Report No. 196

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

Contents
Chapter I	Introductory
	Introductory
	The Seminar of April 2005
	Withdrawal of life support is different from Euthanasia or Assisted Suicide
	New method of presentation of legal principles adopted in this Report
Chapter II	Supreme Court of India on Suicide, Euthanasia, Assisted Suicide, Abetment of Suicide, Stopping Life Support Treatment
	Supreme Court of India on Suicide, Euthanasia, Assisted Suicide, Abetment of Suicide, Stopping Life Support Treatment
	Section 309 of the Code makes 'attempt to commit suicide' an offence and it states as follows
	The Supreme Court stated, after the above quotation from Airdale as follows
	Sections 87, 88 and 92 of the Indian Penal Code, 1860
	Section 81 of the Code
Chapter III	Principles of Law Laid Down by The House of Lords in Airedale NHS Trust v. Bland
	Principles of Law Laid Down by The House of Lords in Airedale NHS Trust v. Bland
	After stating that the principle of sanctity of life is important for the State, Lord Keith said it was not absolute. He sai
	Lord Goff of Chievely quoted from Lord Bingham's judgment in the Court of Appeal and the following part of that extract from Lord Bingham's Judgment is important
	Lord Goff went on to further quote the following words of Lord Bingham on informed consent
	Lord Goff continued
	Lord Goff then quotes the crucial reasoning of Lord Bingham as to why stoppage of life support is not an offence
	Significantly, Lord Goff further explains what happens in a withdrawal of life support
	Lord Lowry agreed with Lord Goff
	His lordship concluded
	Lord Browne Wilkinson observed
Chapter IV	Other Cases Decided in UK and Ireland Before and After Airedale
	Other Cases Decided in UK and Ireland Before and After Airedale
1.	Re B (a minor)(wardship: medical treatment): 1981(1)WLR 1421
2.	Re J (a minor) (Wardship: medical treatment): 1990(3) All ER 930
3.	Re C (a minor) (wardship: medical treatment): 1989(2) All ER 782
	Balcombe LJ made another significant remark
4.	Re C (a minor)(Wardship: medical treatment) No.2 (A) 1989(2) All ER 791
5.	Ward of Court, Re a: (1995) ILRM 401)
	He quotes a beautiful passage from the Supreme Court of Arizona in Rasmussen vs. Fleming (1987) 154 Ariz 207 as follows
6.	Law Hospital NHS Trust v. Lord Advocate (Scotland)
	Another distinction peculiar to Scotland, as being a second reason, was stated as follows
7.	In re B (A Minor) (Wardship: Sterilisation): 1988(1) AC 199
8.	In re F (Mental Patient: Sterilisation): 1990(2) AC 1
8A.	Practice Note by Official Solicitor: 1994(2) All ER 413
8B.	Practice Note 1996 (4) All ER 766
9.	Re T (adult: refusal of medical treatment), 1992 (4) All ER 649=1992 (3) WLR 782
	Lord Donaldson MR & Butter Sloss LJ held that
10.	Re C (adult: refusal of medical treatment, 1994 (1) All ER 819(Thorpe J) (14.10.93): C-Test
11.	Frenchay Healthcare NHS Trust v. S: 1994 (2) All ER 403 (CA)
12.	Re Y (Mental capacity: bone marrow Transplant) (1997 (2) WLR 556)
	And finally Calvo J stated
13.	Gillick vs. West Norfolk Wisbech Area Health Authority, 1986 AC 112: 1985(3) All ER 402 (HL)
14.	Re (A minor)(Wardship: Medical Treatment), 1991(4) All ER 177 (CA)(Lord Donaldson of Lymington, Stranghton & Farquharson L.JJ.)
	Lord Donaldson then laid down six principles, which read as follows
15.	Re MB (Medical Treatment), 1997(2) FLR 426
	Butler-Sloss LJ then referred to other Caesarian Section decisions
16.	Re D (Medical Treatment), 1998(2) FLR 1.- (Sir Stephen Brown J) (26 th September, 1997)
17.	Re L (Medical Treatment: Gillick Competency), 1998(2) FLR 810
18.	Siamese Twins case: Re A (Children), 2000 EWCA 254
	Quality of life
	Two childre.- parents wishes relevant subject to welfare principle
	Court's power to review the decision of the decision maker
	Finally Ward LJ concluded (at p 47)
	Brooke and Walker LJJ
19.	Re T (Wardship: Medical Treatment) (CA) 1997(1) WLR 906
20.	Re A (Male Sterlisation), 2000(1)FLR 549: (Butler-Sloss & Thorpe L.JJ)
21.	Ms. B vs. An NHS Hospital Trust: 2002 EWHC 429
22.	Simms Vs An NHS Trust 2002 EW HC 2734
23.	Re SG (Adult mental patient: Abortion: 1991(2) FLR 329
24	Re S (Adult Patient: Sterilisation), 2001 Fam 15 (CA)
25.	Re SS (an adult: Medical Treatment) 2002(1) FLR 73: (Wall J.)
26.	Re S (Hospital Patient: Court's Jurisdiction) (1996 Jan 1)
27.	NHS Trust vs D,2003 EWHC 2793 (Coleridge J.)
28.	An NHS Hospital Trust v. S & others, (2003) EWHC 365
29.	HE v. Hospital NHS Trust & Anor, (2003) EWHC 1017
	As to the law on burden and standard of proof, he held
	Munby J also refers to what Hughes J said in Re AK: 2001(1) FLR 129 (p 134)
	Munby J finally summarised the law regarding 'advance directives' into seven propositions
30.	NHS Trust v. T 2004 EWHC 1279: (Justice Charles) (28th May 2004)
31.	Doncaster & Basset Law Hospitals NHS Trust & Anor v. C: (2004) EWHC 1657
32.	R (Burke) v. The General Medical Council, (2004 EWHC 1879
33.	Portsmouth NHS Trust vs. Wyatt & Others, (2004) EWHC 2247
34.	GMC vs. Burke: (2005) EWCA (Civ) 1003: (CA)
	The learned Judge agreed with Munby J where he had stated as follows
	Having approved this passage from Justice Munby's judgment, Lord Phillips clarified
	The Court of Appeal, in relation to para 81 of the Guidance observed as follows
(i).	Right of patient to select the treatment that he will receive
(ii).	Position of the incompetent patient
(iii).	Is there a legal requirement to obtain Court authorization before withdrawing ANH in every one of the cases specified by Munby J?
Chapter V	Leading Case Law and Statutes in United States of America
	(A) USA (Federal):
1.	Cruzan vs. Director, MDH: (1990) 497 US 261
1.	Having set out the head-note as it occurs in the law report, we shall now refer to certain other important principles laid down in the judgment delivered by Rehinquist C.J
	Scalia J then deals with the dissent by Brennan & Stevens JJ and says
2.	Washington et al vs. Gluckberg et al: (1997) 521 US 702
3.	Vacco, Attorney General of New York et al vs. Quill et al, (1997) 117 SCt 2293
4.	Gonzales, Att. Gen et al v. Oregon et al: US (SC) (d. 17.1.2006)
	Some Legislations in US
1.	The Patient Self Determination Act, 1990: (42 USC 1395 cc(a))
2.	National Pain Care Policy Act, 2005 (US)
	(B) States in US
	States in US
	Other States in US
	South Carolina
	US State Court judgments
Chapter VI	Legal Position in Canada, Australia, New Zealand and South Africa
	Canada
1.	Mallette vs. Schulman: (1990) 72 O.R. (2d) 417(CA): 1991(2)Med LR. 162
2.	Nancy B vs. Hotel-Dieu de Quebec, (1992) 86 DLR (4 th) 385 = 1992 DLR Lexis 1762 decided by the Quebec Supreme Court. (Dufour J)
	The Judge referred to section 217 of the Criminal Code, which says
	One must read section 217 in conjunction with section 45 and 219 of the same Code
3.	Ciarlariello vs. Schacter: 1993(2) SCR 119
4.	Rodriguez vs. The Attorney General of Canada and Others: (1993)(3) SCR 519
	Section 241 of the Criminal Code (RSC 1985, c. C-46) reads as follows
	The learned Judge said
	The learned Judge stated
	It was further observed
	Sopinka J then said
	So far as Medical Care at the end of life is concerned, Sopinka J surveyed the Canadian position as follows
	Sopinka J then quoted from Lord Goff's judgment at pp 368-369 and said
	Sopinka J continued
	Ontario Law Reform Commission
	Subsequent events after Rodriguez
	Australia
	In regard to Australia, we shall first refer to statutes and then to the decided cases
	What the NSW 'interim guidelines' say is as follows
	Case law in Australia
1.	Q vs. Guardianship & Administrative Board & Pilgrim (1998) VS (CA)
2.	Northridge vs. Central Sydney Area Health Service (2000) 2000 NSW (SC) 1241 (O'Keefe J)
3.	Issac Messiha vs. South East Health = 2004 NSW SC 1061
	New Zealand
	New Zealand
	Auckland Area Health Board vs. Attorney General, 1993(1) NZLR 235
	Dyson vs. vs. AG (1911)(1) K B 410 (CA)
	The learned Judge then referred to section 151 of the (NZ) Crimes Act, 1961 which deals with 'Duty to provide necessaries of life'
	Section 164 of the Crime Act, 1961 speaks of 'acceleration of death'. It reads
	South Africa
	South Africa
	Summary of Recommendations
Chapter VII	Legal Principles Applicable in India and Position under Indian Penal Code, 1860
	Legal Principles Applicable in India and Position under Indian Penal Code, 1860
	Principles which are proposed to be discussed in this Chapter for application in our country
1.	Advances in science and technology and concepts of brain-stem death
2.	Euthanasia and Assisted Suicide are and continue to be criminal offences in India but not withdrawal of life support systems, under certain circumstances
	Euthanasia however permitted in a few countries
	Assisted suicide permitted in Oregon
3.	Adult patients' right of self determination and right to refuse treatment is binding on doctors if based on informed consent
	The C-Test and 'competency'
	Advance Directive (create complex problems)
	Munby J initially referred to the efficacy of the Advance Directive as follows
	Munby J also referred to what Hughes J said in Re AK: 2001(1) FLR 129 (p 134)
	Question arises whether Advance Directives (Living will) should be allowed legal sanctity in our country?
	Medical Powers of Attorney
	In Airedale, the House of Lords clearly declared by affirming the decision of the Court of Appeal that
	Hamilton CJ of the Ireland Supreme Court stated in Ward of Court, Re a: 1995 (ILRM) 401, that
	Scalia J then deals with the dissent by Brennan & Stevens JJ and says
	Summary
	Competent and incompetent patients
	'Informed decision'
	'Best of interests'
	Re C: (adult: refusal of medical treatment): 1994(1) All ER 819: (competency of patient)
	Summary
	In Airedale case, the declarations granted by the Court of Appeal, which were affirmed by the House of Lords, were as follows
	The Practice Directive in 1994 (2) All ER 413: of the official Solicitor spells out the form of declaration
	The Diagnosis
	Applications to Court
	The parties
	The evidence
	The views of the patient
	Consultation
	Frenchay Healthcare NHS Trust v. S: 1994 (2) All ER 403 (CA)
	Lord Donaldson in Re C (a Minor) (Wardship: medical treatment): 1989 (2) All ER 782 pointed out as follows
	Criminal Law
	Section 309: attempt to commit suicide
	Section 299: culpable homicide
	Competent patient: Informed decision
	Competent patient: No informed decision
	Incompetent patient
	Section 76reads as follows
	Section 81: (exception)
	Civil Liabilit.- Torts
	Proposal in draft Bill
Chapter VIII	Summary of Recommendations
	Summary of Recommendatsions
	In our view, 'informed decision' must be defined as follows
	Advance Medical Directive' is to be defined as follows
	Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)
Annexure	The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006
1.	Short title, extent and commencement
2.	Definitions
3.	Refusal of medical treatment by a competent patient and its binding nature on medical practitioners
4.	Advance Medical Directives as to medical treatment and Medical Power of Attorney to be void and not binding on medical practitioner
5.	Withholding or withdrawing of medical treatment by medical practitioner in relation to a competent patient who has not taken an informed decision and in relation to an incompetent patient
6.	Expert medical opinion to be obtained by medical practitioner for purposes of section 5
7.	Authority to prepare panel of medical experts for purposes of section 6
8.	Medical Practitioner to maintain register and inform patient, parents etc
9.	Palliative care for competent and incompetent patients
10 and 11.	Protection of competent patients from criminal action in certain circumstances
12.	Enabling provision for seeking declaratory relief before a Division Bench of the High Court
13.	Confidentiality for purposes of sections 12 and 13
14.	Medical Council of India to issue Guidelines