Background-:

a) The Union government has, in first week of May 2016, come up with a draft bill on passive euthanasia that gives patients the right to “withhold or withdraw medical treatment to herself or himself” and “allow nature to take its own course”.

b) The objective of this article is to draw attention to relevant material based on which one may form his / her opinion.

One related case not discussed-:

c) I have gone through various news items on the said issue.

d) A very celebrated case in this regard was a decision of Supreme court in the case of Aruna shanbaug case[5(a)]

e) But ironically, it does not make a useful reference of a decision by larger bench of Supreme Court, in the case Common Cause (A Regd. Society)[5(b)]which has nullified the decision of Aruna Shangaug. Its para 17 reads as follows

17) In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole.

Inputs / comments invited

f) The Union health ministry last week uploaded the draft, titled Terminally Ill Patients (protection of patients and medical practitioners) Bill, on its website and has invited comments, via email, from people before June 19, 2016.

Preliminary Observations

g) First and foremost, it is a concrete step has been taken and the most crucial section 3 of the Medical Treatment of Terminally Ill Patients [Protection of Patients and Medical Practitioners] Act which reads as follows

3.  Refusal of Medical Treatment by a competent patient and its binding nature on medical practitioners

(1) Every competent patient including minor aged above 16 years has a right to take a decision and express the desire to the medical practitioner to attending on her or him:-

i. For withholding or withdrawing of medical treatment to herself or himself and to allow nature to take its own course, or

ii. For starting or continuing medical treatment to herself or himself.

(2) When a patient referred to in sub section (1) communicates his or her decision to the medical practitioner, such decision is binding on medical practitioner,

Provided that the medical practitioner is satisfied that the patient is competent patient and that the patient has taken an informed decision based upon free exercise of his or her free will and,

Provided further that in the case of minor above 16 years of age, the consent has also been given by the major spouse and the parents.

(3) Before proceeding further to give effect to the decision of the competent patient, the medical practitioner shall inform the spouse, parent or major son or daughter of the patient or in their absence any relative or other person regularly visiting the patient at the hospital about the need or otherwise of withholding or withdrawing treatment from the patient and shall desist from giving effect to the decision for the period of three days following the intimation given to the said patient’s relations.

h) It officially allows a right to die with dignity.

i) One will remember a scene from a hindi movie “gujarish” on the said subject matter whereby a very good attempt is made to portray the agony and helplessness of those patients. A link of view of 5 minutes is given below.

Relevant material

j) Except the youtube link, the relevant documents can be easily accessed at https://drive.google.com/folderview?id=0B08Q1DJCN0Kcd3RfNmNDSkp3ems&usp=sharing

1. https://www.youtube.com/watch?v=avzJ9IJ7e4U

2. An explanatory statement by ministry of Health

3. Draft Bill of Terminally Ill Patients (protection of patients and medical practitioners) Bill

4. 241st report of Law commission of India

5. Supreme court decision in the case of

a) Aruna Ramachandra Shanbaug vs. Union of India (2011) 4 SCC 454 dated 7 March 2011

b) Common Cause (A Regd. Society) vs Union Of India WRIT PETITION (CIVIL) NO. 215 OF 2005 dated 25 February, 2014presided over by CJI

(Views expressed herein are the personal view of the Author)

( Author CA. Yogesh S. Limaye can be reached at yogesh@salcoca.com)

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