or withdrawing medical treatment under section 5, in the case of incompetent patients and patients who have not taken an informed decision, the medical practitioner, shall inform in writing to the patient (if he is conscious), parents or relatives, about the decision to withhold or withdraw medical treatment in the patient's best interests.

Where such patients, parents or relatives inform the medical practitioner of their intention to move the High Court under section 14, the medical practitioner shall postpone such withholding or withdrawal for fifteen days and if no orders are received from the High Court within that period, he may proceed with the withholding or withdrawing of the medical treatment.

A photocopy of the pages of the register should be lodged immediately with the Director General of Health Services or the Director of Medical Services of the concerned State where the treatment is being given or proposed or is proposed to be withheld or withdrawn, and acknowledgment obtained. The contents of the register shall be kept confidential and not revealed to the public or media.

The said authorities shall also maintain these photocopies in a register but shall keep the information confidential and shall not reveal the same to the public or media.

The said authorities may make rules for the purposes of sections 7 and 8 and publish the same in the appropriate Gazette.

(6) We then come to the crucial provisions of the proposed Bill which will protect the patient in his decision for withholding or withdrawing medical treatment and thereby allowing nature to take its own course. A patient who takes a decision for withdrawal or withholding medical treatment has to be protected from prosecution for the offence of 'attempt to commit suicide' under section 309 of the Indian Penal Code, 1860. This provision is by way of abundant caution because it is our view, as stated in the last chapter, that the very provisions are not attracted and the common law also says that a patient is entitled to allow nature to take its own course and if he does so, he commits no offence. (section 10)

Likewise, the doctors have to be protected if they are prosecuted for 'abetment of suicide' under sections 305, 306 of the Penal Code, 1860 or of culpable homicide not amounting to murder under section 299 read with section 304 of the Penal Code, 1860 when they take decisions to withhold or withdraw life support and in the best interests of incompetent patients and also in the case of competent patients who have not taken an informed decision.

Similarly, where doctors obey instructions of a competent patient who has taken an informed decision for withholding or withdrawing treatment, they should be protected. The hospital authorities should also get the protection. This provision is also by way of abundant caution and, in fact, we have pointed out in the last chapter that the doctors are not guilty of any of these offences under the above sections read with sections 76 and 79 of the Indian Penal Code as of today. Their action clearly falls under the exceptions in the Indian Penal Code, 1860.

We are also of the view that the doctors must be protected if civil and criminal actions are instituted against them. We, therefore, propose that if the medical practitioner acts in accordance with the provisions of the Act while withholding or withdrawing medical treatment, his action shall be deemed to be 'lawful'. (section 11)

Our proposal to treat the doctor's action, in the circumstances mentioned in the Act, as "lawful" requires, as a condition to be satisfied, namely, that the doctor maintains a register as to why he thinks a patient is competent or incompetent, or why a competent patient's decision is an informed one, what the opinion of the three experts is, and why withholding or withdrawing medical treatment is in the best interests according to experts and himself.

Maintenance of such record is mandatory and if such record is not maintained, the protection afforded under this Act is not applicable to him. We are proposing this provision to provide transparency and to have necessary evidence as to why the doctor has acted in a particular manner so that the Act is not abused. (section 8)

(7) In the United Kingdom and other common law countries, the patient, parents or close relatives are entitled to seek declaratory relief in Courts for preventing the doctors or hospitals from withholding or withdrawing medical treatment or sometimes for directing such withholding or withdrawal.

Such declaratory relief is granted in UK and other common law countries when approached by doctors and hospitals where they are of the opinion that it is necessary to withhold or withdraw medical treatment. They seek a declaration that such action be declared 'lawful'.

However, in Airedale (1993), the House of Lords and in Burke (2005), the Court of Appeal made it clear that it is not necessary in every case for the doctors to seek a declaration that the proposed action is lawful. Till a body or precedent is obtained, the medical profession may approach the Courts so that Courts will lay down what is 'good medical practice' in medical parlance. It was also so stated by Thomas J in the New Zealand case referred to by us (Auckland Area Health Board v. AG) (1993). This has already been done in UK.

These principles are, therefore, proposed to be substantially incorporated in the proposed Act. Therefore, we are of the view that only an 'enabling' provision is necessary in this behalf but not a provision which requires a declaratory relief to be obtained mandatorily in every case where the medical treatment is proposed to be withheld or withdrawn. The High Court has to dispose of the original petition in the light of the provisions of the proposed Bill. (section 12)

We are also of the view that time is essence in the case of terminally ill patients when decisions have to be taken under this enabling provision for withholding or withdrawing treatment. To avoid delays and appeals, the Court which deals with these cases must, therefore, be a Division Bench of the High Court and not the ordinary trial Courts. The Division Bench must deal with the matters with the greatest speed but, at the same time, after hearing all concerned and after due consideration. In England, we find decisions are given sometimes almost immediately, soon after notices are served and the declaration is given in 2 or 3 days.

Sometimes, reasons are given later. Therefore, we propose that these petitions be filed before a Division Bench of a High Court and should be disposed of within a maximum period of one month. We propose a provision for the High Court to call for further expert evidence or to examine further witnesses. The High Court can also appoint an amicus curiae. The High Court may even pass orders first and give reasons later. The High Court will be the High Court within whose territorial jurisdiction the medical treatment is proposed to be given or given or withheld or withdrawn.

There is yet another aspect debated in other countries. The question is whether once a declaration is given by the Division Bench of the High Court that such withholding or withdrawal is 'lawful', should it be binding on the civil and criminal Courts in subsequent proceedings. We have referred to a view of the House of Lords and of the other countries that such declarations are not binding, at any rate, on criminal Courts. We have seen that in New Zealand judgment decided by Thomas J in Auckland Area Health Board v. AG (1993), the learned Judge gave a declaration that no criminal offence is committed under the particular section of the New Zealand Criminal Code.

The High Court could be approached by the patient, parents, relatives, doctors or hospitals. The Court could hear all, including the next friend or guardian ad litem as also the amicus curiae.

The declaration given by the High Court must benefit the patient, the medical practitioner and the concerned hospital also.

According to our law of precedents, where there is already a decision of a Division Bench of the High Court declaring the proposed action of withholding or withdrawing medical treatment as lawful, such decisions of the High Court are binding on the subordinate Courts, civil and criminal. In order to prevent harassment in fresh litigation, we propose to make a statutory provision that once a declaration is given by the Division Bench of the High Court, that the action is lawful, it will be binding in subsequent proceedings, civil and criminal. This is permissible because the judgments of Division Benches of High Court are binding precedents on all trial Courts, civil and criminal. (section 12)

(10)(a) There must be a provision preserving the privacy rights of patients and the confidentiality of professional advice. Once a petition is filed in the High Court by patients, parents or relatives or doctors or hospitals, the High Court must soon pass an order for keeping the identity of all persons, including doctors, experts, hospital confidential. In the proceedings of Court or in publications in the law reports or media, the identity of the persons or hospital will not be disclosed and they will have to be described by English alphabet letters as assigned by the High Court. This prohibition holds good during the pendency of the petition in the High Court and even after it is disposed of.

However, when the Court communicates its directions or decisions to the patient, doctor or hospital or experts, it will be necessary to disclose real identity of patient and others. In such situations, the Court communications shall be in sealed covers. (section 13)

We also propose that if any person or body breaches the above provisions as to confidentiality, the High Court may take action for contempt of Court. (section 13)

(b) Even where the matter has not gone to the High Court, no person or body including the media can publish the identity of the patient, doctor, hospital, relatives or experts etc. and must keep identity confidential. If that is breached, they may be liable for civil or criminal action.

(11) As stated earlier, while dealing with sections 5 and 7, there must be provisions mandating the Medical Council to issue guidelines on the question of withholding or withdrawing medical treatment to competent or incompetent patients suffering from terminal illness. It may consult experts and also experts in critical care medicine, before formulating the guidelines. We are also providing that it can modify the same from time to time, and they be published in the Official Gazette. (section 14)

The above recommendations find place in the draft Bill prepared by us and the Draft Bill is contained in the Annexure to this Report.

In the preparation of this Report, we place on record the important suggestions given by Sri S. Muralidhar, Part-time Member of the Law Commission.

We recommend accordingly.

Justice M. Jagannadha Rao

K.N. Chaturvedi

Dated: 31st March, 2006

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

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