News By/Courtesy: Priyanka Patnaik | 17 May 2020 23:25pm IST

HIGHLIGHTS

  • Facts of the case
  • Judgement
  • The law commission's report

Facts of the case 
Aruna Ramachandra Shanbaug was a staff nurse working at King Edward Memorial Hospital, Parel, and Mumbai. While changing her clothes the hospital ward boy sohanlal Valmiki attacked her. He tried to rape her but when he found out she was menstruating he sodomized her on. He choked her with a dog chain and on 27th November 1973 morning she was found by the sweeper in a very delicate condition. It was contended due to strangulation her body was fully paralyzed and her brain was damaged. She was in a very delicate situation. She had been surviving on a liquid diet for many years and her hands and legs couldn’t be moved.
The respondents, KEM Hospital and Bombay Municipal Corporation filed a counter-petition. Since there were conflicts in the petitions filed by the petitioner and respondents, the court decided to appoint a team of three eminent doctors to investigate and report on the exact physical and mental conditions of Aruna Shanbaug. They studied Aruna Shanbaug’s medical history in detail and opined that she is not brain dead. Also, they did not find any suggestion from the body language of Aruna as to the willingness to terminate her life. Further, the nursing staff at KEM was volunteering in taking care of her so the doctors agreed that in this case euthanasia was not required.
Contention Raised:
  1. When a person is in a permanent vegetative state (PVS), should withholding or withdrawal of life-sustaining therapies be permissible or `not unlawful’?
  2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his/ her wishes be respected when the situation arises?
  3. In case a person has not previously expressed such a wish if his family or next of kin requests to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?
Judgment
The Hon'ble Division Bench of the Supreme Court of India, consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra, gave their judgment on this landmark case on March 7, 2011. The Court ‘s view according to the doctor’s report and the meaning of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. She could inhale without a helping machine, had emotions, and delivered an essential boost. Even though she is in a PVS, her condition was been steady. Along these lines, ending her life was unjustified.
  The choice to decide for the benefit was in the hands of the administration and staff of KEM hospital and not Pinki Virani. taking her out of ventilators and reducing her food intake wouldn’t be feasible. Taking her off life support wouldn’t cater to KEM hospital since they took care of her all these years.
The Supreme Court allowed passive euthanasia in particular conditions, subject to the order passed by the high court.  when an application for passive euthanasia is written to the Chief Justice of the High Court it ought to constitute a bench of not more than two judges who should choose to allow the application or not. Before taking the step they must consult three qualified and reputed doctors who are fit in counseling them in such a serious issue. The high court will pass notice to the patient’s guardianlike partner, sibling, and in their absence to the doctor. After successive hearing from their kith and kin, the high court must come up with a decision. This
 However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not fit for the same. If at any time in the future, the staff of KEM hospital or the management felt a need for the same, they could approach the High Court under the procedure prescribed.
The law commission's report 
The Law Commission of India in its 42nd Report 25 has ordered the scraping of segment 309 of India Penal Code. Section 309 was to be scrapped by the Lok Sabha but it never happened.
The commission submitted its report after the judgment of the Gian Kaur vs the State of Punjab recommending retention of section 309
The Supreme Court in Gian Kaur focused on the legality of segment 309. It turned out to be the pretty bad insight of holding or proceeding with the same in the statute. The Commission has made plans to suggest to the Government to start ventures for section 309 and reduce the troubles of him.
The commission recommended the following
  •  We propose to give that the patient will not back out of treatment except if he has the agreement of three doctors from a board arranged by high positioning Authority. We propose that the choice to withhold or not should be of the medical council of India The Register is to be kept up by the specialist and must contain the reasons concerning why the doctor thinks the patient ‘s choice is not an educated choice to their greatest advantage, the name, sex, age and so forth of the patient. He should keep the character of the patient and different particulars classified. Once the above Register is properly kept up, the doctor must advise the patient (if he is cognizant), or his or her folks or relatives before pulling back or withholding restorative treatment. If the above strategies are taken after, the doctor can withhold or pull back restorative treatment to an in critical condition quiet. Else, he can't withhold or pull back the treatment.
  • A patient who takes a choice for withdrawal or withholding medical treatment must be protected from the endeavor to commit suicide' under Sec. 309 of the Indian Penal Code, 1860. This arrangement is by a method for rich alert since it is our view that the plain arrangements are not pulled in and the custom-based law additionally says that a patient is qualified for enabling nature to take its course and on the off chance that he does as such, he submits no offense.
  • The doctors must be protected in the event of abetment of suicide' under section 305, 306 of the Penal Code, 1860, or punishable manslaughter not amounting to murder under Sec. 299 read with sec. 304 of the Penal Code, 1860 when they make difficult choices according to the case history of the patients. The doctors must ensure to help patients who have not taken an educated choice. The hospital authorities ought to likewise get assurance.

Section Editor: Pushpit Singh | 18 May 2020 9:26am IST


Tags : #euthanisalaw

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