Report No. 241
8. Analysis by 17th Law Commission
8.1 The Law Commission summarized Airedale's case as follows:
"The above judgment of the House of Lords in Airedale lays down a crucial principle of law when it says that withholding or withdrawal of life support to a dying patient merely amounts to allowing the patient to die a natural death and that where death in the normal course is certain, withholding or withdrawal of life support is not an offence.
"If a patient capable of giving informed consent refuses to give consent or has, in advance, refused such consent, the doctor cannot administer life support systems to continue his life even if the doctor thinks that it is in the patient's interest to administer such system. The patient's right of self-determination is absolute. But the duty of a doctor to save life of a patient is not absolute. He can desist from prolonging life by artificial means if it is in the best interests of the patient. Such an omission is not an offence. The doctor or the hospital may seek a declaration from the Court that such withholding, which is proposed, will be lawful."
8.2 The Law Commission brought out two important aspects concerning passive euthanasia. First, the observations in Gian Kaur v. State of Punjab, supra, note 11 which is a Constitution Bench decision. In that case the Supreme Court upheld the constitutional validity of both Section 306 and 309 of Indian Penal Code whereunder the abetment to suicide and attempt to suicide are made punishable. In the context of Section 306, the Supreme Court touched upon the subject of withdrawal of life support.
Airedale's case was also cited in that judgment. The Supreme Court reiterated the proposition that euthanasia can only be legalized by enacting a suitable law. However, the distinction pointed out in Airedale between euthanasia which can be legalized by legislation and withdrawal of life support which is permissible in certain circumstances was recognized by the Supreme Court in Gian Kaur's case. Another significant observation made in the same case while dealing with Article 21 of the Constitution is the following:-
"These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician-assisted termination of life is inconclusive". That is how the Law Commission drew support from the dictum of the Supreme Court in Gian Kaur's case.
8.3 Another approach of the Law Commission is from the stand point of the "General Exceptions" contained in Indian Penal Code. Some of these provisions were relied upon to demonstrate that the doctor acting on the basis of a desire expressed by the patient suffering from terminal illness or acting in the best interest of a patient in coma or PVS state etc. shall not be deemed to have committed a crime. After discussing the various 'exceptions', the Law Commission concluded as follows:
"in our view Section 7.-79 are more appropriate than Section 88 and there is no offence under Section 299 read with Section 304 of IPC", Section 76 says that "nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of mistake of law in good faith believes himself to be, bound by law to do it". Section 79 enacts the exception as follows: "nothing is an offence which is done by any person who is justified by law or by reason of mistake of fact, and not by reason of mistake of law, in good faith believes himself to be justified by law in doing it.
8.4 Section 76, it was clarified, was attracted to a case of withholding or withdrawal of medical treatment at the instance of a competent patient who decides not to have the treatment. Section 79, it was stated, applies to the doctor's action in the case of both competent and incompetent patients. Then, it was observed "in our view where a medical practitioner is under a duty at common law to obey refusal of a patient who is an adult and who is competent, to take medical treatment, he cannot be accused of gross negligence resulting in the death of a person within the above parameters."
Likewise, it was pointed out that in the case of an incompetent patient or a patient who is not in a position to take informed decision, if the doctor decides to withhold or withdraw the treatment in the best interests of patient, based upon the opinion of experts then such withholding or withdrawal cannot be said to be a grossly negligent act. Section 304-A of I.P.C. will not therefore be attracted.
8.5 The Law Commission relied on the decision of Supreme Court in Jacob Mathew's case in which it was pointed out in the context of gross negligence under 304-A, that it must be established that no medical professional in his ordinary senses and prudence could have done or failed to do the thing which was attributed to the accused doctor.
8.6 At the same time, the Commission, by way of abundant caution, suggested the introduction of a Section (Section 11) in the proposed Bill to the effect that the act or omission by the doctor in such situations is lawful. On the point of criminal liability, the Law Commission also referred to the holding in Airedale (UK) and Cruzan (US) that the omission of the doctor in giving or continuing the medical treatment did not amount to an offence.
In this context, we may mention here that there is a criticism of the 'act' and 'omission' approach adopted in Airdale's case in holding that no criminal offence is committed by the doctor by withdrawing the artificial life-prolonging treatment. The omission involved therein, it was pointed out, did not amount to an offence. Irrespective of this approach, the Law Commission, in its 196th Report, reached the conclusion that no substantive offence is made out and in any case the 'general exceptions' in IPC excluded the criminal liability of the doctors.
8.7 Coming to civil liability in torts, the Law Commission after referring to Jacob Mathew and Bolam relied on the proposition stated in Halsbury's of England (4th Edition, Volume 30, para 35) that if the doctor had acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men, he is not guilty of negligence.