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Report No. 241

5. The Bill proposed by 17th Law Commission and its features

5.1 We shall start our discussion by taking an overview of the Law Commission's 196th Report and the main features of legislation suggested by the Law Commission under the titl.-"Medical Treatment to Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill 2006" (vide Annexur.- II).

At the risk of repetition, we may mention that the main difference between the recommendations of the Law Commission (in 196th Report) and the law laid down by the Supreme Court (pro tempore) lies in the fact that the Law Commission suggested enactment of an enabling provision for seeking declaratory relief before the High Court whereas the Supreme Court made it mandatory to get clearance from the High Court to give effect to the decision to withdraw life support to an incompetent patient.

The opinion of the Committee of experts should be obtained by the High Court, as per the Supreme Court's judgment whereas according to the Law Commission's recommendations, the attending medical practitioner will have to obtain the experts' opinion from an approved panel of medical experts before taking a decision to withdraw/withhold medical treatment to such patient. In such an event, it would be open to the patient, relations, etc. to approach the High Court for an appropriate declaratory relief.

5.2 The 196th Report of the Law Commission stated the fundamental principle that a terminally ill but competent patient has a right to refuse treatment including discontinuance of life sustaining measures and the same is binding on the doctor, "provided that the decision of the patient is an 'informed decision' ". 'Patient' has been defined as a person suffering from terminal illness. "Terminal illness" has also been defined under Section 2 (m). The definition of a 'competent patient' has to be understood by the definition of 'incompetent patient'.

'Incompetent patient' means a patient who is a minor or a person of unsound mind or a patient who is unable to weigh, understand or retain the relevant information about his or her medical treatment or unable to make an 'informed decision' because of impairment of or a disturbance in the functioning of the mind or brain or a person who is unable to communicate the informed decision regarding medical treatment through speech, sign or language or any other mode (vide Section 2(d) of the Bill, 2006).

"Medical Treatment" has been defined in Section 2(i) as 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 life sustaining treatment by way of surgical operation or the administration of medicine etc. and use of mechanical or artificial means such as ventilation, artificial nutrition and cardio resuscitation. The expressions "best interests" and "informed decision" have also been defined in the proposed Bill.

"Best Interests", according to Section 2(b), includes the best interests of both on incompetent patient and competent patient who has not taken an informed decision and it ought not to be limited to medical interests of the patient but includes ethical, social, emotional and other welfare considerations.

The term 'informed decision' means, as per Section 2 (e) "the decision as to continuance or withholding or withdrawing medical treatment taken by a patient who is competent and who is, or has been informed abou.- (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".

5.3 At this juncture, we may mention that this terminolog.- 'informed decision' has been borrowed from the decided cases in England (UK) and other countries. It broadly means that the lack of capacity to decide (inspite of consciousness of the patient) has precluded him from taking 'informed decision'. though the patient might be conscious. The said definition of 'informed decision' can be best understood by reference to one or two illustrative cases cited by the Commission in the 196th Report.

In Re: MB (Medical Treatment)11997 (2) FLR 42.- a Court of appeal decision rendered by Butler Sloss L.J., had this to say after considering the facts of that case: On the facts, the evidence of the obstetrician and the consultant psychiatrist established that the patient could not bring herself to undergo the caesarian section she desired because a panic-fear of needles dominated everything and, at the critical point she was not capable of making a decision at all. On that basis, it was clear that she was at the time suffering from an impairment of her mental functioning which disabled her and was temporarily incompetent.

(emphasis supplied)

Furthermore, since the mother (pregnant lady) and father wanted the child to be born alive and the mother (the pregnant lady) was in favour of the operation, subject only to her needle phobia, and was likely to suffer long term damage if the child was born handicapped or dead, it must follow that medical intervention was in the patient's best interests, with the use of force if necessary for it to be carried out. In these circumstances, the judge was right in granting the declaration.

5.4 On the question of capacity to decide, the Court of Appeal quoted Lord Donaldson in the case of Re: T (An Adult) (Refusal of Medical Treatment.- a 1992 decision on the same point:-"The right to decide one's own fate presupposes a capacity to do so. Every adult is presumed to have that capacity, but it is a presumption which can be rebutted. This is not a question of the degree of intelligence or education of the adult concerned.

However, a small minority of the population lack the necessary mental capacity due to mental illness or retarded development (see, for example Re F (Mental Patient) (Sterilization)11990 (2) AC 1. This is a permanent or at least a long term state. Others who would normally have that capacity may be deprived of it or have it reduced by reason of temporary factors, such as unconsciousness or confusion or other effects of shock, severe fatigue, pain or drugs used in their treatment."

5.5 In another case which is also a case of caesarian operatio.- Rockdale Healthcare Trust cited by Butler Sloss L.J., it was found that the patient was not capable of weighing up information that she was given as she was "in the throes of labour with all that is involved in terms of pain and emotional stress".

5.6 Butler Sloss L.J. laid down inter alia the following propositions on the capacity of a woman to decide in the context of caesarian cases:

"A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.

If, as Thorpe J observed in Re C (above), a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one."

5.7 The Consultation Paper of the Law Commission of U.K. has adopted a similar approach in dealing with the subject of "Mental Capacity" and this has been referred to by Butler Sloss L.J. The definition of 'informed decision' given in the 196th Report of Law Commission of India is almost on the same lines as what Butler Sloss L.J. said and the Law Commission of U.K. suggested in 1995.

5.8 The Law Commission of India clarified that where a competent patient takes an 'informed decision' to allow nature to have its course, the patient is, under common law, not guilty of attempt to commit suicide (u/s 309 IPC) nor is the doctor who omits to give treatment, guilty of abetting suicide (u/s 306 IPC) or of culpable homicide (u/s 299 read with Section 304 of IPC).

5.9 As far as (i) incompetent patients as defined above and (ii) competent patients who have not taken 'informed decision', a doctor can take a decision to withhold or withdraw 'medical treatment' if that is in the 'best interests' of the patient and is based on the opinion of a body of three medical experts. The 'best interest' test, stated by the Law Commission, is based on the test laid down in Bolam's case, {1957) 1 WLR 58.-a test reiterated in Jacob Mathew's case, (2006) 5 SCC 472 by the Supreme Court.

The procedure for the constitution of the body of experts has been set out in detail. The Director General of Health Services in relation to Union territories and the Directors of Medical Services in the States should prepare that panel and notify the same. The requirement of maintaining a register by the doctor attending on the patient has been laid down in Section 8 of the proposed Bill.

The register shall contain all the relevant details regarding the patient and the treatment being given to the patient, and should also contain the opinion of the doctor as to whether the patient is competent or incompetent, the views of the experts and what is in the best interests of the incompetent patient. The medical practitioner shall then inform the patient (if he is conscious) and the parents or other close relatives or next friend who can approach the High Court by filing a Original Petition which shall be heard by a Division Bench of the High Court (vide Section 12 of the said Bill).

Certain procedural aspects relating to the hearing and disposal of the OP have been laid down. If no order of the High Court has been received within the period of 15 days, it is permissible for the medical practitioner to withhold or withdraw further treatment pursuant to the decision he has already taken in the best interests of the patient. However, he can continue to extend palliative care to the patient.

The Medical Council of India has been enjoined to issue the guidelines from time to time for the guidance of medical practitioners in the matter of withholding or withdrawing the medical treatment to competent or incompetent patients suffering from terminal illness (vide Section 14). The Law Commission, for the reasons stated in Chapter VII, under the heading "Whether advance directives (living will) should be allowed legal sanctity in our country", was not in favour of recognizing the advance medical directive even if it is in writing.

The Commission observed that as a matter of public policy, such directive should be made legally ineffective overriding the common law right. Accordingly, Section 4 was introduced in the Bill.

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