Report No. 241
13. Changes now proposed in the draft Bill
13.1 In Section 2(d.- (definition of 'incompetent patient') the words "below the age of 16 years" are now added.
13.2 Two changes are proposed to be made to Section 3. One is to treat the informed decision taken by a patient above 16 years (but below 18 years) at par with the decision taken by a competent patient subject to the condition that in such a case, the major spouse and one of the parents or major son or daughter of such patient has given consent for discontinuance of treatment.
Having regard to the level of understanding and capacity of the present generation youngsters, it is considered appropriate to introduce this provision, subject to the additional safeguard of consent of spouse and parents so that such patients need not have to experience the torments of suffering for a longer period.
13.3 Secondly, a 2nd proviso is added to Section 3 to make it obligatory on the part of the doctor to inform the spouse or close relation of the patient regarding the decision taken or request made by the competent patient and to desist from discontinuance of treatment for a period of three days thereafter. This time gap may be necessary for facilitating further deliberations among the patient and relations.
13.4 Section 7 (renumbered as Section 4)
(i) Omit the words 'section 6' and substitute 'this Act'.
(ii) Sub-section (2) of Section 7 (renumbered Section 4) shall be recast as follows:
The panel referred to in Sub-section 7 shall include experienced medical experts in various branches such as medicine, surgery, critical care medicine or any other speciality as decided by the said authority.
(iii) Sub-sections (3) and (4) of Section 7 (renumbered Section 4) may be omitted as this provision is either unnecessary or may unduly fetter the freedom of choice conferred on the high medical authority of the Centre or the State.
(iv) The following provision to be added as sub-section (3) to Section 4 (old Section 7):
The Director General of Health Services may consult the Directors of Medical Services or the equivalent rank officers in regard to the composition of panel in order to ensure uniformity, as far as practicable.
In sub-section (5) of Section 7 (renumbered sub-section (4) of new Section
(4), the reference to 'official Gazette' to be omitted as it does not serve any useful purpose.
13.5 Section 8 (renumbered Section 5) to be recast as follows:-The words 'in a register' occurring in sub-Section (1) of Section 8 may be omitted as they are not quite appropriate. After clause (c) of Sub-section (1), the words "as to the expert advice received" to be omitted. In view of the changes now suggested in the light of Supreme Court judgment, the said expression becomes irrelevant because the expert opinion has to be obtained by the High Court.
In their place, the words 'and the name of spouse or other close relation found to be with patient regularly' to be substituted in the last para of Sub-section (1) of Section 8 (renumbered Section 5). In Sub-section (2) of Section 8 (new Section 5), instead of the word 'decision' the words "need or otherwise" has to be substituted. Sub-sections (3) to (6) of Section 8 (new Section 5) are to be omitted as they are irrelevant in view of the main change suggested.
13.6 In Section 11 (renumbered Section 8), clause (b) to be omitted and in the existing proviso occurring after sub-clause (ii) of Section 11 (new Section 8), the words "Sections 5 & 6' to be omitted and only Section 8 to be retained. The words "notwithstanding anything in any other law" has also been added to the closing sentence of Section 11 [after clause (ii)]. This is by way of abundant caution.
13.7 The most crucial change is with reference to Section 12. Section 12 (renumbered as Section 9) to be substituted as follows:"
Section 9 : Permission to be obtained from the High Court and the procedure
(1) Any near relative, next friend, legal guardian of patient, the medical practitioner or the para-medical staff generally attending on the patient or the management of the hospital where the patient has been receiving treatment or any other person with the leave of Court, may apply to the High Court for granting permission for withholding or withdrawing medical treatment of an incompetent patient or a competent patient who has not taken informed decision.
(2) Such application shall be treated as Original Petition and the Chief Justice of High Court shall assign the same to a Division Bench without any loss of time and the same shall be disposed of by the High Court as far as practicable within a month, provided that a letter addressed to the Registrar-General or Judicial Registrar of High Court by any of the persons above mentioned containing all the material particulars seeking the permission under sub-section (1) shall be placed before the Chief Justice without delay and the letter shall be treated as original petition.
(3) The Division bench of the High Court may, wherever it deems it necessary, appoint an amicus curiae to assist the Court and where a patient is unrepresented, direct legal aid to be provided to such patient.
(4) The High Court shall take necessary steps to obtain the expert medical opinion of three expert medical practitioners whose names are found in the panel prepared under Section 4 or any other expert medical practitioner if considered necessary and issue appropriate directions for the payment to be made towards the remuneration of the experts.
(5) The High Court shall, having due regard to the report of panel of experts and the wishes of close relations or legal guardian or in their absence such other persons whom the High Court deems fit to put on notice and on consideration of the best interests of the patient, pass orders granting or refusing permission or granting permission subject to any conditions.
(6) The medical practitioner or the hospital management or staff who in accordance with the order of High Court, withholds or withdraws medical treatment to the patient concerned shall, notwithstanding any other law in force, be absolved of any criminal or civil liability.
13.8 The present Law Commission feels that it is safer and desirable to follow the procedure laid down by the Supreme Court in Aruna's case so that the High Court's approval will be a condition precedent for stopping the life-supporting measures. The question of obtaining the opinion of panel of experts will arise only when the High Court's approval is sought by the close relations, next friend or attending doctor/hospital. The Supreme Court, following the dicta in Airedale and other cases, considered it appropriate to confer the parens patriae jurisdiction on the High Court.
The Law Commission, (in its 196th Report) also drew support from the English cases decided by the highest courts in U.K. to provide for an enabling provision seeking declaratory relief in the High Court after the medical practitioner informs the relatives about the proposed discontinuance of life-sustaining treatment to the terminally ill patient based on the expert medical advice he obtained. The present Commission is inclined to lean in favour of the view taken by the Supreme Court as it will allay the apprehensions expressed by the Court (vide para 125 of SCC).
Further, when the right to life dimension has to be addressed, it is desirable that the High Court undertakes the responsibility of weighing the pros and cons on the basis of expert medical advice, etc. and take an appropriate decision. In fact, one of the Members of the Commission, Shri Amarjit Singh, has also expressed the apprehension that having regard to the socio-economic conditions in our country, the greedy relations who are interested in the wealth of the critically ill patient may stoop to malpractices with a nefarious design to hasten the process of death.
The manipulations that could possibly be made by the greedy relations with the help of accommodative doctors has also been adverted to by the ld. Judges of the Supreme Court in Aruna's case. Keeping all these factors in view, we have deviated from the recommendation in the 196th Report, to this extent.
13.9 There is a view point that the approach to the High Court may involve cost and the decision will get unnecessarily delayed. Instead of that, the procedure suggested by the 17th Law Commission would be a better alternative. Though this point of view is not without force, on weighing the pros and cons, the Commission prefers the course adopted by the Supreme Court in Aurna's case. At this stage, it cannot be assumed that the proceedings in the High Court will get delayed.
Having regard to the time limit prescribed and even otherwise in view of the nature of the case and its sensitivity, the High Court will certainly give top priority to such matters. As far as the cost is concerned, legal aid is available to women, disabled persons, SCs and STs and those in low income groups under the provisions of Legal Services Authorities Act. Further, the High Court is enabled to act on the basis of a letter and the Court can also appoint amicus curiae to assist the Court in the absence of any advocate for the petitioner.
When the court is exercising parens patriae jurisdiction, as said by the Supreme Court, the stakeholders will not suffer any handicap in terms of legal assistance as the Court will ensure the same. The experience will tell us if the procedure now envisaged is working alright and needs any change. What all the Commission would like to say at this stage is that it is worth trying.
13.10 However, we would like to enter a caveat in regard to the methodology suggested by the Supreme Court as regards the selection of the panel of experts. The Commission is of the view that the High Court should not be burdened with the task of preparation of panels of medical experts from time to time. The better and more expedient course would be as suggested by the Law Commission in its 196th Report.
The panel shall be prepared by the highest medical body of the Centre or the State. Further, the composition of such expert panel, i.e., which specialists are to be included in the panel or whether there should be more than one combination is best left to the Director General or Director of Medical Services who are expert officials.
Therefore, it is better that the Director General / Director of Medical Services decides on the composition of panel and prepare a list of experts from different fields. The High Court will nominate the experts as per the panel prepared by the said authorities subject to the residual discretion to nominate any other expert in addition to or in the place of any expert.
13.11 Secondly, the Hon'ble Supreme Court discussed at length the plenitude of jurisdiction of the High Courts under Article 226 of the Constitution to pass appropriate orders in the matter of dealing with cases of this nature. In the English cases cited in the judgment of Supreme Court as well as the Law Commission's earlier Reports, it is observed that the person concerned can approach the Family Division of the High Court for a declaratory relief.
While a Writ Petition under Art.226 can be entertained by the High Courts by virtue of the judgment in Aruna's Case till a legislation is made, it would be more appropriate to provide for a special remedy under the original jurisdiction of the High Court. As suggested in the 196th Report, it is desirable to specifically provide for an Original Petition to cover this category of cases. Incidentally, it will dispel plausible arguments on the maintainability of Writ Petition against private bodies or persons.
Of course whether it is original petition or Art. 226 petition, the approach will be the same. As specific jurisdiction is being invested with the High Court by a specific provision, the High Court will exercise jurisdiction under that special provision of the Act rather than proceeding under Art. 226. At the same time, we have suggested the insertion of a provision under which even a letter addressed to the Registrar of the High Court can be taken cognizance of.
13.12 The Commission is of the view that a letter addressed to the Registrar General of High Court containing all the material particulars filed by those desirous of seeking the High Court's approval for the proposed withdrawal of life support to an incompetent patient, shall be treated as Original Petition without insisting on formalities. The said letter shall be placed before the Hon'ble Chief Justice and acted upon.
13.13 Accordingly, the changes in Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 are proposed by the present Law Commission in this report and the Bill, as modified and recast, is at Annexur.- I.
