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Right to dignity and duty to live

Existence in sub-human state for 37 years

Aruna Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. Due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. Though she survived, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation. She was unable to see, speak or move and was in permanent vegetative state for 37 years.

A petition was filed on behalf of Aruna by Ms. Pinki Virani, a journalist/writer; before Supreme Court of India seeking a direction to Withdraw/withhold hydration/food/medical support so that Aruna could die. The Supreme Court of India in its previous Constitution Bench decision in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) had already held that the right to life guaranteed by Article 21 of the Constitution does not include the right to die.
It is a burning question that if a person is reduced to near vegetable existence and is conscious or unconscious, and abandoned by relatives, should he/she be forced to undergo the torture of existence in pain and suffering?
The court appointed a panel of Doctors to examine Aruna who formulated the above question asunder:

Issues in this case (and other similar cases) are:
1. If a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (many authorities would include placement of an artificial feeding tube as a life sustaining intervention) 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 makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf?

They suggested that the Dean of the Hospital and the staff of the Hospital which had been taking care of the Aruna for last 37 years would be the competent surrogate to take the decision about Withdrawing/withholding of hydration/food/medical support.

Hospital Staff denied the locus standi of Pinky Virani to file the petition as next friend. They also expressed that they had no problem in taking care of Aruna.

The Court referred to the laws enacted in various countries permitting physician assisted death (Active Euthanasia) and withdrawal of treatment/supplement (Passive Euthanasia) referred to decision of House of Lords in Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.) and after extensively referring to its facts and quoting from it, they also referred to following concise observation of Lord Mustill:

” Threaded through the technical arguments addressed to the House were the strands of a much wider position, that it is in the best interests of the community at large that Anthony Bland’s life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come. “

In regard to the scope of its jurisdiction it observed:
” 77. It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.
78. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King. “

It also referred to and relied on Cruzan v. Director, MDH, 497 U.S. 261(1990) and quoted the following passage from the judgement of Chief Justice Rehnquist:

“Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations.
An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. “

Then it formulated the issue for its decision as under:

“101. It may be noted that in Gian Kaur’s case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case (supra), it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.
102. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.
103. Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibers from Terry Wallis’ cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo’s case on Google).
104. However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future.”

It thereafter relied upon the following definition of ‘Brain Stem Death’ as given in Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament.
” brain-stem death ” means the sage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3.”

The court declared that Aruna was not dead with the following reasoning:

121. From the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors which we have quoted above it appears that she has some brain activity, though very little.
122. She recognizes that persons are around her and expresses her like or dislike by making some vocal sound and waving her hand by certain movements. She smiles if she receives her favourite food, fish and chicken soup. She breathes normally and does not require a heart lung machine or intravenous tube for feeding. Her pulse rate and respiratory rate and blood pressure are normal. She was able to blink well and could see her doctors who examined her. When an attempt was made to feed her through mouth she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. She would get disturbed when many people entered her room, but she appeared to calm down when she was touched or caressed gently.
123. Aruna Shanbaug meets most of the criteria for being in a permanent vegetative state which has resulted for 37 years. However, her dementia has not progressed and has remained stable for many years.
124. From the above examination by the team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly alive. She does not need a heart–lung machine. She breathes on her own without the help of a respirator. She digests food, and her body performs other involuntary function without any help. From the CD (which we had screened in the courtroom on 2.3.2011 in the presence of counsels and others) it appears that she can certainly not be called dead. She was making some sounds, blinking, eating food put in her mouth, and even licking with her tongue morsels on her mouth.
125. However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death. The question now is whether her life support system (which is done by feeding her) should be withdrawn, and at whose instance?

It decided the question in these words:

“In the present case, we have already noted that Aruna Shanbaug’s parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, it is the KEM hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky”

As regards the passive euthanasia, it permitted the same with following, cautionary procedure:

“However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support. (ii) Hence, 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 the High Court concerned as laid down in Airedale’s case (supra).
In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.”

Thus Aruna got to live on in her sub-human condition. But reading the judgment, the judges had onerous task. How a human being may decide to kill another just because it has fallen into a state of sub-human if not into an entirely vegetable state?

The full judgment  of this case can be found here.

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About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user but often an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

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