Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs the operation without his patient‘s consent commits an assault for which he is liable in damages.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Versus
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
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J. Right to refuse treatment:
128. Deliberating on the
issue of right to refuse treatment, Justice Cardozo in Schloendorff
v. Society of New York Hospital, (1914) 105 NE 92 : (1914) 211 NY 125 observed:-
―Every human being of adult years and sound
mind has a right to determine what shall be done with his own body; and a
surgeon who performs the operation without his patient‘s consent commits an assault
for which he is liable in damages.‖
129. In a somewhat different
context, King C.J. in F v. R, (1983)
33 SASR 189 at 193 identified ―the paramount consideration that a person is entitled
to make his own decisions about his life‖. The said statement was
cited with approval by Mason CJ, Brennan, Dawson, Toohey and McHugh, JJ. in Rogers v.
Whitaker, [1992] HCA 58 : (1992) 175 CLR 479 at 487. Cardozo‘s statement has been cited and applied
in many cases. Thus, in Malette v. Shulman, 67 DLR
(4th) 321
(1990) : 72 OR (2d) 417 Robins J.A., speaking with the concurrence of Catzman and Canthy
JJA, said:-
―A competent adult is generally entitled to
reject a specific treatment or all treatment, or to select an alternative form
of treatment even if the decision may entail risks as serious as death and may appear
mistaken in the eyes of the medical profession or of the community …. it is the
patient who has the final say on whether to undergo the treatment.‖
130. The recognition of the
freedom of competent adults to make choices about their medical care
necessarily encompasses recognition of the right to make choices since individual
free choice and self-determination are themselves fundamental constituents of
life. Robins J.A. further clarified in Malette at page 334:-
―To deny individuals freedom of choice with
respect to their health care can only lessen and not enhance the value of life.‖
131. In the 21st century, with the
advancement of technology in medical care, it has become possible, with the
help of support machines, to prolong the death of patients for months and even
years in some cases. At this juncture, the right to refuse medical treatment
comes into the picture. A patient (terminally ill or in a persistent vegetative
state) exercising the right to refuse treatment may ardently wish to live but,
at the same time, he may wish to be free from any medical surgery, drugs or
treatment of any kind so as to avoid protracted physical suffering. Any such
person who has come of age and is of sound mind has a right to refuse medical
treatment. This right stands on a different pedestal as compared to suicide,
physician assisted suicide or even euthanasia. When a terminally ill patient
refuses to take medical treatment, it can neither be termed as euthanasia nor
as suicide. Albeit, both suicide and refusal to take treatment in case of
terminal ailment shall result in the same consequences, that is, death, yet
refusal to take treatment by itself cannot amount to suicide. In case of
suicide, there has to be a self initiated positive action with a specific
intention to cause one‘s own death. On the other hand, a patient‘s right to
refuse treatment lacks his specific intention to die, rather it protects the
patient from unwanted medical treatment. A patient refusing medical treatment
merely allows the disease to take its natural course and if, in this process,
death occurs, the cause for it would primarily be the underlying disease and
not any self initiated act.
132. In Rodriguez (supra), Justice Sopinka,
speaking for the Supreme Court of Canada, held:-
―Canadian Court has recognized a common law right
of patients to refuse to consent to medical treatment or to demand that the
treatment, once commenced, be withdrawn or discontinued. This right has been
specially recognized to exist even if the withdrawal from or refusal of
treatment may result in death.‖
133. In Secretary,
Department of Health and Community Services (NT) v. JWB and SMB, (1992)
66 AJLR 300 : (1992) 175 CLR 218 the High Court of Australia acknowledged the
fundamental right of personal inviolability. Justice McHugh observed that the voluntary
decision of an adult person of sound mind as to what should be done to his or
her body must be respected. It was further observed that under the doctrine of
trespass, the common law respects and protects the autonomy of adult persons
and also accepts the right to self-determination in respect of his or her body
which can be altered only with the consent of the person concerned.
134. There is a presumption of capacity
whereby an adult is presumed to have the capacity to consent to or to refuse medical
treatment unless and until that presumption is rebutted. Butler-Sloss LJ, in Re MB
(Medical Treatment), [1997] EWCA Civ 3093 : [1997] 2 FLR 426 stated that in deciding
whether a person has the capacity to make a particular decision, the ultimate
question is whether that person suffers from some impairment or disturbance of mental
functioning so as to render him or her incapable of making the decision. The
consent may be vitiated if the individual concerned may not have been competent
in law to give or refuse that consent; or even if the individual was competent
in law, the decision has been obtained by undue influence or some other
vitiating means; or the apparent consent or refusal does not extend to the
particular situation; or the terms of the consent or refusal are ambiguous or uncertain;
or if the consent or refusal is based on incorrect information or incorrect
assumption. In circumstances where it is practicable for a medical practitioner
to obtain consent to treatment, then, for the consent to be valid, it must be
based on full information, including as to its risks and benefits.
135. Where it is not practicable
for a medical practitioner to obtain consent for treatment and where the
patient‘s life is in danger if appropriate treatment is not given, then the treatment
may be administered without consent. This is justified by what is sometimes
called the ―emergency principle‖ or ―principle of
necessity‖. Usually, the medical practitioner treats the
patient in accordance with his clinical judgment of what is in the patient‘s
best interests. Lord Goff of Chieveley has rightly pointed out in F v. West
Berkshire Health Authority (supra) that for the principle of necessity to
apply, two conditions must be met:-
(a) There must be ―a necessity to act when it
is not practicable to communicate with the assisted person‖; and
(b) ―the action taken must be such as a reasonable
person would in all the circumstances take, acting in the best interests of the
assisted person.‖
136. However, Lord Goff
pointed out that the principle of necessity does not apply where the proposed
action is contrary to the known wishes of the assisted person to the extent
that he/she is capable of rationally forming such a wish. It follows that the
principle of necessity cannot be relied upon to justify a particular form of
medical treatment where the patient has given an advance care directive
specifying that he/she does not wish to be so treated and where there is no
reasonable basis for doubting the validity and applicability of that directive.
Indian judicial system is one of the flexible, good and oldest legal system in all over the other countries in the world today, it still includes certain features hereditary by the British judicial system inherited their colonial rule in India.
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