2011 Supreme(SC) 265

2011 (2) Supreme 481
SUPREME COURT OF INDIA
Markandey Katju and Gyan Sudha Misra, JJ.
Aruna Ramchandra Shanbaug — Petitioner
versus
Union of India and others — Respondents
Writ Petition (Criminal) No. 115 of 2009
Decided on : 7-3-2011

IMPORTANT POINTS
When the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it, judgment of a surrogate has to be taken into consideration. The surrogate decision maker has to gather from material facts as far as possible the decision which the incompetent patient would have made if he was competent.
2. 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.
3. Denying food to a person in coma or PVS may amount to passive euthanasia.
4. Foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts.
5. Brain death, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote.
6. Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from High Court.
7. In the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

Headnote:Constitution of India,1950-Article 32-Writ petition on behalf of petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend-Petitioner a staff Nurse working in King Edward Memorial Hospital, Mumbai was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it-Due to strangulation by dog chain supply of oxygen to brain stopped and brain got damaged-36 years expired since incident and petitioner was about 60 years of age now-It was alleged that petitioner was in a persistent vegetative state and virtually a dead person and there was not the slightest possibility of any improvement in her condition -The prayer of petitioner was that respondents be directed to stop feeding her, and let her die peacefully- Held there was no indication of petitioner’s views or wishes with respect to life-sustaining treatments for a permanent vegetative state-Any decision regarding her treatment would have to be taken by a surrogate - The staff of the KEM hospital had looked after her for 37 years, after she was abandoned by her family- Hence held that Dean of the KEM Hospital representing the staff of hospital was an appropriate surrogate- From the examination by team of doctors, it could not be said that petitioner was dead- Whatever the condition of her cortex, her brain stem was certainly alive- However, there appeared little possibility of her coming out of PVS in which she was in- KEM hospital staff had clearly expressed their wish that petitioner should be allowed to live- Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from High Court -Assuming that KEM hospital staff at some future time changes its mind, in such a situation KEM hospital would have to apply to Bombay High Court for approval of decision to withdraw life support- Petitition dismissed. (Paras 124 to 132)

        Euthanasia - Active and passive-Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony- Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma- 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. (Paras 38, 39)

        Euthanasia -Voluntary euthanasia and non voluntary euthanasia- Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent (Para 40)

        Doctrine of Parens Patriae-Scope and ambit of- The doctrine of Parens Patriae implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves- The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role (Para 128)

        Constitution of India,1950-Aricle 226- Provision of law under which court can grant approval for withdrawing life support to an incompetent person- It is the High Court under Article 226 of Constitution which can grant approval for withdrawal of life support to such an incompetent person-Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person - High Court should give its decision assigning specific reasons in accordance with the principle of ‘best interest of the patient’ (Paras 133, 137)

       Facts of the Case :

        Writ petition was filed on behalf of petitioner Aruna Ramachandra Shanbaug herein in the instant case by one Ms. Pinki Virani of Mumbai, claiming to be a next friend.Petitioner a staff Nurse working in King Edward Memorial Hospital, Mumbai was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it.Due to strangulation by dog chain supply of oxygen to brain stopped and brain got damaged.36 years expired since incident and petitioner was about 60 years of age now. It was alleged that petitioner was in a persistent vegetative state and virtually a dead person and there was not the slightest possibility of any improvement in her condition .The prayer of petitioner was that respondents be directed to stop feeding her, and let her die peacefully.

       Findings of the Court :

        The Court Held that there was no indication of petitioner’s views or wishes with respect to life-sustaining treatments for a permanent vegetative state.Any decision regarding her treatment would have to be taken by a surrogate . The staff of the KEM hospital had looked after her for 37 years, after she was abandoned by her family. Hence held that Dean of the KEM Hospital representing the staff of hospital was an appropriate surrogate. From the examination by team of doctors, it could not be said that petitioner was dead. Whatever the condition of her cortex, her brain stem was certainly alive. However, there appeared little possibility of her coming out of PVS in which she was in. KEM hospital staff had clearly expressed their wish that petitioner should be allowed to live. Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from High Court .Assuming that KEM hospital staff at some future time changes its mind, in such a situation KEM hospital would have to apply to Bombay High Court for approval of decision to withdraw life support. Petitition was dismissed