Harish Ranav.Union of India & Ors.

1. The above words of Henry Ward Beecher assume great significance in the present case, more particularly when the courts are asked to give their decision on the question whether an individual can choose to accept life by preferring to die. The famous Shakespearean dilemma of “to be or not to be”, which had so far remained as a literary quote, is now being used for judicial interpretation to canvass the liberty to die.

2. The present Miscellaneous Application (“MA”) has been filed by a mentally and physically incapacitated applicant, namely, Harish Rana, through his parents, in the captioned SLP that came to be disposed of by this Court vide order dated 08.11.2024. By way of the said order, this Court resolved the matter between the parties by ensuring that adequate care and necessary treatment are provided to the applicant, including but not limited to the provision of home care, at the expense of the respondents.

3. The captioned SLP had arisen from the order dated 02.07.2024 passed by the High Court of Delhi in Writ Petition (C) No. 4927 of 2024, whereby the High Court had dismissed the writ petition on the ground that the applicant was not being kept alive mechanically and that he was able to sustain himself without any extra or external medical aid. In the High Court’s opinion, such a condition did not require any judicial intervention. Aggrieved by the said order, the applicant, through his parents, preferred the captioned SLP.

4. While disposing of the captioned SLP, this Court had granted liberty to the applicant to move this Court through his parents for obtaining any further directions should it become necessary to do so. Accordingly, owing to the applicant’s continued vegetative existence, which violates his right to live with dignity as enshrined under Article 21 of the Constitution of India, the parents have moved this Court once again vide the present MA inter alia seeking: (i) constitution and referral of the applicant’s case to the primary medical board; and (ii) declaration that the provision of Clinically Assisted Nutrition and Hydration (hereinafter referred to as “CANH”) which is currently being administered to him through a Percutaneous Endoscopic Gastrostomy tube (hereinafter referred to as “PEG tube”) is “medical treatment”.

5. Further, the parents have also prayed that the suitability of continuation of CANH be assessed in accordance with the ruling of the five-judge Constitution Bench of this Court in Common Cause v. Union of India, reported in (2018) 5 SCC 1 (hereinafter referred to as “Common Cause 2018”) and the guidelines ascribed therein, which were later modified to some extent by Common Cause v. Union of India, reported in (2023) 14 SCC 131 (hereinafter referred to as “Common Cause 2023”). For ease of reference, the guidelines regarding withdrawal and withholding of medical treatment where no Advance Medical Directive (“AMD”) exist, as laid down in Common Cause 2018 (supra) and modified in Common Cause 2023 (supra), will be hereinafter referred to as “Common Cause Guidelines”.

(A). FACTUAL MATRIX

6. The applicant, presently aged 32 years, was once a young man of 20 years with a promising future, pursuing a B.Tech degree at Punjab University, when he met with a tragic and life-altering accident. On the fateful evening of 20.08.2013, at around 6 p.m., the applicant is stated to have fallen from the fourth floor of his paying guest accommodation, as a result of which he sustained a diffuse axonal injury. He was initially rushed to the Garhwal local hospital, but within a few hours, he had to be shifted to the Postgraduate Institute of Medical Education & Research, Chandigarh (“PGI, Chandigarh”) due to the severity of his medical condition. From 21.08.2013 to 27.08.2013, he remained admitted at the PGI, Chandigarh, where he was administered treatment in the form of conservative management, including AED, analgesics, ventilating support, antibiotics, tracheostomy, and feeding through a Ryle’s tube (nasogastric tube). Although he was discharged from PGI, Chandigarh, on 27.08.2013, yet unfortunately, his condition remained far from recovery.

7. Following his discharge, his fragile health condition necessitated frequent hospital admissions and regular medical treatments for his head injury, seizures, pneumonia and bedsores at the Jai Prakash Narayan Trauma Centre, All India Institute of Medical Sciences, New Delhi (“AIIMS”). In the year 2013, the mode of administering CANH to the petitioner came to be switched from Ryle’s Tube/nasogastric tube to a surgically placed PEG tube, which now requires replacement at a hospital every two months.

8. Ever since the incident, the applicant has been on tracheostomy, urinary catheter and CANH administered through the PEG tube. The applicant’s medical records also indicate that he had a history of seizures in the year 2014, for which he was put on medication. The last seizure occurred in the year 2016, and since then, he has been receiving anti-seizure drugs for its prevention.

9. Medical reports of the applicant indicate that he exhibits no evidence of awareness of his environment and is incapable of interacting with others. He also does not indicate by any facial gesture, grunting, or body movement if he is hungry, has soiled himself or is in any other discomfort. The family of the applicant have also conveyed that they have not noted any significant benefit from any of the several treatments, including hyperbaric oxygen therapy, that were tried over the span of the last 13 years. The applicant’s neurological condition has remained static with no improvement. He is unable to express his needs and has been dependent on all activities of self-care.

10. He has sleep-wake cycles and sleeps through the night. His eyes open with normal blinks but with no purposeful movement or as a response to auditory, verbal, tactile or painful stimulus. The applicant has remained bedridden ever since the incident, due to which he has often suffered terribly from painful bedsores, despite receiving the most attentive nursing care from his mother. Although the applicant has largely been cared for at home, yet his susceptible condition has time and again necessitated hospitalisation for infections. His most recent hospitalisation had been in May 2025, at the District Hospital Ghaziabad, for the treatment of coughing and bedsores. The week-long hospitalisation also involved another tracheostomy.

11. Furthermore, the disability certificate dated 21.11.2014 issued by the Janakpuri Super Speciality Hospital Society (Autonomous Institute), Government of NCT of Delhi, which has been annexed with the present MA, certified the applicant’s condition as having a head injury with diffuse axonal injury with vegetative stage, quadriplegia and 100% permanent physical disability in relation to the whole body. The relevant extract from the said disability certificate is as follows:

“This is to certify that Harish Rana, Age 21 years, Sex Male, S/o Shri Ashok Rana, Resident of Block-D-House No. 309-A, Street No. 55A, Mahavir Enclave, NEW DELHI- 110059, Registration No-0026879 is a case of Head Injury with Diffuse Axonal Injury with Vegetative Stage, Quadriplegic. He is Physically disabled and has 100% [Hundred percent] disability in relation to his whole body and is Permanent in nature.”

12. Another disability certificate dated 13.04.2016, issued by Dr. Ram Manohar Lohia Hospital, New Delhi, Government of India, certified that the applicant is in a Persistent Vegetative State (hereinafter referred to as “PVS”) with complete sensorimotor dysfunction, and 100% permanent physical impairment. The relevant extract from the said disability certificate is as follows:

“This is to certify that I have carefully examined Mr. Harish Rana, S/o Mr. Ashok Rana, 24Y/M, r/o- D-309/A, Gali No. 55A, Mahavir Enclave III, Delhi-110059, photograph is affixed above, and am satisfied that he is a case of PERSISTENT VEGETATION STAGE WITH COMPLETE SENSORIMOTOR DYSFUNCTION, HIS PERMANENT PHYSICAL IMPAIRMENT IS 100% (HUNDRED PERCENT). His extent of physical impairment/disability has been evaluated as per guidelines F. No. A13021/2010-MS/MH-II-Directorate General of Health Services (Medical Hospital Section-II), Nirman Bhawan, New Delhi dated 18.06.2010 and is shown against the relevant disability in the table below […]”

13. In the aforementioned circumstances, when the present MA came before this Court, vide order dated 26.11.2025, we directed the constitution of a primary medical board of doctors in accordance with the Common Cause Guidelines. The primary medical board was directed to submit its report ascertaining whether life-sustaining treatment ought to be withdrawn or withheld in the present case.

14. Pursuant to the above, the Chief Medical Officer, Ghaziabad, U.P., constituted the primary medical board which visited the residence of the applicant for the purpose of evaluating his health condition. The primary medical board comprised of Dr. Sachin Garg, Neurologist, Dr. Amit Srivastava, Plastic Surgeon, Dr. Ankit Kumar, Anaesthesiologist and Dr. Akhil Prakash, Neurosurgeon. The primary medical board examined the applicant and addressed a letter to the Principal, LLRM Medical College, Meerut, UP. The contents of the letter read thus:

“This is to say that after consulting with CMO Ghaziabad we have visited residential place of Mr. Harish Rana S/O Mr. Ashok Rana R/O- AM-1314, Raj Empire, Rajnagar Extension, Ghaziabad for evaluation of his health condition. The team included a neurosurgeon, a neurologist, a plastic surgeon and a critical care expert. Attendants Mr. Ashish Rana (brother) and Ms. Bhawna Rana (sister) were present during evaluation. Harish Rana suffered injuries about 13yrs back since that time he is under medical care under many centers. At present Patient was lying in bed with tracheostomy tube for respiration and gastrostomy for feeding. Patient was opening eyes spontaneously. His breathing was spontaneous with treacheostomy tube. He was emasciated and contactures were present in both lower limb and upper limb at shoulder, elbow, wrist, fingers, knee, ankle and toes. His pupils were normal in size but sluggish in reaction with no movement restriction. No facial asymmetry present. Gag reflex present. He was having spasticity all over both upper limb and lower limb with deep tendon exaggerated at bicep, triceps, supinator, knee, ankle. Sensory and cerebellar examination could not be accurately assessed due to his state. He had intact brainstem function but due to his vegetative state he requires external support for his feeding, bladder bowel and back. He needs constant physiotherapy and tracheostomy tube care. The chances of his recovery from this state is negligible.”

15. Following the primary medical board’s report, vide order dated 11.12.2025, we directed the AIIMS, New Delhi, to constitute a secondary medical board, in accordance with the Common Cause Guidelines, for the purpose of further examination and evaluation of the applicant’s condition.

16. Pursuant to the same, the AIIMS constituted a secondary medical board comprising Dr. Vimi Rewari, Professor, Dept. of Anaesthesia as the Chairperson; Dr. Pratap Saran, Professor & Head, Dept. of Psychiatry; Dr. Deepti Vibha, Professor, Dept. of Neurology; Dr. Deepak Kumar Gupta, Professor, Dept. of Neuro Surgery; Dr. Sheetal Singh, Assoc. Professor, Dept. of Hospital Administration; Dr. Swati Kedia Gupta, Asst. Professor, Dept. of Psychiatry; and Dr. Poonam, Dept. of Hospital Administration (Member Secretary) as members. The secondary medical board issued its report dated 17.12.2025, inter alia consisting of the medical history, the general examination, the neurological examination, other observations made, as well as the diagnostic criteria that were applied. The said report further included a table indicating the clinical assessment of the patient’s awareness, and a table indicating the patient’s assessment when the diagnostic criteria of PVS are applied. The said report of the secondary medical board concludes with the following observation:

“Based on the history and examination findings, the medical board is of the following opinion: a. Mr. Harish Rana has non-progressive, irreversible brain damage following severe traumatic brain injury with diffuse axonal injury. He fulfills the criteria of permanent vegetative state (PVS) and has been in this state for the past 13 years. b. The continued administration of clinically assisted nutrition and hydration is required for the sustenance of his survival. However, it may not aid in improving his medical condition or repairing his underlying brain damage.”

17. Thereafter, vide order dated 18.12.2025, we requested the learned counsel for the applicant and the learned Additional Solicitor General (ASG) appearing for the respondents to jointly speak to the parents and other family members of the applicant and to submit a report in that regard. Pursuant to the same, a Joint Report came to be filed inter alia stating that the learned counsels had interacted with the family of the applicant. During the discussion, the family spoke to the learned counsels about the nature of the applicant’s life before the incident. They informed that the applicant was the eldest child who was extremely energetic and physically active. Further, they shared that the applicant was deeply interested in gymming and playing football. The applicant’s brother fondly remembered that the applicant used to play football and video games with him. The brother also stated that after years of exhaustive efforts, the family and the doctors have reached to the decision with great difficulty and on firm belief that the continuation of medical treatment no longer serves any meaningful purpose and only prolongs the agony of the applicant.

18. In the aforesaid discussion, the parents stated that they have been taking care of the applicant for more than 13 years and that they, along with doctors, have done everything within their human capacity to alleviate the condition of the applicant during this period. However, they believe there has been no improvement in his condition. Both parents are worried as to who would take care of the applicant if anything were to happen to either of them due to their old age. According to the parents, brother, and sister, the applicant has no voice of his own, he has not been able to speak, hear or see, or recognise anyone or eat on his own or respond to touch or affection for the past 13 years, and he is entirely dependent on artificial support. The applicant’s sister is of the opinion that the decision is being taken by the family solely in furtherance of the applicant’s dignity and best interests.

19. Following the in-person meeting dated 07.01.2026, another meeting was conducted by the learned ASG, through video conferencing on 08.01.2026. The said meeting was attended by the learned ASG herself, along with the representatives of the Ministry of Health and Family Welfare (“MoHFW”), and the doctors who were part of the secondary medical board, namely Professor Deepti Vibha, Professor Nishkarsh Gupta, and other concerned officials. During the course of the meeting, the following points were deliberated upon:

“Present Medical Status of the Petitioner as per Clinical Findings (i) The petitioner has been in an irreversible permanent vegetative state for the last 13 years; (ii) There is no chance of improvement or repair of the medical condition, rendering continued treatment futile; (iii) There exists a clear, unquivocal and well-considered view of the parents of the petitioner, who are also the primary caregivers, arrived at after informed interaction and deliberation.”

20. Thereafter, in pursuance of our Order dated 18.12.2025, the father, the mother and the younger brother of the petitioner were present before us in the committee room of this Court. All three made a fervent appeal before us to take necessary steps to ensure that the applicant does not suffer any more. They tried to convey to us that the medical treatment imparted over a period of almost 13 years be discontinued and nature be allowed to take its own course. According to them, if the medical treatment is not making any difference, then there is no point in continuing with such medical treatment and making the applicant suffer for no good reason. They believe that the applicant is immensely suffering and should thus be relieved of all further pain and suffering. We acknowledge that they may not be aware of the legal nuances involved in this litigation. However, they were very clear that in view of the two reports filed by the primary medical board and the secondary medical board, respectively, there is no sign, or rather no hope, for the applicant to recover.

21. During this interaction before us on 13.01.2025, the learned ASG submitted that she had a talk with the team of doctors, i.e., the members of the primary medical board as well as the members of the secondary medical board. The doctors are of the opinion that the medical treatment of the applicant should be discontinued as its continuation is not in the best interest of the applicant, and that in the given circumstances, nature should be allowed to take its own course. The doctors are also of the opinion that the petitioner would remain in this PVS for years to come, with the PEG tubes inserted all over his body. However, he would never be able to recover and live a normal life.

22. In such circumstances referred to above, the learned counsel appearing for the parties made their final submissions before us on 15.01.2025. The same are delineated in detail in the next section.

(B). SUBMISSIONS ON BEHALF OF THE APPLICANT

23. Ms. Rashmi Nandakumar, assisted by Ms. Dhvani Mehta, Ms. Shivani Mody, Ms. Anindita Mitra & Ms. Yashmita Pandey, the learned counsels appearing on behalf of the applicant made the following submissions:

(a) That the present matter concerns the application of the guidelines laid down by this Court in Common Cause 2018 (supra), on the withdrawal or withholding of medical treatment. The judgment in Common Cause 2018 (supra) or in Common Cause 2023 (supra) respectively, does not contemplate routine or initial adjudication by constitutional courts in such matters. On the contrary, the mechanism for withdrawal or withholding of medical treatment in cases where no AMD exists is predicated on the hospital in which the patient is undergoing treatment, which is required to constitute a primary medical board, followed by a secondary medical board. She submitted that judicial intervention by the High Court under Article 226 of the Constitution of India is envisaged only at a later stage, i.e., when there is a disagreement between the primary medical board and the secondary medical board and that the High Court was intended to play a limited, supervisory role, stepping in only when the medical decision-making process reaches an impasse. Ordinarily, therefore, courts are not required to adjudicate in the determination of whether medical treatment ought to be withdrawn or withheld. However, in the present case, owing to the absence of an institutional mechanism to trigger the process for a patient who was being provided long-term home-based care, the applicant’s family was left with no alternative but to approach the High Court of Delhi under Article 226 of the Constitution of India in Writ Petition (Civil) No. 4927 of 2024, seeking a determination regarding the continuation of the medical treatment which the applicant was undergoing, in accordance with the Common Cause Guidelines. The High Court of Delhi had declined the applicant’s prayer seeking to obtain an opinion from the medical boards regarding the withdrawal of the PEG tube on the ground that the applicant was not being kept alive mechanically and that he was able to sustain himself without any extra external aid and that such condition did not allow the High Court to intervene and grant the relief prayed for.

(b) After the Delhi High Court dismissed the writ petition, the applicant filed the captioned SLP, which in turn was disposed of with the direction to the respondent no. 1 in conjunction with the Government of Uttar Pradesh, to provide home-based care to the applicant, but with the liberty to the parents to move this Court in the future should it become necessary for further directions.

(c) Owing to further deterioration in the applicant’s condition, including hospitalisation in May 2025, and the need for a fresh tracheostomy, the present MA was filed. The learned counsel submitted that with this Court’s orders dated 26.11.2025 and 11.12.2025 respectively, whereby the primary medical board and secondary medical board were directed to be constituted, the medical decision-making framework as envisaged under the Common Cause Guidelines was effectively restored.

(d) On the issue regarding the withdrawal or withholding of medical treatment, the learned counsel submitted that the PEG tube through which the applicant receives artificial nutrition and hydration is a form of mechanical life-support. The learned counsel submitted that the appropriate medical term for such forms of support providing artificial nutrition and hydration is CANH, and the same has been widely recognised, both medically and legally, as a form of life-sustaining ‘treatment’.

(e) The learned counsel further submitted that this Court in Common Cause 2018 (supra), has already recognised that feeding tubes constitute a form of life support. She quoted the following extracts from the concurring opinions authored by Sikri J., and D.Y. Chandrachud, J. respectively, to substantiate her contention:

A.K. Sikri, J.
“219. Passive euthanasia occurs when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life- sustaining treatment. This could include discontinuing treatment. This could include discontinuing life-support machines or feeding tubes or not carrying out life-saving operations or providing life-extending drugs.”

D.Y. Chandrachud, J.
“359. Individuals who suffer from chronic disease or approach the end of the span of natural life often lapse into terminal illness or a permanent vegetative state. When a medical emergency leads to hospitalization, individuals in that condition are sometimes deprived of their right to refuse unwanted medical treatment such as feeding through hydration tubes or being kept on a ventilator and other life support equipment. Life is prolonged artificially resulting in human suffering.”

(f) Most pertinently, the learned counsel went on to submit that the question that must be considered by this Court is not whether it is in the best interest of the patient to die, but whether it is in their best interest to prolong life-support artificially through the continued provision of CANH.

(g) Furthermore, the learned counsel submitted that there exists a long line of cases in the United Kingdom wherein it has been held that the continued provision of CANH to persons in PVS or other irreversible conditions would not be in their best interests, given the irreversibility and incurability of the condition, the futile and burdensome nature of CANH, the wishes of the caregivers of such persons, and the court’s assessment of what such persons would themselves have wished had they possessed decision-making capacity. The learned counsel placed reliance on the following cases:

• (i) Airdale NHS Trust v. Bland, reported in (1993) All ER 821;
• (ii) County Durham and Darlington NHS Foundation Trust v PP and Ors, reported in [2014] EWCOP 9;
• (iii) M v. Mrs. N and Ors., reported in 2015 EWCOP 76;
• (iv) Cumbria NHS Clinical Commissioning Group v. Miss S, reported in [2016] EWCOP 32 (Fam);
• (v) NHS Windsor And Maidenhead Clinical Commissioning Group v. SP, reported in [2018] EWCOP 11;
• (vi) Hillingdon Hospitals NHS Foundation Trust v. IN & Ors, reported in [2023] EWCOP 32; and,
• (vii) NHS South East London Integrated Care Board v. JP (by his litigation friend, the Official Solicitor), The Royal Hospital for Neuro-disability, TP, VP, OP reported in [2025] EWCOP 4 (T3).

(h) The learned counsel also submitted that this Court in Common Cause 2018 (supra) has recognised that doctors owe a duty of care to also determine whether certain kinds of medical treatments are warranted and are in the patient’s best interests. This is drawn from the common law principle that any medical treatment constitutes a trespass to the person, and it therefore, must always be justified.

(i) The learned counsel also submitted that this Court in Common Cause 2018 (supra) firmly established the link between the right to dignity, the freedom from continuing in an undignified state like the one that the applicant is in and the removal of medical intervention that only artificially extends life and prolongs suffering.

(j) Lastly, the learned counsel raised certain serious concerns relating to the implementation of the guidelines as laid down in Common Cause (supra). She submitted that the guidelines have not been translated into on-ground action and that there is a considerable amount of legal uncertainty amongst medical professionals and hospitals regarding their obligations. As a result, harmful practices like routinely obtaining signatures on “Discharge against Medical Advice” forms, where patients are sent home without appropriate palliative and comfort care, get encouraged. In light of this concern, the learned counsel urged that appropriate steps be directed to be taken by the respective Governments of the States and the Union Territories, in order to dispel the confusion faced by medical practitioners. In this regard, the learned counsel also put forth a suggestion that the following measures can be taken by the concerned government to implement the Common Cause Guidelines more effectively:

• (i) The nomination of competent officials in local government as ‘custodians’ of AMD.
• (ii) Issuing directions to hospitals to constitute primary and secondary medical boards or to establish clear-cut mechanisms for their constitution.
• (iii) Issuing directions to the Chief Medical Officers (CMO) of each district to nominate or create a process for the nomination of registered medical practitioners to secondary medical boards.

24. In light of the aforesaid, the learned counsel prayed that the present Miscellaneous Application be allowed and the reliefs prayed for, be granted.

(C). SUBMISSIONS ON BEHALF OF THE UNION OF INDIA

25. Ms. Aishwarya Bhati, the learned ASG, assisted by Ms. Shivika Mehra and Ms. Shreya Jain, the learned counsels, appearing on behalf of the respondents, submitted as follows:

(a) On the issue of the permissibility of passive euthanasia, the learned ASG submitted that passive euthanasia, in law and in medical ethics, refers to the withdrawal or withholding of medical treatment, where such treatment no longer serves any therapeutic purpose and merely prolongs the dying process. She submitted that this Court in Common Cause 2018 (supra) recognised that where continued medical treatment is futile and serves no purpose except prolonging an irreversible condition, the withdrawal or withholding of such treatment would be constitutionally permissible.

(b) As regards the question whether CANH administered through medical devices constituted ‘medical treatment’, the learned ASG submitted that this Court in Common Cause 2018 (supra), by approving the principle laid down by the House of Lords in Airdale (supra), has recognised that CANH administered through medical devices indeed constitutes medical treatment and cannot be categorised as mere basic care.

(c) On the aspect of legal justification for the withdrawal of artificial feeding, the learned ASG submitted that this Court in Common Cause 2018 (supra) draws a clear and constitutionally significant distinction between an unlawful positive act causing death and the lawful withdrawal of futile medical treatment. She submitted that this Court in Common Cause 2018 (supra) held that the removal of artificial feeding mechanisms does not amount to causing death. Rather, it constitutes cessation of an artificial medical intervention, allowing death to ensue due to the underlying irreversible condition of the patient. This, she submitted, was based on this Court’s reasoning that the withdrawal of a nasogastric tube does not itself cause death, as the tube has no life-sustaining function independent of the medical regime it facilitates. Rather, upon such withdrawal or withholding, the patient ultimately succumbs to the natural consequences of the underlying fatal condition, and not to any positive act of the physician. Thus, in this backdrop, the withdrawal or withholding of CANH would amount to an act of omission, falling within the permissible contours of passive euthanasia as recognised in Common Cause 2018 (supra).

(d) The learned ASG further highlighted that upon perusal of the reports of the primary medical board, the secondary medical board, and the subsequent deliberations dated 08.01.2025, respectively, it clearly emerges that the clinical assessment of the applicant has been done by applying established diagnostic criteria. What has emerged from the same is that the applicant is in an irreversible PVS. Furthermore, the medical opinion certifies that there is no hope of improvement of the applicant’s neurological condition and that continuation of treatment constitutes medical futility.

(e) It was further submitted that the parents and the siblings who are the caregivers of the applicant, for the past 13 years, have exhibited a clear, categoric, and well-considered decision to allow the applicant a humane and kind passing away and thereby further his dignity.

(f) Thus, in view of the medical opinion and the settled constitutional position, the learned ASG submitted that this Court may consider permitting the withdrawal or withholding of CANH being provided to the applicant through the PEG tube.

(g) In the last, the learned ASG with a view to further the best interests of the applicant, prayed that appropriate arrangements for palliative care at home or at a choice of hospital indicated by the applicant’s family, be permitted to be provided by the government to ensure dignity, humane support and comfort to the applicant in the course of implementation of the decision to withdraw the CANH.

(D). CORE CONCEPTS UNDERLYING THE DECISION IN COMMON CAUSE 2018

26. A detailed perusal of the facts makes it evident that this case revolves around one central issue: whether, when and on what legal basis can medical treatment be withdrawn or withheld? In addressing this issue, we are not writing on a clean slate. The definitive word on this subject lies in the decision rendered by a five-judge Constitution Bench of this Court in Common Cause 2018 (supra). As the aforesaid decision forms the essential foundation upon which our current decision must rest, we deem it not only important but absolutely necessary to begin by discussing the principles laid down and the line of reasoning adopted therein.

27. The decision in Common Cause 2018 (supra) arose from the reference by a three-judge bench of this Court which sought to inter-alia resolve certain inconsistencies which existed in earlier judicial pronouncements and provide some clarity on the “right to die with dignity” and other concomitant issues, such as euthanasia.

28. The primary contentions of the petitioners in Common Cause 2018 (supra) were two-fold: (i) declaration to the effect that the “right to die with dignity” forms an integral part of the “right to live with dignity” guaranteed under Article 21 of the Constitution of India, and (ii) legal recognition of Living Wills/AMD/Attorney Authorisation through which individuals could specify their wish to forgo medical treatment in the future, or authorize an attorney to make such decisions on their behalf should they lose the capacity to do so. While examining these contentions, this Court found it necessary to discuss the concepts of both active and passive euthanasia and determine their permissibility within our constitutional framework.

29. Succinctly put, this Court in Common Cause 2018 (supra), across the four concurring opinions, held the following: (i) the “right to live with dignity” under Article 21 of the Constitution of India inherently includes the “right to die with dignity” and (ii) passive euthanasia and AMD are both legal and permissible under the framework of Article 21, being rooted in the constitutional values of liberty, dignity, and individual privacy.

30. Dipak Misra, CJ., (as he then was), in his leading opinion, prescribed a detailed set of guidelines governing the execution and enforcement of AMDs. Furthermore, he laid down the mandatory procedure for deciding whether the medical treatment of an incompetent patient must be terminated, covering both scenarios in which an AMD existed and in which it was absent. These guidelines and the prescribed procedure received the concurrence of the other members of the Constitution Bench, who affirmed them through their respective opinions. It was directed that these guidelines would remain in force as the law of the land until the Parliament enacts a specific legislation on the subject. We note that, as of the date of this judgment, no such legislation has been brought into the field.

31. We must further observe that in the year 2023, an MA was moved before this Court in Common Cause 2018 (supra) seeking certain clarifications on the judgment, specifically regarding the challenges encountered in the practical implementation of the guidelines as laid down therein. Recognising the procedural difficulties faced by patients and medical practitioners alike, this Court modified and streamlined the guidelines to ensure that they remain workable. Throughout this judgment, we have taken care to refer to these updated and modified guidelines, wherever applicable.

32. We shall now delve deeper into certain substantive aspects that need to be duly addressed in any discussion surrounding euthanasia. While analyzing and demystifying the reasoning adopted in Common Cause 2018 (supra) as regards several legal issues which have arisen in the matter before us, we wish to weave in some of our own views to the existing discourse as well. Our analysis will focus on the following core areas: (i) the conceptual distinction between active and passive euthanasia; (ii) the constitutional basis for permitting passive euthanasia under Article 21 of the Constitution of India; (iii) the impermissibility of active euthanasia under Article 21 of the Constitution of India; (iv) the permissibility of AMDs and (v) the procedure used to determine whether medical treatment ought to be withdrawn or withheld.

I. The Essential Distinction: Active and Passive Euthanasia

33. As D.Y. Chandrachud, J., has observed in his concurring opinion in Common Cause 2018 (supra), the discourse on euthanasia is rendered complex by the problems of the uncertain and shifting descriptions of key concepts. Therefore, he noted that in examining the legality of euthanasia, clarity on terminology is of absolute essence. This is more so now, where there is a clear ruling to the effect that only passive euthanasia is permissible. The legality of a medical professional’s action often depends entirely on which side of this conceptual line their action falls. If our understanding of active and passive euthanasia is imprecise, it would breed a precarious environment and, consequently, render any decision-making ambiguous. More critically, such confusion leaves medical practitioners in constant danger of unwittingly violating the law, or conversely, withholding necessary care out of an unfounded fear of legal reprisal. We, therefore, find it imperative to delineate the boundaries between active and passive euthanasia with absolute clarity.

34. At this juncture, it is essential to examine the meaning attributed to the terms active and passive euthanasia in Common Cause 2018 (supra) in each of the four concurring opinions. The relevant extracts are reproduced below:

Dipak Misra, CJ.,
“178. It is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors [...]
xxx xxx xxx
202.6. In active euthanasia, a specific overt act is done to end the patient's life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life....”

Dr. A.K. Sikri, J.,
“219. Contrary to the above, in legal parlance, euthanasia has since come to be recognised as of two distinct types: the first is active euthanasia, where death is caused by the administration of a lethal injection or drugs. Active euthanasia also includes physician- assisted suicide, where the injection or drugs are supplied by the physician, but the act of administration is undertaken by the patient himself [...]
Passive euthanasia occurs when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life-sustaining treatment. This could include disconnecting life support machines or feeding tubes or not carrying out life-saving operations or providing life-extending drugs....”

Dr. D.Y. Chandrachud, J.,
“384 [...] (iv) active euthanasia refers to a positive contribution to the acceleration of death; (v) passive euthanasia refers to the omission of steps which might otherwise sustain life [...]
385. The expression “passive” has been used to denote the withdrawal or withholding of medical treatment [...]”

Ashok Bhushan, J.,
“602...Euthanasia, as noted above, as the meaning of the word suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as euthanasia [...]
603. Withdrawal of medical assistance or withdrawal of medical devices which artificially prolong the life cannot be regarded as an act to achieve a good death [...]”
(Emphasis Supplied)

35. On a close examination of the excerpts above, it is apparent that while the descriptions of the terms active and passive euthanasia vary at a granular level across the four concurring opinions, they converge on a single, broader understanding. The Constitution Bench consistently characterises ‘Active Euthanasia’ as involving a positive or overt act, such as the administration of a lethal injection or drugs, which serves to either cause death or directly accelerate it. In contrast, ‘Passive Euthanasia’ is defined by the absence of such an overt act. It is characterised by an omission (a decision not to intervene) and primarily encompasses the withdrawal or withholding of medical treatments that would otherwise sustain and/or preserve life.

36. At first blush, it would appear that the primary distinction between active and passive euthanasia rests solely on the binary of “acts” versus “omissions”. Such an understanding is only natural. Indeed, in the preceding paragraph, we ourselves have used phrases like “positive or overt acts” to describe active euthanasia, while characterising passive euthanasia through terms such as “omission”, “absence of an overt act”, or “decision not to intervene”. However, we must caution that a distinction between the two based on the simplistic dichotomy of “act” versus “omission” would be problematic.

37. While passive euthanasia is defined by the withdrawal or withholding of medical treatment, the physical process of withdrawing such treatment, for instance, switching off a ventilator or removing a feeding tube, requires a positive, physical movement. If we were to apply the simplistic act versus omission test, such necessary steps could be misconstrued as active measures, i.e., acts. This would potentially place them outside the legal protections afforded to passive euthanasia. This dilemma had also been brought forth in the concurring opinion of D.Y. Chandrachud, J., in Common Cause 2018 (supra).

38. The complexity of this issue is further compounded by the extensive academic discourse regarding the precise meaning to be attributed to the terms “acts” and “omissions”. We need not delve into this debate here, as doing so would only further obscure the jurisprudence surrounding active and passive euthanasia. For our present purposes, it is sufficient to observe that while the distinction between the two forms of euthanasia is partially rooted in the conventional understanding of acts and omissions, that the binary alone does not complete the legal picture.

39. It is clear that a more nuanced approach is required in order to understand the difference between active and passive euthanasia, one that allows for the difference on the basis of act and omission to exist broadly, but one that also provides more grounding on other facets. What would these other facets include? A closer look at some of the observations made in Common Cause 2018 (supra) would provide additional guidance. The relevant extracts are reproduced below:

Dipak Misra, CJ.,
“49. While scrutinising the distinction between active and passive euthanasia, the paramount aspect is “foreseeing the hastening of death”. The said view has been propagated in several decisions all over the world. The Supreme Court of Canada, in Rodriguez v. Attorney General of Canada, drew the distinction between these two forms of euthanasia on the basis of intention. Echoing a similar view, the Supreme Court of the United States affirmed the said distinction on the basis of “intention” in Vacco wherein Rehnquist, C.J. observed that the said distinction coheres with the fundamental legal principles of causation and intention. In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication.
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202.5. There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life-support measures or withholding of medical treatment meant for artificially prolonging life.”

Dr. A.K. Sikri, J.,
“219. [...] Passive euthanasia occurs when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life-sustaining treatment. This could include disconnecting life support machines or feeding tubes or not carrying out life-saving operations or providing life- extending drugs. In such cases, the omission by the medical practitioner is not treated as the cause of death; instead, the patient is understood to have died because of his underlying condition.”

Dr. D.Y. Chandrachud, J.,
“388. The correctness of this precept may be questioned by pointing out that there is a qualitative difference between a positive medical intervention (such as a lethal injection) which terminates life and a decision to not put a patient on artificial life support, which will not artificially prolong life. The former brings a premature extinction of life. The latter does not delay the end of life beyond its natural end point [...]
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398. [...] Moreover, passive euthanasia is conceived with a purpose of not prolonging the life of the patient by artificial medical intervention. Both in the case of a withdrawal of artificial support as well as in non- intervention, passive euthanasia allows for life to ebb away and to end in the natural course. In contrast, active euthanasia results in the consequence of shortening life by a positive act of medical intervention [...]
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450. [...] necessary to distinguish between active and passive euthanasia in terms of the underlying constitutional principles as well as in relation to the exercise of judicial power. Passive euthanasia—whether in the form of withholding or withdrawing treatment—has the effect of removing, or as the case may be, not providing supportive treatment. Its effect is to allow the individual to continue to exist until the end of the natural span of life. On the other hand, active euthanasia involves hastening of death : the lifespan of the individual is curtailed by a specific act designed to bring an end to life [...]”

Ashok Bhushan, J.,
“606. Withdrawal of life-saving devices, leads to natural death which is arrested for the time being due to above device and the act of withdrawal put the life on the natural track. Decision to withdraw life-saving devices is not an act to cause good death of the person rather, decision to withdraw or not to initiate life-supporting measures is a decision when treatment becomes futile and unnecessary....”
(Emphasis Supplied)

40. A deeper analysis of the above extracts from Common Cause 2018 (supra) reveals that, according to the Constitution Bench, the true distinction between active and passive euthanasia lies not merely in the nature of the conduct, i.e., acts or omissions, but also in the source of the harm that leads to death. Active euthanasia is characterised as causing death because it introduces a new, external agency of harm, such as a lethal injection, that was not previously present. In such cases, death is not the result of the patient’s underlying illness, but of an intervention that sets a new chain of events in motion. It is for this reason that active euthanasia is understood as an intervention that disrupts the natural path towards death.

41. Conversely, passive euthanasia is understood as allowing death to occur. By withdrawing or withholding life support, the physician is not creating a new risk of death. Rather, they are choosing to allow the underlying fatal condition to take its natural course by no longer continuing the medical interventions that were artificially prolonging life. In this sense, the doctor simply allows the original harm-causing event to run its natural course, returning the patient to their natural path towards death. The undeniable fact remains that the patient’s affliction, i.e., the underlying medical condition, is not caused by any act or omission of the doctor. Rather, the underlying condition is due to factors independent of the doctor or their actions.

42. Having said so, one must also remain vigilant and qualify the aforesaid reasoning, i.e., that it is the original affliction of the patient which is allowed to resume its control over the patient, with a sufficient condition. The sufficient condition being that there must be no violation of the duty of care that a doctor would otherwise, in all circumstances, owe to the patient. In other words, the surrendering of any medical effort must not be at loggerheads with the duty of care which joists all medical action. A more detailed perspective of the passive euthanasia dilemma from a “duty of care” lens and when the withdrawal or withholding of medical intervention would be in consonance with the duty of care expected of doctors, has been provided in the later paragraphs of our discussion. We have simply alluded to the same in our current discussion on the broad conceptual distinction between active and passive euthanasia, to aid better context-setting.

43. Coming back to the focal point of our discussion herein, when viewed through the lens of “causing death” versus “allowing death to occur”, the traditional distinction between acts and omissions also begins to acquire significance. While admittedly the physical withdrawal of treatment involves a willed bodily movement, conventionally viewed as an ‘act’, the consequence of that movement is simply the termination of life-saving medical treatment. If the focus is shifted from the nature of the conduct to the ultimate effect of the conduct, the same course of action could be correctly characterised as an omission. Even when “allowing death to occur” is initiated by a physician’s physical action, it remains an omission in the eyes of the law because the essence of the conduct is a decision not to do something, i.e., ‘omission to treat’ or ‘omission to ventilate’. Thus, at a broader level, passive euthanasia is defined by this refusal to impede the natural progress of death.

44. The aforesaid discussion also finds support in the reasoning given by both, the Court of Appeals and the House of Lords respectively in Airedale (supra). Butler-Sloss L.J., Hoffmann L.J., Lord Goff, and Lord Browne-Wilkinson, respectively, drew a distinction between active and passive euthanasia on similar grounds. It is important to note, however, that the House of Lords did not explicitly frame the issue as a choice between active and passive euthanasia. For their Lordships, the term ‘euthanasia’ was reserved exclusively for ‘Active Euthanasia’. What all the four concurring opinions in Common Cause 2018 (supra) categorised as passive euthanasia was referred to by the House of Lords simply as the withholding or withdrawal of medical treatment. The relevant extracts are reproduced below:

Butler-Sloss L.J. (in the Court of Appeal)
“The position of Dr. Cox is different (Reg. v. Cox, 18 September 1992, Ognall J.). He injected a lethal dose which was designed to cause death and was an external and intrusive act committed by an outsider and was not in accordance with his duty of care as a doctor. The effect of the cessation of artificial feeding is to place the patient in the position he would have been in before the nasogastric tube was inserted. Without the tube he would have died from his medical condition and with it he has been artificially kept alive despite that condition until now. Whether this is an act or omission carries the matter no further. The distinction between Mr. Bland’s doctors and Dr. Cox is between an act or omission which allows causes already present in the body to operate and the introduction of an external agency of death.”

Hoffmann L.J. (in the Court of Appeal)
“On the other hand, we recognise that, one way or another, life must come to an end. We do not impose on outsiders an unqualified duty to do everything possible to prolong life as long as possible. I think that the principle of inviolability explains why, although we accept that in certain cases it is right to allow a person to die (and the debate so far has been over whether this is such a case) we hold without qualification that no one may introduce an external agency with the intention of causing death. I do not think that the distinction turns upon whether what is done is an act or omission. This leads to barren arguments over whether the withdrawal of equipment from the body is a positive act or an omission to keep it in place. The distinction is between an act or omission which allows an existing cause to operate and the introduction of an external agency of death.”

Lord Goff
“I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission”

Lord Browne-Wilkinson
“The positive act of removing the nasogastric tube presents more difficulty. It is undoubtedly a positive act, similar to switching off a ventilator in the case of a patient whose life is being sustained by artificial ventilation. But in my judgment in neither case should the act be classified as positive, since to do so would be to introduce intolerably fine distinctions. If, instead of removing the nasogastric tube, it was left in place but no further nutrients were provided for the tube to convey to the patient’s stomach, that would not be an act of commission. Again, as has been pointed out (Skegg, Law, Ethics and Medicine (1984), p.169 et seq.) if the switching off of a ventilator were to be classified as a positive act, exactly the same result can be achieved by installing a time-clock which requires to be reset every 12 hours: the failure to reset the machine could not be classified as a positive act. In my judgment, essentially what is being done is to omit to feed or to ventilate: the removal of the nasogastric tube or the switching off of a ventilator are merely incidents of that omission: see Glanville Williams, Textbook of Criminal Law, p.282; Skegg, pp.169 et seq.”
(Emphasis Supplied)

45. In summation, the essential distinction between active and passive euthanasia transcends the simplistic binary of acts and omissions. Active euthanasia is characterised as “causing death” because it introduces an external, intrusive agency, such as a lethal injection, an intervention that disrupts the natural path towards death. Conversely, passive euthanasia is understood as “allowing death to occur” or “letting die”. By withdrawing or withholding medical treatment that was otherwise prolonging life, the physician allows the original harm causing event to run its natural course, returning the patient to their natural path toward death. When viewed through this lens, the role of acts and omissions also becomes clear. While the physical withdrawal of treatment may involve an ‘act’, its effect is an omission, i.e., omission to treat. By shifting the focus from the muscle movement to the conduct’s ultimate effect, there is a recognition that such interventions are, in substance, omissions.

II. Permissibility of Passive Euthanasia under Article 21 of the Constitution of India

46. Our preceding analysis establishes that the Constitution Bench in Common Cause 2018 (supra) envisaged passive euthanasia as being synonymous with the withdrawal or withholding of medical treatment. For the Constitution Bench, these two concepts are functionally identical, i.e., withdrawing and withholding medical treatment constitute the very essence of passive euthanasia. To comprehend the legal logic that renders such conduct permissible under Article 21 of the Constitution of India, while simultaneously holding that active euthanasia is not permissible, it is essential to examine how the Court interpreted the fundamental concepts of life, dignity, privacy and autonomy. It is through the intricate interlinking of these core constitutional values that the Bench established the “right to die with dignity” and the permissibility of passive euthanasia under the framework of Article 21 of the Constitution of India.

(a) The unifying and omnipresent force of ‘dignity’ in the discourse on ‘right to die with dignity’

47. Article 21 of the Constitution of India mandates that no person shall be deprived of their life or personal liberty except according to the procedure established by law. In interpreting this guarantee, this Court in Common Cause 2018 (supra) unequivocally held that “life” cannot be reduced to mere animal existence or a state of continued drudgery. Instead, it was observed that the expression “life” has a much wider meaning, with the non-negotiable element of “dignity” being at its very core. Dignity is viewed as the unifying force of all fundamental rights, as these rights collectively seek to secure for every individual a dignified existence. In acting as this unifying force, dignity acts as the normative basis for the fundamental rights enshrined in the Constitution of India, and as an essential interpretative principle for determining the true scope and reach of those rights.

48. Despite its central importance, dignity remains a malleable concept, difficult to define and perhaps best left undefined. This inherent conceptual flexibility allows proponents of varying, and often contradicting, legal perspectives to invoke dignity as the primary justification for their respective positions. D.Y. Chandrachud, J., and A.K. Sikri, J., in their respective concurring opinions, acknowledge that this conceptual tension also arises in the debate over euthanasia and the right to die with dignity.

49. On one side are the proponents of a rather strict “Sanctity of Life” principle, who argue that because every individual possesses dignity by the mere virtue of their existence, life must be preserved at all times. From this perspective, any intentional ending of life is viewed as an act against that person’s inherent dignity. This sanctity of life principle forms the very core of the Article 21 framework. It is rooted in the understanding that the preservation of life is of paramount importance and that the intrinsic worth of life is not conditional upon what it seeks to or is capable of achieving. Rather, life is valuable simply because it is. Under the Constitution, this right to life is protected as a supreme right, inalienable and inviolable even during an Emergency, envisaging only the most limited and strictly defined circumstances where a person may be deprived of it [See Parmanand Katara v. Union of India, reported in (1989) 4 SCC 286].

50. Conversely, the concept of dignity is also invoked to support the “Quality of Life” proposition. For those who hold this view, the constitutional guarantee of a dignified life extends beyond mere biological persistence to include the right to leave the world in a peaceful and dignified manner. Under this interpretation, living with dignity is seen as the right to a meaningful existence characterised by certain essential qualities.

51. Acknowledging this profound jurisprudential conflict, D.Y. Chandrachud, J., in his concurring opinion, probed the very essence of these competing values. While accepting that the preservation of life is fundamentally rooted in the recognition of human dignity, he raised critical inquiries regarding the point at which this dignity might be compromised by the realities of terminal suffering. He questioned whether the progressive loss of bodily and mental functions, coupled with the imminence of death, does not itself erode the dignity that the law seeks to protect. This led him to the following pivotal questions: What constitutes the core of life that the law is bound to protect? Does a severely diminished quality of life, cast in the shadow of impending death, impact the value of that life to such an extent that it reduces the protection traditionally offered by the sanctity of life doctrine? And ultimately, are there constitutional limits to the principle of sanctity itself?

52. It was in the pursuit of answers to these questions and dilemmas that the Constitution Bench, across all four opinions, arrived at a seminal conclusion. The Bench unequivocally held that the ‘right to live with dignity’ under Article 21 extends beyond the preservation of life to encompass the ‘right to die with dignity’.

53. In his opinion, Dipak Misra, CJ., anchored the right to die with dignity on the observations of the Constitution Bench in Gian Kaur v. State of Punjab, reported in (1996) 2 SCC 648. He reasoned that the fundamental right to life under Article 21 is not merely a guarantee of biological survival but a right to live with dignity. Crucially, this entitlement does not cease as life nears its end. Rather, it extends to the very terminus of existence. Consequently, it was held that the “right to live with dignity” inherently embraces the right to dignity until the moment of death, including a right to have a dignified process of death. To fully comprehend the weight of this reasoning, it is apposite that we look closely at the specific context in which Gian Kaur (supra) held that the ‘right to live with dignity’ could encompass a ‘right to die with dignity’.

54. The Constitution Bench in Gian Kaur (supra) held that the right to life under Article 21 of the Constitution of India does not include the right to die in its absolute sense. In coming to the conclusion, the Court in Gian Kaur (supra) emphasized on two strands: (i) that the extinction of life or the extinguishment of life would violate the sanctity of life, and consequently be in teeth with Article 21 itself, which recognizes the said sanctity of life, and (ii) that the right to life is a natural right and suicide as an unnatural extinction of life is incompatible with it. Further, while dealing with the issue therein, the Court took note of the debate on euthanasia in the context of individuals in PVS and observed that: (i) the right to live with human dignity would mean the existence of such a right up to the end of natural life and may include the right of a dying man to a die with dignity when his life is ebbing out; and (ii) in such cases, premature termination of life would not amount to extinguishing life but only constitute accelerating the conclusion of the process of natural death which has already commenced. However, this Court sounded a clear note of caution that such cases should not be equated with the right to die an unnatural death i.e., one that curtails the natural span of life. The relevant observations made by this Court in Gian Kaur (supra) are reproduced as follows:

“22. When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ‘right to life’ under Article 21. The significant aspect of ‘sanctity of life’ is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of life’. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein. ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life, and therefore, incompatible and inconsistent with the concept of ‘right to life [...]’

23. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’ as is ‘death’ with ‘life’.

24. Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of ‘sanctity of life’ or the ‘right to live with dignity’ is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of ‘right to life’ therein includes the ‘right to die’. The ‘right to life’ including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ‘right to die’ with dignity at the end of life is not to be confused or equated with the ‘right to die’ an unnatural death curtailing the natural span of life.

25. A question may arise, in the context of a dying man who is terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician-assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life.”
(Emphasis Supplied)

55. Building upon this fine distinction between ‘extinguishing life’ and merely ‘accelerating the conclusion of the natural process of death’ as expounded in Gian Kaur (supra), Dipak Misra, CJ., in his opinion in Common Cause 2018 (supra), proceeded to hold that passive euthanasia falls firmly within the ambit of Article 21 of the Constitution of India. He reasoned that the withdrawal or withholding of medical treatment of a person in PVS would not be considered as suicide or abetment of suicide but rather as an acceleration of the process of natural death, which has already commenced.

56. We must, however, hasten to clarify that the use of the words “acceleration of the process of natural death” in the aforesaid context must not again be confused and pitted against any debate on active euthanasia. The word “accelerate” has essentially been used to connote the phenomenon of “allowing natural death to occur” which is central to passive euthanasia. The same clarification inheres in the use of the phrase “premature extinction of life” which has been used in Common Cause 2018 (supra). On a cursory reading, these phrases may appear to blur the lines with active euthanasia, which is also described as an act that “hastens death”. However, the use of these expressions must be understood in their appropriate context. In active euthanasia, the acceleration curtails the natural lifespan. In contrast, the acceleration referred to in passive euthanasia is only relative to the artificially prolonged existence sustained by medical technology. For instance, when a ventilator is withdrawn, death is ‘accelerated’ only in the sense that the patient dies sooner than they would have if the machine had remained and not been withdrawn. However, viewed in light of the underlying ailment, this withdrawal is not an acceleration but rather the removal of an artificial barrier, allowing the natural trajectory of life to resume and reach its inevitable conclusion.

57. Having clarified the same, what then follows is that the opinion of Dipak Misra, CJ., roots the withdrawal and withholding of medical treatment as a mode and mechanism that furthers the dying person’s dignity. The relevant observations made in his opinion are reproduced as follows:

“164. In Gian Kaur, the Constitution Bench indicates acceleration of the conclusion of the process of death which has commenced and this indication, as observed by us, allows room for expansion. In the said case, the Court was primarily concerned with the question of constitutional validity of Sections 306 and 309 IPC. The Court was conscious of the fact that the debate on euthanasia was not relevant for deciding the question under consideration. The Court, however, in no uncertain terms expounded that the word ‘life’ in Article 21 has been construed as life with human dignity and it takes within its ambit the ‘right to die with dignity’ being part of the ‘right to live with dignity’. Further, the ‘right to live with human dignity’ would mean existence of such a right up to the end of natural life which would include the right to live a dignified life up to the point of death including the dignified procedure of death. While adverting to the situation of a dying man who is terminally ill or in a persistent vegetative state where he may be permitted to terminate it by a premature extinction of his life, the Court observed that the said category of cases may fall within the ambit of ‘right to die with dignity’ as part of the right to live with dignity when death due to the termination of natural life is certain and imminent and the process of natural death has commenced, for these are not cases of extinguishing life but only of accelerating the conclusion of the process of natural death which has already commenced. [...]

165. In the context of the issue under consideration, we must make it clear that as part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of active euthanasia in which positive steps are taken either by the treating physician or some other person. That is because the right to die with dignity is an intrinsic facet of Article 21. The concept that has been touched deserves to be concretised, the thought has to be realised. It has to be viewed from various angles, namely, legal permissibility, social and ethical ethos and medical values.

166. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognise such dynamism. The Constitution Bench in Gian Kaur, as stated earlier, distinguishes attempt to suicide and abetment of suicide from acceleration of the process of natural death which has commenced. [...]
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202.1. A careful and precise perusal of the judgment in Gian Kaur case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally-ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.”
(Emphasis Supplied)

(b) Viewing the “right to die with dignity” through the prism of self-determination, individual autonomy and privacy.

58. The Constitution Bench in Common Cause 2018 (supra) has charted out the “right to die with dignity” in the context of passive euthanasia by also interlinking key facets of the right to life that have already been cemented in Article 21 jurisprudence, i.e., through a combined interpretation of the right to self-determination, individual autonomy and privacy.

59. Dipak Misra, CJ., builds this reasoning by opining that, when the treatment is administered only as a procrastinating effort, the patient would be condemned to a continuum of pain and suffering which would violate the preserved concepts of bodily autonomy and right to privacy. He further pinpoints that, especially in relation to health and medical care decisions, a person’s exercise of self-determination and autonomy would involve the exercise of their right to decide whether and to what extent they are willing to subject themselves to medical procedures and treatments. In exercising such a freedom in decision-making, one may choose to opt out of any treatment which is not in consonance with their own individual aspirations and values. This is precisely how adults with the capacity to consent manifest their right to self-determination in the medical context. The relevant observations in the opinion of Dipak Misra, CJ., which evince the same are reproduced thus:

“166. [...] The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state. The words ‘no cure’ have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to modern medical technology. It is a state where the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life is measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him. The dignity of life is denied to him as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy. In such a stage, he has no old memories or any future hopes but he is in a state of misery which nobody ever desires to have. [...]
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169. In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values.
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174. Thus, enquiring into Common Law and statutory rights of terminally ill persons in other jurisdictions would indicate that all adults with the capacity to consent have the Common Law right to refuse medical treatment and the right of self-determination.”
(Emphasis Supplied)

60. A.K. Sikri, J., in his concurring opinion, begins by noting that the “personal autonomy” of an individual, as a part of human dignity, can be pressed into service in the context of euthanasia. He combines this with other facets of human dignity namely self-expression and the right to self-determination, to buttress that the choice to receive or not receive treatment must be made available to patients. By weaving these multiple facets together, A.K. Sikri, J., took the view that dignity envisions within itself a quality of life consistent with the ability to exercise self-determined and autonomous choices. However, this comes with the obvious caveat that such a freedom in decision-making would not include the intentional curtailment or extinguishment of the natural span of one’s life. The relevant observations are reproduced as follows:

“305. In the context of euthanasia, ‘personal autonomy’ of an individual, as a part of human dignity, can be pressed into service. In National Legal Services Authority v. Union of India, this Court observed : (SCC p. 491, para 75)
‘75. Article 21, as already indicated, guarantees the protection of ‘personal autonomy’ of an individual. In Anuj Garg v. Hotel Assn. of India, this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.’

306. In addition to personal autonomy, other facets of human dignity, namely, ‘self-expression’ and ‘right to determine’ also support the argument that it is the choice of the patient to receive or not to receive treatment.
xxx xxx xxx
308. Dignity is, thus, the core value of life and dying in dignity stands recognised in Gian Kaur. It becomes a part of right of self-determination.
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310. Taking into consideration the conceptual aspects of dignity and the manner in which it has been judicially adopted by various judgments, the following elements of dignity can be highlighted (in the context of death with dignity):
310.1. Encompasses self-determination; implies a quality of life consistent with the ability to exercise self-determined choices;
310.2. Maintains/ability to make autonomous choices; high regard for individual autonomy that is pivotal to the perceived quality of a person’s life;
310.3. Self-control (retain a similar kind of control over dying as one has exercised during life—a way of achieving death with dignity);
310.4. Law of consent : The ability to choose—orchestrate the timing of their own death; [...]
310.9. Dignity commands emphatic respect:
310.9.1. Reason and emotion are both significant in treatment decisions, especially at the end of life where compassion is a natural response to appeals made on the basis of stifled self-determination; [...]
310.11.2. Dignity clearly does play a valuable role in contextualising people’s perceptions of death and dying, especially as it appears to embody a spirit of self-determination that advocates of voluntary euthanasia crave.

311. Once we examine the matter in the aforesaid perspective, the inevitable conclusion would be that passive euthanasia and death with dignity are inextricably linked, which can be summed up with the following pointers:
311.1. The opportunity to die unencumbered by the intrusion of medical technology and before experiencing loss of independence and control, appears to many to extend the promise of a dignified death. When medical technology intervenes to prolong dying like this it does not do so unobtrusively;
311.2. Today many patients insist on more than just a right to healthcare in general. They seek a right to choose specific types of treatment, able to retain control throughout the entire span of their lives and to exercise autonomy in all medical decisions concerning their welfare and treatment;
311.3. A dreadful, painful death on a rational but incapacitated terminally-ill patient are an affront to human dignity.”
(Emphasis Supplied)

61. D.Y. Chandrachud, J., in his concurring opinion, further expanded this jurisprudential horizon by situating the right to die with dignity at the intersection of dignity, privacy, autonomy and liberty. Dignity, he held, must infuse every stage of human existence, including the closing chapters of one’s life. Crucially, D.Y. Chandrachud, J., brought the “protective mantle of privacy” to the forefront, ruling that decisions regarding death are as intimate and protected as decisions regarding birth, marriage, or procreation. Further, he unequivocally recognised that a competent individual possesses an unconditional right to refuse medical treatment, a choice that requires no justification to the State and is not subject to the supervisory control of any outside entity. The relevant observations made by D.Y. Chandrachud, J., are reproduced as follows:

“434. Liberty and autonomy promote the cause of human dignity. Arguments about autonomy are often linked to human dignity. Gostin evaluates the relationship between the dignity of dying with autonomy thus:
‘The dying process, after all, is the most intimate, private and fundamental of all parts of life. It is the voice that we, as humans, assert in influencing this autonomous part of our life. At the moment of our death, this right of autonomy ought not to be taken from us simply because we are dying. An autonomous person should not be required to have a good reason for the decision that he or she will make; that is the nature of autonomy. We do not judge for other competent human beings what may be in their best interest, but instead allow them to determine that for themselves. As such, an autonomous person does not need to have a good understanding or even good reasons. All they need is an understanding of what they are confronting. There is no reason to believe that when a person faces imminent death that they have less human understanding, or less ability to fathom what they will face, than other people. Of course, death is a mystery. But death is what we will all confront sooner or later, and we all may wish to assert our interests in how we may die.’
xxx xxx xxx
436. An article titled ‘Euthanasia : A Social Science Perspective’ in the Economic & Political Weekly has suggested that the discourses on death with dignity ‘need to be situated within processes of living with dignity in everyday contexts’. The end of life must not be seen as ‘human disposal’, but, as ‘the enhancement of human dignity by permitting each man’s last act to be an exercise of his free choice between a tortured, hideous death and a painless, dignified one.’
xxx xxx xxx
438. Human dignity is an essential element of a meaningful existence. A life of dignity comprehends all stages of living including the final stage which leads to the end of life. Liberty and autonomy are essential attributes of a life of substance. It is liberty which enables an individual to decide upon those matters which are central to the pursuit of a meaningful existence. The expectation that the individual should not be deprived of his or her dignity in the final stage of life gives expression to the central expectation of a fading life : control over pain and suffering and the ability to determine the treatment which the individual should receive. When society assures to each individual a protection against being subjected to degrading treatment in the process of dying, it seeks to assure basic human dignity. Dignity ensures the sanctity of life. The recognition afforded to the autonomy of the individual in matters relating to end-of- life decisions is ultimately a step towards ensuring that life does not despair of dignity as it ebbs away.
439. From Maneka Gandhi to Puttaswamy, dignity is the element which binds the constitutional quest for a meaningful existence. [...] Dignity in death has a sense of realism that permeates the right to life. It has a basic connect with the autonomy of the individual and the right to self-determination. Loss of control over the body and the mind are portents of the deprivation of liberty. As the end of life approaches, a loss of control over human faculties denudes life of its meaning. Terminal illness hastens the loss of faculties. Control over essential decisions about how an individual should be treated at the end of life is hence an essential attribute of the right to life. Corresponding to the right is a legitimate expectation that the State must protect it and provide a just legal order in which the right is not denied. In matters as fundamental as death and the process of dying, each individual is entitled to a reasonable expectation of the protection of his or her autonomy by a legal order founded on the rule of law. A constitutional expectation of providing dignity in death is protected by Article 21 and is enforceable against the State.
xxx xxx xxx
440. The nine-Judge Bench decision of this Court in K.S. Puttaswamy v. Union of India held privacy to be the constitutional core of human dignity. The right to privacy was held to be an intrinsic part of the right to life and liberty under Article 21 and protected under Part III of the Constitution [...]
441. The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. It protects the most personal and intimate decisions of individuals that affect their life and development. Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected. While death is an inevitable end in the trajectory of the cycle of human life of individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court.
442. Just as people value having control over decisions during their lives such as where to live, which occupation to pursue, whom to marry, and whether to have children, so people value having control over whether to continue living when the quality of life deteriorates.
xxx xxx xxx
517. The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity;”
(Emphasis Supplied)

62. On a holistic reading of the above extracted paragraphs across the various concurring opinions in Common Cause 2018 (supra), a clear basis for allowing passive euthanasia in cases involving competent patients is made out (otherwise commonly referred to as voluntary passive euthanasia). For individuals who have the capacity to make decisions, the justification rests on the convergence of two legal principles: (i) the common law right to refuse medical treatment (ii) the constitutional guarantees of dignity, liberty, privacy and self-determination. In this framework, withdrawing or withholding treatment is not just a medical decision but a fundamental exercise of the patient’s right to choose, rooted in one’s rights to dignity, autonomy, liberty, and self-determination. For a competent individual, this choice is absolute and free from the State’s or any external entity’s supervisory control. Such a person is under no legal obligation to provide reasons for refusing medical treatment. Their autonomy is paramount, and their decision to reject treatment is a protected expression of their dignity which even trumps traditional notions regarding the Sanctity of Life. Hoffmann L.J. pithily captures this point in the Court of Appeals decision of Airedale (supra) in the following manner:

“A conflict between the principles of the sanctity of life and the individual's right of self-determination may therefore require a painful compromise to be made. In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed. We may adopt a paternalist view, deny that his autonomy can be allowed to prevail in so extreme a case, and uphold the sanctity of life. Sometimes this looks an attractive solution, but it can have disturbing implications. Do we insist upon patients accepting life- saving treatment which is contrary to their strongly held religious beliefs? Should one force-feed prisoners on hunger strike? English law is, as one would expect, paternalist towards minors. But it upholds the autonomy of adults. A person of full age may refuse treatment for any reason or no reason at all, even if it appears certain that the result will be his death.”

63. Where then does this jurisprudence place incompetent patients, i.e., those who, due to their condition, lack the capacity to make decisions for themselves? A careful reading of Common Cause 2018 (supra) clarifies that the permission for passive euthanasia, i.e., withholding or withdrawing of medical treatment, is not the exclusive preserve of the competent. It extends to incompetent patients as well, including those patients who may not have appointed proxies or executed AMD. However, some careful attention must be paid to how the constitutional basis for cases involving non-voluntary passive euthanasia, or in simple terms, for incompetent patients, has been charted out.

(c) Recognising non-voluntary passive euthanasia within the framework of Article 21

64. On a bare overview, it may seem as though the Constitution Bench in Common Cause 2018 (supra) has rooted its constitutional permissibility of voluntary and non-voluntary passive euthanasia respectively, on identical foundations. In other words, the rooting of the right to refuse medical treatment in the combined guarantees of dignity, liberty, privacy, self-determination, individual autonomy and freedom from bodily invasion, could appear to have been echoed for both, competent and incompetent patients alike. However, such a reading would give way to criticisms which point out that the specific constitutional protections of the right to privacy, self-determination and individual autonomy would only be available for ‘voluntary’ passive euthanasia and be unavailable for non-voluntary passive euthanasia. According to them, this would be so, since, privacy, self-determination or individual autonomy form part of those bouquet of rights which can be exerted or exercised in pursuance of something ‘by the patient alone’ and not vicariously. Hence, in a case where the patient is in PVS, since there is no exercise of choice on his part, it may not entirely be appropriate to strictly tether the permissibility of passive euthanasia to the values of privacy or individual autonomy.

65. D.Y. Chandrachud, J., briefly alludes to this criticism which seems to have gained some momentum in the aftermath of the decision of the New Jersey Supreme Court in In re Quinlan, reported in 70 N.J. 10. Therein, the Court while holding that the incompetent patient’s right to make a private decision supersedes the State’s interest in preserving life, also reasoned that since the patient herself was not competent to assert her right to privacy, it may be asserted by her parents who would qualify as persons who had been intimately involved in the patient’s life.

66. Viewed from the perspective of autonomy as well, such criticisms may assume the forefront. In a very literal sense, autonomy means ‘self-government’. People are autonomous to the extent to which they are able to control their own choices by the exercise of their own faculties, free from any arbitrary or otherwise unjustified interference. Capacity is, therefore, often described as the gatekeeper and agent for autonomy. The exercise of the right to self-determination and autonomy may, again, be so intimate to the specific individual or patient that it may never come to be appropriately exercised by another on the patient’s behalf.

67. However, this is not to say that autonomy must always be viewed from this angle. We would be remiss not to acknowledge that, on the other side of the spectrum, there are views propounding that in situations where the patient themselves are unable to make a decision, autonomy morphs into ‘relational autonomy’ – it transforms from being an individualistic concept to a relational one. Autonomy is relational owing to the fact that a person’s decision-making is shaped by their environment and relationships, and therefore, family members or the next of kin can fill in when autonomy in its traditional understanding becomes vulnerable on account of the unconscious state of the patient.

68. Having duly acknowledged such perspectives on the right to privacy and self-determination and its rather complex relationship with non-voluntary passive euthanasia, we are nevertheless of the view that they don’t muddy the waters insofar as the constitutional recognition of the right to die with dignity, through the withdrawal or withholding of medical treatment for incompetent patients, is concerned. This is because its permissibility can be fastened upon the standalone basis of dignity and bodily integrity as well, one that may not necessarily closely intersect with the elements of privacy, autonomy and self-determination.

(i) ‘Dignity’ as the standalone basis for the recognition of non-voluntary passive euthanasia.

69. Dignity is the most sacred possession of a human being. Its possession can neither be said to lose its sanctity in the process of death nor when death occurs. Across the four concurring opinions in Common Cause 2018 (supra), there is an absolute convergence on the view that the process of death must not be characterised with a continuum of cruel, degrading and inhuman treatment, especially when medical intervention is conferring no benefit to the patient and only exacerbating pain and suffering. This would go against the assurance of basic human dignity to all.

70. Temporarily keeping alive a terminally ill patient who is brain dead or in PVS, solely because doctors are able to leverage the technological advancements in medicine, and compelling such patients to endure a slow, agonising death, cannot fully be compatible with the constitutional ideal of dignity. There would arise a point of precipice where such prolonged medical treatment would stand as an affront to basic human dignity. Ascertaining when such a point of precipice has arisen for an unconscious/incompetent patient, i.e., where any further continuation of medical treatment comes with a serious risk of infringing dignity, is undoubtedly a complex task. This Court recognized the complicated nature of such decision-making and accordingly provided clear guidance for the same in Common Cause 2018 (supra).

71. The exercise of the right to die with dignity in the form of passive euthanasia for competent and incompetent patients, i.e., for voluntary and non-voluntary passive euthanasia, respectively, differs significantly. Unlike competent patients, whose right to refuse treatment is unencumbered and absolute, the path for incompetent patients is far more restricted and arduous. It is hedged by strict procedural safeguards and, crucially, can only be initiated if specific threshold conditions are met. Once these threshold conditions are met, it could be said that the point of precipice, as referred to above, has been reached. Drawing from the opinions of Dipak Misra, CJI., and A.K. Sikri, J., this Court in Common Cause 2018 (supra) established that passive euthanasia for incompetent patients can only be entertained when the following three prerequisites/medical parameters are satisfied:

• a) The patient must be diagnosed to be suffering from a medical ailment and be classified as either terminally ill, in a PVS, or like conditions;
• b) The patient must be undergoing prolonged medical treatment with respect to the said ailment, indicating that the intervention has ceased to be temporary; and
• c) The ailment must be irreversible, meaning:
  • i. the condition is incurable; or
  • ii. there is no hope of the patient being cured.

72. When the aforesaid threshold conditions/medical parameters are met, any medical intervention would prove to be futile and not afford any benefit to the patient. In such a situation, merely prolonging an inevitable death comes with the heavy cost of pain and suffering, which directly impacts the right to die with dignity. For incompetent patients who cannot directly express their wishes, it is at this stage that constitutional morality, underscored by dignity, must take over. This direct relationship between the prolonged administration of futile and invasive treatment that does not confer any benefit or which is sans any purpose to the patient, and the infringement of dignity, comes across from the opinions of Dipak Misra, CJI., Sikri, J., and Chandrachud, J., respectively, in Common Cause 2018 (supra) as follows:

(i). Dipak Misra, CJ., while discussing social morality, medical ethicality and the State interest under the constitutional backdrop, emphasised that withdrawal of treatment in an ‘irreversible’ situation or when life is ebbing out, must not give way to social morality or the doctor’s dilemma about their Hippocratic Oath. “When prolongation is done sans purpose”, the aforesaid considerations must not assume the forefront, but rather, it is the sustenance of dignity and self-respect of an individual, which is inherent in Article 21, that needs protection. Moreover, passive euthanasia, in such cases, essentially involves the prevention of unnecessary intrusion into the physical frame of a person in order to enable a smooth exit from life, one that is without pain, suffering and most importantly, indignity. The relevant observations are reproduced as thus:

“M. Social morality, medical ethicality and State interest
176. Having dwelt upon the issue of self-determination, we may presently delve into three aspects, namely, social morality, medical ethicality and the State interest. The aforesaid concepts have to be addressed in the constitutional backdrop. We may clearly note that the society at large may feel that a patient should be treated till he breathes his last breath and the treating physicians may feel that they are bound by their Hippocratic oath which requires them to provide treatment and save life and not to put an end to life by not treating the patient. The members of the family may remain in a constant state of hesitation being apprehensive of many a social factor which include immediate claim of inheritance, social stigma and, sometimes, the individual guilt. The Hippocratic oath taken by a doctor may make him feel that there has been a failure on his part and sometimes also make him feel scared of various laws. There can be allegations against him for negligence or criminal culpability.
177. In this regard, two aspects are to be borne in mind. First, withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and second, once passive euthanasia is recognised in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors’ dilemma or fear will have any place. It is because the sustenance of dignity and self-respect of an individual is inhered in the right of an individual pertaining to life and liberty and there is necessity for this protection. And once the said right comes within the shelter of Article 21 of the Constitution, the social perception and the apprehension of the physician or treating doctor regarding facing litigation should be treated as secondary because the primacy of the right of an individual in this regard has to be kept on a high pedestal.
178. It is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors. It also does not involve any kind of overt act on the part of the family members. It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life. It is paramount for an individual to protect his dignity as an inseparable part of the right to life which engulfs the dignified process of dying sans pain, sans suffering and, most importantly, sans indignity.
179. There are philosophers, thinkers and also scientists who feel that life is not confined to the physical frame and biological characteristics. But there is no denial of the fact that life in its connotative expanse intends to search for its meaning and find the solution of the riddle of existence for which some lean on atheism and some vouchsafe for faith and yet some stand by the ideas of an agnostic. However, the legal fulcrum has to be how Article 21 of the Constitution is understood. If a man is allowed to or, for that matter, forced to undergo pain, suffering and state of indignity because of unwarranted medical support, the meaning of dignity is lost and the search for meaning of life is in vain.”
(Emphasis Supplied)

(ii). A.K. Sikri, J., while discussing the “morality of euthanasia” underscored that euthanasia is one such issue where law cannot be divorced from morality. Viewed from this lens, he proposes that the “sanctity of life” principle might not strictly require that life be preserved “at all costs”. The principle only requires that there should not be a deliberate destruction of human life. Therefore, when a certain brink is reached, withdrawal of life-prolonging treatment might very well be in consonance with the preservation of the sanctity of life in its fullest form. He opines that the right to life with dignity subsumes within itself the right to die a natural death and therefore, would permit the withdrawal of prolonged treatment which has no curative effect. The relevant observations are reproduced as thus:

“263. Influenced primarily by the aforesaid considerations, I deem it relevant to indulge into discussion on morality.
xxx xxx xxx
266. The moral dilemma is that it projects both the sides—protracted as well as intractable. On the one hand, it is argued by those who are the proponents of a liberal view that a right to life must include a concomitant right to choose when the life becomes unbearable and not so worth living, when such a stage comes and the sufferer feels that that the life has become useless, he should have right to die. Opponents, on the other hand, project ‘Sanctity of Life’ (SOL) as the most important factor and argue that this ‘SOL’ principle is violated by self-styled angles of death. Protagonists on ‘SOL’ principle believe that life should be preserved at all costs and the least which is expected is that there should not be a deliberate destruction of human life, though it does not demand that life should always be prolonged as long as possible.
267. It might therefore be argued, as Emily Jackson (2008) cogently does, that the law’s recognition that withdrawal of life-prolonging treatment is sometimes legitimate is not so much an exception to the SOL principle, as an embodiment of it.
268. In the most secular judicial interpretation of the SOL doctrine yet, Denman, J. of UKHL explicated thus:
‘in respect a person’s death, we are also respecting their life — giving it sanctity…A view that life must be preserved at all costs does not sanctify life.,..to care for the dying, to love and cherish them, and to free them from suffering rather than simply to postpone death is to have fundamental respect for the sanctity of life and its end.’
269. Hence, as the process of dying is an inevitable consequence of life, the right to life necessarily implies the right to have nature take its course and to die a natural death. It also encompasses a right, unless the individual so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means which have no curative effect and which are intended merely to prolong life.
xxx xxx xxx
310. Taking into consideration the conceptual aspects of dignity and the manner in which it has been judicially adopted by various judgments, the following elements of dignity can be highlighted (in the context of death with dignity): [...]
310.5. Dignity may be compromised if the dying process is prolonged and involves becoming incapacitated and dependent;
310.6. Respect for human dignity means respecting the intrinsic value of human life;
310.7. Avoidance of dependency;
310.8. Indefinite continuation of futile physical life is regarded as undignified; [...]
311. Once we examine the matter in the aforesaid perspective, the inevitable conclusion would be that passive euthanasia and death with dignity are inextricably linked, which can be summed up with the following pointers: [...]
311.3. A dreadful, painful death on a rational but incapacitated terminally-ill patient are an affront to human dignity.”
(Emphasis Supplied)

(iii). D.Y. Chandrachud, J., also echoes the view taken by A.K. Sikri, J., insofar as the interpretation of the “Sanctity of Life” principle is concerned, and elaborates that the said principle does not require that life always be prolonged for as long as possible. He also dissuades the adoption of an absolutist interpretation of Sanctity of Life and states that a dignified existence is the cornerstone that sanctifies life. When medical treatment can do nothing to restore those in a PVS to a state of health, it would largely be futile. The growth of modern medicine has found innovative ways to delay death and prolong mere biological existence during the act of dying. However, in his opinion, when the same medical knowledge indicates a point of no return, endlessly continuing artificial medical support would only protract indignity. The relevant observations are thus:

“413. Though the sanctity principle prohibits ‘the deliberate destruction of human life, it does not demand that life should always be prolonged for as long as possible’. While providing for an intrinsic sacred value to life ‘irrespective of the person’s capacity to enjoy life and notwithstanding that a person may feel their life to be a great burden’, the principle holds that ‘life should not always be maintained at any and all cost’. Ethical proponents of the sanctity of life tend to agree that when ‘medical treatment, such as ventilation and probably also antibiotics, can do nothing to restore those in permanent vegetative state to a state of health and well-functioning, it is futile and need not be provided’. Rao has thus suggested that ‘the law’s recognition that withdrawal of life-prolonging treatment is sometimes legitimate’ is not generally an exception to the sanctity principle, but is actually ‘an embodiment of it’.
xxx xxx xxx
423. Modern medicine has found ways to prolong life and to delay death. But, it does not imply that modern medicine ‘necessarily prolongs our living a full and robust life because in some cases it serves only to prolong mere biological existence during the act of dying’. This may, in certain situations result in a mere ‘prolongation of a heartbeat that activates the husk of a mindless, degenerating body that sustains an unknowing and pitiable life—one without vitality, health or any opportunity for normal existence—an inevitable stage in the process of dying’. Prolonging life in a vegetative state by artificial means or allowing pain and suffering in a terminal state would lead to questioning the belief that any kind of life is so sanctified as to be preferred absolutely over death.
xxx xxx xxx
437. Under our Constitution, the inherent value which sanctifies life is the dignity of existence. Recognising human dignity is intrinsic to preserving the sanctity of life. Life is truly sanctified when it is lived with dignity. There exists a close relationship between dignity and the quality of life. For, it is only when life can be lived with a true sense of quality that the dignity of human existence is fully realised. Hence, there should be no antagonism between the sanctity of human life on the one hand and the dignity and quality of life on the other hand. Quality of life ensures dignity of living and dignity is but a process in realising the sanctity of life.”
(Emphasis Supplied)

73. When the degree of bodily invasion progressively increases, and the prognosis for recovery progressively decreases, there arises a certain point when the State’s absolute interest in preserving life must become subservient to the dignity of the said individual, though he is unconscious or incompetent. The State’s interest must not be allowed to overpower the dignity which must be equally assured to all individuals in the process of life and in the process of death. To obviate any confusion, we must clarify that there is no real conflict between the patient’s right to dignity and the State’s interest from the get-go when the patient is subjected to medical treatment. This is because it is initially administered with a view to confer some benefit to the patient and to secure or safeguard his right to life with dignity. It is only post the fulfilment of the aforesaid threshold prerequisites/medical parameters that this conflict becomes apparent, particularly with reference to unconscious or incompetent patients who are unable to exercise any choice in the matter. That the vigour of the State interest is diluted in such a situation has also been expounded by Dipak Misra, CJ., in his opinion as follows:

“O. Submissions of Intervenor (Society for the Right to Die with Dignity)
182. [...] It is his submission that in the modern State, the State interest should not overweigh the individual interest in the sphere of a desire to die a peaceful death which basically conveys refusal of treatment when the condition of the individual suffering from a disease is irreversible. The freedom of choice in this sphere, as Mr Mohta would put it, serves the cause of humanitarian approach which is not the process to put an end to life by taking a positive action but to allow a dying patient to die peaceably instead of prolonging the process of dying without purpose that creates a dent in his dignity
183. The aforesaid argument, we have no hesitation to say, has force. It is so because it is in accord with the constitutional precept and fosters the cherished value of dignity of an individual. It saves a helpless person from uncalled for and unnecessary treatment when he is considered as merely a creature whose breath is felt or measured because of advanced medical technology. His ‘being’ exclusively rests on the mercy of the technology which can prolong the condition for some period. The said prolongation is definitely not in his interest. On the contrary, it tantamounts to destruction of his dignity which is the core value of life. In our considered opinion, in such a situation, an individual interest has to be given priority over the State interest.”
(Emphasis Supplied)

74. In the aforesaid excerpt, it may seem as though the view that State interest must not outweigh individual interest, is specific to a context wherein the individual himself has expressed his desire to die a peaceful death through the refusal of further invasive treatment when the condition is irreversible. However, that would be a rather restrictive outlook that ignores the depth of what was sought to be conveyed by Dipak Misra, CJ. We say so because whether the affliction of the patient is reversible or not would be a hurdle for a conscious patient who has expressed a desire to withdraw or withhold medical treatment. Competent individuals have an unconditional right to refuse medical treatment, and this has been particularly emphasised in the opinion of D.Y. Chandrachud, J., as we had already previously stated. It is under such circumstances that we are of the view that the aforesaid inverse relationship between state interest and withdrawal of withholding of medical treatment must necessarily be understood in the context of incompetent patients as well.

75. A sceptic might further argue that, because incompetent patients are themselves unable to convey their decision on whether medical treatment must be continued or withheld/withdrawn, a ‘choice’ is being made for them by external individuals who have thought it fit to calculate the subjective worth of the patient’s life. However, such an argument would itself be built on shaky foundation as it conveniently ignores the reality that the commencement of any medical intervention already begins with a ‘choice’. More often than not, this initial ‘choice’ to intervene commences with validation i.e., through the informed consent expressed by the patient himself. If the ‘choice’ to ‘treat’, by any chance, is not set in motion with such consent, it begins with necessity – the necessity to restore the patient to health that combines itself with the Hippocratic Oath that doctors always bind themselves to.

76. However, a crucial question that then arises is, how long can we keep such medical intervention ongoing? Especially when the grounding of the medical intervention in necessity slowly begins to fade away, owing to it being sans any purpose? Even if the consent to intervene was initially expressed by the patient himself, the issue still remains complex because one cannot endlessly assume continuous consent despite the circumstances of the patient undergoing myriad changes during the period of unconsciousness. Assuming the existence of such a continuous and endless consent would be problematic for several obvious reasons.

77. In such circumstances, continuing medical treatment or withholding/withdrawing the same would both necessarily include a ‘choice’. Any averment that only its discontinuation would involve a moral, legal and ethical dilemma and its continuation would not, is seriously misplaced. This aspect has been very pithily captured by the following observations made by Hoffmann L.J. in the Court of Appeals decision of Airedale (supra):

“Does this mean that people who have not expressed their wishes in advance and are now incapable of expression must lose all right to have treatment discontinued and that those caring for them are in every case under a corresponding duty to keep them alive as long as medical science will allow? Counsel for the Official Solicitor said that this was so. If they have not chosen, the court has no right to choose on their behalf. I think that the fallacy in this argument is that choice cannot be avoided. To continue treatment is as much a choice as to discontinue it. Why is it not an act of choice to decide to continue to invade the privacy of Anthony Bland’s body with tubes, catheters, probes and injections? If on account of his unconsciousness he is obliged to submit to such treatment, one cannot say that it is because the court is refusing to choose on his behalf. One way or the other, a choice is being made. It is only if one thinks it natural and normal to want treatment that continuing to provide it seems not so much a choice as a given state of affairs. And of course in most cases this would be true. In a case in which it was being said that a person should not be given treatment which would avoid death and restore him to full health, one would want to know that this was his personal choice and that it had been expressed very clearly indeed. But Anthony Bland’s is not a normal case. The continuation of artificial sustenance and medical treatment will keep him alive but will not restore him to having a life in any sense at all [...]
xxx xxx xxx
In my view the choice which the law makes must reassure people that the courts do have full respect for life, but that they do not pursue the principle to the point at which it has become almost empty of any real content and when it involves the sacrifice of other important values such as human dignity and freedom of choice. I think that such reassurance can be provided by a decision, properly explained, to allow Anthony Bland to die. It does not involve, as counsel for the Official Solicitor suggested, a decision that he may die because the court thinks that his ‘life is not worth living.’”
(Emphasis Supplied)

78. Hoffmann L.J. was addressing a dilemma that preoccupied the minds of this Court in Common Cause 2018 (supra) as well – when patients have not expressed their wishes in advance, either expressly through their informed consent during the commencement of the medical intervention or by executing an AMD, and have been subsequently rendered unconscious, whether they must always succumb to the choice of continuing treatment rather than the choice of bringing it to a halt? This was answered with an emphatic ‘No’, by highlighting that one cannot escape the reality of the fact that there resides a choice in every action or omission that is made in relation to the patient, and that the same is true also as regards the unending continuation of medical treatment. Therefore, when we are confronted with the truth that both continuation and withdrawal of treatment are based on a ‘choice’, the duty of the court and the doctors alike, must be to ensure that the scales tilt in favour of safeguarding the full respect for life and its avowed values of human dignity.

(ii) Unconscious or incompetent patients and their right to bodily integrity.

79. This ‘choice’ which has preoccupied our aforesaid discussion can be looked at in relation to the concept of bodily integrity as well. Before proceeding any further, it has to be clarified that bodily integrity and bodily autonomy have a notable yet nuanced conceptual difference. It may not be appropriate for us to equate them to mean one and the same, under all circumstances. We understand ‘bodily integrity’ as a right that exists with a separate identity. It serves as one of the foundational bases upon which the idea of ‘bodily autonomy’ rests. In other words, it is because one enjoys the right to bodily integrity (amongst other personal rights), that they are able to exercise the right to bodily autonomy. Now, why is it important for us to highlight any distinction that may exist between them? Once it is established that the right to bodily integrity is neither a mere sub-set of autonomy nor its mirror reflection, we may be able to strongly cement that its strength is not diluted for unconscious or incompetent patients.

80. The most common definition of bodily integrity is the “right to be free from physical interference”. Jonathan Herring argues that the right to bodily integrity provides for the exclusive use and control over our own bodies on the basis that our bodies are the “site” and “location” of where our subjectivity engages with the world. Therefore, the right carries with it, the concomitant right to exclude all others from the body. If there existed no right to bodily integrity and no right to exclude, then any right to either invite or deny would lose its value. Bodily autonomy, on the other hand, protects a person’s capacity to make his or her own decisions in relation to his or her body. Therefore, when there is an infringement upon the bodily integrity of another, the same would amount to a disrespect that is broader than the disrespect for the person’s capacity to live life according to their own reasons, motivations and terms. Bodily integrity reflects a focus on the welfare, well-being and respect for one’s personhood rather than a myopic focus on his rational decision-making capacity. Such a right carries with it strict duties of non-interference against an open set of persons and makes any infringement actionable.

81. We also wish to elucidate the existence of the aforesaid conceptual difference between bodily autonomy and bodily integrity through certain observations made by A.K. Sikri, J. and Ashok Bhushan J., respectively. The relevant observations are reproduced as follows:

A.K. Sikri, J.,
“315. I had indicated at the earlier stage that Hippocratic Oath, coupled with ethical norms of medical profession, stand in the way of euthanasia. It brings about a situation of dilemma insofar as medical practitioner is concerned. On the one hand his duty is to save the life of a person till he is alive, even when the patient is terminally ill and there are no chances of revival. On the other hand, the concept of dignity and right to bodily integrity, which recognises legal right of autonomy and choice to the patient (or even to his relations in certain circumstances, particularly when the patient is unconscious or incapacitated to take a decision) may lead to exercising his right of euthanasia.
316. Dignity implies, apart from a right to life enjoyment of right to be free of physical interference. At common law, any physical interference with a person is, prima facie, tortious. If it interferes with freedom of movement, it may constitute a false imprisonment. If it involves physical touching, it may constitute a battery. If it puts a person in fear of violence, it may amount to an assault. For any of these wrongs, the victim may be able to obtain damages.
317. When it comes to medical treatment, even there the general common law principle is that any medical treatment constitutes a trespass to the person which must be justified, by reference either to the patient’s consent or to the necessity of saving life in circumstances where the patient is unable to decide whether or not to consent”

Ashok Bhushan, J.,
“611. The rights of bodily integrity and self-determination are the rights which belong to every human being. When an adult person having mental capacity to take a decision can exercise his right not to take treatment or withdraw from treatment, the above right cannot be negated for a person who is not able to take an informed decision due to terminal illness or being in a persistent vegetative state (PVS). The question is who is competent to take decision in case of terminally ill or PVS patient, who is not able to take decision. In case of a person who is suffering from a disease and is taking medical treatment, there are three stakeholders; the person himself, his family members and doctor treating the patient. The American Courts give recognition to opinion of ‘surrogate’ where person is incompetent to take a decision. No person can take decision regarding life of another unless he is entitled to take such decision authorised under any law. The English Courts have applied the ‘best interests’ test in case of an incompetent person. The best interests of the patient have to be found out not by doctor treating the patient alone but a team of doctors specifically nominated by the State Authority. [...]”
(Emphasis Supplied)

82. Firstly, A.K. Sikri, J., identifies that it is the concept of dignity and the right to bodily integrity, which in turn recognises the legal right of autonomy and choice afforded to the patient. Therefore, he aptly places the right to bodily integrity at a core and higher conceptual standing instead of viewing it as a subset of autonomy. Recognising this hierarchical relationship, he then alludes to the idea that, despite unconscious or incapacitated patients being unable to exercise their choice, they may still secure their right to bodily integrity through their relations/kin. This reinforces the broader normative basis that we have assigned to bodily integrity – one that is not necessarily to be conflated with bodily autonomy or the individual’s choice. He echoes that everyone enjoys the right to be free from physical interference and that in common law, any infringement is tortious.

83. Secondly, Ashok Bhushan, J., while stating that the rights of bodily integrity and self-determination belong to every human being, also does not commingle the two. He carries forward the same idea propounded by A.K. Sikri, J., that the option not to take treatment or withdraw from treatment, which would thereby secure bodily integrity, cannot be made unavailable for a patient who is in a PVS state. It is in this regard that he identifies three key stakeholders in the process – the patient himself, his family members and the doctor treating the patient. Therefore, when a patient is incompetent, it would be the remaining stakeholders who would be assigned the responsibility to safeguard the bodily integrity of the patient from a well-being point of view.

84. It is to ensure that the other stakeholders conscientiously safeguard the dignity and right to bodily integrity of the patient that the “best interest” standard has been jurisprudentially developed, especially to answer legal issues surrounding non-voluntary passive euthanasia. This doctrine or standard would bind both the remaining stakeholders as identified by Ashok Bhushan, J., i.e., the family/kin and the treating doctors, respectively. This is precisely why they both play a key role in the procedure laid down by Common Cause 2018 (supra) in the process of determining whether the medical treatment must be withheld or withdrawn. We have briefly contextualised the ‘best interest’ doctrine here but have deemed it appropriate to discuss the same separately under another section to afford the doctrine the detailed discussion that it deserves.

(iii) ‘Authorized omission’ in consonance with the duty of care of doctors

85. Despite the constitutional permissibility of passive euthanasia under Article 21, the fear of criminal liability creates a hurdle in its rightful exercise and implementation. The looming threat that a doctor could be charged with a crime for withdrawing life support creates a chilling effect. Physicians, wary of prosecution, may hesitate to withhold futile treatment, even when continuing it prolongs the patient’s suffering and indignity. Such an environment risks relegating the rights and dignity of incompetent patients to the background in favour of legal wariness. This Court in Common Cause 2018 (supra), while addressing this issue, explicitly ruled that when treatment is withdrawn or withheld in strict adherence to the prescribed procedural safeguards, no criminal liability could be attached to the physician. While this Court explored various legal justifications for this immunity, including the lack of intent and causation, we are of the considered opinion that the most robust defence lies in the absence of an ‘illegal omission’, as once the same is established, the doctor cannot be held liable, rendering further inquiries into intent or causation unnecessary. The observation made by Dipak Misra, CJ., that such a withdrawal or withholding either comes within the protection of informed consent (in cases of voluntary passive euthanasia) or “authorised omission” (in cases of non-voluntary passive euthanasia) respectively, and hence, no criminal liability can be attached, captures this perfectly. The same is reproduced thus:

“166. [...] The authorities, we have noted from other jurisdictions, have observed the distinctions between the administration of lethal injection or certain medicines to cause painless death and non-administration of certain treatment which can prolong the life in cases where the process of dying that has commenced is not reversible or withdrawal of the treatment that has been given to the patient because of the absolute absence of possibility of saving the life. To explicate, the first part relates to an overt act whereas the second one would come within the sphere of informed consent and authorised omission. The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards.”
(Emphasis Supplied)

86. It is true that under the Indian penal law, the definition of an ‘act’ encompasses illegal omissions. Further, it is fairly well established that the fiduciary relationship between a doctor and a patient generally imposes a duty of care on the doctor to preserve life. Consequently, a failure to treat would, in normal circumstances, constitute a breach of this duty, thereby inviting liability. However, this duty does not translate into a mandate to artificially prolong life ad infinitum or to avert death at all costs. It is recognised that ‘to be is to die’ and that death is the inevitable conclusion of existence. In such circumstances, it would be legally and logically unreasonable to impose upon doctors a duty to perpetually prevent the unpreventable. Therefore, the scope of this duty of care shifts shape when a patient meets the threshold conditions/medical parameters previously discussed, i.e., when they are terminally ill or in a PVS, undergoing prolonged medical treatment with no hope of cure. In such scenarios, where continued intervention ceases to be ‘treatment’ and becomes merely a mechanism for prolonging physical life, causing harm to the patient’s dignity, the duty to avert death ceases to exist. Simply put, in such cases, if the doctor withdraws or withholds treatment in accordance with the prescribed procedure, then such omission to treat will not constitute a breach of their duty of care. It, in fact, becomes the truest manifestation of the duty of care. Consequently, the act of withdrawing or withholding medical treatment, in such scenarios, will not be held to be an ‘illegal omission’.

87. D.Y. Chandrachud. J., in his concurring opinion in Common Cause 2018 (supra), stated that the treatment of the human body involves a “continuous association” between the caregiver and the receiver. He further stated that the expert caregiver is involved in a continuous process where medical knowledge, the condition of the patient, and the relevant circumstances, require them to constantly evaluate choices, i.e., choices on the nature and extent of medical intervention, the wisdom regarding a course of action, and about what should or should not be done. This perspective was also expressed by Sir Thomas in Airedale (supra), wherein he held that what is involved is not just medical treatment, but medical treatment in accordance with the doctor’s best judgment as to what is in the patient’s best interests. Dr. Atul Gawande, in his acclaimed book, Being Mortal, brings to the fore this point in a beautiful manner:

“If to be human is to be limited, then the role of caring professions and institutions—from surgeons to nursing homes—ought to be aiding people in their struggle with those limits. Sometimes we can offer a cure, sometimes only a salve, sometimes not even that. But whatever we can offer, our interventions, and the risks and sacrifices they entail, are justified only if they serve the large aims of a person’s life. When we forget that, the suffering we inflict can be barbaric. When we remember it, the good we do can be breathtaking.”

88. Thus, when a doctor, on the basis of the best interests of their patient and in accordance with the procedural safeguards prescribed under Common Cause 2018 (supra), withholds or withdraws medical treatment, it can very well be termed as a step taken in furtherance of their duty of care, not in contradiction to it. In fact, the procedural safeguards prescribed in Common Cause 2018 (supra), especially the establishment of two independent medical boards, were intended to ensure that any act taken in accordance with that procedure would best take care of two things simultaneously – ensure that patient interests are kept at the forefront and also that the doctors are not exposed to any liability.

89. It could be argued that, in essence, withdrawing support places the patient back into the “zone of danger” from which they were initially rescued. Does this not constitute a breach of the duty of care? By exposing the patient to the potential pain and agony associated with the removal of life support, such as a ventilator or feeding tube, are we not contradicting the very principles of dignity that support passive euthanasia in the first place? To answer this, it is important to understand passive euthanasia as a termination of a ‘rescue operation’ and not as the ‘abandonment’ of a patient. As noted above, the duty of care does not cease. It merely shifts from curative treatment to palliative care. In cases where medical treatment is withdrawn or withheld, the doctor’s duty entails providing robust palliative care (as discussed in further detail in the later parts of this judgment) and ensuring that the act of withdrawal does not result in a situation in which the patient’s dignity is further compromised.

III. Impermissibility of Active Euthanasia under Article 21 of the Constitution of India

90. One of the many aspects that have been highlighted by us in the preceding paragraphs is the concurrence in the opinions of A.K. Sikri, J., and Chandrachud, J., that the right to a dignified death cannot be said to be at loggerheads with the conception of sanctity of life. If one accepts the nuanced interpretation where the quality of life breathes meaning into the sanctity of life, a natural corollary might suggest that active euthanasia should also be permissible. Indeed, in their respective opinions, both A.K. Sikri, J., and Chandrachud, J., have themselves acknowledged the existence of a body of scholarship arguing that, on moral grounds, the distinction between active and passive euthanasia is tenuous, and that, if any difference exists, it is purely a matter of policy. However, the Court noted that its role was not to test the touchstone of morality, but to apply the yardstick of constitutional principles inherent in Article 21. Consequently, while the moral divide between the two may be blurred for philosophers, for the Bench in Common Cause 2018 (supra), the constitutional divide remained clear.

91. To understand the basis for the constitutional divide between active and passive euthanasia, it is apposite to look at the observations made by this Court in Common Cause 2018 (supra), which are as follows:

Dipak Misra, CJ.,
“165. In the context of the issue under consideration, we must make it clear that as part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of active euthanasia in which positive steps are taken either by the treating physician or some other person. That is because the right to die with dignity is an intrinsic facet of Article 21 [...]”

Dr. A.K. Sikri, J.,
“220. [...] Thus, insofar as active euthanasia is concerned, this has to be treated as legally impermissible, at least for the time being. It is more so, as there is absence of any statutory law permitting active euthanasia. If at all, legal provisions in the form of Sections 306 and 307 IPC, etc. point towards its criminality.”

Dr. D.Y. Chandrachud, J.,
“398. [...] Voluntary passive euthanasia, where death results from selective non-treatment because consent is withheld, is therefore legally permissible while voluntary active euthanasia is prohibited. Moreover, passive euthanasia is conceived with a purpose of not prolonging the life of the patient by artificial medical intervention. Both in the case of a withdrawal of artificial support as well as in non-intervention, passive euthanasia allows for life to ebb away and to end in the natural course. In contrast, active euthanasia results in the consequence of shortening life by a positive act of medical intervention. It is perhaps this distinction which necessitates legislative authorisation for active euthanasia, as differentiated from the passive.
xxx xxx xxx
450. [...] While noticing this criticism, it is necessary to distinguish between active and passive euthanasia in terms of the underlying constitutional principles as well as in relation to the exercise of judicial power. Passive euthanasia—whether in the form of withholding or withdrawing treatment—has the effect of removing, or as the case may be, not providing supportive treatment. Its effect is to allow the individual to continue to exist until the end of the natural span of life. On the other hand, active euthanasia involves hastening of death : the lifespan of the individual is curtailed by a specific act designed to bring an end to life. Active euthanasia would on the state of the penal law as it stands constitute an offence. Hence, it is only Parliament which can in its legislative wisdom decide whether active euthanasia should be permitted. Passive euthanasia on the other hand would not implicate a criminal offence since the decision to withhold or withdraw artificial life support after taking into account the best interest of the patient would not constitute an illegal omission prohibited by law.
451. Moreover, it is necessary to make a distinction between active and passive euthanasia in terms of the incidents of judicial power [...]
‘[...] Parliament was and is entitled to decide that the clarity of such a moral position could only be achieved by means of such a rule. Although views about this vary in society, we think that the legitimacy of Parliament deciding to maintain such a clear line that people should not seek to intervene to hasten the death of a human is not open to serious doubt. Parliament is entitled to make the assessment that it should protect moral standards in society by issuing clear and unambiguous laws which reflect and embody such standards.’
In taking the view which has been taken in the present judgment, the Court has been conscious of the need to preserve to Parliament, the area which properly belongs to its legislative authority. Our view must hence be informed by the impact of existing legislation on the field of debate in the present case.”

Ashok Bhushan, J.,
“606. Withdrawal of life-saving devices, leads to natural death which is arrested for the time being due to above device and the act of withdrawal put the life on the natural track. Decision to withdraw life-saving devices is not an act to cause good death of the person rather, decision to withdraw or not to initiate life-supporting measures is a decision when treatment becomes futile and unnecessary. Practice of euthanasia in this country is prohibited and for medical practitioners it is already ordained to be unethical conduct [...]”
(Emphasis Supplied)

92. A close scrutiny of the above-quoted paragraphs reveals that the Court’s distinction between active and passive euthanasia in Common Cause (supra) was based on the constitutional principles underlying Article 21. This Court reasoned that active euthanasia involves a positive, overt act which is designed to curtail the natural lifespan and extinguish life. Under the mandate of Article 21, no person can be deprived of their life except in accordance with a procedure established by law. Consequently, for active euthanasia to be legally permissible, there must be an explicit legislative enactment authorizing such deprivation. The Bench noted the absence of such a statute and observed that active euthanasia in such circumstances would constitute a penal offence under the existing laws of our country. Further, this Court held that it is Parliament’s call to decide whether active euthanasia should be allowed, as it is the proper forum to address such fundamentally contentious moral issues, and the Court cannot usurp powers properly belonging to the legislature. In stark contrast to active euthanasia, the legal permissibility of passive euthanasia rests on a fundamentally different premise.

IV. Establishing the Permissibility of Advanced Medical Directives

93. Beyond establishing the constitutional permissibility of passive euthanasia, this Court in Common Cause 2018 (supra) also validated the legal status of AMDs. This Court held that these instruments are not void or legally unenforceable but are, in fact, a permissible exercise of rights under the Constitution of India. However, before delving into the Court’s rationale for establishing their validity, it is essential to clarify what the Bench understood by the term ‘Advanced Medical Directive’ or ‘Advanced Directive’. A review of the concurring opinions reveal convergence on the view that an AMD is a mechanism that effectively bridges the gap between present competence and future incapacity. It is characterised as a document executed by a person while they are still in possession of their mental faculties and decision-making capacity, specifying their instructions regarding medical treatment or appointment of a trusted surrogate to make medical decisions on their behalf, upon the occurrence of a specific future event, and them being unable to communicate their wishes. The relevant observations made by this Court are as follows:

Dipak Misra, CJ.
“185. Advance Directives for healthcare go by various names in different countries though the objective by and large is the same, that is, to specify an individual’s healthcare decisions and to identify persons who will take those decisions for the said individual in the event he is unable to communicate his wishes to the doctor.
186. Black’s Law Dictionary defines an Advance Medical Directive as, ‘a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate’. A living will, on the other hand, is a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the healthcare provider.
187. Another type of Advance Medical Directive is medical power of attorney. It is a document which allows an individual (principal) to appoint a trusted person (agent) to take healthcare decisions when the principal is not able to take such decisions. The agent appointed to deal with such issues can interpret the principal’s decisions based on their mutual knowledge and understanding.”

Dr. A.K. Sikri, J.
“335. Advance Directives are instruments through which persons express their wishes at a prior point in time, when they are capable of making an informed decision, regarding their medical treatment in the future, when they are not in a position to make an informed decision, by reason of being unconscious or in a PVS or in a coma. A medical power of attorney is an instrument through which persons nominate representatives to make decisions regarding their medical treatment at a point in time when the persons executing the instrument are unable to make informed decisions themselves [...]”

Dr. D.Y. Chandrachud, J.
“471. Broadly, there are two forms of Advance Directives: (i) A Living Will which indicates a person’s views and wishes regarding medical treatment. (ii) A Durable Power of Attorney for Health Care or healthcare proxy which authorises a surrogate decision- maker to make medical care decisions for the patient in the event she or he is incapacitated. Although there can be an overlap between these two forms of Advance Directives, the focus of a durable power is on who makes the decision while the focus of a living will is on what the decision should be. A ‘living will’ has also been referred as ‘a declaration determining the termination of life’, ‘testament permitting death’, ‘declaration for bodily autonomy’, ‘declaration for ending treatment’, ‘body trust’, or other similar reference. Living wills are not a new entity and were first suggested by US attorney, Luis Kutner, in late 1960s.
472. Advance Directives have evolved conceptually to deal with cases where a patient who subsequently faces a loss of the mental faculty to decide has left instructions, when he or she was possessed of decision-making capacity, on how future medical decisions should be made. [...]”
(Emphasis Supplied)

94. In Common Cause 2018 (supra), this Court held that AMDs are legal and valid instruments, as they facilitate the exercise of the right to die with dignity, specifically for patients who have lost their decision-making capacity. The reasoning was that if a competent patient has the right to make decisions regarding medical treatment, then, as a natural corollary, even incompetent patients should be entitled to the same right. However, due to their lack of decision-making capacity, a precarious situation may arise. It is this very gap that AMDs seek to bridge.

95. In effect, an AMD is an instrument that allows a decision regarding medical treatment to be made in advance, on the notion that if the situation prescribed therein arises at a later time when the patient is incompetent, the decision will be enforced. The justification is that if competent patients have the right to refuse treatment now, they would also have the right to refuse treatment that might be imposed on them even in the future. In other words, if a decision on whether or not to receive medical treatment is valid for the present, such a decision must be equally valid when it is intended to operate in the future. Thus, the notions of patient autonomy and consent played an instrumental role in the Court’s recognition of AMDs as valid under the law. In fact, the Constitution Bench was unequivocal in stating that, in cases where there is a valid AMD, the right of self-determination, rooted in autonomy and consent, trumps notions of sanctity of life. The relevant observations made by the Court in this regard are as follows:

Dipak Misra, CJ.
“198. In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner [...]
xxx xxx xxx
202.11. A failure to legally recognise Advance Medical Directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. [...]
202.12. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self- determination.”

Dr. A.K. Sikri, J.
“333. I am also of the view that such an advance authority is akin to well-recognised common law right to refuse medical treatment.”

Dr. D.Y. Chandrachud, J.
“473. The principles of patient autonomy and consent are the foundation of Advance Medical Directives. A competent and consenting adult is entitled to refuse medical treatment. By the same postulate, a decision by a competent adult will be valid in respect of medical treatment in future. [...]
xxx xxx xxx
476. The reason for recognising an Advance Directive is based on individual autonomy. As an autonomous person, every individual has a constitutionally recognised right to refuse medical treatment. The right not to accept medical treatment is essential to liberty. Medical treatment cannot be thrust upon an individual, however, it may have been conceived in the interest of the individual. The reasons which may lead a person in a sound state of mind to refuse medical treatment are inscrutable. Those decisions are not subject to scrutiny and have to be respected by the law as an essential attribute of the right of the individual to have control over the body. The State cannot compel an unwilling individual to receive medical treatment. While an individual cannot compel a medical professional to provide a particular treatment (this being in the realm of professional medical judgment), it is equally true that the individual cannot be compelled to undergo medical intervention. The principle of sanctity of life thus recognises the fundamental liberty of every person to control his or her body and as its incident, to decline medical treatment. The ability to take such a decision is an essential element of the privacy of the being. Privacy also ensures that a decision as personal as whether or not to accept medical treatment lies exclusively with the individual as an autonomous being. The reasons which impel an individual to do so are part of the privacy of the individual. The mental processes which lead to decision- making are equally part of the constitutionally protected right to privacy.
477. Advance Directives are founded on the principle that an individual whose state of mind is not clouded by an affliction which prevents him or her from taking decisions is entitled to decide whether to accept or not accept medical intervention. If a decision can be made for the present, when the individual is in a sound state of mind, such a person should be allowed to decide the course of action which should be followed in the future if he or she were to be in a situation which affects the ability to take decisions. If a decision on whether or not to receive medical treatment is valid for the present such a decision must be equally valid when it is intended to operate in the future. Advance Directives are, in other words, grounded in a recognition by the law of the importance of consent as an essential attribute of personal liberty. It is the consensual nature of the act underlying the Advance Directive which imparts sanctity to it in future in the same manner as a decision in the present on whether or not to accept medical treatment.”

Ashok Bhushan, J.
“617. [...] The foundation for seeking direction regarding Advance Medical Directive is extension of the right to refuse medical treatment and the right to die with dignity. When a competent patient has right to take a decision regarding medical treatment, with regard to medical procedure entailing right to die with dignity, the said right cannot be denied to those patients, who have become incompetent to take an informed decision at the relevant time. The concept of Advance Medical Directive has gained ground to give effect to the rights of those patients, who at a particular time are not able to take an informed decision.”
(Emphasis Supplied)

96. While recognising AMDs as valid legal instruments, the Constitution Bench was cognisant that their enforcement could give rise to misuse. Chandrachud, J., in his concurring opinion, went a step further, acknowledging the limitations of such AMDs and the challenges that may arise in implementing them. It is in this context that he made the following observations:

“485. Human experience suggests that there is a chasm of imponderables which divide the present from the future. Such a divide may have a bearing on whether and if so, the extent to which an Advance Directive should bind in the future. As stated above, the sanctity of an Advance Directive is founded upon the expression of the will of an individual who is in a sound state of mind when the directive is executed. Underlying the consensual character of the declaration is the notion of the consent being informed. Undoubtedly, the reasons which have weighed with an individual in executing the Advance Directive cannot be scrutinised (in the absence of situations such as fraud or coercion which implicate the very basis of the consent). However, an individual who expresses the desire not to be subjected to a particular line of treatment in the future, should she or he be ailing in the future, does so on an assessment of treatment options available when the directive is executed. For instance, a decision not to accept chemotherapy in the event that the individual is detected with cancer in the future, is based on today’s perception of the trauma that may be suffered by the patient through that treatment. Advances in medical knowledge between the date of the execution of the document and an uncertain future date when the individual may possibly confront treatment for the disease may have led to a re-evaluation by the person of the basis on which a desire was expressed several years earlier. Another fundamental issue is whether the individual can by means of an Advance Directive compel the withholding of basic care such as hydration and nourishment in the future. Protecting the individual from pain and suffering as well as the indignity of debility may similarly raise important issues. Advance Directives may hence conceivably raise ethical issues of the extent to which the perception of the individual who executes it must prevail in priority to the best interest of the patient.
xxx xxx xxx
509. Advance Directives also have limitations. Individuals may not fully understand treatment options or recognise the consequences of certain choices in the future. Sometimes, people change their minds after expressing Advance Directives and forget to inform others. Another issue with Advance Directives is that vague statements can make it difficult to understand the course of action when a situation arises. For example, general statements rejecting ‘heroic treatments’ are vague and do not indicate whether you want a particular treatment for a specific situation (such as antibiotics for pneumonia after a severe stroke). On the other hand, very specific directives for future care may not be useful when situations change in unexpected ways. New medical therapies may also have become available since an Advance Directive was given. Thus, Advance Directives should be reviewed and revised regularly if feelings about certain issues change, so that current wishes and decisions are always legally documented.”
(Emphasis Supplied)

97. Well aware of such challenges in their implementation and the potential for misuse, Common Cause 2018 (supra) noted that recognition of AMDs cannot be withheld solely because, in their implementation, they might create a potential for misuse or raise certain ethical or legal challenges. It is to alleviate such concerns of misuse that the Bench found it fit to lay down broad principles to govern and provide a just basis for the execution and enforcement of such AMDs. Dipak Misra, CJ., in his leading opinion, laid down guidelines that would govern aspects such as: (i) who can execute an AMD, (ii) what such a directive should contain, (iii) how it should be recorded and preserved, and lastly, (iv) when and by whom it can be given effect to. Acknowledging and directly addressing the challenge of enforcing AMDs due to the chasm that divides the past and present, the following guideline was also incorporated:

“198.6.2. An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.”

98. In addition to the guidelines on execution and enforcement of an AMD, Dipak Misra, CJ., also laid down guidelines regarding the procedure to be followed for undertaking passive euthanasia in those scenarios where no AMD exists. Therefore, when dealing with an AMD and passive euthanasia (with or without an AMD), the guidelines as laid down by this Court in Common Cause 2018 (supra) and later modified in Common Cause 2023 (supra) constitute the governing law of the land.

99. On the issue of who can execute an AMD, this Court in Common Cause 2018 (supra) laid down the following guidelines:

• a) The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
• b) It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
• c) It should have characteristics of an informed consent given without any undue influence or constraint.
• d) It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.

100. On the issue of what an AMD should contain, this Court in Common Cause 2018 (supra) laid down the following guidelines:

• a) It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
• b) It should be in specific terms and the instructions must be absolutely clear and unambiguous.
• c) It should mention that the executor may revoke the instructions/authority at any time.
• d) It should disclose that the executor has understood the consequences of executing such a document.
• e) It should specify the name of a guardian(s) or close relative(s) who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
• f) In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient’s wishes and will be given effect to.

101. On the issue of how an AMD should be recorded and preserved, this Court in Common Cause 2018 (supra) laid down the following guidelines:

• a) The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and attested before a notary or gazetted officer.
• b) The witnesses and the notary or gazetted officer shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
• c) The executor shall inform, and hand over a copy of the Advance Directive to the person or persons named in para 57(e) as well as to the family physician, if any.
• d) A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document. The executor may also choose to incorporate their Advance Directive as a part of the digital health records, if any.

102. On the issue of withdrawal, revocation and inapplicability of an AMD, this Court in Common Cause 2018 (supra) laid down the following guidelines:

• a) An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
• b) It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
• c) An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
• d) If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.

103. The step-wise procedure to undertake passive euthanasia as laid down in Common Cause 2018 (supra), both in situations where an AMD exists and where there is no such AMD, is discussed in the next sub-section.

V. Procedural Framework for Passive Euthanasia

104. On a close reading of this Court’s decision in Common Cause 2018 (supra), it appears to us that this Court declared the law on withholding or withdrawing medical treatment by categorising patients into three distinct categories. The applicability of the procedure depends on the patient’s category. The three categories are as follows:

• a) Where the patient is competent and capable of making an informed decision regarding their medical treatment.
• b) Where the patient is incompetent and incapable of taking an informed decision, but has executed a valid AMD in accordance with the safeguards laid down above.
• c) Where the patient is incompetent and has not executed an AMD, or the same is invalid or inapplicable.

105. For competent patients, withdrawal or withholding of medical treatment is rooted in their right to refuse medical treatment, which is part of the right to live with dignity, combined with personal autonomy and self-determination. As noted above, this right to refuse medical treatment for competent patients is unencumbered, and the right of self-determination in such situations trumps the interest in the sanctity of life. Thus, any patient, regardless of the medical condition they are suffering from, has the right to refuse treatment. In situations where a competent patient, aware of the consequences, refuses medical treatment, the treating physician is bound by that informed decision and must withdraw or withhold medical treatment to give effect to it. In such cases, the withdrawal or withholding of medical treatment would be fairly uncontroversial and authorised, as it is supported by the patient’s explicit and informed consent at the time of the withdrawal or withholding. In our opinion, if a patient is competent, it would eliminate the need to refer to or consider any existing AMD.

106. When dealing with incompetent patients, the circumstances are more knotty. It could be argued that an AMD represents express consent from the patient and, consequently, that its enforcement should be as unencumbered as the right to refuse treatment. However, it is important to recognise the qualitative difference between explicit consent given at the very time of withdrawal or withholding, and consent derived from a past directive. Relying on a past decision is admittedly fraught with complexities. The patient’s knowledge at the time may have been limited, or circumstances may have effectively changed. Essentially, there is no absolute equivalence between the past and the present. Events may have occurred that could have altered the patient’s decision, but their current incompetence prevents us from accurately ascertaining this. Due to these uncertainties, the unrestrained enforcement of an AMD was not permitted, and a strict procedure was put in place.

107. The most important restriction, however, appears to be that an AMD can also only be enforced in situations where the executor is in a condition so as to fulfil the three prerequisites/medical parameters that we have culled out above, when discussing passive euthanasia for incompetent patients. Thus, following this Court’s ruling in Common Cause 2018 (supra), passive euthanasia for incompetent patients, regardless of whether an AMD exists or not, is permitted only if the following conditions are met:

• a) The patient must be diagnosed to be suffering from a medical ailment and be classified as either terminally ill, in a PVS, or like conditions.
• b) The patient must be undergoing prolonged medical treatment with respect to the said ailment, indicating that the intervention has ceased to be temporary.
• c) The ailment must be irreversible, meaning:
  • i. the condition is incurable; or
  • ii. there is absolutely no hope of the patient being cured.

108. To reiterate, an AMD which conveys the refusal of treatment cannot be enforced unless all the aforementioned conditions are satisfied. This applies even where the directive is explicit. For instance, consider a patient whose directive specifically states that no treatment should be administered in the event of a heart attack. If this patient is admitted with a heart attack, that instruction cannot be given effect to. The same is because the patient’s condition does not meet the requisite threshold conditions as aforesaid (e.g., terminally ill in PVS, prolonged medical treatment etc.) and therefore, the directive remains unenforceable despite its specific wording. In effect, the decision in Common Cause 2018 (supra) limited the enforceability of AMDs to rare and extreme cases, precluding their application in general medical circumstances, thereby, differentiating us from certain other jurisdictions.

109. With that being said, on the procedure to be followed to undertake passive euthanasia in those cases where an AMD exists, this Court in Common Cause 2018 (supra) laid down the following guidelines:

a) In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, and does not have decision-making capacity, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof with reference to the existing digital health records of the patient, if any or from the custodian of the document referred to in para 58(d). The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.

b) If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the person or persons named in the Advance Directive, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.

c) The hospital where the executor has been admitted for medical treatment shall then constitute a Primary Medical Board consisting of the treating physician and at least two subject experts of the specialty concerned with at least five years’ experience, who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion preferably within 48 hours of the case being referred to it whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.

d) In the event the Primary Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the hospital shall then immediately constitute a Secondary Medical Board comprising one registered medical practitioner nominated by the Chief Medical Officer of the district and at least two subject experts with at least five years’ experience of the specialty concerned who were not part of the Primary Medical Board. They shall visit the hospital where the patient is admitted and if they concur with the initial decision of the Primary Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive. The Secondary Medical Board shall provide its opinion preferably within 48 hours of the case being referred to it.

e) The Secondary Board must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the person or persons nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.

f) The hospital where the patient is admitted, shall convey the decision of the Primary and Secondary Medical Boards and the consent of the person or persons named in the Advance Directive to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor.

g) If permission to withdraw medical treatment is refused by the Secondary Medical Board, it would be open to the person or persons named in the Advance Directive or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.

h) The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the advanced directive. Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.

i) Where the Primary Medical Board takes a decision not to follow an Advance Directive while treating a person, the person or persons named in the Advance Directive may request the hospital to refer the case to the Secondary Medical Board for consideration and appropriate direction on the Advance Directive.

110. As discussed above, the Court also noted that there would be many scenarios in which no AMDs would exist, or where the directive would become inapplicable for various reasons. For undertaking passive euthanasia in such scenarios, the Bench in Common Cause 2018 (supra) held that the procedure and safeguards are largely to be the same as applied to cases where an AMD is in existence; in addition thereto, the following procedure shall be followed:

a) In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital, which, in turn, shall constitute a Primary Medical Board in the manner indicated earlier. The Primary Medical Board shall discuss with the family physician, if any, and the patient’s next of kin/next friend/guardian and record the minutes of the discussion in writing. During the discussion, the patient’s next of kin/next friend/guardian shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Primary Medical Board may certify the course of action to be taken preferably within 48 hours of the case being referred to it. Their decision will be regarded as a preliminary opinion.

b) In the event the Primary Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall then constitute a Secondary Medical Board comprising in the manner indicated hereinbefore. The Secondary Medical Board shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Primary Medical Board. In that event, intimation shall be given by the hospital to the JMFC and the next of kin/next friend/guardian of the patient preferably within 48 hours of the case being referred to it.

c) There may be cases where the Primary Medical Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Secondary Medical Board may not concur with the opinion of the Primary Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.

111. Before addressing the substantive issues, a clarification regarding nomenclature is essential. The ruling of this Court in Common Cause 2018 (supra) permitted passive euthanasia while prohibiting active euthanasia. It is also abundantly clear that, for the Court in Common Cause 2018 (supra), the term ‘passive euthanasia’ was equated or synonymised with the withholding or withdrawal of medical treatment. However, there seems to be a general consensus on the fact that ‘passive euthanasia’ is an obsolete and a rather, confusing term. We are also of the view that imprecise terminology unnecessarily obscures the legal position. Therefore, to ensure clarity in this judgment, we will henceforth adopt the following definitions/phrases:

• a) ‘Euthanasia’ will refer strictly to active euthanasia, which remains impermissible.
• b) ‘Withdrawing or Withholding of Medical Treatment’ will replace the term ‘passive euthanasia’.

It is imperative to state that this change is merely a matter of terminology, not of substance. Accordingly, the withholding or withdrawing of medical treatment remains strictly governed by the guidelines and procedural safeguards established for ‘passive euthanasia’ in Common Cause 2018 (supra).

112. While the preceding discussion has dwelt at length on the constitutional basis and procedural mechanics of withholding or withdrawing medical treatment, we must not lose sight of another substantive aspect we briefly broached in this section. The Constitution Bench in Common Cause 2018 (supra) was unequivocal in holding that such withdrawal or withholding is permissible only when it serves the ‘best interests’ of the patient. This principle serves as the bedrock of the entire legal framework. Consequently, any decision to withdraw or withhold medical treatment must withstand scrutiny on two primary grounds: first, the intervention in question must qualify as ‘medical treatment’, and secondly, its withdrawal must strictly be in the patient’s best interests.

(E). ISSUES FOR DETERMINATION

113. Having heard the learned counsel appearing for the parties, having gone through the materials on record and having exhaustively examined the reasoning adopted in Common Cause 2018 (supra), the following questions fall for our consideration:

• (1) Whether the administration of CANH is to be regarded as “medical treatment”?
• (2) What is the meaning, scope, and contours of the principle of “best interest of the patient” in determining whether medical treatment should be withdrawn or withheld?
• (3) Whether it is in the best interest of the applicant that his life be prolonged by continuation of medical treatment?
• (4) What are the further steps to be undertaken in the event that a decision to withdraw or withhold medical treatment is arrived at?

(F). ANALYSIS

(1) WHETHER THE ADMINISTRATION OF CANH IS TO BE REGARDED AS “MEDICAL TREATMENT”?

114. The present medical condition of the applicant necessitates the determination of an issue that is central to the further course of action which is to be adopted. In the present matter, the applicant has sustained non-progressive, irreversible brain damage having suffered a severe traumatic brain injury with diffuse axonal injury at the time of the fateful incident. Following his discharge from the hospital in the immediate aftermath of the incident, his fragile health condition has necessitated frequent hospital admissions for the treatment of his head injury, seizures, pneumonia and bedsores. However, his medical condition has been such that it did not warrant continuous hospitalisation all the time and, therefore, he has largely been maintained at home, albeit with a tracheostomy tube, urinary catheter, and PEG tube in situ. He retains intact brainstem function and breathes spontaneously with the tracheostomy tube in place. Nonetheless, due to his PVS condition, his survival is dependent upon the continued administration of CANH.

115. The pertinent question before us is whether the applicant’s medical treatment can be withdrawn or withheld. Since the applicant is being sustained through the provision of CANH, through a PEG tube, it is essential for us to first determine whether the administration of CANH constitutes ‘medical treatment’ and would therefore be amenable to being lawfully withheld or withdrawn. In other words, it is only in the event that CANH is recognised as a medical treatment, as opposed to being regarded as basic primary care that the withholding or withdrawal of such treatment would be permissible. In order to analyse this issue, we have delved into some landmark cases across developed common law jurisdictions, including briefly revisiting those cases already referred to in our preceding discussion, to answer the limited question whether CANH is a form of “medical treatment” and therefore, is amenable to the same principles governing the withholding or withdrawal of any other form of medical treatment.

116. Before proceeding any further, we must begin by clarifying that by the term CANH, we refer to all forms of enteral nutrition and parenteral nutrition which are administered upon clinical indication, which is not inclusive of oral feeding, by cup, spoon, or any other method of delivering food or nutritional supplements into the patient’s mouth. In order to ascertain the status of CANH as a “medical treatment”, it is crucial that the scope of the term CANH, as it is currently understood, be explained in some detail. CANH can be primarily categorised into two broad categories: enteral nutrition and parenteral nutrition.

(a) Enteral nutrition, also known as “tube feeding”, is a method of providing nutrition directly into the gastrointestinal (GI) tract through an enteral access device (feeding tube) that is passed either through the nose, mouth or directly through the abdominal wall, up to the stomach or small intestine. Enteral nutrition is a special liquid food mixture containing all the nutrients required to meet the nutritional needs, such as protein, carbohydrates, fats, vitamins, minerals, etc. of the patient. The formula can include ready-to-feed liquids, formulas made from a powder or a concentrate, or blenderized food, but the suitability of the feed type would vary on a case to case basis, as per the clinical judgment of the medical practitioner. The enteral access device/feeding tubes can be of various types such as:

• (i). Tubes placed through the nose into the stomach (nasogastric) or the small intestine (nasoduodenal/nasojejunal), called nasoenteral tubes.
• (ii). Tubes placed through the mouth into the stomach (orogastric) or the small intestine (oroduodenal/orojejunal), called oroenteral tubes.
• (iii). Tubes surgically placed directly through the skin into the stomach (gastrostomy) or small intestine (jejunostomy), for e.g. Percutaneous Endoscopic Gastrostomy (PEG) tube, Percutaneous Endoscopic Jejunostomy (PEJ) tube, etc.

(b) Parenteral nutrition is a method for patients to receive nutrition other than through the gastrointestinal (GI) tract, and may comprise a unique sterile intravenous (IV) solution administered directly into the bloodstream via a catheter inserted into a vein.

117. There is no gainsaying that the prescription and administration of CANH involves careful consideration of a multitude of clinical factors, ranging from installation of the CANH device (placed surgically or otherwise), precise assessment of the patient’s nutritional requirements, the underlying clinical condition of the patient, gastrointestinal tolerance, potential metabolic instability, and an assessment of the anticipated duration of CANH support, amongst others. Some complications that are associated with CANH include the risk of aspiration pneumonia, peritonitis, and wound/stoma site infection. Administration of CANH also requires periodic medical review of its indications, route of administration, risks, benefits and therapeutic goals. Even where enteral nutrition is administered by caregivers in a home setting, the process remains strictly governed by medical protocols, requiring the prescribing clinician to specify the nutritional formulation, dosage, rate and method of delivery. For example, feeding pumps are used to regulate the flow of feed delivered over a specific period of time. The enteral nutrition administration may be through the use of an electronic feeding pump or by bolus feeding using a syringe. This may include ‘continuous gravity feeding’ that is manually controlled with a feeding bag and a roller clamp to help control the rate; and ‘intermittent gravity feeding’ where liquid feeds are delivered over a certain duration or, ‘bolus feeding’ where a specific volume of feeding is infused via bag or a syringe rapidly over several minutes. Pump assisted feeding utilizes an electric pump device to more precisely control the rate of delivery in patients who are at a higher risk of inadvertently getting formula in their lungs, sensitive to volume, have delayed gastric emptying or are being fed into the small intestine. Regular flushing of feeding tubes, preventing and controlling of infections and monitoring for complications are integral components of CANH protocols. The CANH protocols require that enteral feeding tubes be flushed with water before and after medication or feeding, or at certain hourly intervals during continuous feeding, to prevent clogging and ensure adequate hydration. The protocols further mandate that, in the event a CANH device gets dislodged, the reinsertion of the CANH shall be undertaken only under appropriate medical supervision so as to obviate the high risk of peritonitis and aspiration, which are potentially fatal complications. For example, if a PEG tube becomes partially dislodged and such dislodgement goes unnoticed, the specialised liquid nutrition, fluids, or medication administered through it may leak into the abdominal cavity, leading to peritonitis, which is a severe infection that may be life-threatening. Similarly, if a nasogastric or orogastric tube gets misplaced, it risks introducing fluids or medication into the respiratory tract or pleura, which could be fatal. Therefore, medical guidance has to be sought for reinsertion, to prevent such adverse consequences.

118. The aforesaid clinical and procedural characteristics of CANH indicate, without an iota of doubt, that CANH cannot be regarded as a mere means of basic sustenance or primary care, but should be recognised as a technologically mediated medical intervention that is prescribed, supervised and periodically reviewed by trained healthcare professionals in accordance with established medical standards.

119. We are in respectful agreement with Schreiber J.’s erudite reasoning in In re Conroy, reported in 98 N.J. 321, wherein, although he acknowledged the emotional symbolism of food and the innate emotions which are invoked when it comes to feeding and nourishment, yet he went on to hold that CANH methods are significantly different from bottle feeding or spoon feeding when judged on medical parameters. He observed that artificial feeding mechanisms such as nasogastric tubes, gastrostomies and intravenous infusions are significantly different from bottle or spoon feeding as they are medical procedures with inherent risks and possible side effects, administered by skilled health care providers to compensate for impaired physical functioning. Drawing an analogy between artificial feeding by means of a nasogastric tube or intravenous infusion and artificial breathing by means of a respirator, Schreiber J. elaborated on how these medical procedures that ensure nutrition and hydration involve the risks and burdens of serious complications and could sometimes be seriously distressing to the patient. The pertinent observations made by Schreiber J. read thus:

“Certainly, feeding has an emotional significance. As infants we could breathe without assistance, but we were dependent on others for our lifeline of nourishment. Even more, feeding is an expression of nurturing and caring, certainly for infants and children, and in many cases for adults as well. Once one enters the realm of complex, high technology medical care, it is hard to shed the ‘emotional symbolism’ of food. However, artificial feedings such as nasogastric tubes, gastrostomies, and intravenous infusions are significantly different from bottle feeding or spoon feeding - they are medical procedures with inherent risks and possible side effects, instituted by skilled health care providers to compensate for impaired physical functioning. Analytically, artificial feeding by means of a nasogastric tube or intravenous infusion can be seen as equivalent to artificial breathing by means of a respirator. Both prolong life through mechanical means when the body is no longer able to perform a vital bodily function on its own. Furthermore, while nasogastric feeding and other medical procedures to ensure nutrition and hydration are usually well tolerated, they are not free from risks or burdens; they have complications that are sometimes serious and distressing to the patient.”
(Emphasis Supplied)

120. Drawing upon this analogy between CANH and artificial respiratory support given by Schreiber J., we may refer to one another crucial observation made by the High Court of Auckland, New Zealand in Auckland Area Health Board v. Attorney-General reported in (1992) 8 CRNZ 634 regarding the role played by such artificial life sustaining systems and why their medical function or purpose should be given due regard when considering their administration. In Auckland Area Health Board (supra), while considering the permissibility of withholding artificial respiratory support, Thomas J. observed that a life support system may by itself not prevent or cure the underlying life-threatening condition but may nonetheless serve a therapeutic or medical function by enabling the patient to survive long enough for recovery. In such a case, the intervention only alleviates the effect(s) of the illness while nature or other medical treatments address the underlying condition. In that sense, unless the life support system serves further medical function or therapeutic purpose, it would not be unlawful to discontinue it if such discontinuance is in accordance with good medical practice. Thomas J. goes on to observe that:

“To require the administration of a life support system when such a system has no further medical function or purpose and serves only to defer the death of the patient is to confound the purpose of medicine. In such circumstances, the continuation of the artificial ventilation may be lawful, but that does not make it unlawful to discontinue it if the discontinuance accords with good medical practice.”

This reasoning adopted in Auckland Area Health Board (supra) applies with equal force to CANH. Thus, like artificial ventilatory support, CANH also serves a therapeutic or medical function and must therefore be assessed under the same legal framework applicable to other life-sustaining medical interventions.

121. Furthermore, in Airedale (supra), Lord Keith rejected the argument that artificial feeding by nasogastric tube was indistinguishable from normal feeding, the latter of which did not amount to medical treatment. He emphatically acknowledged that there is a distinction between CANH and normal feeding, as the administration of nourishment by artificial means involves the application of a medical technique. Driving home this point, Lord Keith succinctly observed that it is incorrect to direct exclusive attention to the fact that nourishment is being provided. Rather, regard should be had for the whole regime of medical treatment that keeps the patient alive, including that of artificial feeding, which involves the application of medical technique. In observing thus, Lord Keith places CANH on the same pedestal as other forms of medical treatment, vis-à-vis which the medical practitioners are under no greater duty to administer it if such medical treatment would not confer any benefit to the patient. We consider it important to quote Lord Keith’s observations in Airedale (supra), which are as follows:

“[...] It was argued for the guardian ad litem, by analogy with that case, that here the doctors in charge of Anthony Bland had a continuing duty to feed him by means of the nasogastric tube and that if they failed to carry out that duty they were guilty of manslaughter, if not murder. This was coupled with the argument that feeding by means of the nasogastric tube was not medical treatment at all, but simply feeding indistinguishable from feeding by normal means. As regards this latter argument, I am of the opinion that regard should be had to the whole regime, including the artificial feeding, which at present keeps Anthony Bland alive. That regime amounts to medical treatment and care, and it is incorrect to direct attention exclusively to the fact that nourishment is being provided. In any event, the administration of nourishment by the means adopted involves the application of a medical technique. But it is, of course, true that in general it would not be lawful for a medical practitioner who assumed responsibility for the care of an unconscious patient simply to give up treatment in circumstances where continuance of it would confer some benefit on the patient. On the other hand a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being a benefit, and that, if not unarguably correct, at least forms a proper basis for the decision to discontinue treatment and care: Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582”
(Emphasis Supplied)

122. The aforementioned observation made by Lord Keith regarding consideration of the whole regime of medical treatment, including artificial feeding, when read with Lord Lowry’s observation Airedale (supra), makes it all the more poignant. Taking a comprehensive view of CANH, Lord Lowry observed that an artificial feeding regime is inevitably associated with the continuous use of catheters and enemas and the constant combating of potentially deadly infection(s). He observes thus:

“4. Although entirely satisfied with your Lordships’ consensus, I ought finally to touch on the real point in the case. The strength of the Official Solicitor’s argument lies in its simplicity. In answer to the respondent’s reliance on accepted medical opinion that feeding (nutrition and hydration), particularly by sophisticated artificial methods, is part of the life-supporting medical treatment, he says that the duty to feed a helpless person, such as a baby or an unconscious patient, is something different, an elementary duty to keep the patient alive which exists independently of all questions of treatment and which the person in charge cannot omit to perform: to omit deliberately to perform this duty in the knowledge that the omission will lead to the death of the helpless one, and indeed with the intention, as in the present case, of conducing to that death, will render those in charge guilty of murder. One of the respondent’s counter- arguments, albeit not conclusive, is based on the overwhelming verdict of informed medical opinion worldwide, with particular reference to the common law jurisdictions, where the relevant law generally corresponds closely with our own, that therapy and life-supporting care, including sophisticated methods of artificial feeding, are components of medical treatment and cannot be separated as the Official Solicitor contends. In this connection it may also be emphasised that an artificial feeding regime is inevitably associated with the continuous use of catheters and enemas and the sedulous avoidance and combatting of potentially deadly infection. I consider that the court, when intent on reaching a decision according to law, ought to give weight to informed medical opinion both on the point now under discussion and also on the question of what is in the best interests of a patient and I reject the idea, which is implicit in the appellant’s argument, that informed medical opinion in these respects is merely a disguise for a philosophy which, if accepted, would legalise euthanasia.”
(Emphasis Supplied)

123. At this juncture, it is pertinent to refer to the observation regarding ‘feeding tubes’ made by Sikri, J. in Common Cause 2018 (supra), which reads thus:

“219. Passive euthanasia occurs when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life-sustaining treatment. This could include discontinuing treatment. This could include discontinuing life-support machines or feeding tubes or not carrying out life-saving operations or providing life-extending drugs.”
(Emphasis Supplied)

124. A similar view has been echoed by D.Y. Chandrachud, J., in Common Cause 2018 (supra), in his reference to feeding through hydration tubes as an example of medical treatment which an individual might be subjected to in an emergency, but with regard to which one should have the right of refusal if such artificial prolongation results in human suffering. D.Y. Chandrachud, J., in Common Cause 2018 (supra) observes thus:

“359. Individuals who suffer from chronic disease or approach the end of the span of natural life often lapse into terminal illness or a permanent vegetative state. When a medical emergency leads to hospitalisation, individuals in that condition are sometimes deprived of their right to refuse unwanted medical treatment such as feeding through hydration tubes or being kept on a ventilator and other life support equipment. Life is prolonged artificially resulting in human suffering [...]”

125. To acknowledge that the very survival of the patient in a PVS condition is resting on an invasive form of artificial support made possible by medical science and technology, yet deny such intervention the status of a ‘medical treatment’ in respect of which doctors could exercise their clinical judgment, would stretch the concept of basic or primary care to an extent that it becomes illogical. Thus, it is crucial that CANH be regarded as medical treatment, forming an integral part of a patient’s medical management, and be subject to the same ethical, legal, and clinical principles that govern the initiation, continuation, withholding, or withdrawal of other life-sustaining medical interventions. To deny it recognition as a medical treatment would reduce the patient to being a passive subject of medical technology, while simultaneously depriving doctors of the agency necessary to responsibly assess the therapeutic value of such intervention in the discharge of their duty of care.

126. However, another significant aspect that needs to be addressed is whether CANH that is administered at home can still be regarded as a medical treatment. We hereby clarify that merely because routine feeding in the form of CANH can be administered at home, by an informed lay person, it cannot be relegated to a non-medical status. We find the reasoning given by Morris J., in Re BWV; Ex parte Gardner, reported in 2003 VSC 173, to be most apt in addressing this point. Therein it was recognised by the Supreme Court of Victoria, Australia, that artificial nutrition and hydration involves protocols, skills and care which draw from and depend upon medical knowledge. In his opinion, Morris J., clearly reasons out why the use of PEG for artificial nutrition and hydration is unquestionably a medical procedure. He explains how artificial nutrition and hydration will inevitably require the careful choice of materials and preparation methods, close consideration of dosage rates, measures to prevent infection, and regular cleaning of conduits. These measures cannot be regarded as common knowledge. Rather, they draw from and depend upon medical knowledge. More pertinently, he observes, that although artificial nutrition and hydration, via a PEG, can be performed at home by an informed lay person, it remains a medical procedure because such administration of nutrition and hydration must necessarily be performed under regular medical and nursing supervision, involving skills and protocols which the lay person would need to specifically obtain by drawing upon medical knowledge. Morris J.’s observations read as follows:

“76. It is not necessary to explore all the circumstances which might be said to constitute a medical procedure: because, unquestionably in my judgment, the use of a PEG for artificial nutrition and hydration, or for that matter any form of artificial feeding, is a ‘medical’ procedure. Artificial nutrition and hydration involves protocols, skills and care which draw from, and depend upon, medical knowledge. Artificial nutrition and hydration will inevitably require careful choice of and preparation of materials to be introduced into the body, close consideration to dosage rates, measures to prevent infection and regular cleaning of conduits. These are not matters of common knowledge. In this regard, I particularly rely upon the evidence given to the Court by Dr Woodward, Professor Ashby and Professor Horne.
77. In my opinion, the claim that artificial nutrition and hydration via a PEG, can be performed in the home by an informed lay person does not mean that this procedure is not a medical procedure. Quite apart from the fact that the evidence is that such artificial nutrition and hydration must necessarily be performed under regular medical and nursing supervision, such a procedure involves skills and protocols which the lay person would need to specifically obtain by drawing upon medical knowledge.”
(Emphasis Supplied)

127. The recognition accorded to CANH as a ‘medical treatment’ is of particular importance as it enables doctors acting in good faith and with due medical propriety to undertake such treatment and be able to take further decisions regarding its discontinuation, in the same manner as any other decision the doctor is duty-bound to make concerning the appropriateness of continuing a medical intervention. In other words, recognising CANH as a medical treatment brings decisions regarding its administration, refusal, withholding or withdrawal squarely within the realm of clinical judgment, thereby making physicians duty-bound to evaluate whether it is in the best interest of the patient to continue such treatment, or whether it has lost its therapeutic purpose and has become futile, thereby outweighing its intended benefits. It cannot be said that a patient should be made a passive subject of medical technology without allowing the doctors to engage in clinical decision-making regarding such technological intervention.

128. We are therefore of the considered view that CANH constitutes ‘medical treatment’ and must be governed by the same legal principles applicable to chestnut withholding or withdrawal of other forms of life-sustaining medical interventions, subject, of course, to the safeguards and procedural requirements laid down by this Court in Common Cause 2018 (supra).

129. In the present matter before us, the applicant is sustained through the administration of nutrition and hydration in medically prescribed quantities of certain prescribed feed, via a surgically installed PEG tube. We have already explained how the continuation of such CANH requires an ongoing clinical decision-making process, through routine medical supervision, periodic evaluation, and emergency medical management in case of infection or dislodgment of the CANH device. Consequently, it is beyond question that administration of CANH in this case is to be considered as medical treatment. Further, as we have already explained hereinabove, the fact that the applicant is administered CANH at home does not displace the status of such CANH as being considered as a medical treatment.

130. Therefore, in line with our considered view that CANH constitutes medical treatment, it is permissible for the primary medical board and secondary medical board to exercise their clinical judgment with regard to the continuation or withdrawal or withholding of CANH, like any other form of medical treatment, in accordance with the guidelines as laid down in Common Cause (supra). In other words, the primary and secondary medical boards are at liberty to exercise their independent clinical judgment on the question of continuation or withdrawal of CANH, as they would in respect of any other form of medical treatment.

(2) WHAT IS THE MEANING, SCOPE, AND CONTOURS OF THE PRINCIPLE OF “BEST INTEREST OF THE PATIENT” IN DETERMINING WHETHER MEDICAL TREATMENT SHOULD BE WITHDRAWN OR WITHHELD?

131. As discussed above, a five-judge Constitution Bench of this Court in Common Cause 2018 (supra) had inter alia laid out certain guidelines for the withdrawal or withholding of medical treatment. According to the Common Cause 2018 (supra), when following these step-by-step guidelines and determining whether a particular medical treatment is to be withdrawn or withheld, the doctors and the courts have to keep in mind the principle of “best interest of the patient”.

132. While referring to this principle, Dipak Misra, CJ., in his opinion, referred to the decision of the House of Lords in Airedale (supra) wherein it was settled that the life sustaining treatment can be withdrawn in the case of a competent patient, if he consents to it and in the case of an incompetent patient, if it is in his best interest to do so. Similarly, A.K. Sikri, J., in his opinion, was of the same view that the decision of a doctor to withdraw or withhold medical treatment must be based on what is in the best interest of the patient. Additionally, D.Y. Chandrachud, J., also expressed in clear and categorical terms, that the decision of a treating doctor to withdraw or withhold medical treatment is legally protected, so long as such decision is taken bona fide, in faithful discharge of professional duty, and in the best interests of the patient. Lastly, Ashok Bhushan, J., while concurring with the aforesaid views, also observed that in cases involving incompetent patients who are incapable of taking an informed decision, the governing principle shall be the “best interests of the patient”, and the determination in that regard must rest with competent medical experts. The relevant observations are as under:

Dipak Misra, CJ.
“192. [...] In general, as per the settled law vide the decision in Airedale, life-sustaining treatment including artificial nutrition and hydration can be withdrawn if the patient consents to it and in case of incompetent patients, if it is in their best interest to do so.”

A.K. Sikri, J.
“462 [...] Placing a patient on artificial life support would, in such a situation, merely prolong the agony of the patient. Hence, a decision by the doctor based on what is in the best interest of the patient precludes an intent to cause death [...].”

D.Y. Chandrachud, J.
“521. The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision.”

Ashok Bhushan, J.
“629.9. We are also of the opinion that in cases of incompetent patients who are unable to take an informed decision, ‘the best interests principle’ be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.”
(Emphasis Supplied)

133. Furthermore, according to Para. 198.5.3 (cases where an AMD is present) and Para. 199.4 (cases where an AMD is absent) of the guidelines as laid down in Common Cause (supra), respectively, it is also obligatory upon the court dealing with the question of withdrawal or withholding of medical treatment to ascribe reasons for the same, while specifically keeping in mind the principle of best interest of the patient. At Para. 202.14 of the guidelines as laid down in Common Cause (supra), this Court also laid down that when withdrawing or withholding medical treatment is considered medically appropriate as a part of the patient’s palliative care, then the patient’s best interests must take priority over the interests of the State to preserve life. The relevant excerpts from the guidelines as laid down in Common Cause (supra) are as follows:

“198.5.3. Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of ‘best interests of the patient’.
xxx xxx xxx
199.4. [...] Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of ‘best interests of the patient’.
xxx xxx xxx
202.14. When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.”
(Emphasis Supplied)

134. From the foregoing discussion, it emerges that the application of the principle of the “best interests of the patient” possesses an intrinsic and qualified significance in determining whether medical treatment should be withdrawn or withheld. However, at this stage, a pertinent question arises as to the precise content, contours, and scope of this principle, and the manner in which it is to be applied to the facts and circumstances of each individual case. We are, therefore, of the considered view that it is imperative, at the threshold, to elucidate the meaning and ambit of the principle of best interests, which receives paramount consideration in contemplating the withdrawal or withholding of medical intervention. We intend to undertake this exercise by examining a series of decisions rendered by courts across various jurisdictions, wherein the principle of best interests has been expounded, particularly in the context of issues relating to the withdrawal or withholding of medical treatment. We shall also advert, albeit briefly, to the meaning and scope of this principle as evidenced in the recommendations given by the Law Commission of India in its 196th Report titled “Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)” and in its 241st Report titled “Passive Euthanasia – A Relook”, and, finally, to the exposition of this Court in Common Cause 2018 (supra).

(a) Best interest of the patient in United States of America (USA)

135. The earliest authority in the USA relevant for our discourse is of In re Eichner on behalf of Fox, reported in 73 A.D.2d 431. In this case, the Supreme Court of New York was concerned with the case of Brother Joseph Charles Fox, an 83-year-old Catholic monk who suffered a cardiac arrest during routine hernia surgery, resulting in severe and irreversible brain damage and leaving him in a PVS. He was sustained solely by artificial ventilation and had no prospect of recovery. Father Philip K. Eichner, a close associate and religious superior, applied before the court seeking a declaration of the patient’s incompetence and authorisation to withdraw the respirator, relying on the patient’s previously expressed wishes not to be kept alive by extraordinary means. The trial court permitted withdrawal of the respirator. The District Attorney preferred an appeal. During the pendency of the appeal, the patient died naturally; however, the court proceeded to determine the matter, observing that similar issues were capable of recurring. The Supreme Court of New York ultimately affirmed the decision of the trial court, holding that withdrawal of extraordinary life-sustaining treatment was permissible, subject to strict procedural safeguards and clear medical confirmation. The court observed that the law confers jurisdiction upon the court to act in relation to an incompetent person only in furtherance of his best interests and in exercise of its protective jurisdiction.

136. The court then addressed the question of the patient’s wishes and recognised that, in many cases, a specific prior statement of intent may not be available. In such circumstances, the court held that an alternative mechanism is required to safeguard the patient’s right to refuse treatment. The court approved the use of the substituted judgment standard in such circumstances and recognised that such an approach had received judicial acceptance in the USA. The court further observed that substituted judgment is intended to give effect to the patient’s own wishes and autonomy and is best undertaken by persons who knew the patient closely. The court further emphasised that the substituted judgment must proceed on the basis that it reflects the patient’s own choice, i.e., what the patient would have wanted if he had capacity. The relevant observations are as under:

“The legal component concerns the mechanism by which the patient's intentions are ascertained, if possible, and his best interests safeguarded.
But the question does not end there for we recognize that a specific statement of intent by the patient will occur only in a minority of cases. Another mechanism is required if the comatose patient's right to refuse extraordinary life- prolonging medical treatment is to be safeguarded. Both Quinlan and Saikewicz faced the problem, although in different contexts: in Quinlan the 21-year-old Karen, in the full flower of her health, had no reason to contemplate the possibility of death and therefore no reason to make known her wishes; in Saikewicz, the 67-year-old retardate had an I.Q. of 10, and a mental age of less than three, and hence was incapable of intelligently expressing his wishes [...] Both courts, however, elected a similar procedural mechanism: a ‘substitute’ or proxy judgment by the patient’s guardian in the best interests of the incompetent patient. This was no great departure from the norm since ‘[courts] in the exercise of their parens patriae responsibility to protect those under disability have sometimes implemented medical decisions and authorized their carrying out under the doctrine of ‘substituted judgment’ [...] The Quinlan court held that the ‘only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment * * * as to whether she would exercise it in these circumstances’. Similarly, the guardian ad litem in Saikewicz was required to make a substitute judgment based on the ‘incompetent person’s actual interests and preferences’ [...] We believe that this is essentially a sound approach, borne of the exigencies of the circumstances. We look particularly to a close family relative, a spouse, parent, child, brother, sister or grandchild -- in Brother Fox’s case, a member of his religious family -- as an appropriate person to initiate, as committee of the incompetent, the process of reaching such a decision. Such an individual who has known and loved the patient personally, presumably for years, can best determine what that patient would have wanted under the circumstances. It is a decision we trust that will derive from a deep and abiding respect for the patient as an individual. But more important, we believe that it must be based on the assumption that the patient would have wanted it that way. This approach seeks to fulfill what would be deemed to be the dying patient’s own wishes, and reaffirms notions of self-determination.
We note that the doctrine of substitute judgment is not unknown in this jurisdiction in incompetency proceedings.”
(Emphasis Supplied)

137. In Barber v Superior Court, reported in 147 Cal App 3d 1006, the patient had suffered a cardiac arrest resulting in severe brain damage and leaving him in a deep and irreversible vegetative state with virtually no prospect of regaining cognitive or motor function. He was sustained on life-support systems, including a respirator and intravenous nutrition and hydration. After being informed of the prognosis, the patient’s wife and children requested withdrawal of all life-sustaining treatment, consistent with the patient’s previously expressed wishes not to be kept alive artificially. The treating physicians thereafter withdrew the respirator and subsequently, the CANH. The patient, thereafter, died while receiving palliative care. In consequence, the doctors were charged with murder and conspiracy to commit murder, which they challenged before the Court of Appeal of California by seeking a writ of prohibition. The court held that the doctors’ omission to continue treatment did not constitute an unlawful failure to perform a legal duty when the patient had virtually no prospect of recovering cognitive function.

138. In holding so, the court emphasised that medical decision-making in such cases must be rationally approached by examining whether the proposed treatment is proportionate or disproportionate, having regard to the benefits and burdens associated with such treatment. The court recognised that treatment may still be regarded as proportionate, even if painful or intrusive, where there exists a reasonable prospect of cure or significant improvement in the patient’s condition. The court further recognised that the patient’s interests and desires constitute central components of the decision-making process. However, in cases where the possibility of full recovery is virtually non-existent, and the patient is incapable of expressing his wishes, the focus of the inquiry must shift to the medical prognosis, particularly the reasonable possibility of return to cognitive and sapient life, as distinct from mere continuation of biological existence in a vegetative state. The court recognised that where the patient’s choice cannot be ascertained, the surrogate must act in the patient’s best interests, assessed by factors such as relief from suffering, preservation or restoration of functioning, and the quality and extent of life sustained. The surrogate may also consider the impact of the decision on those closest to the patient. The relevant observations are as under:

“[...] A more rational approach involves the determination of whether the proposed [*1019] treatment is proportionate or disproportionate in terms of the benefits to be gained versus the burdens caused.
Under this approach, proportionate treatment is that which, in the view of the patient, has at least a reasonable chance of providing [***22] benefits to the patient, which benefits outweigh the burdens attendant to the treatment. Thus, even if a proposed course of treatment might be extremely painful or intrusive, it would still be proportionate treatment if the prognosis was for complete cure or significant improvement in the patient's condition [...]
xxx xxx xxx
Of course the patient's interests and desires are the key ingredients of the decision-making process. When dealing with patients for whom the possibility of full recovery is virtually nonexistent, and who are incapable of expressing their desires, there is also something of a consensus on the standard to be applied.
The focal point of decision should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence.
Prolongation of life [...] does not mean a mere suspension of the act of dying, but contemplates, at the very least, a remission of symptoms enabling a return towards a normal, functioning, integrated existence.
If it is not possible to ascertain the choice the patient would have made, the surrogate ought to be guided in his decision by the patient's best interests. Under this standard, such factors as the relief of suffering, the preservation or restoration of functioning and the quality as well as the extent of life sustained may be considered. Finally, since most people are concerned about the well-being [***27] of their loved ones, the surrogate may take into account the impact of the decision on those people closest to the patient.”
(Emphasis Supplied)

139. Further, in In re Conroy (supra), the Supreme Court of New Jersey considered the case of Claire C. Conroy, an incompetent, bedridden nursing-home resident suffering from severe and irreversible physical and mental impairments, including advanced dementia, gangrene, ulcers, and inability to swallow. She was not terminally ill, comatose, or in a vegetative state, but was being sustained through a nasogastric feeding tube, which constituted her sole source of nutrition and hydration. Her nephew and legal guardian sought judicial authorisation to withdraw the feeding tube, contending that continued artificial feeding merely prolonged her suffering and was inconsistent with what she would have wanted. The trial court permitted withdrawal of the feeding tube. However, the Appellate Division reversed, holding that withdrawal of nourishment would amount to killing. During the pendency of the appeal, the patient died naturally, yet the Supreme Court of New Jersey proceeded to determine the matter in view of its public importance.

140. The court held that a patient’s best interests may be assessed through structured objective standards. Under the limited-objective test, life-sustaining treatment may be withdrawn where there is some trustworthy evidence of the patient’s prior wishes to refuse such treatment and where the burdens of continued life with treatment clearly outweigh its benefits, including unavoidable and continuing pain and suffering. In the absence of any trustworthy evidence of prior wishes, the court recognised that withdrawal may still be permissible under a pure-objective test, where the net burdens of continued treatment clearly and markedly outweigh the benefits and the patient’s suffering renders continuation inhumane. The court, however, clarified that even under such objective standards, treatment must not be withdrawn where the patient had previously expressed a clear wish to be kept alive despite suffering. The relevant observations are as under:

“[...] We therefore hold that life-sustaining treatment may also be withheld or withdrawn from a patient in Claire Conroy’s situation if either of two ‘best interests’ tests-- a limited-objective or a pure-objective test – is satisfied.
Under the limited-objective test, life-sustaining treatment may be withheld or withdrawn from a patient in Claire Conroy’s situation when there is some trustworthy evidence that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens of the patient’s continued life with the treatment outweigh the benefits of that life for him. By this we mean that the patient is suffering, and will continue to suffer throughout the expected duration of his life, unavoidable pain, and that the net burdens of his prolonged life (the pain and suffering of his life with the treatment less the amount and duration of pain that the patient would likely experience if the treatment were withdrawn) markedly outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from life. This limited-objective standard permits the termination of treatment for a patient who had not unequivocally expressed his desires before becoming incompetent, when it is clear that the treatment in question would merely prolong the patient’s suffering.
This limited-objective test also requires some trustworthy evidence that the patient would have wanted the treatment terminated. This evidence could take any one or more of the various forms appropriate to prove the patient’s intent under the subjective test. Evidence that, taken as a whole, would be too vague, casual, or remote to constitute the clear proof of the patient’s subjective intent that is necessary to satisfy the subjective test -- for example, informally expressed reactions to other people’s medical conditions and treatment -- might be sufficient to satisfy this prong of the limited- objective test.
In the absence of trustworthy evidence, or indeed any evidence at all, that the patient would have declined the treatment, life-sustaining treatment may still be withheld or withdrawn from a formerly competent person like Claire Conroy if a third, pure-objective test is satisfied. Under that test, as under the limited-objective test, the net burdens of the patient’s life with the treatment should clearly and markedly outweigh the benefits that the patient derives from life. Further, the recurring, unavoidable and severe pain of the patient’s life with the treatment should be such that the effect of administering life-sustaining treatment would be inhumane. Subjective evidence that the patient would not have wanted the treatment is not necessary under this pure- objective standard. Nevertheless, even in the context of severe pain, life-sustaining treatment should not be withdrawn from an incompetent patient who had previously expressed a wish to be kept alive in spite of any pain that he might experience.”
(Emphasis Supplied)

141. In Rasmussen v. Fleming, reported in 154 Ariz. 207, the Supreme Court of Arizona was seized with a case involving a 64-year-old patient named Mildred Rasmussen who was admitted to a nursing home and later suffered multiple strokes, leading to severe, irreversible brain damage and a chronic vegetative state. She was incapable of caring for herself, was largely non-responsive, and had no realistic prospects of recovery, according to medical experts.

142. The Supreme Court of Arizona expressed the view that in cases involving surrogate medical decision-making, two distinct standards have been developed by courts, namely, substituted judgment and best interests. Under the substituted judgment standard, the guardian is required to attempt to reach the decision that the incapacitated person would have made if he or she had the capacity to choose, and this standard is most appropriately applied where the patient, while competent, has manifested his or her intentions concerning medical treatment. However, the court clarified that where the evidentiary record is barren of any reliable indication of the patient’s prior wishes, the substituted judgment standard provides little or no meaningful guidance and must therefore give way to the best interests standard. In such circumstances, the surrogate decision-maker is required to determine what course of medical treatment would best serve the patient’s interests, assessed by reference to objective considerations. The relevant observations are as under:

“We conclude that Rasmussen’s right to refuse medical treatment still existed despite her incompetency and her failure to articulate her medical treatment desires prior to becoming incompetent. Because she was incapable of exercising that right, however, we must determine who could exercise that right for her.
WHO CAN EXERCISE AN INCOMPETENT’S RIGHT TO REFUSE MEDICAL TREATMENT The court of appeals held that either a family member or a guardian could exercise Rasmussen’s right to refuse medical treatment [...] The guardian ad litem contends that the guardian should not have unbridled discretion to decide whether to refuse any or all medical treatment. We agree. Courts have developed two standards to guide surrogate decision making: ‘substituted judgment’ and ‘best interests.’ Under the substituted judgment standard, the guardian ‘attempt[s] to reach the decision that the incapacitated person would make if he or she were able to choose.’ [...] This standard best guides a guardian’s decision-making when a patient has manifested his or her intent while competent. Unfortunately, the record in this [*222] [**689] case is barren of any evidence that Rasmussen expressed her medical desires in any form prior to becoming incompetent. Where no reliable evidence of a patient’s intent exists, as here, the substituted judgment standard provides little, if any, guidance to the surrogate decisionmaker and should be abandoned in favour of the ‘best interests’ standard [...] Under the best interests standard, the surrogate decisionmaker assesses what medical treatment would be in the patient’s best interests as determined by such objective criteria as relief from suffering, preservation or restoration of functioning, and quality and extent of sustained life.”
(Emphasis Supplied)

143. Later, in the landmark decision of Cruzan v Director, Missouri Department of Health, reported in 497 U.S. 261, the Supreme Court of the USA considered the case of Nancy Cruzan, a 25-year-old woman who had suffered severe brain damage due to oxygen deprivation following a motor vehicle accident, leaving her in a PVS with no realistic prospect of regaining cognitive function. She was sustained by CANH through a feeding tube, though she could breathe without mechanical assistance. Nancy’s parents, acting as her guardians, sought withdrawal of the feeding tube, relying upon her prior informal statements indicating that she would not wish to live in a “vegetable-like” condition. The hospital declined to withdraw life-sustaining treatment without judicial authorisation. The Missouri Supreme Court denied permission, holding that there was no clear and convincing evidence of Nancy’s wishes to refuse life-sustaining treatment.

144. The matter reached the Supreme Court of the United States to decide whether the Federal Constitution required the State of Missouri to permit withdrawal of CANH in such circumstances. A majority of the court, speaking through Chief Justice Rehnquist and four concurring judges, upheld the decision of the Missouri Supreme Court. While recognising that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment, the court held that an incompetent person cannot exercise such a choice directly, and that any decision in that regard must be made through a surrogate, subject to procedural safeguards designed to reflect, as nearly as possible, the patient’s own wishes expressed while competent. The court further held that the Constitution does not prohibit a State from requiring that an incompetent patient’s wishes regarding withdrawal of life-sustaining treatment be established by clear and convincing evidence. It observed that close family members, though often acting in good faith, cannot automatically be presumed to represent the patient’s own views, and that the State may therefore insist on a heightened evidentiary standard. Applying this standard, the court held that the evidence relied upon by Nancy Cruzan’s parents did not satisfy the clear and convincing threshold and accordingly affirmed the decision to continue CANH. The relevant observations of the majority opinion are as under:

“The difficulty with petitioners’ claim [****35] is that in a sense it begs the question: An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognised that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.
xxx xxx xxx
No doubt is engendered by [****47] anything in this record but that Nancy Cruzan’s mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of ‘substituted judgment’ with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling -- a feeling not at all ignoble or unworthy, but not entirely disinterested, [**2856] either -- that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient’s wishes lead us to conclude that the State may [*287] choose to defer only to those wishes, rather than confide the decision to close family members.”
(Emphasis Supplied)

145. However, Justice Brennan and Justice Stevens dissented from the above opinion. Justice Brennan’s dissent was concurred by 2 other judges, and Justice Stevens delivered a separate dissent.

146. Justice Brennan, in his dissent, was of the view that the majority had erred in permitting the State’s abstract interest in the preservation of life to override the concrete and individual best interests of Nancy Cruzan. According to him, the Missouri Supreme Court adverted to no evidence supporting its decision, but nevertheless concluded that there was no clear and convincing, inherently reliable evidence establishing that Nancy would have wished to avoid further treatment. In doing so, the court, in Justice Brennan’s view, failed to consider relevant and material evidence, including statements made by Nancy to family members and a close friend, as well as the testimony of her mother and sister, who were certain that Nancy would have wished to discontinue CANH. He noted that this omission occurred despite the court’s own finding that Nancy’s family was loving and acted without any improper or malignant motive. Justice Brennan further observed that the Missouri Supreme Court failed to give due consideration to the conclusions of the guardian ad litem appointed by the trial court, who had found clear and convincing evidence that Nancy would have wished to discontinue medical treatment and that such discontinuation was in her best interests. According to Justice Brennan, such an approach imposed an unduly rigid and unrealistic evidentiary burden, inconsistent with the realities of medical decision-making and personal autonomy. The relevant observations from Justice Brennan’s dissenting opinion are as follows:

“[...] The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend. The [***270] court also failed to consider testimony [*322] from Nancy’s mother and sister that they were certain that Nancy would want to discontinue artificial nutrition and hydration, even after the court found that Nancy’s family was loving and without malignant motive. The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to [*323] discontinue medical treatment and that this was in her best interests. The court did not specifically define what kind of evidence it would consider [**2875] clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard.”
(Emphasis Supplied)

147. Justice Stevens, in his dissent, was of the further view that the majority had impermissibly allowed the State’s undifferentiated interest in preserving life to overwhelm Nancy Cruzan’s individual best interests, which, according to undisputed findings at trial, would have been served by permitting her guardians to exercise her constitutional right to discontinue medical treatment. He found it ironic that the court reached this conclusion despite endorsing propositions which, in his view, should have led to the opposite result. In his opinion, the Constitution required the State to care for Nancy Cruzan’s life in a manner that accords appropriate respect to her own best interests.

148. Justice Stevens emphasised that this case was the first in which the apex court of USA was called upon to consider whether, and in what manner, the Constitution protects the liberty of seriously ill patients to be free from medical treatment. He cautioned against resolving the issue in the abstract and stressed that the court’s responsibility was to address the problem as illuminated by the specific facts before it. In this regard, he highlighted that clear and convincing evidence established that Nancy Cruzan was permanently unconscious, incapable of swallowing food or water, and would never recover any cognitive function, with irreversible and progressive cerebral cortical atrophy. Recovery and consciousness were impossible, and the highest level of function that could be hoped for was a reflexive response to painful stimuli. Justice Stevens further noted that the trial judge had examined the potential impact of withdrawing treatment on third parties and had found that Nancy’s parents were motivated neither by economic considerations nor by any improper purpose, and that granting their request would neither harm innocent third parties nor violate ethical medical standards. He further observed that the guardian ad litem, despite appealing the trial court’s order as a matter of duty, did not disagree with its conclusion and expressly endorsed the finding that it was in Nancy Cruzan’s best interests to have tube feeding discontinued. According to Justice Stevens, this critical conclusion was undisputed by the parties and ought to have been dispositive. He questioned how, in such circumstances, where continued treatment served no interest of the patient and where the good faith of the family was not in doubt, the state could legitimately insist upon continued medical treatment, particularly when the Missouri Supreme Court had largely ignored the trial court’s findings regarding Nancy Cruzan’s interests. The relevant observations from Justice Brennan’s dissenting opinion are as follows:

“The Court would make an exception here. It permits the State’s abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by allowing her guardians to exercise her constitutional right to discontinue medical treatment. Ironically, the Court reaches this conclusion despite endorsing three significant propositions which should save it from any such dilemma.
I would so hold: In my view, the Constitution requires the State to care for Nancy Cruzan’s life in a way that gives appropriate respect to her own best interests.
This case is the first in which we consider whether, and how, the Constitution protects the liberty of seriously ill patients to be free from life-sustaining medical treatment. So put, the question is both general and profound. We need not, however, resolve the question in the abstract. Our responsibility as judges both enables and compels us to treat the problem as it is illuminated by the facts of the controversy before us.
[*332] The most important of those facts are these: ‘Clear and convincing evidence’ established that Nancy Cruzan is ‘oblivious to her environment except for reflexive responses to sound and perhaps to painful stimuli’; that ‘she has no cognitive or reflexive ability to swallow food or water’; that ‘she will never recover’ these abilities; and that her ‘cerebral cortical atrophy is irreversible, permanent, progressive and [***276] ongoing.’ App. to Pet. for Cert. A94-A95. Recovery and consciousness are impossible; the highest cognitive brain function [****125] that can be hoped for is a grimace in ‘recognition of ordinarily painful stimuli’ or an ‘apparent response to sound.’ Id., at A95.
[****126] [**2880] After thus evaluating Nancy Cruzan’s medical condition, the trial judge next examined how the interests of third parties would be affected if Nancy’s parents were allowed to withdraw the gastrostomy tube that had been implanted in [*333] their daughter. His findings make it clear that the parents’ request had no economic motivation, and that granting their request would neither adversely affect any innocent third parties nor breach the ethical standards of the medical profession. [...]
Because he believed he had a duty to do so, the independent guardian ad litem appealed the trial court’s order to the Missouri Supreme Court. In that appeal, however, the guardian advised the court that he did not disagree with the trial court’s decision. Specifically, he endorsed the critical finding [****129] that ‘it was in Nancy Cruzan’s best interests to have the tube feeding discontinued.’
That important conclusion thus was not disputed by the litigants. One might reasonably suppose that it would be dispositive: If Nancy Cruzan has no interest in continued treatment, and if she has a liberty interest in being free from unwanted treatment, and if the cessation of treatment would have no [**2881] adverse impact on third parties, and if no reason exists to doubt the good faith of Nancy’s parents, then what possible basis could the State have for insisting upon continued medical treatment? Yet, instead of questioning or endorsing the trial court’s [****130] conclusions about Nancy Cruzan’s interests, the State Supreme Court largely ignored them.”
(Emphasis Supplied)

149. From above, it is our view that the real divergence in Cruzan (supra) lay not in the recognition of a patient’s liberty to refuse medical treatment, but in whether the State of Missouri could have constitutionally insisted upon a rigid and formal application of the “clear and convincing evidence” standard, even where the patient’s best interests were undisputed and her wishes could be reasonably inferred through substituted judgment.

150. Thereafter, in In re Guardianship of Jane Doe, reported in 411 Mass. 512, the Supreme Court of Massachusetts considered the case of Jane Doe, a 33-year-old woman suffering from Canavan’s disease, who was also in a PVS, with no prospect of improvement. The medical evidence established that she had suffered a total loss of cerebral functioning, had no awareness of herself or her surroundings, and was incapable of experiencing cognitive responses to stimuli, hunger, or thirst. For nearly a decade, she had been sustained through CANH administered via a nasoduodenal tube. In such circumstances, a petition was brought before the Probate and Family Court by Doe’s permanent guardian seeking authorisation for the withdrawal of the feeding tube. The Probate Court judge applied the doctrine of substituted judgment and recognised substituted judgment as a legal fiction in cases involving incompetent persons, through which liberty interests of the patient may nonetheless be vindicated. While applying the substituted judgment standard, the judge concluded that, if Doe had been competent, he would have chosen to discontinue CANH, and accordingly allowed the petition. On appeal, the Supreme Court of Massachusetts affirmed the decision of the judge, reiterating that although best interests considerations are relevant to substituted judgment analysis, yet they are relevant only to the extent that the individual herself would have considered them in deciding whether to accept or refuse continued treatment, if he were to be competent. The relevant observations are as under:

“Lack of a prior expressed intention regarding medical treatment does not bar use of the doctrine of substituted judgment [...] We recognize that in situations in which there is an attempt to use substituted judgment for a never- competent person, it is a legal fiction. It is the legal mechanism by which society (at least in Massachusetts) attempts to vindicate liberty interests, albeit through a legal fiction. We are also aware that therefore ‘the substituted judgment [doctrine] is difficult to apply.’ That difficulty, however, ‘provides inadequate justification for denying its benefits’ [...] ‘While it may ... be necessary to rely to a greater degree on objective criteria [in the case of a never- competent person] ... the effort to bring the substituted judgment into step with [***15] the values and desires of the affected individual must not, and need not, be abandoned’.
Some of these objective criteria are the same as those considered in the ‘best interests of the ward’ test. ‘[T]he best interests analysis, like that of the substituted judgment doctrine, requires a court to focus on the various factors unique to the situation of the individual for whom it must act.’ [...] while ward’s best interests are relevant to substituted judgment determination, ‘they are relevant only to the extent that the individual, if competent, would weigh them in deciding whether to accept treatment’.”
(Emphasis Supplied)

151. In the case of In re Guardianship of L.W., reported in 167 Wis. 2d 53, the Supreme Court of Wisconsin examined whether life-sustaining medical treatment, including artificial nutrition and hydration, could be withdrawn from an incompetent patient in a PVS, and whether such a decision could lawfully be taken by a guardian. In this case, L.W., a 79-year-old man with a long history of severe schizophrenia who had been admitted to the hospital for decades and may never be competent, suffered a cardiac arrest and thereafter entered a chronic PVS. His physicians advised that, absent his improvement, withdrawal of life-sustaining treatment would be considered. The guardian sought declaratory guidance as to whether he could consent to such withdrawal without prior court approval. Although L.W. died naturally while the matter was pending, the court addressed the issues owing to their public importance. The court held that an incompetent individual in a PVS possesses a constitutionally protected right to refuse unwanted medical treatment, including CANH, and that a guardian may exercise that right on the ward’s behalf where withdrawal is in the ward’s best interests. The court clarified that, where a patient’s wishes can be clearly ascertained, it is in the patient’s best interests to honour those wishes, however, where there is little or no reliable evidence of past wishes (as in the case of a never-competent or long-incompetent patient) the substituted judgment standard would be inapplicable, and the decision must instead be governed exclusively by the best interests principle. In applying that principle, the guardian must begin from a presumption in favour of the continuation of life, but may rebut that presumption through a good faith assessment of objective factors viewed from the patient’s standpoint, including prognosis, life expectancy, prospects of recovery, the burdens and benefits of continued treatment, and the degree of humiliation, dependence, and loss of dignity likely to result from the patient’s condition and its treatment. The court gave ample caution that in such circumstances the guardian must not substitute his own assessment of the beliefs, values, and wishes of the patient’s life. The relevant observations are as under:

“We conclude that an incompetent individual in a persistent vegetative state has a constitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration, that a court-appointed guardian may consent to withdrawal of such treatment where it is in the ‘best interests’ of the ward to do so, and that the guardian does not need the prior authority of the court, although that decision may be reviewed by the court at the instance of parties in interest. We stress that this opinion is limited in scope to persons in a persistent vegetative state.
xxx xxx xxx
Certainly the patient’s wishes, as far as they can be discerned, are an appropriate consideration for the guardian. If the wishes are clear, it is invariable as a matter of law, both common and statutory, that it is in the best interests of the patient to have those wishes honored, for the patient has made the pre-choice of what he or she considers to be the best interests under the *80 circumstances that arise [...]
xxx xxx xxx
We also hold that in a case such as this one where there can be no reliable ascertainment of the incompetent’s wishes, only the best interests standard can be applied. We are fully in accord with the circuit court’s conclusion in this respect. In the circumstances of this proceeding the guardian.
xxx xxx xxx
In making the best interests determination, the guardian must begin with a presumption that continued life is in the best interests of the ward. Whether that presumption may be overcome depends upon a good faith assessment by the guardian of several objective factors. Objective factors the guardian may consider include: The degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.
xxx xxx xxx
In determining whether to withdraw or withhold medical treatment from patient in persistent vegetative state, guardian must assess objective factors from standpoint of patient, and should not substitute his or her own view of ‘quality of life’ of ward; guardian’s determination of what is in ward’s best interests necessarily involves assessment of value that continuation of life has for ward, but should not involve value others find in continuation of ward’s life, and guardian should not engage in subjective quality of life determination on behalf of ward.”
(Emphasis Supplied)

152. From the above, it appears that courts in the USA have approached decisions relating to withdrawal of life-sustaining treatment through a structured interaction between the substituted judgment standard and the best interests principles, rather than treating them as isolated or competing tests.

153. Where evidence exists of the patient’s prior wishes, values, or convictions, the courts in the USA have preferred the substituted judgment standard as the primary mode of decision-making. This is evident in In re Eichner (supra), where the court emphasised that the role of the surrogate is to determine what the patient would have decided if he had been competent, based on prior expressions and deeply held beliefs, while simultaneously grounding that inquiry in the objective threshold of medical findings of irreversibility, absence of cognitive function, and lack of therapeutic purpose i.e., medically what is in best interest. Similarly, in Barber (supra), the court acknowledged the prior expressions of the patient’s wishes and then evaluated continued treatment through a proportionality analysis, holding that treatment which merely prolongs biological existence without any reasonable prospect of recovery does not serve the patient’s interests and imposes no legal duty on physicians to continue it.

154. At the same time, the courts have repeatedly acknowledged that substituted judgment cannot operate meaningfully in the absence of reliable evidence of the patient’s intentions. In such circumstances, the substituted judgment standard yields to a best interests determination grounded in objective criteria. This transition is clearly articulated in Rasmussen (supra), where the court held that substituted judgment is appropriate only where the patient has expressed his wishes while competent, and that where the record is barren of such evidence, decisions must be guided solely by the patient’s best interests, assessed through factors such as relief from suffering, recovery of cognitive functioning, and the quality and extent of life sustained. A similar approach is reflected in In re Conroy (supra), where the court developed best interests tests to govern cases involving incompetent patients whose wishes could not be clearly established, permitting withdrawal of treatment where the burdens of continued life with treatment clearly outweigh its benefits and continuation would be inhumane.

155. The decision of the Supreme Court of the USA in Cruzan (supra), introduces an important point of divergence. While the majority upheld the State’s requirement of clear and convincing evidence of the patient’s wishes before permitting withdrawal of life-sustaining treatment, the dissenting opinions, particularly those of Justice Brennan and Justice Stevens, placed greater emphasis on the patient’s best interests and the factual findings of the trial court. The dissent criticised the elevation of the State’s abstract interest in preserving life over the individual patient’s interests, especially where the medical evidence established permanent unconsciousness, irreversibility, and the absence of any benefit to the patient from continued treatment. The dissent further noted that the trial court had already found, on clear and convincing evidence, that withdrawal of treatment was in the patient’s best interests, that the family acted in good faith, and that no third-party interests were adversely affected. We resonate with the observations made in the dissenting opinions, more particularly, the primacy that they have accorded to the patient’s welfare and dignity, rather than endorsing very strict procedural evidentiary thresholds that serve to defeat substantively just outcomes in cases where continued treatment serves no purpose for the patient.

156. Subsequent State court decisions reflect both strands of Cruzan (supra). In Guardianship of Jane Doe (supra), the Supreme Court of Massachusetts reaffirmed the continued applicability of substituted judgment even for incompetent patients, recognising it as a legal fiction but one necessary to vindicate liberty interests, while permitting reliance on objective criteria where subjective intent cannot be reconstructed. Conversely, in In the Matter of Guardianship of L.W. (supra), the Supreme Court of Wisconsin drew a clearer line between substituted judgment and best interests, holding that where the patient’s wishes cannot be reliably ascertained, only the best interests standard may be applied, beginning with a presumption in favour of life but allowing that presumption to be rebutted through a good-faith, patient-centred assessment of prognosis, dignity, and the burdens of treatment, without importing subjective quality-of-life judgments of others.

(b) Best interest of the patient in United Kingdom (UK)

157. In one of the first cases of its kind in the United Kingdom, the House of Lords in In re F. (Mental Patient: Sterilisation), reported in (1990) 2 AC 1, was seized with an issue involving a patient F, suffering from a severe mental disability, with the verbal capacity of a two-year old and the mental capacity of a child aged about four-five years. F resided as a voluntary patient in a mental hospital where she formed a sexual relationship with a male patient, P. Although F had the physical capacity to conceive, she was incapable of understanding the causal link between intercourse and pregnancy, nor could she cope with the psychiatric consequences of pregnancy and childbirth. Medical evidence established that standard reversible contraceptives were medically contraindicated or impracticable for her. Consequently, her mother and doctors sought a declaration that the sterilisation of F by tubal occlusion would not be unlawful, despite F’s inability to consent to the procedure. In this backdrop, the House of Lords had held that it would be lawful to sterilise a mental patient who was incapable of giving consent to the procedure on the ground that sterilisation would be in the patient’s best interests. The House of Lords further observed that the duty of a doctor towards a patient who lacks mental capacity to express his own wishes and has not expressed at any time when he had such capacity, is to give or withhold treatment according to what appears to be in the best interests of the patient. The House of Lords observed that an operation or a medical treatment will be said to be in the best interests of the patient only if it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in the patient’s health. The relevant observation is as follows:

“At common law, a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force however small (‘other treatment’), without their consent. If a doctor were to operate on such patients, or give them other treatment, without their consent, he would commit the actionable tort of trespass to the person. There are, however, cases where adult patients cannot give or refuse their consent to an operation or other treatment. One case is where, as a result of an accident or otherwise, an adult patient is unconscious and an operation or other treatment cannot be safely delayed until he or she recovers consciousness. Another case is where a patient, though adult, is not by reason of mental disability, able to understand the nature or purpose of an operation or other treatment. The common law would be seriously defective if it failed to provide a solution to the problem created by such inability to consent. In my opinion, however, the common law does not so fail. In my opinion, the solution to the problem that the common law provides is that a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health.”
(Emphasis Supplied)

158. In another pivotal ruling in the case of Airedale (supra), the House of Lords was seized of a matter involving a patient, Anthony Bland, who was 17 years old and had sustained irreversible damage to the brain, which had left him in a PVS, without cognitive function, and loss of sight and hearing. He was artificially fed by CANH via a nasogastric tube. After three years with no hope of recovery, his doctors and family felt that no fruitful purpose would be served by continuing the medical treatment. Therefore, they sought a declaration from the court that it would be lawful to withdraw CANH and associated medical treatment. While holding that it would be in good medical practice and in the best interest of the patient, the House of Lords permitted discontinuation of medical treatment, including the CANH.

159. While doing so, Lord Keith observed that the existence in a vegetative state with no prospect of recovery is regarded as not being beneficial and forms a proper basis for the decision to discontinue medical treatment. Lord Keith was also of the view that the decision whether the continued treatment confers any benefit on a PVS patient is essentially a decision for the doctor in charge. The relevant observations of Lord Keith are as under:

“[...] But it is, of course, true that in general it would not be lawful for a medical practitioner who assumed responsibility for the care of an unconscious patient simply to give up treatment in circumstances where continuance of it would confer some benefit on the patient. On the other hand, a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance. Existence in a vegetative state with no prospect of recovery is, by that opinion, regarded as not being a benefit, and that, if not unarguably correct, at least forms a proper basis for the decision to discontinue treatment and care [...]”

160. In addition to this, Lord Goff, while emphasising the principle of the best interest of the patient, referred to In re F. (Mental Patient: Sterilisation) (supra) and observed that a decision by a doctor whether or not to initiate or to continue to provide treatment should also be governed by the same fundamental principle of the patient’s best interest. According to Lord Goff, in cases involving the patient being incompetent to consent to the discontinuation of medical treatment where there is no hope for his recovery, and prolongation of medical treatment is serving no therapeutic purposes, the question is not whether it is in the best interests of the patient that he should die, rather the correct question for consideration is “whether it is in the best interests of the patient that his life should be prolonged by the continuance of such form of medical treatment or care”. Further, Lord Goff also observed that medical treatment is neither appropriate nor requisite “simply to prolong a patient’s life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition”. Thereafter, the Lord Goff observed that regard should also be had to the invasive character of the treatment and to the “indignity” to which a patient is subjected by prolonging his life by artificial means, which, in turn, causes considerable distress to his family. In such cases, Lord Goff said that it is the futility of the treatment which justifies its termination and in such circumstances, a doctor is not required to initiate or to continue life-prolonging treatment or care, keeping in mind the best interests of the patient. The relevant observations of Lord Goff are as follows:

“[...] I return to the patient who, because, for example, he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see In re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part, I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to continue to provide, treatment or care which could or might have the effect of prolonging such a patient’s life, should not be governed by the same fundamental principle [...]
xxx xxx xxx
[...] Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. [...] The question is not whether the doctor should take a course that will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient’s life [...] This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.
xxx xxx xxx
[...] The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that his best interests no longer require that it should be.
xxx xxx xxx
[...] Here, the condition of the patient, who is totally unconscious and in whose condition there is no prospect of any improvement, is such that life-prolonging treatment is properly regarded as being, in medical terms, useless [...] But for my part, I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means [...] But in the end, in a case such as the present, it is the futility of the treatment that justifies its termination. I do not consider that, in circumstances such as these, a doctor is required to initiate or to continue life-prolonging treatment or care in the best interests of his patient [...]”
(Emphasis Supplied)

161. In a similar trend, Lord Mustill observed that it was in the best interest of the community at large that Anthony Bland’s life should end. The doctors had done all they could have done. It was a lose-lose situation as nothing would be gained by continuing Bland’s treatment. Lord Lowry also observed that in reaching a decision according to law, one ought to give weight to informed medical opinion both on the point whether to continue the artificial feeding regime of a patient in PVS and also on the question of what is in the best interests of a patient. The relevant observations of Lord Mustill and Lord Lowry are as follows:

“[...] 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 recognise that he is being cared for, will continue to mount [...]
xxx xxx xxx
[...] I consider that the court, when intent on reaching a decision according to law, ought to give weight to informed medical opinion both on the point now under discussion and also on the question of what is in the best interests of a patient and I reject the idea, which is implicit in the appellant’s argument, that informed medical opinion in these respects is merely a disguise for a philosophy which, if accepted, would legalise euthanasia.”
(Emphasis Supplied)

162. Lastly, Lord Browne-Wilkinson, in concurrence with the above views, expressed the view that if there comes a stage where a responsible doctor reaches a reasonable conclusion, which accords with the views of a responsible body of medical opinion, that further continuance of an intrusive life support system is not in the best interests of the patient, the doctor can no longer lawfully continue that life support system as to do so would constitute the crime of battery and the tort of trespass. According to him, unless the doctor has reached the affirmative conclusion that it is in the patient’s best interest to continue the invasive care, such care must cease. The relevant observations of Lord Browne-Wilkinson are as under:

“[...] In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person. Therefore, he cannot be in breach of any duty to maintain the patient’s life. Therefore, he is not guilty of murder by omission.”
(Emphasis Supplied)

163. Thus, from the collective reasoning and concurring opinions expressed by the House of Lords in Airedale (supra), it becomes manifest that the determination of what constitutes the “best interests of the patient” must be guided by an objective evaluation of the medical realities attending each individual case. Central to this evaluation is the question of whether it is in the best interests of the patient that his life should be prolonged by the continuation of medical treatment, which, in the given facts and circumstances, may have ceased to serve any therapeutic purpose and has instead become medically futile. In this context, as per Airedale (supra), the principle of best interests does not mandate the preservation of life at all costs or by every available artificial means, irrespective of the quality of life and the invasiveness of the medical intervention. Rather, the focus must remain on whether the continuation of such treatment confers any real benefit upon the patient. Where a responsible body of informed medical opinion concludes that the patient’s condition is irreversible, that there exists no reasonable hope of recovery, and that continued treatment merely sustains biological existence without consciousness or cognitive function, causing indignity to the life of the patient, such existence cannot, in law or medical ethics, be regarded as constituting a benefit to the patient.

164. What further emerges is that the correct formulation of the enquiry is not whether it is in the best interests of the patient that he should die, but whether it is in his best interests that his life should be artificially prolonged through the continuation of medical treatment which has become non-beneficial, non-therapeutic, or futile. Where the answer to this enquiry, based on sound medical judgment and ethical considerations, is in the negative, the withdrawal or withholding of such treatment must accord with the principle of best interests.

165. At this juncture, for the purposes of our discussion ahead, it is also noteworthy to mention that Lord Goff in Airedale (supra) had also drawn a tangent upon the scope and application of the “substituted judgment” standard while determining the “best interest of the patient”. According to Lord Goff, American courts had adopted the substituted judgment standard, where, in a case in which the patient is incapacitated from expressing any view on the question whether life-prolonging medical treatment should be withheld in the relevant circumstances, the determination is anchored on what decision the patient himself would have made had he been able to do so. This came to be known as the substituted judgment standard, and it generally involves a detailed patient-centric consideration of his views and wishes. However, Lord Goff was of the view that any such American standard did not form part of the English law in relation to incompetent adults and in decisions relating to withdrawal or withholding of their medical treatment. The relevant observation is as under:

“I wish however, to refer at this stage to the approach adopted in most American courts, under which the court seeks, in a case in which the patient is incapacitated from expressing any view on the question whether life-prolonging treatment should be withheld in the relevant circumstances, to determine what decision the patient himself would have made had he been able to do so. This is called the substituted judgment test, and it generally involves a detailed inquiry into the patient’s views and preferences”
(Emphasis Supplied)

166. Later, in the case of Re A (Male Sterilisation), reported in [2000] 1 FLR 549 560 F-H, the Court of Appeal developed the use of a “balance sheet approach” in determining the best interest of an incompetent person. According to this approach, a judge who is tasked with the responsibility to make an evaluation of what is in the best interest of the patient who lacks capacity should draw up a balance sheet. In such a balance sheet, the first entry should be of any factor or factors of actual benefit. On the other side, a judge or a decision-maker should write any counter-balancing disadvantages to the patient. Then he should enter on each side the potential gains and losses for each instance. At the end of that exercise, the judge or the decision-maker should be better placed to strike a balance between the sum of certain and possible gains against the sum of the certain and possible losses. The account that has relatively significant credit will be the concluding factor in deciding what is in the best interest of the patient. The relevant observation is as under:

“Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing disbenefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.”
(Emphasis Supplied)

167. In drawing up this balance sheet, the court is not concerned solely with medical issues, but also takes into account wider factors concerning the patient. Therefore, in Re A (Male Sterilisation) (supra), the Court of Appeal had observed that the best interests of the patient are not limited to best medical interests. In fact, the best interests of the patient should encompass medical, emotional and any other welfare issues as well. The relevant observation is as under:

“In re MB (Medical Treatment) [1997] 2 FLR 426 I said at page 439: ‘Best interests are not limited to best medical interests.’ In my judgement best interests encompasses medical, emotional and all other welfare issues.”
(Emphasis Supplied)

168. Further, in Re S (Adult Patient: Sterilisation), reported in [2001] Fam 15, the Court of Appeal was of the view that in determining what is in the best interest, the judge must have regard to welfare as an important consideration, which means the determination should embrace issues far wider than the medical ones. The relevant observation is as under:

“in deciding what is best interest [...] the judge must have regard to [...] welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed, it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination.”
(Emphasis Supplied)

169. In furtherance of the above, in the case of Portsmouth NHS Trust v Wyatt, reported in [2005] 1 FLR 21, Lord Hedly, while relying on Re A (Male Sterilisation) (supra) and Re S (Adult Patient: Sterilisation) (supra) respectively, added that the infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a defining the contours of the best interests of the patient principle.

170. Even so more, Lord Phillips in the case of R (Burke) v GMC (Official Solicitor and others intervening), reported in [2005] EWCA Civ 1003, added that it is not possible to attempt to define what is in the best interest of a patient by any single test.

171. At this juncture, it is pertinent to mention that post the landmark ruling of Airedale (supra) and other cases as referred to above, the Parliament of the UK found it necessary to introduce an exclusive legislation in this respect.

172. Therefore, the Parliament of the UK introduced the Mental Capacity Act, 2005 (“MCA”) inter alia, with an objective to provide a comprehensive statutory regime for making decisions about mentally incapacitated adults. This Act was supported by a Code of Practice as well. The basic principles to be applied under the MCA are set out in Section 1 and include, under Section 1(4), the cardinal principle that “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests”. The steps to be taken to determine what is in a person’s best interests are set out in Section 4, which provides inter alia the determinants to be considered under the “Best Interest” principle. Section 4 of this Act states that:

“(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of (a) the person’s age or appearance or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider (a) whether it is likely that the person will at some time have the capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment, he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable, (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; (b) anyone engaged in caring for the person or interested in his welfare; (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed by the court
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(11) ‘Relevant circumstances’ are those - (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.”
(Emphasis Supplied)

173. In a nutshell, the MCA did not provide a straight-jacketed one size fit for all standard in determining what is in the best interest. Instead, it delineated a set of guiding considerations, upon due evaluation of which the best interests of the patient are to be ascertained. The most noticeable addition to the position of law in the UK was Section 4(6) of MCA, wherein due consideration was given to the wishes, feelings, beliefs, and values of the patient while determining his best interest. The person or body making such a determination has been defined as a decision-maker.

174. The noticeable determinants under the MCA are as follows: (i) the determination must not rest merely upon the patient’s age, appearance, or any medical condition or behavioural aspect that might give rise to unjustified assumptions; (ii) the decision-maker must consider all the relevant circumstances of which he is aware, and which would be reasonable to be regarded as relevant; (iii) due regard must be had to the likelihood of the patient regaining decision-making capacity and, if so, the probable timeframe thereof; (iv) where the determination concerns life-sustaining treatment, the decision-maker must not be influenced by any desire to bring about the patient’s death; (v) so far as reasonably ascertainable, consideration must be accorded to the patient’s past and present wishes and feelings, including any relevant written statements made when the patient possessed capacity; (vi) equal regard must be had to the beliefs, values, and other factors that would likely have guided the patient’s decision had he been competent to decide; and (vii), where practicable and appropriate, the views of those among others who are engaged in the care of the patient or otherwise interested in his welfare, must also be taken into account.

175. Moreover, the MCA is supported by a Code of Practice. Section 5 of this Code of Practice gives specific guidance as to how to work out someone’s best interests when making decisions about life-sustaining treatment. Section 5.7 of the Code of Practice states that when working out what is in the best interests of the person who lacks capacity to make a decision or act for themselves, decision-makers must take into account all relevant factors that would be reasonable to consider, not just those that they think are important. The decision-makers must not act or make a decision based on what they would want to do if they were the person who lacked capacity. Further, Section 5.19 of the Code of Practice states that the relevant circumstances will, of course, vary from case to case. For instance, when making a decision about major medical treatment, a doctor would need to consider the clinical needs of the patient, the potential benefits and burdens of the treatment on the person’s health and life expectancy and any other factor relevant to making a professional judgement.

176. In particular, Section 5.31 of the Code of Practice provides that all reasonable steps which are in the person’s best interests should be taken to prolong their life. However, “there will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death”. The decision maker must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Section 5.33 of the Code of Practice states that the requirement that a doctor must not be motivated by a desire to bring about the patient’s death cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, a treatment where that treatment is not in the best interests of the person. Section 5.38 of the Code of Practice states that even if a patient cannot make the decision due to his incapacity, “his wishes and feelings, beliefs and values should be taken fully into account, whether expressed in the past or now. But his wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests”. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person’s best interests. The relevant portions of these provisions are as under:

“5.7 When working out what is in the best interests of the person who lacks capacity to make a decision or act for themselves, decision-makers must take into account all relevant factors that it would be reasonable to consider, not just those that they think are important. They must not act or make a decision based on what they would want to do if they were the person who lacked capacity.
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5.19 The relevant circumstances will of course vary from case to case. For example, when making a decision about major medical treatment, a doctor would need to consider the clinical needs of the patient, the potential benefits and burdens of the treatment on the person’s health and life expectancy and any other factors relevant to making a professional judgement [...]
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5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.
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5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen [...]
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5.38 In setting out the requirements for working out a person’s ‘best interests’, section 4 of the Act puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account – whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person’s best interests.”
(Emphasis Supplied)

177. Upon the introduction of the MCA, the Court of Protection in the case of W v. M, reported in [2011] EWHC 2443 (Fam), was called upon to consider a matter involving a patient, named ‘M’, who was diagnosed with a state of mind called Minimally Conscious State (MCS). In such a state, a patient is not in PVS. Rather, in MCS, a patient is considered to be above the vegetative state and is aware to some extent of herself and her environment, but does not have full consciousness. The issue before the court was whether it is in M’s best interests that all life-sustaining treatment, including CANH, is withdrawn and withheld and, secondly, if it is in M’s best interests to continue life-sustaining treatment, including CANH, then what future management would be in her best interests. In such circumstances, Justice Baker was of the opinion that the reasoning adopted in Airedale (supra) more particularly that a balance sheet approach need not be undertaken in cases involving PVS patients, cannot directly be imported to cases involving MCS patients. On this basis, the Court of Protection adopted the balance sheet approach to the MCS patient in weighing the benefits of withdrawal of CANH against the disadvantages of continuing with the same. On the aspect of the substituted judgment standard, the court also observed that M’s past and present wishes and feelings, so far as reasonably ascertainable, had to be given significant weight when deciding whether CANH should be withdrawn or not. The relevant observations of the Court of Protection are as under:

“4. Any decision made under the Mental Capacity Act for a person who lacks capacity must be made in her best interests. The law requires the court to identify those factors which are relevant to the person’s best interests and carry out a balancing exercise weighing up the factors on each side of the issue. This approach is well established in cases involving medical treatment. This is, however, the first time in this country that a court has been asked to authorise the withdrawal of artificial nutrition and hydration from a patient in a minimally conscious state.
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81. It is important to note that, while any decision maker, including a judge, is under an obligation to consider P’s wishes and feelings, and the beliefs, values and other factors that he would have taken into account if he had capacity, the decision must be based on P’s best interests and not on what P would have decided if he had capacity. Like Lewison J (as he then was) in Re P (Statutory Wills) [2009] EWHC 163 (Ch) [2010] Ch 33, I agree with the observation in the explanatory notes to the original Mental Capacity Bill (which in turn echoed the observation of Lord Goff in the Bland case cited above) that ‘best interests is not a test of ‘substituted judgement’ (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person’s best interests.’ This is confirmed by the Code of Practice at paragraph 5.38:
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99. On behalf of the Official Solicitor, Miss Harry Thomas and Miss Apps argue that the balance sheet approach should not be adopted in cases where the patient is otherwise clinically stable. They argue that the balance sheet analysis cannot apply in such circumstances as it can never be in P’s best interests to withhold or withdraw life- sustaining treatment. They submit that the House of Lords in Bland specifically rejected the weighing up the benefits and disadvantages of treatment in PVS cases and that the balance sheet approach has been confined in other cases to circumstances where the patient is very seriously ill or is at the end of their life [...]
100. This submission is opposed not only by the Applicant but also by the Primary Care Trust. On behalf of the PCT, Miss Dolan submits that the balance sheet approach is to be applied in all cases save for those involving PVS. She submits that a clear reading of the speeches in Bland demonstrates that the House envisaged that weighing up the patient’s best interests should be conducted in every case save where the patient was in a PVS where the futility of treatment means that treatment had no benefit at all [...]
101. Miss Dolan submits that, whilst it is clear that the benefit of preserving of life will always weigh extremely heavily in the balance, it cannot be assumed that there will always be no relevant dis-benefit to weigh against it. Even in a clinically stable patient there must be room for any relevant psychological and emotional aspects of their position to be taken into account as part of the balancing exercise. She further argues that the fact that the balance is most likely to come down in favour of preserving life in a MCS patient whose only medical treatment need is for ANH is not grounds for saying that a balance between factors in support of and against providing such treatment need not be struck in such cases. To do away with the balancing exercise and balance sheet would be to disregard the requirement of s.4(2) MCA that consideration be given to ‘all of the relevant circumstances’ and would also disregard s.4(6) MCA which requires consideration of those matters of import to P or that P would be likely to consider if he could do so, when coming to any best interests decision [...]
102. On this point I am wholly unpersuaded by the Official Solicitor’s argument and fully accept the submissions advanced by Miss Dolan on behalf of the PCT. There is, in my judgment, no rationale for extending the approach adopted by the House of Lords in Bland to non-VS cases. Lord Goff specifically distinguished between cases in which, having regard to all the circumstances, it may not be in the patient’s best interests to continue treatment and cases in which a patient was permanently insensate and thus unable to benefit at all from the treatment. Crucially Lord Goff observed: ‘In both classes of case, the decision whether or not to withhold treatment must be made in the best interests of the patient. In the first class, however, the decision has to be made by weighing the relevant considerations’ [...]
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223. The second factor requires more extensive analysis. As set out above, s.4(6) of the MCA requires the court to consider, so far as reasonably ascertainable, M’s past and present wishes and feelings. Even though M made no formal advance decision as to medical treatment, it is said on behalf of the Applicant that she expressed wishes and feelings about the matter which should be give significant weight when deciding whether ANH should now be withdrawn. Indeed, Mr Sachdeva and Miss Butler-Cole on behalf of the Applicant, say that this factor should be given decisive weight and place M’s wishes and feelings at the forefront of their argument. M’s family feel strongly that she would have rejected her current treatment, and the rationale for this application is fundamentally based on M’s perceived wishes and feelings. They submit that those who oppose this application fail to give appropriate respect to M’s wishes and feelings about the right to choose her life and the manner of her death.
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245. As set out above, it is the Official Solicitor’s submission that the balance sheet approach is inappropriate in respect of a patient in a MCS who is clinically stable. For the reasons set out above, I do not accept this argument.
246. I adopt the balance sheet approach proposed by Thorpe LJ in Re: A Male Sterilisation (supra) and applied in subsequent cases. In my judgment, that process is best expressed in this case by a comparison of the advantages of withdrawing ANH against the advantages of continuing with the treatment.”
(Emphasis Supplied)

178. Following the ruling of W v. M (supra), the UK Supreme Court in the case of Aintree University Hospitals NHS Foundation Trust v James, reported in [2013] UKSC 67, was concerned with a patient who had a very limited level of awareness and lacked the capacity to make a decision concerning his medical treatment. The applicant trust had applied to the court seeking the withdrawal of medical treatment as it was in the patient’s best interest. The unanimous view of the clinical team was that it would not be in the patient’s best interests to receive these treatments, should his condition deteriorate to the extent that he needed them. The family did not agree with the withdrawal of treatment. They felt that every time the patient had an infection, he had pulled through. According to the family, although he would never regain his previous quality of life, yet he found great enjoyment in seeing his family and close friends.

179. In such circumstances, the trial judge approached the question of best interests by adopting a patient-centred evaluation, wherein medical considerations were treated as only one component of the inquiry. He held that the concept of “futility” must be understood as treatment being ineffective or of no