Constitutional and Legal Protection for Life Support Limitation in India

INTRODUCTION

The perceived lack of legal guidance is the greatest barrier to taking a treatment limiting decision in India.[12] This is in contrast to the increasing ease of such decisions elsewhere in the world.[3] Physician approach in India seems to be hampered by misperceptions of legal liability linked to treatment limitation, in major part due to the unclear signals from the legal community. Supreme court judgment has upheld suicide laws that may potentially be mis-applied to limitation decisions;[4] and the Law Commission of India had clarified many concepts but appear to have insufficient information regarding the needs of the dying patient and his/her family;[56] Aruna Shanbaug judgment pronounced ambiguously on passive euthanasia;[7] ethical code of the Medical Council of India (MCI) barely devotes a few lines on the question, focusing mainly on procedure for limitations at brain death and declaring euthanasia to be illegal.[8] In essence, the legal opinions appear to be ill-informed of the day-to-day ethical dilemmas surrounding foregoing of futile treatments toward the end of life.

Faced with the risks of lawsuits and societal unawareness of legitimate treatment foregoing options, the Indian Physician is often compelled to take the path of least resistance: to continue expensive, burdensome and heroic efforts till the very end, or resort to an ethically problematic “left against medical treatment” decision.[91011] The result is that India has one of the poorest end-of-life care (EOLC) in the world with its individual and collective burdens.[12] In the face of this grim scenario, the well-meaning physicians continue to take appropriate decisions.[1113] What are the legal and constitutional provisions for his/her defense?

EXISTING CONSTITUTIONAL PROVISIONS

The right to life and personal liberty is guaranteed by the Indian Constitution in Part III under the category of Right to Freedom (Articles 19–22). The right to life and personal liberty in accordance with the procedure established by law is guaranteed by Article 21 of the Indian Constitution.[14] In the Gopalan case, the court held that personal liberty relates to the person or the body of the individual.[15] The scope of personal liberty was made wider in 1973 and was held to remain despite executive and legislative directives.[16] From this flows the right to informed consent or refusal, which applies to all medical interventions. This alone would suffice for a foregoing of life sustaining treatments (FLST) decision.

In the case of P. Rathinam, the Supreme Court allowed the right to die when faced with intolerable suffering, thereby invalidating the suicide laws.[17] This opinion was superseded by the Gian Kaur judgment where the court ruled that the constitutional right to life enshrined in Article 21 cannot be interpreted as a right to take one's life.[4] It should be noted that the appeal was in relation to suicide and abetment to suicide (sections 306 and 309 IPC), not to terminally ill-patient sustained on artificial support. Significantly, in the latter case the judges made an exception in the situation of the dying patient allowing a “dignified process of death.”

LEGAL PROTECTION AGAINST CRIMINAL LIABILITY

Section 300 IPC[18] for murder states as follows: “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.”

Thus, according to Criminal Law either of two conditions must be met-intention and knowledge. The petitioner must prove motive on the part of the physician for act construed as murder. In a doctor-patient relationship, the motive is to offer cure or care unless established to be otherwise, the burden of proof resting with the appellant. The principle of prior knowledge is inapplicable as an FLST decision is considered only when treatment options are found to be ineffective to prevent death or intolerable disability. Therefore, the agency of death is attributable to the underlying disease condition rather than the withdrawal of artificial support. This is indeed a “failure to struggle” or a “letting die” rather than a positive act to end the life of the patient.[519] In as much as medical interventions are artificial and accepted by the patient through informed consent on the understanding that they would be beneficial, there is no imperative to continue, when the consent is withdrawn when no longer beneficial. Therefore, these actions on the part of the physician observing due medical processes are to be decriminalized. This is the clear position of a landmark judgment quoted in the Aruna Shanbaug case: In Airdale NHS Trust versus Bland (UK),[20] Lord Keith remarked “a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment.” This is also now the accepted position worldwide.[212223]

The alternative to such interventions is not “no treatment” or abandonment. This misconception should be replaced by the positive concept of “comfort care” or palliative care.[23] The latter is a more holistic care as opposed to the burdensome approach of interventions. It shifts the focus to quality of life of the patient through addressing the physical, psychological, and spiritual needs. Continuing artificial feeding may actually give rise to unwanted symptoms or prolong the dying process without mitigating suffering.[2425] Removal of artificial feeding and nutrition at the request of the husband of Terri Schiavo who had been in a chronic vegetative state was allowed by the US Supreme Court.[26] Of course, such decisions are complicated in the event of conflict within the family of the patient (Wendland case).[27] However, the issue of artificial medical interventions and their removal, subject to preconditions is widely accepted now extending also to implantable left ventricular assist devices.[28] Patient's rights override other considerations in interpreting section 300, 306, and 309 IPC. These decisions are meant to be taken forward on the condition of acceptability to all parties following open discussions of issues relevant to the patient's medical status.

Defenses available for criminal liability from the knowledge of possible harm during the life support withdrawal: These are available in the following sections when interpreted in the context of care of the dying patient.

CONCLUSIONS

Physicians while seeking legal and legislative clarity specific for treatment limitation and palliative care for dying patients continue to be unaware of these decisions. A closer look at existing constitutional and legal principles and reinterpreting them in the context of treatment futility would appear to sufficiently protect the bona fide end of life decisions.