Report No. 241
6. Supreme Courts' decision in Aruna's case (2011)
6.1 The case of Aruna Ramachandra Shanbaug [(2011) 4 SCC 454] is the first case in India which deliberated at length on 'euthanasia'. The Supreme Court, while making it clear that passive euthanasia is permissible in our country as in other countries, proceeded to lay down the safeguards and guidelines to be observed in the case of a terminally ill patient who is not in a position to signify consent on account of physical or mental predicaments such as irreversible coma and unsound mind.
It was held that a close relation or a 'surrogate' cannot take a decision to discontinue or withdraw artificial life sustaining measures and that the High Court's approval has to be sought to adopt such a course. The High Court in its turn will have to obtain the opinion of three medical experts. In that case, Aruna Shanbaug was in Persistent Vegetative State (PVS for short) for more than three decades and the Court found that there was a little possibility of coming out of PVS. However, the Court pointed out that she was not dead. She was abandoned by her family and was being looked after by staff of KEM Hospital in which she worked earlier as staff nurse.
The Court started the discussion by pointing out the distinction between active and passive euthanasia and observed that "the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained". The distinctive feature of PVS, it was pointed out, is that brain stem remains active and functioning while the cortex has lost its function and activity.
The Supreme Court addressed the question when a person can be said to be dead.It was answered by saying that "one is dead when one's brain is dead". Brain death is different from PVS. Reference was made to American Uniform Definition of Death, 1980. Then it was concluded: "Hence, a present day understanding of death as the irreversible end of life must imply total brain failure such that neither breathing nor circulation is possible any more".
6.2 After referring extensively to the opinions expressed in Airedale case, the Supreme Court stated that the law in U.K. is fairly well-settled that in the case of incompetent patient, if the doctors act on the basis of informed medical opinion and withdraw the artificial life support system, the said act cannot be regarded as a crime. The question was then posed as to who is to decide what the patient's best interest is where he or she is in a Persistent Vegetative State (PVS).
It was then answered by holding that although the wishes of the parents, spouse or other close relatives and the opinion of the attending doctors should carry due weight, it is not decisive and it is ultimately for the Court to decide as parens patriae as to what is in the best interest of the patient. The High Court has been entrusted with this responsibility, following what Lord Keith said in Airdale case.
The Supreme Court referred to the dicta in the Court of appeal decision in J. (A minor) Wardship: medical treatment,(1990) 3 All ER 930 that the Court as a representative of sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do. The same is the standard for a 'surrogate' as well. But, there is no decision-making role to a 'surrogate' or anyone else except the High Court, as per the decision in Aruna's case.
6.3 Referring to the U.S. decisions and in particular the observations of Cardozo J., the Supreme Court pointed out that the informed consent doctrine has become firmly entrenched in American Tort Law (vide para 93 of SCC). The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent i.e., to refuse treatment". The court relied on the observation of Rehnquist C.J. that "the notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment".
The Supreme Court referred extensively to Cruzan's case, 497 US 261 wherein the U.S. Supreme Court affirmed the view of the State Supreme Court that the permission to withdraw artificial feeding and hydration equipment to Nancy Cruzan who was in a PVS state ought not to be allowed. It was observed that there was a powerful dissenting opinion by Brennan J. with whom two Judges concurred.
The Supreme Court then highlighted the fact that in Cruzan case, there was a statute of the State of Missouri unlike in Airedale case (where there was none), which required clear and convincing evidence that while the patient was competent, had desired that if she becomes incompetent and enters into a PVS, her life support system should be withdrawn. There was no such evidence in that case. It was in that background, in Cruzan's case, the Court's permission was refused.
6.4 Coming to Indian law on the subject, it was pointed out that in Gian Kaur's case, (1996) 2 SCC 648 the Supreme Court approvingly referred to the view taken by House of Lords in Airedale case on the point that Euthanasia can be made lawful only by legislation. Then it was observed:
"It may be noted that in Gian Kaur case although the Supreme Court has quoted with approval the view of House of Lords in Airedale case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support".
Then, it was observed: "In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person, there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab property of the patient".
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