ARUNA RAMCHANDRA SHANBAUG v. UNION OF INDIA AND OTHERS

Citation: [2011] 4 S.C.R. 1057

Court: Supreme Court of India

Bench: MARKANDEY KATJU, GYAN SUDHA MISRA

Case summary

ARUNA RAMCHANDRA SHANBAUG v. UNION OF INDIA AND OTHERS.pdf

Judgment text

• [2011] 4 S. C. R. 1057 ARUNA RAMCHANDRA SHANBAUG v. UNION OF INDIA AND OTHERS (Writ Petition (Criminal) No. 115 of 2009) MARCH 7, 2011 [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.

) Human Rights: Euthanasia - Withdrawal of life support - Writ petition filed in Supreme Court seeking euthanasia for a 60 year old woman - Petitioner was a Staff Nurse working in KEM Hospital, Mumbai, who was assaulted by a sweeper in the hospital who sodomized her and during this act twisted a dog chain around her neck due to which supply of oxygen to the 0 Petitioner's brain stopped and her brain got damaged - Petitioner lay bed-ridden in KEM Hospital, Mumbai since 1973 allegedly in a Persistent Vegetative State (PVS) - Held: The Petitioner cannot be said to be dead - Even from the report of Committee of Doctors it appears that she has some brain activity, though very little - The Petitioner 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 dementia has not progressed and has remained stable for many years - Whatever the condition of her cortex, her brain stem is certainly alive - Though the Petitioner's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her, however, the KEM hospital staff have been caring for her day and night for so many long years, who really are her next friends - Hence it is for the KEM hospital staff to tak~ a decision on withdrawal of life support to the Petitioner - The KEM hospital staff have clearly expressed their wish that Petitioner should be allowed to live - However, assuming that the KEM hospital staff at some future time changes its mind, 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 - Petition accordingly dismissed.

Euthanasia - Withdrawal of life support of a patient in Permanent Vegetative State (PVS) - No statutory provision in India as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection - Held: Passive euthanasia should be permitted in India in certain situations.

Euthanasia - Withdrawal of life support of a patient in Permanent Vegetative State (PVS) - Law laid down by Supreme Court in this connection until Parliament makes a law on the subject - Held: A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body ofpersons acting as a next friend - If can also be taken by the doctors attending the patient - However, the decision should be taken bona fide in the best interest of the patient - 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 - This is even more necessary since cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient - This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for re-assurance of the patient's family as well as the public - This is also in consonance with the doctrine ofparens patriae.

Euthanasia - Withdrawal of life support to a person who is unable to take a decision as regards such withdrawal - Application for, by near relatives or next friend or the doctors! • INDIA AND ORS. hospital staff- Power of High Court u/Art.

226 - Held: Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support - Procedure to be adopted by the High Court when such an application is filed - When such an application is filed the Chief Justice of the High Court should I forthwith constitute a Bench of at least two Judges who should I decide to grant approval or not - Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit - Preferably one of the three doctors should be a neurologist, one a psychiatrist, and the third a physician - For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government!

Union Territory and their fees for this purpose may be fixed - The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench - Simultaneously with appointing the committee of doctors, the High Court Bench shall a/so issue notice to the State and close relatives e. g. parents, spouse, brothers/sisters etc.

of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available - After hearing them, the High Court bench should give its verdict - The abol/e procedure should be followed all over India until Parliament makes legislation on this subject - The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient - The High Court should give its decision assigning specific reasons in accordance with the principle of 'best interest of the patient' - The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature - Constitution of India, 1950 - Article 226.

Euthanasia - Types of- Held: Euthanasia is of two types: active and passive - Active euthanasia entails the use of lethal substances or forces to kill a person e. g. a lethal 8 injection given to a person with terminal cancer who is in terrible agony - Passive euthanasia entails withholding of medical treatment for continuance of life, e. g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma - Further categorization of euthanasia between voluntary euthanasia and non voluntary euthanasia - Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e. g. when the patient is in coma, or is otherwise 0 unable to give consent.

Euthanasia - Legal position all over the world - Held: The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained. Euthanasia - Active Euthanasia and Physician assisted suicide - Legal position in India - Held: In India active euthanasia is illegal and a crime under section 302 or at least section 304 /PC - Physician assisted suicide is a crime under section 306 /PC (abetment to suicide). Euthanasia - Distinction between euthanasia and physician assisted suicide - Held: The difference is in who administers the lethal medication - In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. • INDIA AND ORS.

Precedents - Foreign decisions - Value of - Held: Foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts - Hence one can even prefer to follow the minority view, rather than the majority view, of a foreign decision, or follow an overruled foreign decision. Penal Code, 1860 - s. 309 - Held: s. 309 should be deleted by Parliament as it has become anachronistic person attempts suicide in a depression, and hence he needs help, rather than punishment. Medical Jurisprudence - When can a person be said fo be dead - Held: If the brain is dead, a person is said to be dead. Medical Jurisprudence - Brain death - Meaning. of- Discussed.

Doctrines - Doctrine of Parens Patriae - Held: The doctrine of Parens Patriae (father of the country) had originated in British law - It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves - The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State - In the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight. Constitution of India, 1950 - Article 21 - Held: The right to life guaranteed by Article 21 of the Constitution does not include the right to die. The issue of 'Euthanasia' was raised in a writ petition under Article 32 of the Constitution.

• It was stated in the writ petition that the petitioner was a staff Nurse working in King Edward Memorial (KEM) Hospital, Mumbai; that on the evening of 27th November, 1973 she was assaulted by a sweeper in the hospital who sodomized the petitioner and to immobilize her during this act he twisted a dog chain around her neck and that the next day, the petitioner was found lying on the floor with blood all over in an unconscious condition. It was alleged that due to strangulation by the dog chain the supply of oxygen to the petitioner's brain stopped and her brain got damaged; that now the Petitioner was about 60 years of age; that she was in a persistent vegetative state (p. v. s.

) and virtually a dead person and had no state of awareness, and her brain was virtually dead; that she could neither see, nor hear 0 anything nor could she express herself or communicate, in any manner whatsoever; that mashed food was put in her mouth, she was not able to chew or taste any food; that she was not even aware that food had been put in her mouth; that she was not able to swallow any liquid food, which shows that the food went down on its own and not because of any effort on her part; that the process of digestion went on in this way as the mashed food passed through her system; that, however, the Petitioner was virtually a skeleton; her excreta and the urine was discharged on the bed itself and that once in a while she was cleaned up but in a short while again she went back into the same sub-human condition.

It was contended that judged by any parameter, the Petitioner could not be said to be a living person and it was only on account of mashed food which was put into her mouth that there was a facade of life which was totally devoid of any human element. It was alleged that there was not the slightest possibility of any improvement in the condition of the Petitioner and her body lay on the INDIA AND ORS. bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 37 years. The prayer of the petitioner was that the respondents be directed to stop feeding her, and let her die peacefully. 8 Notice was issued by this Court on 16. 12. 2009 to all the respondents. A counter affidavit was earlier filed on behalf of the respondent nos. 3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital.

Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, this Court, by order dated 24th January, 2011 appointed a team of three distinguished doctors of Mumbai to examine the Petitioner thoroughly and submit a report about her physical and mental condition. The said team of three doctors handed over a report and also handed over a CD in this connection. Meanwhile, the Dean KEM Hospital Mumbai issued a statement on 24. 1. 2011 opposing euthanasia. The Hospital staff of KEM Hospital, Mumbai also issued statements that they were looking after Petitioner and wanted her to live. One retired nurse, who used to take care of the Petitionerwhile in service, even offered to continue to take care of her without any salary and without charging any traveling expenses. Dismissing the petition, the Court HELD: 1.

This Court could have dismissed the instant petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and the petitioner herein did not show violation of any of her fundamental rights. -Thexight to life guaranteed by Article 21 of the Constitution does not include the right to die. However, in view of the importance of the issues involved, the merits of the case are required to be gone into. [Para 4] (1085-A-C] Gian Kaur v. State ofPunjab 1996(2) SCC 648 - referred to. LEGAL ISSUES: Active and Passive Euthanasia 2. 1. Euthanasia is of two types: active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e. g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e. g.

withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma. The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal, even without legislation provided certain conditions and safeguards are maintained. [Para 38, 39] [1124-A-C] 2. 2. A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e. g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems. [Para 40] [1124-0-E] Active Euthanasia 2. 3. Active euthanasia is a crime all over the world except where permitted by legislation.

In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide). Active INDIA AND ORS. euthanasia is taking specific steps to cause the patient's A death, such as injecting the patient with some lethal substance, e. g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies ! n this deep sleep. [Paras 41, 42) (1124-F-HJ B 2. 4. A distinction is sometimes drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while c in physician assisted suicide it is the patient himself who does it, ·though on the advice of the doctor. In many countries/States the latter is legal while the former is not.

The difference between "active" and "passive" euthanasia is that in active euthanasia, something o is done to end the patient's life' while in passive euthanasia, something is not done that would have preserved the patient's life. An important idea behind this distinction is that in "passive euthanasia" the doctors are not actively killing anyone; they are simply not saving E him. While one usually applauds someone who saves -another person's life, one does not normally condemn "6omeone for failing to do so. If one rushes into a burning Juilding and carries someone out to safety, he will >robably be called a hero. But if one sees a burning F lUilding and people screaming for help, and he stands ->n the sidelines -- whether out of fear for his own safety, ~)r the belief that an inexperienced and ill-equipped .. jerson like himself would only get in the way of the rofessional firefighters, or whatever -- if one does G othing, few would judge him for his. inaction.

One would •Urely not be prosecuted for homicide. (At least, not -nless one started the fire in the first place. ) Thus, llll'oponents of euthanasia say that while one can debate •hether active euthanasia 'should be legal, there can be H A no debate about passive euthanasia: One cannot prosecute someone for failing to save a life. Even if one thinks it would be good for people to do X, one cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be B arrested. [Para 43 to 45] (1125-A-G] 2. 5. Some persons are of the view that the distinction is not valid. In fact there are many laws that penalize people for what they did not do. A person cannot simply c decide not to pay his income taxes, or not bother to send his/her children to school {where the law requires sending them), or not to obey a policeman's order to put down one's gun. However, this Court is of the opinion that the distinction is valid.

(Paras 47 to 49] (1125-H; 1126- D A-C] Passsive Euthanasia: 2. 6. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention E of causing the patient's death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result F in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia. [Para 51] [1135-B-C] G 2. 7. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die {which may be for various reasons e. g.

, that he is in great pain or that the money being spent on his H treatment should instead be given to his family who are • ARUNA RAMCHANDRA SHA~AUG v. UNION OF 1067 INDIA AND QRS. in greater need, etc. ), and for this purpose he consciously A and of his own free will refuses to take life saving medicines. In India, if'a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. [Para,52] [1135-D-F] ' . B 2. 8. Non voluntar}' ·passive euthanasia implies that the person is not in a position to decide for himself e. g. , if he is in coma or PVS. The present is a case where one has to consider non voluntary passive euthanasia i. e. whether to allow a person to die who is not in a position c to give his/her consent. [Para 53] [1135-G] Airedale NHS Trust v. Bland (1993) All E. R. 82 (H. L. ) referred to. LEGISLATION IN SOME COUNTRIES RELATING TO D EUTHANASIA OR PHYSICIAN ASSISTED DEATH 3. 1.

There is a plethora of case law all over the world relating to both active and passive euthanasia. [Para 54] [1135-H; 1136-A] E 3. 2. Netherlands: Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance F with the criteria of due care. These criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. G To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee. [Para 50] [1126-D-E] 3. 3. Switzerland: Switzerland has an unusual H A position on assisted suicide: it is legally permitted and can be performed by non-physicians.

However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the B latter a doctor or some other person administers it. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician. Consequently, C non-physicians have participated in assisted suicide. However, legally, active euthanasia e. g. administering a lethal injection by a doctor or some other person to a patient is illegal in Switzerland (unlike in Holland where it is legal under certain conditions). The Swiss law is D unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia. [Para 50) [1129-B-G] 3. 4.

Belgium: Belgium became the second country in E Europe after Netherlands to legalize the practice of euthanasia in September 2002. The Belgian law sets out conditions under which suicide can be practised without giving doctors a licence to kill. Patients wishing to end their own lives must be conscious when the demand is F made and repeat their request for euthanasia. They have to be under "constant and unbearable physical or psychological pain" resulting from an accident or incurable illness. The law gives patients the right to receive ongoing treatment with painkillers -- the G authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment. Unlike the Dutch legislation, minors cannot seek assistance to die. [Para 50] [1129-H; H 1130-A-D] ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1069 INDIA AND ORS. 3. 5. U. K. , Spain, Austria, Italy, Germany, France, etc.

: A In none of these countries is euthanasia or physician assisted death legal. [Para 50] [1130-E] 3. 6. United States of America: Active Euthanasia is illegal in all states in U. S. A. , but physician assisted dying B is legal in the states of Oregon, Washington and Montana. [Para 50] [1130-H; 1131-A] 3. 7. Canada: In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of C Canada. [Para 50] [1134-B] 3. 8. However, foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts. Hence one can even prefer to follow the minority view, rather than the majority view, of a foreign D decision, or follow an overruled foreign decision. In the opinion of this Court, the Airedale's case decided by the House of Lords in the U. K. is apposite as a precedent. [Paras 95, 96] [1156-G-H; 1157-A-B] E Sue Rodriguez v. British Columbia (Attorney General), (1993) 3 SCR 519 [Canada Supreme Court]; Airedale NHS Trust v.

Bland (1993) All E. R. 82 (H. L. ); In Re J (A Minor Wardship : Medical Treatment) 1990(3) All E. R. 930; Washington v. Glucksberg521 U. S. 702 (1997); Vacca v. Quill F •521 U. S. 793 (1997); Cruzan v. Director, MOH 497 U. S. 261 1(1990); Schloendorff v. Society ofNew York Hospital 211 N. Y. 125, 129-30, 105 N. E. 92, 93 (1914); In re Quinlan 70 N. J. 10, =355 A. 2d 647; In re Conroy 98 NJ 321, 486 A. 2d 1209 "1985) - referred to. G _AW IN INDIA 4. 1. In India abetment of suicide (Section 306 Indian ->enal Code) and attempt to suicide (Section 309 of Indian •enal Code) are both criminal offences. This is in contrast H • A to many countries such as USA where attemptto suicide is not a crime. The Constitution Bench of the Indian Supreme Court in Gian Kaur's case held that both euthanasia and assisted suicide are not lawful in India. The Court held that the right to life under Article 21 of the B Constitution does not include the right to die.

In Gian Kaur's case the Supreme Court approved of the decision of the House of Lords in Airedale's case, and observed that euthanasia could be made lawful only by legislation. [Para 98) [1157-D-F] c 4. 2. Although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur's case, the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, 0 and hence he needs help, rather than punishment. This Court therefore recommends to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code. [Para 100) [1158-B-C] E 4. 3. In Gian Kaur's case although the Supreme Court has quoted with approval the view of the House of Lords in Airedale's case, 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.

F 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 G give consent for withdrawal of life support. 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 H hence, the Court has to be very cautious: that INDIA AND ORS. unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method. [Paras 101 and 102) [1158-0-GJ 4. 4. Also, since. medical science is advancing fast, doctors must not declare a patient to be a hopeless case 8 unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future.

However, this Court makes it clear that it is experts like medical practitioners who can decide whether there _is any re~sonable possibility of new medical discovery which co~d enable such apatient to revive in the near future. [Par. a 103 & 104) [1158-H; . . ' 1159-A-B] . . Gian Kaur v. State of Punjab 1996(2) SCC 648 and P. Rathinam v. Union of India 1994(3) SCC 394 - referred to. M ; Airedale NHS ·Trust v. Bland (1993) All E. R. 82 (H. L. ) referred to. 1 WHEN CAN A PERSON IS SAID TO BE DEAD 5. 1. A person's most important organ is his/her brain. This organ cannot be replaced. Other body parts can be replaced e. g. if a person's hand or leg is amputed, he can get an artificial limb. Similarly, one can transplant kidney, a heart or a liver when the original one has failed. However, one cannot transplant a brain. If someone else's brain is transplanted into one's body, then in fact, it will be that other person living in one's body.

The entire mind, including one's personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one's brain. It follows that one is dead when one's brain is dead. [Para 106) [1159-F-H; 1160-A] • 5. 2. The brain cells normally do not multiply after the early years of childhood (except in the region called hippocampus), unlike other cells like skin cells, which are regularly dying and being replaced by new cells produced by multiplying of the old cells. This is probably because brain cells are too highly specialized to multiply. Hence if the brain cells die, they usually cannot be replaced (though sometimes one part of the brain can take over the function of another part in certain situations where the other part has been irreversibly damaged). [Para 107] [1160-8-C] 5. 3.

Brain cells require regular supply of oxygen which comes through the red cells in the blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this condition is known as anoxia. Hence, if the 0 brain is dead a person is said to be dead. [Para 108] [1160- D] BRAIN DEATH 6. 1. The term 'brain death' has developed various meanings. While initially, death could be defined as a cessation of breathing, or, more scientifically, a cessation of heart-beat, recent medical advances have made such definitions obsolete. The earlier understanding of death emerged from a cardiopulmonary perspective. In such cases, the brain was usually irrelevant -- being understood that the cessation of circulation would automatically lead to the death of brain cells, which require a great deal of blood to survive.

The invention of the ventilator and the defibrillator in the 1920s altered this understanding, it being now possible that the cessation of respiration and circulation, though critical, would no longer be irreversible. Hence, a present-day understanding of death as the irreversible end of life must imply total brain failure, such that neither breathing, nor • INDIA AND ORS. circulation is possible any more. The question of the length of time that may determine such death is significant, especially considering a significant increase in organ donations across jurisdictions over the last few years. [Paras 109, 110 and 111] [1160-E-F; 1161-A-E] 6. 2. Brain death, may, be defined as "the irreversible cessation of all functions of the entire brain, including the brain stem".

It is important to understand that this definition goes beyond acknowledging consciousness • - a person who is incapable of ever regaining consciousness will not be considered to be brain dead as long as parts of the brain e. g. brain stem that regulate involuntary activity (such as response to light, respiration, heartbeat etc. ) still continue to function. Likewise, if consciousness, albeit severely limited, is present, then a o person will be considered to be alive even if he has suffered brain stem death, wherein breathing and heartbeat can no longer be regulated and must be mechanically determined. Hence, the international standard for brain death is usually considered to include "whole-brain death", i. e. , a situation where the higher brain (i. e. the part of the brain that regulates consciousness and thought), the cerebellum or midbrain, and the brain-stem have all ceased to demonstrate any electrical activity whatsoever for a significant amount of time.

To say, in most cases, that only the death of the higher brain would be a criteria for 'brain death' may have certain serious consequences -- for example, a foetus, technically under this definition, would not be considered to be alive at all. Similarly, as per this, different definitions of death would apply to human and non-human organisms. [Para 112] [1161-F-G; 1162-A-D] 6. 3. Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. Even when a person is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be "alive". [Para 113] [1162-E-F] 6. 4.

It is important, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death--situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death. [Para 115] [1163-G; 1164-A-B] 6. 5. In legal terms, the question of death would naturally assume significance as death has a set of legal consequences as well. As per the definition in the American Uniform Definition of Death Act, 1980. an individual who "sustain[s] ... irreversible cessation of all functions of the entire brain, including the brain stem, is dead. " This stage, thus, is reached at a situation where not only consciousness, but every other aspect of life regulated from the brain can no longer be so regulated. [Para 116] [1164-B-C] 6. 6.

In the case of 'euthanasia', however, the situation is slightly different. In these cases, it is believed, that a determination of when it would be right or fair to disallow resuscitation of a person who is incapable of expressing his or her consent to a termination of his or her life depends on two circumstances: a. when a person is only kept alive mechanically, i. e. when not only consciousness is lost, but the person is only able to sustain involuntary • ! NOIA AND ORS. functioning through advanced medical technology--such as the use of heart-lung machines, medical ventilators etc. b. when there is no plausible possibility of the person ever being able to come out of this 8 stage.

Medical "miracles" are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person's condition for a long period of time-at least a few years-then there · can be a fair case made out for passive euthanasia. To extend this further, especially when a person is incapable of being able to give any consent, would amount to committing judicial murder. [Para 117] [1164· D-H; 1165-A] 6. 7. In this case, one may refer to the Transplantation of Human Organs Act, 1994, particularly Section 2(d) and 3(6) thereof. Although the said Act was enacted only for the purpose of regulation of transplantation of human organs, but throws some light on the meaning of brain death. [Para 118 & 120] [1165-B, H; 1166-A] Schmidt v. Pierce 344 S. W. 2d 120, 133 {Mo. 1961) and Sanger v. Butler 101 S. W. 459, 462 (Tex. Civ. App. 1907) referred to. 7. 1.

In the instant case, it cannot be said that the Petitioner is dead. Even from the report of Committee of Doctors it appears that she has some brain activity, though very little. The Petitioner 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.

The Petitioner 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 o years. From the examination by the team of doctors, it cannot be said that Petitioner 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 fo,od, and her body performs other involuntary function without any help. From the CD (as screened in the courtroom 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. [Paras 121 to 124] (1166-B-H; 1167-A] 7. 2. However, there appears little possibility of the Petitioner 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. [Para 125] [1167-B] WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS) 8. 1. There is no statutory provision in India as to the • INDIA AND ORS. legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. Passive euthanasia should be permitted in our country in certain situations. Hence, following the technique used in Vishakha's case, this Court is laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject. (i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a i1ext friend. It can also be taken by the doctors attending the patient.

However, the decision should be taken bona fide in 0 the best interest of the patient. In the present case, the Petitioner's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. 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 hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that the Petitioner should be allowed to live. However, assuming that the KEM hospital staff at some future time changes its mind, 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.

This is even more necessary since cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient. [Para 126) [1167-C-H; 1168-A-H; 1169-A] 8. 2. In the opinion of this Court, if it is left solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an 8 incompetent person there is always a risk that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, one cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money.

The commercialization of society has crossed all limits. Hence one have to guard against the potential of misuse. While giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, one cannot leave it entirely to their discretion whether to discontinue th~ life support or not. This Court agrees with the decision of the Lord Keith in Airedale's case that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient's family as well as the public. This is also in consonance with the doctrine of parens patriae which is well known principle of law. [Para 127) [1169-B-G] DOCTRINE OF PARENS PATRIAE 9. 1.

The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country • INDIA AND ORS. and is under obligation to look aftt! r the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role. The duty of the King in feudal times -to act as parens patriae (father of the country) has been taken over in modern times by the State. [Paras 128, 129) [1169-H; 1170-A, B, G] 9. 2. In the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

[Paras 132) [1171-C] o Charan Lal Sahu v. Union of India (1990) 1 SCC 613 and State of Kera/a v. N. M. Thomas 1976(1) SCR 906 referred to. Heller v. DOE (509) US 312 - referred to. UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON 10. 1. The High Court, under Article 226 of the Constitution, can grant approval for withdrawal of life support to such an incompetent person. The High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders. [Paras 133, 134] (1171-E, H; 1172-A] 10. 2. No doubt, the ordinary practice in our High 1 -Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the • provision.

However, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned. [Para 137) [1172-G-H; 1173-A- B] Dwarka Nath v. /TO AIR 1966 SC 81 and Shri Anadi Mukta Sadguru v. V. R. Rudani AIR 1989 SC 1607 - referred to. PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED 11. 1. When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not.

Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed. [Para 138) [1173-C-E] 11. 2. The committee of three doctors nominated by the Bench should carefully examine the patient and also ~onsult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench. [Para 139) (1173-E-F] • INDIA AND ORS. 11. 3. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e. g. parents, spouse, brothers/sisters etc.

of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject. [Para 140) [1173-F-H] 11. 4. The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient. [Para 141] [1174-A] 11. 5. The High Court should give its decision assigning specific reasons in accordance with the principle of 'best interest of the patient' laid down by the House of Lords in Airedale's case. The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature. [Para 142) [1174-B-C] Airedale NHS Trust v. Bland (1993) All E. R. 82 (H.

L. ) referred to. Case Law Reference: 1996(2) sec 648 referred to Paras 4, 98 (1993) 3 SCR 519 [Canada Supreme Court] referred to Para 50 (1993) All E. R. 82 (H. L. ) referred to Para 59 1990(3) All E. R. 930 referred to Para 77 521 U. S. 702 (1997) referred to Para 79 • 521 U. S. 793 (1997) referred to Para 79 MOH 497 U. S. 261 (1990) referred to Para 83 211 N. Y. 125, 129-30, 105 N. E. 92, 93 (1914) referred to Para 87 8 70 N. J. 10, 355 A. 2d 647 referred to Para 89 98 NJ 321, 486 A. 2d 1209 (1985) referred to Para 90 1994(3) sec 394 referred to Para 98 344 S. W. 2d 120, 133 (Mo. 1961) referred to Para 109 101 s. w. 459, 462 (Tex. Civ. App. 1907) referred to Para 109 '' (1990) 1 sec 613 referred to Para 129 (509) us 312 referred to Para 130 1976(1) SCR 906 referred to Para 131 AIR 1966 SC 81 referred to Para 135 AIR 1989 SC 1607 referred to Para 136 CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl. ) No. 115 of 2009. Under Article 32 of the Constitution of India. G. E.

Vahanvati, Attorney General, T. R. Andhyarujina, Shekhar, Naphade, Pallav Shishodia, Chinmoy P. Sharma, Soumik Ghosal, Shubhangi Tuli, Divya Jain, Vimal Chandra S. Dave, Sunuina Dutta, Suchitra Atul Chitale, Chinmoy Khaldkar, Sanjay V. Kharde, Asha Gopalan Nair for the appearing parties. The Judgment of the Court was delivered by • INDIA AND ORS. MARKANDEY KATJU, J. "Marte hain aarzoo mein marne ki Maut aati hai par nahin aati" -- Mirza Ghalib 1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra. 2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today.

This Court, in this case, is facing the same issue, and we feel'like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend. 3. It is stated in the writ petition that the petitioner Aruna Ramachandra 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. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged • that the Neurologist in the Hospital found that she had plantars' extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged at page 11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain.

She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p. v. s. ) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, 0 nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short while again she goes back into the same sub-human condition.

Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of the petitioner is that the respondents be directed to stop feeding Aruna, and let her die peacefully. • 4. We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by the Constitution Bench decision ofthis Court in Gian Kaur vs.

State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Hence the petitioner has not shown violation of any of her fundamental rights. However, in view of the importance of the issues involved we decided to go deeper into the merits of the case. 5. Notice had been issued by this Court on 16. 12. 2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos. 3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet.

Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare. 6. Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our . order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were : (1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; (2) Dr. Roop Gursahani, Consultant Neurologist at P. D. Hinduja, Mumbai; and · • ·· (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. 7.

In pursuance of our order dated 24th January, 2011, the team of three doctors above mentioned examined Aruna 8 Shanbuag in KEM Hospital and has submitted us the following report: " Report of Examination of Ms. Aruna Ramachandra Shanbaug Jointly prepared and signed by 1. Dr. J. V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai) 2. Dr. Roop Gursahani (Consultant Neurologist at P. O. Hinduja Hospital, Mumbai) 3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). I. Background As per the request of Hon. Justice Katju and Hon. Justice Mishra of the Supreme Court of India, Ms. Aruna Ramachandra Shanbaug, a 60-year-old female patient was examined on 28th January 2011, morning and 3rd February 2011, in the sideroom of ward-4, of the K. E. M. Hospital by the team of 3 doctors viz. Dr. J. V.

Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai), Dr. Roop Gursahani (Consultant Neurologist at P. O. Hinduja Hospital, Mumbai) and Dr. Nilesh Shah (Professor • INDIA AND OR$. [MARKANDEY KATJU, J. ] and Head, Department of Psychiatry at Lokmanya · Tilak Municipal Corporation Medical College and Gen~ral Hospital). -This committee was set up because the Court found some variance between the allegations in the 8 writ petition filed by Ms. Pinki Virani on behalf of Aruna Ramchandras Shanbaug and the counter affidavit of Dr. Pazare.

This team of three doctors was appointed to examine Aruna Ramachandra Shanbaug thoroughly and give a report to the Court about her physical and mental condition It was felt by the team of doctors appointed by the Supreme Court that longitudinal case history and observations of last 37 years along with findings of examination will give a better; clear and comprehensive picture of the patient's condition. · This report is based on: 1. The longitudinal case history and observations obtained from the Dean and the medical and nursing staff of K. E. M. Hospital, 2. Case records (including nursing records) since January 2010 · 3. Findings of the physical, neurological and mental status examinations performed by the panel. 4. 111vestigations perfonned during the course of this assessment (Blo~cj tests, · CT head, Electroencephalogram) II. Medical history Medical history of ·Ms.

Aruna Ramachandra Shanbaug was obtained from the Dean, the • Principal of the School of Nursing and the medical and nursing staff of ward-4 who has been looking after her. It was learnt from the persons mentioned above that 1. Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was assaulted and strangulated by a sweeper of the hospital on November 27, 1973. 2. Though she survived, she never fully recovered frpm the trauma and brain damage resulting from the assault and strangulation. 3. Since last so many years she is in the same bed in the side-room of ward-4. 4. The hospital staff has provided her an excellent nursing care since then which included feeding her by mouth, bathing her and taking care of her toilet needs. The care was of such an exceptional nature that she has not developed a single bed-sore or fracture in spite of her bed-ridden state since 1973. 5.

According to the history from them, though she is not very much aware of herself and her surrounding, she somehow recognizes the presence of people around her and expresses her like or dislike by making certain types of vocal sounds and by waving her hands in certain manners. She appears to be happy and smiles when she receives her favorite food items like fish and chicken soup. She accepts feed which she likes but may spit out food which she doesn't like. She was able to take oral feeds till 16th September 2010, when she developed a febrile illness, probably malaria. After that, her oral intake reduced • and a feeding tube (Ryle's tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryle's tube, and is only occasionally able to accept the oral liquids. Malaria has taken a toll in her physical condition but she is gradually recuperating from it. 6. Occasionally, when there are many people in the room she makes vocal sounds indicating distress.

She calms down when people move out of her room. She also seems to enjoy the devotional songs and music which is played in her room and it has calming effect on her. 7. In an annual ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra Shanbaug, and is told that "She was one of us"; "She was a very nice and efficient staff nurse but due to the mishap she is in this bedridden state". 8. The entire nursing staff member and other staff members have a very compassionate attitude towards Ms. Aruna Ramachandra Shanbaug and they all very happily and willingly take care of her. They all are very proud of their achievement of taking such a good care of their bed-ridden colleague and feel very strongly that they want to continue to take care of her in the same manner till she succumbs naturally. They do not feel that Ms. Aruna Ramachandra Shanbaug is living a painful and miserable life. Ill. Examination Illa.

Physical examination She was conscious, unable to co-operate and • appeared to be unaware of her surroundings. Her body was lean and thin. She appeared neat and clean and lay curled up in the bed with movements of the left hand and made sounds, especially when many people were present in the room. She was afebrile, pulse rate was 80/min, regular, and good volume. Her blood pressure recorded on the nursing charts was normal. Respiratory rate was 15/min, regular, with no signs of respiratory distress or breathlessness. There was no pallor, cyanosis, clubbing or icterus. She was edentulous (no teeth). Skin appeared to be generally in good condition, there were no bed sores, bruises or evidence of old healed bed sores. There were no skin signs suggestive of nutritional deficiency or dehydration. Her wrists had developed severe contractures, and were fixed in acute flexion. Both knees had also developed contractures (right more than left). A nasogastric feeding tube (Ryle?

s tube) was in situ. She was wearing diapers. Abdominal, respiratory and cardiovascular examination was unremarkable. lllb. Neurological Examination When examined she was conscious with eyes open wakefulness but without any apparent awareness (see Table 1 for detailed assessment of awareness). From the above examination, she has evidence of intact auditory, visual, somatic and • motor primary neural pathways. However ho definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations. There was no coherent response to verbal commands or to calling her name. She did not turn her head to the direction of sounds or voices. When roused she made non-specific unintelligible sounds ("uhhh, ahhh") loudly and continuously but was generally silent when undisturbed. Menace reflex (blinking in response to hand . movements in front of eyes) was present in both eyes and hemifields but brisker and more consistent on the left.

Pupillary reaction was normal bilaterally. Fundi could not be seen since she closed her eyes tightly when this was attempted. At rest she seemed to maintain preferential gaze to the left but otherwise gaze was random and undirected (roving) though largely conjugate. Facial movements were symmetric. Gag reflex (movement of the palate in response to insertion of a tongue depressor in the throat) was present and she does not pool saliva. She could swallow both teaspoonfuls of water as well as a small quantity of mashed banana. She licked though not very completely sugar smeared on her lips, suggesting some tongue control. She had flexioh contractures of all limbs and seemed to be incapable of turning in bed spontaneously. There was what appeared to be minimal voluntary movement with the left upper limb (touching her wrist to the eye for instance, perhaps as an attempt to rub it). When examined/disturbed, she seemed to curl up even further in her flexed • foetal position.

Sensory examination was not possible but she did seem to find passive movement painful in all four limbs and moaned continuously during the examination. Deep tendon reflexes were difficult to elicit elsewhere but were present at the ankles. Plantars were withdrawal/ extensor. Thus neurologically she appears to be in a state of intact consciousness without awareness of self/environment. No cognitive or communication abilities could be discerned. Visual function if present is severely limited. Motor function is grossly impaired with quadriparesis. Ille. Mental Status Examination 1. Consciousness, General Appearance, Attitude and Behavior: Ms. Aruna Ramachandra Shanbaug was resting quietly in her bed, apparently listening to the devotional music, when we entered the room. Though, her body built is lean, she appeared to be well nourished and there were no signs of malnourishment. She appeared neat and clean.

She has developed contractures at both the wrist joints and knee joints and so lied curled up in the bed with minimum restricted physical movements. She was conscious but appeared to be unaware of herself and her surroundings. As soon as she realized the presence of some people in her room, she started making repetitive vocal sounds and moving her hands. This behavior subsided as we left the room. She did not have any involuntary movements. She did not demonstrate any catatonic, hostile or violent behavior. • Her eyes were wide open and from her behavior it appeared that she could see and hear us, as when one loudly called her name, she stopped making vocal sounds and hand movements for a while. She was unable to maintain sustained eye-to eye contact but when the hand was suddenly taken near her eyes, she was able to blink well. When an attempt was made to feed her by 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. Thus, at times she could cooperate when fed. 2. Mood and affect : It was difficult to assess her mood as she was unable to communicate or express her feelings. She appeared to calm down when she was touched or caressed gently. She did not cry or laugh or expressed any other emotions verbally or nonverbally during the examination period. When not disturbed and observed quietly from a distance, she did not appear to be in severe pain or misery. Only when many people enter her room, she appears to get a bit disturbed about it. 3. Speech and thoughts : She could make repeated vocal sounds but she could not utter or repeat any comprehensible words or follow and respond to any of the simple commands (such as "show me your tongue"). The only way she expressed herself was by making some sounds. She appeared to have minimal language comprehension or expression. • 4.

Perception : She did not appear to be having any perceptual abnormality like hallucinations or illusions from her behavior. 5. Orientation, memory and intellectual capacity: Formal assessment of orientation in time, place and person, memory of immediate, recent and remote events and her intellectual capacity could not be carried out. 6. Insight : As she does not appear to be fully aware of herself and her surroundings, she is unlikely to have any insight into her illness. IV. Reports of Investigations IVa. CT Scan Head (Plain) This is contaminated by movement artefacts. It shows generalized prominence of supratentorial sulci and ventricles suggestive of generalized cerebral atrophy. Brainstem and cerebellum seem normal. lschemic foci are seen in left centrum semiovale and right external capsule. In addition a small left parieto-occipital cortical lesion is also seen and is probably ischemic. IVb.

EEG The dominant feature is a moderately rhythmic alpha frequency at 8-10 Hz and 20-70 microvolts which is widely distributed and is equally prominent both anteriorly and posteriorly. It is not responsive to eye-opening as seen on the video. Beta at 18- • 25 Hz is also seen diffusely but more prominently anteriorly. N. o focal or paroxysmal abnormalities were noted IVc. Blood Reports of the hemoglobin, white cell count, liver function tests, renal function tests, electrolytes, thyroid function, Vitamin 812 and 1,25 dihydroxy Vit 03 levels are unremarkable. (Detailed report from KEM hospital attached. ) V. Diagnostic impression 1) From the longitudinal case history and examination it appears that Ms. Aruna Ramachandra Shanbaug has developed nonprogressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation. Most authorities consider a period exceeding 4 we.

eks in this condition, especially when due to hypoxic-ischemic injury as confirming irreversibility. In Ms. Aruna's case, this period has been as long as 37 years, making her perhaps the longest survivor in this situation. 2) She meets most of the criteria for being in a permanent vegetative state (PVS). PVS is defined as a clinical condition of unawareness (Table 1) of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and opening which may simulate sleep and waking (Table 2). While she has evidence of intact auditory, visual, somatic and motor primary neural pathways, ·no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed • during our examinations. VI. Prognosis Her dementia has not progressed and has remained stable for last many years and it is likely to remain same over next many years.

At present there is no treatment available for the brain damage she has sustained. VII. Appendix VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS (Wade OT, Johnston C. British STIMULUS RESPONSE Med Journal 1999; 319 841- 844) DOMAIN OBSERVED] AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements Meaningful Non-specific head and body noise (rattled steel tumbler and spoon, movements film songs of 1970s) Unable to obey commands. No Spoken commands ("close your ey1;1s''.

specific or reproducible response "lift left hand ": in English, Marathi and Konkani) VISUAL AWARENESS Bright light to eyes Pupillary responses present Large moving object in front of eyes Tracking movements: present but (bright red torch, plastic rattle) inconsistent and poorly reproducible Visual threat (fingers suddenly moved Blinks, but more consistent on toward eyes) left than right Written command (English, Marathi: No response close your eyes) SOMATIC AWARENESS Painful stimuli Withdrawal, maximal in left upper to limbs (light limb prick with sharp end of tendon hammer) Painful stimuli to face Distress but no co-ordinated Routine sensory stimuli during care response to remove stimulus • (changing position in bed and feeding) Generalized non specific response presence but no coordinated attempt to assist in process MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal directed lifting left hand to left side of face, apparently to rub her left eye.

Responsive Non-specific undirected without any goal directed activities. Conclusion: From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness . of auditory, visual, somatic and motor stimuli was observed during our examinations. Vllb. Table 2. Application of Criteria for Vegetative State (Bernat JL. Neurology clinical Practice Examination findings : whether 2010; 75 (suppl. 1): S33-S38)Criteria she meets Criteria (Yes /No I Probably) Unaware of self and environment Yes, Unaware No interaction with others Yes, no interaction No sustained, reproducible or purposeful Yes, no sustained, reproducible or voluntary behavioural response to visual, purposeful behavioural response, auditory, tactile or noxious stimuli but : 1. Resisted examination of fundus 2.

Licked sugar off lips No language comprehension or Yes, no comprehension expression No blink to visual threat Blinks, but more consistent on left than right Present sleep wake cycles Yes (according to f! Urses) Preserved autonomic and hypothalamic Yes function Preserved cranial nerve reflexes Yes Bowel'·~l"! d bladder incontinence Yes • VIII. References 1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl J Med 1994; 330: 1499- 508 2. Wade OT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and management. Brit Med J 1999; 319:841-4 3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and diagnostic criteria. Neurology 2002;58:349-353 4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology 2010;75;533" 8. On 18th February, 2011, we then passed the following order: "In the above case Or. J. V. Divatia on 17. 02.

2011 handed over the report of the team of three doctors whom we had appointed by our order dated 24th January, 2011. He has also handed over a CD in this connection. Let the report as well as the CD form part of the record. On mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the request of learned Attorney General of India, Mr. T. R. Andhyarujina, learned Senior Advocate, whom we have appointed as amicus curiae in the case as well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner. We request the doctors whom we had appointed viz. , Dr. J. V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10. 30 A. M. in the Court, since it is quite possible that we may like to ask them questions about the report which they have submitted, and in general about their views in connection • with euthanasia.

· On perusal of the report of the committee of doctors to us we have noted that there are many technical terms · which have been used therein which a non-medical man would find it difficult to understand. We, therefore, request 8 the doctors to submit a supplementary report by the next date of hearing (by e:mailing copy of the same two days before the next date of hearing) in which the meaning of these technical terms in the report is also explained. The Central Government is directed to arrange for the air travel expenses of all the three doctors as well as their stay in a suitable accommodation at Delhi and also to provide them necessary conveyance and other facilities they require, so that they can appear before us on 02. 03. 2011. An honorarium may also be given to the doctors, if they so desire, which may be arranged mutually With the · learned Attorney General. The Dean of King Edward Memorial Hospital as well as Ms.

Pinky Virani (who claims to be the next friend of the petitioner) are directed to intimate the brother(s)/ sisterts) or other close relatives of the petitioner that the case will be listed on 2nd March, 2011 in the Supreme Court and they can put forward their views before the Court, if they so desire. Learned counsel for the petitioner and the Registry of this Court shall communicate a copy of this Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested to file an affidavit stating his views regarding the prayer in this writ petition, and also the condition of the petitioner. Copy of this Order shall be given forthwith to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates. • Let the matter be listed as the first item on 2nd March, 2011 ". 9. On 2. 3. 2011, the matter was listed again before us and we first saw the screening of the CD submitted by the team of doctors along with their report.

We had arranged for the 8 screening of the CD in the Courtroom, so that all present in Court could see the condition of Aruna Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials in which a screening was done in the Courtroom of some of the Nazi atrocities during the Second World War. We have heard learned counsel for the parties in great detail. The three doctors nominated by us are also present in Court. As requested by us, the doctors team submitted a supplementary report before us which states : Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly prepared and signed by 1. Dr. J. V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai) 2. Dr. Roop Gursahani (Consultant Neurologist at P. D. Hinduja Hospital, Mumbai) 3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital).

Mumbai February 26, 2011 • INDEX Introduction 3 Terminology 4 Glossary of Technical terms 7 Opinion 11 3 Introduction This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011. On perusal of the report, the Hon. Court observed that there were many technical terms which a non-medical man would find it difficult to understand, and requested us to submit a supplementary report in which the meaning of these technical terms in the report is also explained. We have therefore prepared this Supplement to include a glossary of technical terms usec:t in the earlier Report, and also to clarify some of the terminology related to brain damage. Finally, we have given our opinion in the case of Aruna Shanbaug. Terminology The words coma, brain death and vegetative state are often used in common language to describe severe brain damage. However, in medical terminology, these terms have specific meaning and significance.

Brain death A state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations. E~planation:. This is the most severe form of brain • damage. The patient is unconscious, completely unresponsive, has no reflex activity from centres in the brain, and has no breathing efforts on his own. However the heart is beating. This patient can only be maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain blood pressure, etc). These patients can be legally declared dead ('brain dead') to allow their organs to be taken for donation. Aruna Shanbaug is clearly not brain dead. Coma Patients in coma have complete failure of the arousal system with no spontaneous eye opening and are unable to be awakened by application of vigorous sensory stimulation. · Explanation: These patients are unconscious.

They cannot be awakened even by application of a painful stimulus. They have normal heart beat and breathing, and do not require advanced life support to preserve life. Aruna Shanbaug is clearly not in Coma. Vegetative State (VS) The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles.. i. e. patients are awake, but have no awareness. Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, co-ordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to . light, sound, touch or pain. They cannot understand, • communicate •. speak, or have emotions. They are unaware of s~lf and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools.

They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state : Sleep-wake cycles with eyes closed, then open Patient breathes on her own Spontaneous blinking and roving eye movements Produce sounds but no words Brief, unsustained visual pursuit (following an object with her eyes) · Grimacing to pain, changing facial expressions Yawning; chewihg jaw movements Swallowing of her own spit Nonpurposeful limb movements; arching of back Reflex withdrawal from painful stimuli Brief movements of head or eyes toward sound or movement without apparent localization or fixation Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug.

Minimally Conscious State Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for VS. These patients demonstrate some behavioral evidence of· conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by the partial preservation of conscious awareness. To make the diagnosis of MCS, limited but clearly discernible evidence of self or environmental awareness must be demonstrated on a reproducible or sustained basis by one or more of the following behaviors: • Following simple commands. 0 • Gestural or verbal yes/no responses (regardless of accuracy). • Intelligible sounds • Purposeful behavior, including movements or emotional behaviors (smiling, crying) that occur in relation to relevant environmental stimuli and are not due to reflexive activity.

Some examples of qualifying purposeful behavior include: - appropriate smiling or crying in response to the linguistic or visual content of emotional but not. Jo neutral topics or stimuli - vocalizations or gestures that occur in direct response to the linguistic content of questions - reaching for objects that demonstrates a clear relatio. nship between object location and direction of reach - touching or holding objects in a manner that accommodates the size and shape of the object -: pursuit eye movement or sustained fixation that occurs in direct response to moving or salient stimuli None of the above behaviours suggestive of a Minimally Conscious State were observed during the examination of Aruna Shanbaug.

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order) Term Meaning in text Affect Feeling conveyed though expressions and behavior Afebrile No fever Auditory Related to hearing Bedsore A painful wound on the body caused by having to lie in bed for a long time Bilaterally On both sides (right and left) Bruise An injury or mark where the skin has not been broken but is darker in colour, often as a result of being hit by something Catatonic Describes someone who is stiff and not moving or reacting, as if dead Cerebral atrophy Shrinking of the globe (cortex) of the brain Clubbing Bulging or prominence of the nailbed, making base of the nails look thick. This is often due to longstanding infection inside the lungs. Cognitive Related to ability to understand and process information in the brain Conjugate Synchronised movement (of the • eyeball) Conscious Awake with eyes open.

By itself the term conscious does not convey any information about awareness of self and surroundings, or the ability to understand, communicate, have emotions, etc. Contractures Muscles or tendons that have become shortened and taut over a period of time. This causes deformity and restriction of movements. CT Scan A specialized X-ray test where images of the brain (or other part of the body) are obtained in crosssection at different levels. This allows clear visualization of different parts of the brain Cyanosis Bluish discoloration of the nails, lips or skin. It may be due to low levels of oxygen in the blood Deep tendon reflexes Reflex response of the fleshy part of certain muscles when its tendon is hit lightly with an examination hammer Dementia Disorder in which there is a cognitive defect, i. e.

the patient is unable to understand and process information in the brain Electroencephalography, Recording of the electrical activity (EEG) of the brain Febrile illness Illness with fever Fracture A crack or a break in bones Fundi Plural of fundus. Fundus of the eye is the interior surfa