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Report No. 241

7. Medical ethics and duty of the doctor

7.1 What is the duty of the doctor? Is he bound to take patient's consent for starting or continuing the treatment including surgery or artificial ventilation etc? How is he expected to act where a patient is not in a position to express his will or take an informed decision? These are the primary questions which come up for discussion and these issues were addressed in Airedale and Aruna.

7.2 In this context, two cardinal principles of medical ethics are stated to be patient autonomy and beneficence (vide P. 482 of SCC in Aruna's case):

1. "Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous, the patient should be competent to make decision and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a living will, OR the wishes of surrogates acting on his behalf (substituted judgment) are to be respected.

The surrogate is expected to represent what the patient may have decided had she/she been competent, or to act in the patient's best interest.

2. Beneficence is acting in what (or judged to be) in the patient's best interest. Acting in the patient's best interest means following a course of action that is best for the patient, and is not in influenced by personal convictions, motives or other considerations."

7.3 Both the Supreme Court as well as the Law Commission relied on the opinion of House of Lords on these aspects. The contours of controversy has been put in the following words by Lord Goff in Airedale cas.-

"Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient.

No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice.

The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends". That question was dealt with in the following words:

"It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient's life. The question is sometimes put in striking or emotional terms, which can be misleading". To stay clear of such misconception, the right question to be asked and answered was stated as :

"The question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care." Then, it was observed:-

"The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so."

The following words of Lord Goff touching on the duty and obligation of a doctor towards a terminally ill incompetent patient are quite apposite:

"The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient's life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas.

As I see it, the doctor's decision whether or not to take any such step must (subject to his patient's ability to give or withhold his consent) be made in the best interests of the patient. It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life."

7.4 Lord Goff then made a pertinent observation that discontinuance of artificial feeding in such case (PVS and the like) is not equivalent to cutting a mountaineer's rope or severing the air pipe of a deep sea diver. In the same case, Lord Brown Wilkinson having said that the doctor cannot owe to the patient any duty to maintain his life where that life can only be sustained by intrusive medical care to which the patient will not consent, further clarified the legal position thus :

"If there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion), that further continuance of an intrusive life support system is not in the "best interests" of the patient, he can no longer lawfully continue that life support system; to do so would constitute the crime of battery and the tort of trespass to the person. Therefore, he cannot be in breach of any duty to maintain the patient's life. Therefore, he is not guilty of murder by omission".

7.5 These passages have been approvingly quoted by learned Judges of the Supreme Court in Aruna's case.

7.6 The observations of Lord Mustill in Airedale's case which were quoted by Supreme Court are also relevan.-

"Threaded through the technical arguments addressed to the House were the strands of a much wider position, that it is in the best interests of the community at large that Anthony Bland's life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse.

The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come".

7.7 The negative effects of compelling a doctor to continue the treatment to a PVS patient till the end have thus been forcibly portrayed.

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