PROPOSED TERMINALLY ILL PATIENT BILL IS A GOOD BEGINNING, BUT FILLED WITH LACUNAS AND CONTRADICTIONS

Proposed Terminally Ill Patient Bill Is A Good Beginning, But Filled With Lacunas And Contradictions

Mumbai: “The proposed Terminally Ill Patients Bill is a laudatory effort to address the long-standing lacuna in the Indian Healthcare System,” said Adv. Mahendrakumar Bajpai, Supreme Court Advocate and Hon. Director, Institute of Medicine & Law in his keynote address to doctors at the IPGMER & SSKM Hospital, Kolkata yesterday. But in equal breath he added that the bill seems to have been drafted in a hurry and is filled with contradictions and omissions – a few so large that it renders the bill virtually inoperable.

Adv Bajpai was speaking in reference to ‘The Medical Treatment of Terminally-Ill Patients [Protection of Patients and Medical Practitioners] Bill’ drafted and put up for public comments by the Ministry of Family Health & Welfare. “The draft, among other things, gives a terminally ill patient the right to continue or discontinue artificial life support system. By itself this is a very good development. The problem however is that most patients at this stage are usually in a coma and not in a position to take decisions,” explains Adv Bajpai.

“The bigger contradiction is that through section 11 of the bill, it expressly voids the advance directives of the terminally ill patient. So, if you give a directive at the time of hospitalization that should you become terminally ill or were to go in a coma, you should or should not be not put on life support, the instruction becomes void. This not only takes away all the advantages the bill was supposed to provide, but also is an anomaly considering that minor procedures cannot be done without the patient’s written consent, but the patient can be put on artificial life support without his or her express opposition. In Western countries, such advance instructions are the norm, and is what gives similar legislations its relevance.”

According to Bajpai, another provision of the Bill that needs reconsideration is Section 3 that gives right to a 16 year old to take such an important decision. The legal age of majority is 18 years in India. Moreover, to exercise the right to refuse treatment a higher level of maturity is needed as compared to giving consent for a treatment. So for a minor surgery of a patient below 18 years the guardian has to give consent but a terminally ill patient of 16 years can refuse to take treatment! 

This Bill gives right to an incompetent patient's relatives, friends, and doctors to approach the High Court (Section 9) for withdrawing or withholding of treatment. This could have been avoided and a high level committee of doctors and social workers would have been faster, cheaper and less troublesome to all concerned. Such high-level committee is already working in organ transplant.

“The most laudatory aspect of this statutory instrument is its recognition of the family and relatives in decisions relating to an individual. Section 3 (3) very specifically provides that after a terminally ill patient has communicated his/her decision to the doctor to withdraw or withhold treatment, the doctor must before proceeding further inform the nearest relative of the patient about the patient's decision and thereafter wait for 3 days. Law has taken into cognizance that unlike the western societies which are individualistic, Indian society is family-oriented and this differentiation needs to be recognized even when we are imitating western laws,” concludes Bajpai.