DEMANDING DEATH WITH DIGNITY

Once again, the Supreme Court gives right to die with dignity a chance to be a fundamental right. The ink on the judgments of Gian Kaur vs. State of Punjab reported as (1996) 2 SCC 648 and Aruna Ramchandra Shanbaug vs. Union of India reported as (2011) 4 SCC 454 may have dried out but the issue of ‘right to die with dignity’ remains unsettled.  A writ petition under Article 32 of the Constitution of India was filed by Common Cause (A Regd. Society) in 2005. The Supreme Court admitted the case and directed that a constitution bench be constituted for deciding the issue, reported on 25^th February 2014.

The writ was filed to seek a declaration that ‘right to die with dignity’ is a fundamental right within the fold of ‘right to live with dignity’. The Petitioner sort the adoption of a suitable procedure for executing a document called, ‘my living will and attorney authorisation’ which can be presented to hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness is not in a position to give consent to the treatment. Alternatively, the court should issue detailed guidelines for the exercise of the ‘right to die with dignity’ effectively.

THE PREMISE OF THE DISPUTE

As per the Hippocratic Oath, the primary duty of every doctor is to save lives of patients. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 explicitly prohibits doctors from practicing Euthanasia. Regulation 6.7 reads as follows:-

“Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardiopulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.”

In the case of Parmanand Katara vs. Union of India reported as (1989) 4 SCC 286, the Supreme Court emphasised that the primary duty of doctors is to provide treatment and to save the life whenever an injured person is brought to the hospital or clinic and not otherwise.

Whereas, in the case of Aruna Ramchandra Shanbaug, it was observed that the doctors cannot, by some active means/action/interjection like giving lethal injections end the life of a patient because this would amount to “active euthanasia” which is penalised in India. 

In Gian Kaur, the interpretation of Article 21 relating to the constitutional validity of Sections 306 and 309 of the Indian Penal Code, 1860, was in question.  It was held that ‘right to life’ under Article 21 does not include ‘right to die’. While affirming the above view, the Constitution Bench observed that ‘right to live with dignity’ includes ‘right to die with dignity’ in the following words:-

“The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the 'right to die' an unnatural death curtailing the natural span of life.”

But, the constitution bench did not express any binding view on the subject of euthanasia rather reiterated that legislature would be the appropriate authority to bring the change. Therefore, it was the Petitioner’s contention, in the present case is that Regulation 6.7 should be read to mean, prohibition on active euthanasia. The regulation could not be interpreted in a manner which casts an obligation on doctors to keep providing treatment to a person who has already expressed a desire not to have any life prolonging measure. (Emphasis Added)

PRESENT STATUS

In the light of the above discussion, it is clear that although the Constitution Bench in Gian Kaur (supra) upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive.

So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug (supra), which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur (supra) had upheld the same.

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, the Supreme Court in the present petition thought it be extremely important to have a clear enunciation of law.

Thus, for finding an answer to the question of law involved, the Supreme Court has constituted a Constitution Bench for settling the issue and ofcourse, for the benefit of humanity as a whole.

Rimali Batra

CONSENT IN ORGAN DONATION

Introduction

Last week, in Mumbai, a father who lost her teenage daughter in a deadly car accident decided to donate her organs to the Nanavati Hospital after he spoke to the counsellor at the hospital.  Donation included kidneys, liver and skin from the back and thighs.

In the wake of increasing demand for organs and transplant surgery’s _ the act of the father is indeed emotionally brave and medically & socially appreciable. One does tend to categorise such an act as being medically and socially important because the act of donation of organs in India is still viewed from the microscope of religious and cultural reasons.

The incident narrated above invites a discussion around various legal, moral and medical issues. To be able to appreciate all would not be possible in the given word space. I therefore choose to critically discuss one of the most important issues arising from a combination of these issues. The issue is whether the father has any right in the body of the dead teenage daughter to entitle him to make a decision with respect to his daughter’s organ donation. Medically the act is much appreciated and legally much questioned. Legally speaking – the act arouse a controversy around – who is entitled to donate whose organ? Can family members, including spouses, donate each other’s organs? (Reference: donation after death only).

Organ Donation

Even though, science applauds donations from a cadaver as it proves to be of great help to someone in need of those organs, religious and cultural reasons de-motivate such decisions in India.  This raises two very pertinent issues. One, whether the cultural and religious reasons are hindrances in the growth of science and medical research and two, whether the religious and cultural reasons out – weigh the moral and somewhat-religious duty to help and save human life.

Imperial studies reveal that 500 (lucky people) out of 20000 (needy people) get a liver transplant in India.  These surgeries are carried out by the Zonal Transplant Committee which is not a profit making organisation. It helps in the distribution of organs from cadavers in Maharashtra. The purpose of the committee rests in moral idea of saving lives of people in need of organs. Though by merely allocating the organs one cannot ensure that these organs are being given to the patients in absolute and dire need of the organ over the ones who could afford the surgery. This poses the issue of rationing of the recourses appropriately. Though no straight jacket formula or policy could be devised to conclude what form of allocation and use is appropriate but a basic level interference by the government dictating the terms of use of the limited donated organs could assisting in boosting appropriate supply.

Evidence shows that there is a growing demand for organs in the medicine world as well. Demand for liver has been recorded at 1900 and demand for kidney at 2000. Even in the wake of these figures the awareness of organ donation among people is bleak.  And hence, awareness campaigns, like the one’s run for eye donation could prove as a useful tool to increase number of donors – cadavers.

Consent to Donate: Autonomous

The question of who has a right to decide what is to be done with one’s body invites a discussion on ‘autonomy’. The right to exercise autonomy gives an individual the right to exercise his liberty in respect of what he wishes to do with his life and body. But one can always ask – if the exercise of autonomy is relational in nature _ that is if our decisions of life are based on considerations of relationships we share with other people. For instance – A women’s decision to terminate may be driven by her husband’s will as well – thought her right to autonomy (on paper) will hands down trump the relational approach (parent’s deciding) of autonomy. But that seldom happens. Hence, how far can we stretch the idea of relational autonomy to allow relations taking decisions that involve donating organs?

Do organs give any sort of right to the individual who possess them? Clearly not in cases where there is no external interference. And also not in cases where there is intervention (like in cases of surgery) and interference (like in case of battery – assault – rape etc) with consent.

Hence – we are left with cases where donation of organs is without the consent of the person whose organs are being donated (for reasons of being dead and there being no advance directive with respect to his will) by a relative?

Consent of kith and kin: medically sound, legally questionable

Firstly, as always, morally speaking it is not incorrect if your spouse decided to donate your body part after you died? But will it be incorrect, if he did it for money? Socialist would shout – ‘that isn’t donation – that’s a commercial sale of organs for money’. Is that bad?  The act is the same _ donating organs, so then how does the motive of making money make it bad? There is no harm in encouraging donation for a token of money (like we encourage humans to be a part of medical research for monetary benefits) but then I fear to deal with regulating prices in ‘organ market’ given that family members would be motivated to sell the organs of their relatives.

A relative with an s will be a plural word. Let’s narrow it down. Who are the relatives we can really bestow the entitlement on? If we were to consider organs as property of the dead – the Laws of Inheritance in India would hold the spouse on top, followed by children of the dead and then the first family of the dead – and in case of unmarried people – their family. This seems simple! The problem arises where we do not consider organs as property of the dead – rather organs as being everything but property. In that case no one – but only the dead should be allowed to decide what is to be done with his body organs. That is of course - not possible.

Hence, the baton of deciding the course of things is to be handed over to someone. The state and the government have given us laws that encourage organ donation – which means the act is a sanctioned one and not illegal. The medical counsellors – like the one in Nanawati Hospital carry out their duty to talk to the relatives of the dead for convincing them for organ donation (This is after they have seen and analysed the corpus and conclude the potential of the organs being useful). And finally the decision making is left to the relative of the dead. This seems to be an established channel of consent for organ donation. I am just sceptical about the interference of the mother of these daughters – who may object to the consent given by the father. 

BE INFORMED ABOUT CONSENT FOR A TREATMENT

A patient has a right to consent and refuse a treatment being advised by the doctors. Most of us agree to be treated not because we have understood the treatment but because we trust the doctor. Is that the right approach? Well, in theory it is not but it is what is widely practiced. What can you do to know when to consent or not? Here are some things you should know before you give consent to a treatment.

What is Consent? A doctor needs your permission to examine you. For instance, walking into a doctor’s clinic is implied consent for being examined. A consent is creates an agreement in the eyes of the law. Most surgeries require you to sign a consent form whereas routine inspections are done without signing of a consent form. Both of these are nevertheless consented treatments.

Who is eligible to give consent? The first question that a patient should ask is – whether he/she is eligible to give consent? Legally, any one above the age of 18 and with a sound mind can give consent. This is not as easy as it looks. There are times when you won’t be in position to give consent because you do not understand the treatment being offered. There may also be a situation where you are desired to give multiple consents because of the nature of the surgery. In such cases each of these consents is independent and important.

Who decides if you are eligible to give consent? So, the question is – who decides whether you can give consent or not? It is your examiner. The doctor, surgeon or in some cases your care-taker (for mentally challenged), your parents/guardians (for children below 18). These people have a duty to ensure that you understand your treatment. They are bound by the duty of ‘best interest’ of the patient in cases where they will be taking your decisions. In cases of emergency, the doctor on duty has the obligation to treat you in your best interest either to save a patient from dying or becoming severely unwell. In cases, where the patient feels (either after being treated or during his treatment) that the decision has not been taken in the best interest he can always seek assistance from other doctor’s/surgeon’s or a lawyer working in that area.

Information for informed consent: Though the doctor has a duty to inform you about the treatment before he seeks your consent – but there are questions that you may want to know answers of before being treated. The most important of these are – what is the treatment involve? What are the benefits of the treatment? What are the risks involved? What happens if you don’t take the treatment? And is there an alternative treatment available? A patient may ask unlimited questions and can seek reasonable time to introspect his final decision before he consents to the treatment, unless it is a case of an emergency. In cases, where it is difficult for you to understand the treatment, the patient has a right to seek advice from other doctors who can explain things better or from friends who have the knowledge etc. Giving consent to a treatment is an agreement and it is important the patient gives an informed consent.

Can I refuse treatment?: A refusal to be treated is also perfectly acceptable legally – and counts as consent. The doctor and your care-takers, parents/guardians are bound by your decision to not be treated. Also, as a patient, you can change your decision any time during the treatment but you need to well understand what implications it may have on your health. This consent, like mentioned above, will be independent of your earlier consent and should be communicated to the doctors by the patient or through your parents/guardians clearly. Your ‘best interest’ is in your decisions and the doctors have to guide you in order to enable you to take such decisions for yourself.

Rimali Batra

A NEW DIMENSION OF MEDICAL NEGLIGENCE

A case where a health care provider falls below the accepted standard of practice, while providing treatment to a patient and causing injury or death to the patient, it is a case of Medical Negligence. In a recent case the Consumer Forum in Mumbai stated that:-

"While considering the aspect of negligence on the part of a treating doctor, what we have to see is whether he took reasonable expected care of the patient which any other medical practitioner (would have done)" 

On August 27, 2013, the National Consumer Dispute Redressal Forum in the case of Dr. Mohanbhai S. Patel v. Thakkar Baldevbhai Keshavlal and Ors., upheld the findings of the State Commission and expanded the scope of medical negligence in the following words:-

“8. … when used drugs or procedure to terminate the pregnancy ought to have known the inherent danger of using the drugs and taken enough safeguard to either prevent those complications or at least should have remedied them recognizing them as they came (in this case since starting of initial treatment; danger signals had already started appearing). The lack of recognizing them and not treating them in time amounts to negligence

…

19. Complications occurring during the treatment cannot be said to be negligence but not recognizing them in time and not treating them or treating them too late when patient had reached end stage where results were certainly to the detriment to the patient certainly amounts negligence. The patient who has reposed full trust and faith in the hands of treating doctor for his or her life and if that trust and faith is negative, it is not only negligence but also deficiency in service.”

Though the National Forum has rightly recognised the rights of a patient who develops an ailment during an ongoing operation and surgery, there are few issues that it may have overlooked. In cases where the complication that has occurred was within too short a time to have been controlled or were of a nature wherein the percentage of cure is rare and at times, impossible. This will take us to square one which is, a medical practitioner would be liable only when his conduct fell below the standard of a reasonable competent practitioner in the field.

The national commission may have also overlooked a case of consent. Where, a patient may have consented for a particular treatment but not for another, it will be important for courts to probe if due consent of the patient (if has capacity) or of family and/or kin was obtained while carrying out a remedial treatment. Here is a short discourse on what are the elements of Medical Negligence:

Duty of care

The medical professional is held to a higher duty of care than that of the ordinary person. He has a duty to treat the patient in his best interest. Such duty of care arises from the consent of the Patient. Consent may be written or oral or implied. For instance, entering a doctor’s clinic and holding out your hand to seek treatment for a burn is an implied consent for the doctor to treat you in your best interest. The doctor brings upon him a duty of care towards his patient.  

Breach of duty of care

A medical professional must have breached a duty of care that he/she owed to the patient. Doctors can be found guilty of medical negligence, which is in essence a breach of a duty of care, for failed or delayed diagnosis, failure to warn of risks in treatment, among other things. 

Causation

In order to prove medical negligence one must show actual or proximate cause. Proximate cause is the primary cause of an injury. The determination of causation is critical and the courts have developed the “but for” rule. The rule states that “but for the medical professional’s negligent act or omission, the injury would not have occurred”. The rule is based on positive intervention or non-intervention. Consider this, “but for” the doctor leaving a scissor in the patient’s stomach the patient would not have developed an infection in his stomach. Such causation is also known as legal causation. But the “but for” rule is not sufficient as there may be other independent or intervening factors that may play a role and impact the injury. Therefore, to establish causation and liability it must be shown that the negligent act was the actual or primary cause of the ultimate injury or death.  

Injury and loss

Actual injury or loss must be proved by the patient to entitle him/her to an award of damages or compensation. There are two types of loss a person may seek to recover. Economic loss includes damages for the actual physical injury, medical expenses, compensation for lost work, etc. Non-economic losses are those that do not have a specific monetary loss associated with them, such as pain and suffering. 

Conclusion

Hence, though the forum has expand the definition of Medical Negligence by including failure to give remedial treatments during a surgery but the fact of the matter remains, that it will still be essential to show elements of medical negligence in the remedial treatment as well or it may just be another rare case having no treatment, let alone remedial treatment.

Rimali Batra