MPHL NOTES

Contents
I. EVOLUTION OF “HEALTH”..........................................................................1
II. NHP....................................................................................................................5
III. PPP.....................................................................................................................5
IV. TRANSITION TO PRACTICE OF MEDICINE: OATHS...............................5
1. HIPPOCRATIC OATH (Oldest version)...........................................................5
2. JOHN HOPKIN’s OATH...................................................................................7
3. DR. LOUISE LASAGNE DEFINITION...........................................................9
4. GENEVA DECLARATION, 1948..................................................................12
V. MEDICAL ETHICS: September......................................................................13
VII. PHYSICIAN-PATIENT DIALOGUE - 31/102017.........................................21
VIII. CASE BRIEFS.................................................................................................24
1. Marshall v. Curry (1933)..................................................................................24
2. Associated Provincial Picture Hourses Ltd. v. Wednesbury Corporation.......26
3. Murray v. McMurchy.......................................................................................26
4. Bolam v. Friern Hospital Management Committee.........................................26
5. Griswold v. Connecticut...................................................................................28
6. Roe v. Wade.....................................................................................................29
7. Reibl v. Hughes................................................................................................29
8. Sideway v. Board of Governers.......................................................................32
9. Gillick v. West Norfolk....................................................................................33
10. F v. West Berkshire......................................................................................34
11. Re F (Mental patient sterilisation) [1990] 2 AC 1........................................35
12. R v. Cox........................................................................................................36
13. Planned Parenthood v Casey........................................................................37
14. R v. W...........................................................................................................37
15. Airedale NHS Trust v Bland.........................................................................37
16. Gian Kaur v. State of Punjab........................................................................38
17. Bolitho v. City..............................................................................................39
18. St. George’s Healthcare NHS Trust v. S (?).................................................39
19. Aruna Ramchandra Shanbaug v. UoI...........................................................39
20. Mrs. X and Ors. V. UoI................................................................................43

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 I. EVOLUTION OF “HEALTH”

(i) WHO Definition of Health, 1948

 “A state of complete physical, mental, and social well-being and not merely the
absence of disease or infirmity.”

 Developed Health as a Right

 Significance:

i. First of its kind approach where “health” was being defined at a common platform
ii. Identification of certain common objectives for all countries

 Need to see in the context of time and place – after World War II – shell shock –
not just physical.

 This definition has been subject to controversy, in particular as lacking

operational value, the ambiguity in developing cohesive health strategies, and because
of the problem created by use of the word “complete”

 Criticism:
i. Not a self-contained statement
ii. Very general and vague
iii. Very idealistic and ambitious – “complete” – not pragmatic. (Law making is a
pragmatic or teleological exercise)

(ii) UDHR, Article 25(1) [10 December 1948]

“(1) Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical care
and necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.”

Significance:
First definition where we started looking at the concept of “public health”.

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  It clarifies what social and physical well-being are the factors that need to be
worked upon for this purpose.
 It breaks down the concepts. (As WHO had not exactly sketched out the
countours)
 ‘Adequate’ is pragmatic as opposed to idealisitc ‘complete’
 Social well-being has been emphasised upon
 Every country is on a different plane – and UDHR gives us bare minimum
standards.

Criticism:

 Takes away the “mental” component from the WHO definition

 From ‘complete’ to ‘adequate’ – we understand that complete was over-
ambitious, but is adequate sufficient – what is adequate – will it stop countries from
promoting health beyond the limit of ‘adquate’.

*Health is not one universal parameter with a rigid definition that applies across
spectra. It has subjective elements – based on individuals, time, place. Individuals –
therefore, Bhutan has National Happiness Index. Health is much more than somatic
elements of bodily health. Health of society therefore becomes much more complex.

(iii) ICCPR, Article 6 (1960s)

 “Right to survival” – bare minimum. (Need to see in the background of Nuclear

armamement, Cold War, Vietnam War etc…) – Bare minimum is the first part of
UDHR Defn.

(iv) ICESCR, Article 12 (1960s)

 “Highest attainable standard of health”

 Aspirational in nature.
Covenants = voluntary undertaking
 ICCPR and ICESCR Definitions to be read together. Lay emphasis upon states.
Moving more towards ideas of “public health”. Balancing minimum standards with
aspirations.

(v) Three models of Health

 Till now: Rights’ Discourse

 Currency Model: Before Rights’ discourse – humans seen as means fo
production – have to be kept healthy so that they can produce more – economic growth

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of the country. Eg. Classical communist states, Quid pro contract. In India, this can be
applied for micro-scale programmes. Currency Model prior to Rights’ Discourse
 Sociological Model: Concept of health dependent upon sociological
surroundings – time, place, society. Heterogenous society. Demographics are different
etc. US-Zambia – FTA v. Basic subsistence for farmers; in one country itself,
expectations differ –
a resident of Lutyens-Farmer eg. Hence Sociological approach is very important.
 Example of Polio eradication – all models: Make polio vaccines a right,
productivity being decreased because of polio, sociological because depends upon
where polio is prevalent more – target there.
Salus Populi Est Suprema Lex – Cicero (Health of the Population is supreme law)

(vi) Alma Ata (70s)

 70s – Background – Era of Socialism and Communism. USSR is rising as a

major power. Global west also existent at the same time.
 Convention of Alma Ata, 1978 (Kazakistan)
 Alma Ata converged all three models together – How?: a) Rights Discourse:
Alma Ata did away with the ideological differentiation between countries and specified
common goals. Primary healthcare ensures minimal standards of living. Thus
establishing certain common goals as rights; b) Currency Model: Micro-goals set up.
Micro-goals derived from currency model; c) Sociological: Places health in a context.
Leaves upon counries to decide means.
 6 key objectives of Alma Ata:

1. To promote the concept of Primary HC in all countries

2. To exchange experience and information on the development of PHC
3. To evaluate the present health and health care situation throughout the world as
it relates and can be improved by PHC
4. To define the principles of PHC as well as operational means of overcoming
practical problems in development of PHC
5. To define the role of governance national or international organisations in
cooperation in support of PHC
6. To formulate recommendations for development of PHC

 Agenda is thus very well-framed as it links all three models together.

 Agenda reflects Cicero’s maxim – Health of the public is the supreme law.
 But Alma Ata was also met with a lot of criticism that the objective of providing
PHC by 2000s is an overambitious and idealisitc aim. Hence, conference in Italy where
detailed goals and specifying exactly what was needed in PHC – GOBI FFF: Growth
monitoring, Oral Rehydration, Breast-feeding, Immunization, Female Literacy, Food
Supplementation and Family Planning.

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Also write about deontological and pragmatic approach. Both are important-
identifying the purpose and the means

(vii) Primary and Public Healthcare

 Primary HC – Horizontal and vertical goal of Public HC

 Primary Healthcare forms a large subset of Public Health
 Homeogenous consensus across nations despite ideological differences
 PrHC leads to productivity
 Collective impact on society and vice-versa
 Primary HC is a subset of Public HC – It fits well into the currency model
because that talks about micro-level goals. Primary HC can sustain Public HC both
horizontally and vertically.
 Prostitutes example

Alma Ata predominantly a socialist imperative.

(viii) Indian context

 India – skills exist but implementation is faulty. India suffers from a lack of
awareness and lack of accesibility.
 India was very active as compared to counterparts in coming up with documents.

1. 1946: Bhore Committee Report

2. 1962: Mudaliar Committee Report
3. 1967: Jangalwala Committee Report: Multi-purpose workers
4. 1973: Kartar Singh Report: Integration of Health services
5. 1975: Srivastava Committee Report – Medical support
6. 1977: Rural HC scheme
7. 1983: Krishna Committee Report: Urban HC
8. 1985: Bajaj Committee Report: Planning

 Till 1973, India is trying to achieve a bare minimum threshold

 India’ suo moto initiatives – helped in tailoring the needs of India.
 Have these reports helped us? – Till now, we haven’t achieved some of the goals.
 Much behind that other countries.

(ix) Health Sector Reforms

 From localised endemic, it became a pandemic. AIDS became the next big thing
after the two world wars – sudden sexual liberalisation.
 Baclground – important. USSR is getting fragemented. Important because Alma Ata
a socialist imperative.

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 Sudden and direct shift from PHC to Health Sector Reforms means that health
objectives now being confined to a particular sector.
 Use of market forces to afffect and influence policy decisions.
 US said – primary HC is not helping someone. We need Health Sector reforms
 Health Sector focusses on sector and not a particular individual
 Reforms are sustained fundamental change in something
 Privatisation of HC started.
 Mindset of the people.
 HSR gained a lot of importance
 Element of public gone away – focus more on sector reforms – Role of market is
being increased and of sovereing government is being reduced.
 From mid 80s to mid 90s popularisation of HSR increased. Privatisation of HC
started. USA advocated for this greatly.
 (india also)
 Loss of faith in government HC – Private value for money

World Bank Health Development Report (1993) talks about HSR.

What would be the consequences of change?

- Changes in infrastructure – stock supply of injections

- Changes in agenda – which will lead to difference on prioritising
- HSR heirarchy = currency, sociological and then rights. Opposite to Alma Ata
- Financing
- Pricing policy – private is more profit oriented

Hence, Alma Ata objectives were never achieved because of shift to private
based models. Primary HC is pushed back. HSR not focussed on rights but
currency based model. Instead of focussing on resource allocation, investments
which are more riskier were fsocussed upon.

(x) IPR and Medicine

 WTO Patents etc. How will common man access with these patents – Africa generic
drugs not available.
 Doha Declaration: Giving an oppourtnity to the states to develop its own resources
– ambit of protected to patens. South Africa – without medicines. Dying. Therefore,
compulsory licensing model. If state can show unforeseable circumustances, then
WTo will give these medicines to these countries.
 WTO – IPR just to patent inventor. In 1991, a compulsory licensing model – a state
has to show two things – 1) welfare of the people; 2) public health.

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Public HC back in spotlight.
Health and trade not enemies but naturally compatible either. Have to be balanced.

(xi) Millanium Development Goals (Comes into existence in 2000 and deadline is
2015 target)

 Millenaium = time bound

 Development = purpose
 Goals = pragamatic

MDG 1: eradicate extreme poverty and hunger

MDG 3: promote gender equality and empower women
MDG 4: reduce child mortality
MDG 5: improve maternal health
MDG 6: combat HIV/AIDS, malaria and other diseases
MDG 7: ensure environmental sustainability
MDG 8: develop a global partnership for development

(xii) Universal Health Coverage (‘UHC’) | 2005

 Introduced and debated upon in WHA

 More stringent on state – less autonomy
 Crae = what and coverge is how.
 UHC in light of MDG (How in light of what)
 Each and every individual – that is why equity and not equality.
 More stringent for the state.

2012 GA Resolution on UHC- Each and every nation will aspire for universal health
coverage

Statistics – till 2015 – only infant and maternal morbidity rate has gone down.
Need something better.

(xiii) Sustainable Development Goals (2030 target)

17 SDGs

Sustainable is not time-bound. Targets are time-bound but the term ‘sustainable’
also encompasses caring about future generations

(i) Zero poverty

(ii) Zero hunger
(iii) God health and well being
(iv) Quality education

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 (v) Clean water and sanitation
(vi) Affordable and clean energy
(vii) Decent work and economic growth
(viii) Industry, Innovation and infrastructure
(ix) Reduced inequalities

Equality is something absolute – not good – equity understand the differnces – can’t
eradicate but can control them.

MDGs talk about HIV AIDs in specific but SDGs talk about communication and non-
communication diseases both
Strategic partnership of goals in SDGs – more practicable than global partnership.

II. NHP

 Two-way link between economic growth and health status – the aim os to
incresase health outcome and explicityl acknowledge that better health results in
inreased productivity demographics.
 (Shows currency model)
2.1, 2.3, 2.10, 2.11, 2.17, 2.18 4, 4.1-3, 4.3.7, 4.3.8, 4.3.9, 4.3.11, 6 and 7 imp and 13

III. PPP

IV. TRANSITION TO PRACTICE OF MEDICINE: OATHS

 In this module, various oaths covered and discussed.

1. HIPPOCRATIC OATH (Oldest version)

 It comes into application when a technically skilled and socially conscious

student transitions into being a doctor.
 It never ceases to apply in their profession – applies all the time.

History

 Developed by Hippocrates. (It is widely believed to have been written by

Hippocrates, often regarded as the father of western medicine).
 Another theory – Classical scholar Ludwig Edelstein proposed that the oath was
written by Pythagoreans, a theory that has been questioned due to the lack of evidence
for a school of Pythagorean medicine

Original text:

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“ I swear by Apollo, the healer, Asclepius, Hygieia, and Panacea, and I take to witness
all the gods, all the goddesses, to keep according to my ability and my judgment, the
following Oath and agreement: To consider dear to me, as my parents, him who taught
me this art; to live in common with him and, if necessary, to share my goods with him;
To look upon his children as my own brothers, to teach them this art. I will prescribe
regimens for the good of my patients according to my ability and my judgment and
never do harm to anyone. I will not give a lethal drug to anyone if I am asked, nor will
I advise such a plan; and similarly I will not give a woman a pessary to cause an
abortion. But I will preserve the purity of my life and my arts. I will not cut for stone,
even for patients in whom the disease is manifest; I will leave this operation to be
performed by practitioners, specialists in this art. In every house where I come I will
enter only for the good of my patients, keeping myself far from all intentional ill-doing
and all seduction and especially from the pleasures of love with women or with men, be
they free or slaves. ” All that may come to my knowledge in the exercise of my
profession or in daily commerce with men, which ought not to be spread abroad, I will
keep secret and will never reveal. If I keep this oath faithfully, may I enjoy my life and
practice my art, respected by all men and in all times; but if I swerve from it or violate
it, ]\.

Provisions:

TEXT COMMENT

“I swear by …. I take to witness Swearing by gods and witnessed also by gods: No

all the gods, all the goddesses… direct accountability to a person as considered in
following oath and agreement” modern connotation.

“To consider dear to me, as my Medical science considered as an art back then.
parents, him who taught me this The term ‘art’ has a connotation of mystery. In
art” present times, it has become a “highly evolved
technical science”.

To look upon his children as my
own brothers, to teach them this
art… and no one else”
Only certain people could be taught the art an no-
one else. Usually included children of teachers. In
the past, medical schools gave preferential
consideration to the children of physicians. The
profession was seen as privileged, exclusive and
secretive.

I will not cut for stone, even for Ma’am – Sanctity of human life demands that
patients in whom the disease is human body is sacred – should not be cut except
manifest; I will leave this by specialised surgeons – surgeons different from

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operation to be performed by
practitioners, specialists in this
art.
I will not give a lethal drug to
anyone if I am asked, nor will I
advise such a plan; and similarly
I will not give a woman a
pessary to cause an abortion.
…I will enter only for the good
of my patients
All that may come to my
knowledge in the exercise of my
profession or in daily commerce
with men, which ought not to be
spread abroad, I will keep secret
and will never reveal
To keep the good of the patient
as the highest priority.
Purpose of oath: (?)
 Homogenous
 Streamline conduct and professionalism
physicians then – relevant even in modern day
with distinction between general physicial and
different specialists. [The "stones" referred to are
kidney stones or bladder stones, removal of which
was judged too menial for physicians, and
therefore was left for barbers (the forerunners of
modern surgeons). Surgery was not recognized as
a specialty at that time. This sentence is now
interpreted as acknowledging that it is impossible
for any single physician to maintain expertise in
all areas. It also highlights the different historical
origins of the surgeon and the physician.]
Since the legalization of abortion in many
countries, the inclusion of the anti-abortion
sentence of the Hippocratic oath has been a source
of contention.
This went beyond in regulating not just the
profession but general activites as member of
society – no will, intention or seduction etc.
considered wrong.
The profession was considered more than a
consumer service done for the purpose of earning
money – It was considered more than a profession
– There was an element of sanctity visible in
everything – Human life and humans in general
considered to be sacrosanct – People are required
to be treated as sacred with sacred trust – Burden
of responsibility and trust – hence, a high burden
of confidentiality imposed upon the doctors.
There may be other conflicting 'good purposes,'
such as community welfare, conserving economic
resources, supporting the criminal justice system,
or simply making money for the physician or his
employer that provide recurring challenges to
physicians.
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  Guidelines of the group intact
 Supremacy and privilege remain unhampered

This is the oldest version ^

2. JOHN HOPKIN’s OATH

“ I swear by Apollo the Physician and Asclepius and Hygieia and Panaceia and all the
gods, and goddesses, making them my witnesses, that I will fulfill according to my
ability and judgment this oath and this covenant: To hold him who has taught me this
art as equal to my parents and to live my life in partnership with him, and if he is in
need of money to give him a share of mine, and to regard his offspring as equal to my
brothers in male lineage and to teach them this art–if they desire to learn it–without fee
and covenant; to give a share of precepts and oral instruction and all the other learning
to my sons and to the sons of him who has instructed me and to pupils who have signed
the covenant and have taken the oath according to medical law, but to no one else. I will
apply dietic measures for the benefit of the sick according to my ability and judgment; I
will keep them from harm and injustice. ” I will neither give a deadly drug to anybody
if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a
woman an abortive remedy. In purity and holiness I will guard my life and my art. I will
not use the knife, not even on sufferers from stone, but will withdraw in favor of such
men as are engaged in this work. Whatever houses I may visit, I will come for the
benefit of the sick, remaining free of all intentional injustice, of all mischief and in
particular of sexual relations with both female and male persons, be they free or slaves.
What I may see or hear in the course of treatment or even outside of the treatment in
regard to the life of men, which on no account one must spread abroad, I will keep
myself holding such things shameful to be spoken about. If I fulfill this oath and do not
violate it, may it be granted to me to enjoy life and art, being honoured with fame
among all men for all time to come; if I transgress it and swear falsely, may the
opposite of all this be my lot.”

 In the 1870s, many American medical schools chose to abandon the Hippocratic
Oath as part of graduation ceremonies, usually substituting a version modified to
something considered more politically and medically correct, or an alternate pledge.

S.N TEXT COMMENT

.

1 “I swear by …. all the gods, all The word ‘covenant’ used in addition to
the goddesses…following oath ‘agreement’
and covenant”

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2 to give a share of precepts and
oral instruction and all the other
learning to my sons and to the
sons of him who has instructed
me and to pupils who have
signed the covenant and have
taken the oath according to
medical law, but to no one else.
Efforts to lower down the exclusivity – earlier,
only to look upon teacher’s children as brothers
and teach them this art – now my children + his
children + other pupuls who sign this oath and
covenant – Does not usher in meritocracy, but still
wider

3 I will apply dietic measures for
the benefit of the sick according
to my ability and judgment; I
will keep them from harm and
injustice.
Dietic – As a physician, can modify diet ad
lifestyle as needed – unclear whether harm and
justice is arising out of sickeness or treatment OR
in general

4 I will neither give a deadly drug

to anybody if asked for it, nor
will I make a suggestion to this
effect.

5 Similarly I will not give to a Different from earlier – recognises that abortion is
woman an abortive remedy a remedy – but still will not give.

6 I will not use the knife, not even Similar to former

on sufferers from stone, but will
withdraw in favor of such men
as are engaged in this work.

7 Whatever houses I may visit, I Visits only for benefit of sick – “intentional
will come for the benefit of the injustice” – element of intention – if proven
sick, remaining free of all otherwise – innocent
intentional injustice, of all
mischief and in particular of
sexual relations with both female
and male persons, be they free or
slaves.

8 What I may see or hear in the

course of treatment or even
outside of the treatment in regard
to the life of men, which on no
account one must spread abroad,
I will keep myself holding such
things shameful to be spoken
about.

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9 If I fulfill this oath and do not
violate it, may it be granted to
me to enjoy life and art, being
honoured with fame among all
men for all time to come; if I
transgress it and swear falsely,
may the opposite of all this be
my lot

3. DR. LOUISE LASAGNE DEFINITION

“A widely used modern version of the traditional oath was penned in 1964 by Dr. Louis
Lasagna, former Principal of the Sackler School of Graduate Biomedical Sciences and
Academic Dean of the School of Medicine at Tufts University:[8]

“I swear to fulfill, to the best of my ability and judgment, this covenant: I will respect
the hard-won scientific gains of those physicians in whose steps I walk, and gladly
share such knowledge as is mine with those who are to follow. I will apply, for the
benefit of the sick, all measures [that] are required, avoiding those twin traps of
overtreatment and therapeutic nihilism. I will remember that there is art to medicine as
well as science, and that warmth, sympathy, and understanding may outweigh the
surgeon's knife or the chemist's drug. I will not be ashamed to say "I know not," nor
will I fail to call in my colleagues when the skills of another are needed for a patient's
recovery. ” I will respect the privacy of my patients, for their problems are not disclosed
to me that the world may know. Most especially must I tread with care in matters of life
and death. If it is given to me to save a life, all thanks. But it may also be within my
power to take a life; this awesome responsibility must be faced with great humbleness
and awareness of my own frailty. Above all, I must not play at God. I will remember
that I do not treat a fever chart, a cancerous growth, but a sick human being, whose
illness may affect the person's family and economic stability. My responsibility includes
these related problems, if I am to care adequately for the sick. I will prevent disease
whenever I can, for prevention is preferable to cure. I will remember that I remain a
member of society, with special obligations to all my fellow human beings, those sound
of mind and body as well as the infirm. If I do not violate this oath, may I enjoy life and
art, respected while I live and remembered with affection thereafter. May I always act
so as to preserve the finest traditions of my calling and may I long experience the joy of
healing those who seek my help.”

S.N TEXT COMMENT

.

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1 “I swear to fulfill, to the best of No witness to Gods or Godesses – change from
my ability and judgment, this previous two – limitation of ability and judgment
covenant: – hence becomes more prominent – the word oath
not used – only covenant

2 I will respect the hard-won No exclusivity in this one – share knowledge to

scientific gains of those everyone who is to follow
physicians in whose steps I walk,
and gladly share such knowledge
as is mine with those who are to
follow.

3 I will apply, for the benefit of the No overtreatment

sick, all measures [that] are
required, avoiding those twin
traps of overtreatment and
therapeutic nihilism.

4 I will remember that there is art
to medicine as well as science,
and that warmth, sympathy, and
understanding may outweigh the
surgeon's knife or the chemist's
drug.
Explicit recognition that medicine is not just an
art but also a science – warmth sympahty and
understanding needed as well as drugs and
surgeon’s knife.

5 I will not be ashamed to say "I From focus on “my ability” - to help by others –
know not," nor will I fail to call accepting ignorance
in my colleagues when the skills
of another are needed for a
patient's recovery. ”

6 I will respect the privacy of my Privacy – confidentiality given express terms

patients, for their problems are
not disclosed to me that the
world may know.

7 I will remember that I do not Focus not just on the disease but the entire human
treat a fever chart, a cancerous – and familial and economic consequences –
growth, but a sick human being, broader perspective.
whose illness may affect the
person's family and economic
stability.

8 I will prevent disease whenever I Prevention is better than cure

can, for prevention is preferable
to cure.

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9 I will remember that I remain a
member of society, with special
obligations to all my fellow
human beings, those sound of
mind and body as well as the
infirm.
Recognition of doctor as member of society
explicity but also mention of his special
obligations – not just to sick but aslo sound of
mind and body.

10 If I do not violate this oath, may No sanction or negative language in case of not
I enjoy life and art, respected following mentioned.
while I live and remembered
with affection thereafter. May I
always act so as to preserve the
finest traditions of my calling
and may I long experience the
joy of healing those who seek
my help.”

4. GENEVA DECLARATION, 1948

 Physician’s Pledge
 Member of Medical Profession
 Pledge
 Dedicate life to service of humanity
 Health and well-being of the patient will be first consideration
 Maintain utmost respet for human life
 No discrimination: Discriminating factors like nationality, disease etc. will not
intervene “between my duty and my patient”
 Confidentiality: Respect secrets confided in me – even after the patient has
died
 Practice my profession with conscience and dignity and in accordance with
good medical practice
 Honour and noble traditions of the medical profession
 Respecting teachers: Respect and gratitude to “teachers, colleagues and
students”
 Sharing knowledge: Share medical knowledge for beneit of patient and
advancement of healthcare
 Self-Health: Take are of health of own to be able to provide high std medical
help

Second draft of Geneva Declaration was similar

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Page Number: [16]
V. MEDICAL ETHICS: September

CLASS NOTES

 Medical ethics is a sensible branch of moral philosophy and deals with conflicts
in obligations/duties of doctors and their potential outcome.
 Two strands of thought exist in ethics regarding decision-making: deontological
and utilitarian.
 Earlier, two different types of scholars existed – Rationalists and Empiricists.
 Rationalists focus on theory like Socrates, Kant, Plato etc.
 Empiricists focus on ends like Bentham, Mill, Aristotle
 Dr. George Stahl – In Logica Medica – explained these in terms of logic and
gave deonotological and cobsequentialist approach.
 Deontologists – focus on praxis or means; Consequentialists focus on the
outcome or tayet.
Deon. Said that relationship between patient-doctor is a “moral enterprise”.
 In deontological approach, outcomes/consequences may not just justify the
means to achieve it while in utilitarian approach; outcomes determine the means and
greatest benefit expected for the greatest number.
 In brief, deontology is patient-centered, whereas utilitarianism is society-
centered. Although these approaches contradict each other, each of them has their own
substantiating advantages and disadvantages in medical practice.
 Over years, a trend has been observed from deontological practice to utilitarian
approach leading to frustration and discontentment. Health care system and
practitioners need to balance both these ethical arms to bring congruity in medical
practice.
 Imhotep: An Egyptian guy who was part healer part priest part health care
provider - First recorded case of “cancer” in his book – cancer called the emperor of
maladies – he didn’t know how to heal that.

 Consequentialists – followed a pleasure-pain binary equation.

 1863: Mill – developed concept of utlity based on quality of pleasure and pain.
Some kinds of pleasure are more valuable than others. Heirarchy in pleasure to
understand the feasbility of tayet.
 Grading of higher – lower pleasure concept inevitably includes a lot of
subjectivity. How to nationalise this gradation? – Look at the secondary deontological
approach – Who will be tasked with these gradation exercises? – Medical Healthcare
profession.

New age medical contemporaries

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  Alasdair Macintyre

[MacIntyre is a key figure in the recent surge of interest in virtue ethics, which
identifies the central question of morality as having to do with the habits and knowledge
concerning how to live a good life. His approach seeks to demonstrate that good
judgment emanates from good character. Being a good person is not about seeking to
follow formal rules. In elaborating this approach, MacIntyre understands himself to be
reworking the Aristotelian idea of an ethical teleology.

MacIntyre emphasises the importance of moral goods defined in respect to a

community engaged in a 'practice'—which he calls 'internal goods' or 'goods of
excellence'—rather than focusing on practice-independent obligation of a moral agent
(deontological ethics) or the consequences of a particular act (utilitarianism). Before its
recent resurgence, virtue ethics in European/American academia had been primarily
associated with pre-modern philosophers (e.g. Plato, Aristotle, Thomas Aquinas).
MacIntyre has argued that Aquinas' synthesis of Augustinianism with Aristotelianism is
more insightful than modern moral theories by focusing upon the telos ('end', or
completion) of a social practice and of a human life, within the context of which the
morality of acts may be evaluated. His seminal work in the area of virtue ethics can be
found in his 1981 book, After Virtue.

MacIntyre intends the idea of virtue to supplement, rather than replace, moral rules.
Indeed, he describes certain moral rules as 'exceptionless' or unconditional. MacIntyre
considers his work to be outside "virtue ethics" due to his affirmation of virtues as
embedded in specific, historically grounded, social practices.]

 Edmund Daniel Pellegrino (June 22, 1920 - June 13, 2013)

 Gardner
 Together, they came up with “Virtue Ethics”. They stated that it was extended
from Aristotle’s work of pillars of virtue.

 Virtue ethics – based on Aristotle’s 4 pillars of virtue: Courage, Justice,

Temparence and Prudence.

i) Prudence (φρόνησις, phronēsis; Latin: prudentia): also described as wisdom, the ability
to judge between actions with regard to appropriate actions at a given time
ii) Courage (ἀνδρεία, andreia; Latin: fortitudo): also termed fortitude, forbearance,
strength, endurance, and the ability to confront fear, uncertainty, and intimidation
iii) Temperance (σωφροσύνη, sōphrosynē; Latin: temperantia): also known as restraint, the
practice of self-control, abstention, discretion, and moderation tempering the appetition;
especially sexually, hence the meaning chastity

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 iv) Justice (δικαιοσύνη, dikaiosynē; Latin: iustitia): also considered as fairness, the most
extensive and most important virtue;[1] the Greek word also having the meaning
righteousness

 Eudamaenia – a prongled state of happiness (Aristotle)

 Paton in his book The Moral Law, 1948? – Human action is morally good not
because it is done for immediate inclination and self interst but for the sake of duty.
 1994 – Beauchamp – Sujectivity can be done away with by coming up with
objective list of praxis.

 Gardner : 1) Reason; 2) Compassion; 3) Trustworthiness; 4) Capacity for

discernment and 5) Regret

 (Hippocratic oath – not ashamed in stating that I do not know and my physician
friends should deal with it – otherwise patient or he might regret later which we don’t
want)

 Importance/advantages of Virtue Ethics:

i) It is not isolated from emotions (unlike Kantian etc. theories) – Emotions are important
and integral part of moral perception.
ii) It considers the motivation of agent (practioner) to be of crucial importance.
iii) It is adaptive as it is determined on a case to case basis.
iv) Encourages development of creative solutions and flexible.
v) Recognise that no situation can be completely bereft of regret – and sometimes, there
might be regret that will still be left – understandable.

DETAILED (FROM INTERNET)

 They are based on four fundamental principles, i.e., autonomy, beneficence,

nonmaleficence, and justice
 Much of the modern medical ethics deals with the moral dilemmas arising in the
context of patient's autonomy and the fundamental principles of informed consent and
confidentiality. Ethics deals with choices, decisions/actions based on the choice and the
duties and obligations of a doctor to the best interest of the patient.
 For example, when a doctor owes a duty to both patient and society, situations
of breech in confidentiality may arise. Similarly, the practice of fundamental principles
of autonomy and informed consent may be breeched in the care of newborn, mentally
handicapped or patients in the permanent vegetative state.

Ethics is a crucial branch in medicine guiding good medical practice. It deals with the
moral dilemmas arising due to conflicts in duties/obligations and the faced
consequences. They are based on four fundamental principles, i.e., autonomy,

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beneficence, nonmaleficence, and justice. Much of the modern medical ethics deals
with the moral dilemmas arising in the context of patient's autonomy and the
fundamental principles of informed consent and confidentiality. Ethics deals with
choices, decisions/actions based on the choice and the duties and obligations of a doctor
to the best interest of the patient. Ethical practice is a systematic approach toward the
institution of these principles to approach an appropriate decision-making. While these
definitions are clear to express, exceptions arise in each of these principles during
clinical practice. For example, when a doctor owes a duty to both patient and society,
situations of breech in confidentiality may arise. Similarly, the practice of fundamental
principles of autonomy and informed consent may be breeched in the care of newborn,
mentally handicapped or patients in the permanent vegetative state. In practical ethics,
two arms of thoughts exist in decision-making: Utilitarian and deontological. In
utilitarian ethics, outcomes justify the means or ways to achieve it, whereas in
deontological ethics, duties/obligations are of prime importance (i.e., end/outcomes
may not justify the means).

In the utilitarian approach, decisions are chose based on the greatest amount of benefit
obtained for the greatest number of individuals. This is also known as the
consequentialist approach since the outcomes determine the morality of the
intervention. This approach could lead to harm to some individuals while the net
outcome is maximum benefit. This approach is usually guided by the calculated
benefits or harms for an action or intervention based on evidence. A few examples of
utilitarian approach in medical care include setting a target by hospitals for resuscitation
of premature newborns (gestational age) or treatment of burns patients (degree of
injury) based on the availability of time and resources. There are two variants of
utilitarianism: Act utilitarianism and rule utilitarianism. Act utilitarianism deals with
decisions undertaken for each individual case analyzing the benefits and harms
promoting overall better consequences. Every action/decision arrived for each patient is
confronted with the measurement of balance of the benefits and harms, without
examining the past experience or evidence. This method would lead to enormous
wastage of time and energy in decision-making and are prone to bias. In rule
utilitarianism, no prediction or calculation of benefits or harms is performed. These
decisions are guided by preformed rules based on evidence and hence provide better
guidance than act utilitarianism in decision-making. According to rule utilitarianism,
morally right decision is an action complying moral codes/rules leading to better
consequences.[1] Although these concepts look appealing patients feels constrained
when clinicians make the decisions, affecting the fundamental ethical principles. These
ethical issues can be accommodated when dealing with patients who are competent to
play a role in decision-making, while posing moral dilemmas in patients who are
incompetent, e.g., in patients who are brain-dead (permanent vegetative state), decision-
making with regards to withdrawal of life-sustainment/organ donation, etc. In the above
scenario, dilemmas can be dealt ethically and legally if the patients had made advance
decision directives about their life similar to decisions on wealth.[2,3]

In contrast to the utilitarian concept, deontology is ethics of duty where the morality of
an action depends on the nature of the action, i.e., harm is unacceptable irrespective of
its consequences. This concept was introduced by a philosopher, Immanuel Kant and
hence widely referred as Kantian deontology. The decisions of deontology may be
appropriate for an individual but does not necessarily produce a good outcome for the
society. The doctor-patient interaction or relationship is by nature, deontological since

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medical teaching practices inculcate this tradition, and when this deontological practice
is breached, the context of medical negligence arises. This tradition drives clinicians to
do good to patients, strengthening the doctor-patient bond. The deontological
ideologists (doctors and other medical staffs) are usually driven to utilitarian approach
by public health professionals, hospital managers, and politicians (utilitarian
ideologists). From a utilitarian perspective, health care system resources, energy,
money, and time are finite and are to be appropriately accommodated to achieve the
best heath care for the society. These are executed with furnished rules and guidelines.
While achieving good for the greatest number, few harm (iatrogenic) is acceptable by
utilitarian ideologists. For example, few cases of vaccine-induced paralytic polio after
oral polio vaccination. From a deontological perspective, utilitarians generalize the
guidelines or rules while there may be exceptional cases where the guideline may not
apply. Deviation of action from the guidelines contributes to medical negligence to
utilitarians. Such conflicts in approach are commonly encountered in the current health
care systems. Similarly, the involvement of third party payment systems (health
insurance) affects the confidentiality between the doctor-patient relationship.[4]

Traditional moral analytical studies (Greene's dual process model) revealed that
deontological and utilitarian inclinations are mutually exclusive while recent studies
utilizing the process dissociation moral analytical approach revealed that an inclination
toward an ideology may occur due to the absence of inclination to another. These
studies also reported the association of deontological inclinations with empathy,
religiosity, and perspective-taking, while moral concern and reduction in the cognitive
load being associated with utilitarian inclinations.[5] In conclusion, both utilitarian and
deontological perspectives have their own importance in medical ethics. In the current
scenario, we get to see utilitarian perspective countermanding the deontological
perspective and hence most ethical and moral dilemmas. A balance between these two
perspectives would bring better harmony and justice to medical practice.

Medicine as “moral enterprise”

 Medicine is, at its centre, a moral enterprise grounded in a covenant of trust.

This covenant obliges physicians to be competent and to use their competence in the
patient's best interests. Physicians, therefore, are both intellectually and morally obliged
to act as advocates for the sick wherever their welfare is threatened and for their health
at all times.

Imhotep

 First recorded case of “cancer” in his book – cancer called the emperor of
maladies – he didn’t know how to heal that.
 Translated in 1930, the papyrus is now thought to contain the collected
teachings of Imhotep, a great Egyptian physician who lived around 2625 BC. Imhotep,
among the few nonroyal Egyptians known to us from the Old Kingdom, was a
Renaissance man at the center of a sweeping Egyptian renaissance. As a vizier in the
court of King Djozer, he dabbled in neurosurgery, tried his hand at architecture, and
made early forays into astrology and astronomy. Even the Greeks, encountering the

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fierce, hot blast of his intellect as they marched through Egypt centuries later, cast him
as an ancient magician and fused him to their own medical god, Asclepius. But the
surprising feature of the Smith papyrus is not magic and religion but the absence of
magic and religion. In a world immersed in spells, incantations, and charms, Imhotep
wrote about broken bones and dislocated vertebrae with a detached, sterile scientific
vocabulary, as if he were writing a modern surgical textbook. The forty-eight cases in
the papyrus — fractures of the hand, gaping abscesses of the skin, or shattered skull
bones — are treated as medical conditions rather than occult phenomena, each with its
own anatomical glossary, diagnosis, summary, and prognosis. And it is under these
clarifying headlamps of an ancient surgeon that cancer first emerges as a distinct
disease. Describing case forty- five, Imhotep advises, "If you examine [a case] having
bulging masses on [the] breast and you find that they have spread over his breast; if
you place your hand upon [the] breast [and] find them to be cool, there being no fever
at all therein when your hand feels him; they have no granulations, contain no fluid,
give rise to no liquid discharge, yet they feel protuberant to your touch, you should say
concerning him: 'This is a case of bulging masses I have to contend with. . . . Bulging
tumors of the breast mean the existence of swellings on the breast, large, spreading,
and hard; touching them is like touching a ball of wrappings, or they may be compared
to the unripe hemat fruit, which is hard and cool to the touch.'" A "bulging mass in the
breast" — cool, hard, dense as a hemat fruit, and spreading insidiously under the skin
— could hardly be a more vivid description of breast cancer. Every case in the papyrus
was followed by a concise discussion of treatments, even if only palliative: milk
poured through the ears of neurosurgical patients, poultices for wounds, balms for
burns. But with case forty- five, Imhotep fell atypically silent. Under the section titled
"Therapy," he offered only a single sentence: "There is none.
Four cardinal virtues were recognized in Classical Antiquity and in traditional Christian
theology:

 Prudence (φρόνησις, phronēsis; Latin: prudentia): also described as wisdom, the

ability to judge between actions with regard to appropriate actions at a given time
 Courage (ἀνδρεία, andreia; Latin: fortitudo): also termed fortitude, forbearance,
strength, endurance, and the ability to confront fear, uncertainty, and intimidation
 Temperance (σωφροσύνη, sōphrosynē; Latin: temperantia): also known as
restraint, the practice of self-control, abstention, discretion, and moderation tempering
the appetition; especially sexually, hence the meaning chastity
 Justice (δικαιοσύνη, dikaiosynē; Latin: iustitia): also considered as fairness, the
most extensive and most important virtue;[1] the Greek word also having the meaning
righteousness

A virtue ethics approach to moral dilemmas in medicine – P Gardiner

 In general practice training, young doctors are raised on the four principles! This
approach was initially developed in the United States by Beauchamp and Childress1;

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but has been widely and enthusiastically advocated in the UK by Professor Gillon.2–4
Beauchamp and Childress have considered five virtues applicable to the medical
practitioner: trustworthiness, integrity, discernment, compassion, and
conscientiousness.

 Virtue ethics began with the ancient Greek philosophers Socrates, Plato, and
Aristotle. They searched for the elements that made a person good but in so doing they
did not look at how a person acted but at what sort of character he had. They suggested
that a good person who behaves well must develop virtues, which, through habitual use,
become part of that person’s character.

 So what is a virtue? Perhaps the most useful definition is that offered by

Rachels, who suggests that a virtue is “a trait of character,manifested in habitual action,
that it is good for a person to have”.5

 Aristotle believed that a virtue lay in the middle of two contrary vices and
described it as “the mean by reference to two vices: the one of excess and the other of
deficiency”.6 Courage—for example, lies between foolhardiness and cowardice.
Compassion lies between callousness and indulgence. Aristotle believed that the
purpose of human existence is to achieve a state of eudaemonia, which is a difficult
word to translate. “Happiness” is too superficial and subjective. We may feel happy if
we satisfy our desires but this is no guarantee of any enduring contentment. To be
eudaemon is rather to have the sort of happiness that is deep, lasting, and worth having.
It is a deeply rooted joy in the dynamic process of our lives. It is hard to find a single
word to sum up this concept but the closest approximation is “flourishing”.

 Aristotle suggests that reason is the function unique to humans that sets them
apart from all other living creatures. We have a capacity to make choices based on
reason,which the most intelligent of higher order creatures do not appear to possess.
Animals do not recognise ends as such and do not have the capacity for choosing to do
something that will lead to a less good end when faced with two options (see reference
9, pp 25–51). It is by reasoning that a person determines how to act and feel in ways
appropriate to a given circumstance. It is not sufficient to possess virtues; one must
have the capacity to know when and how to exhibit them. Thus the virtuous person uses
rationality (practical wisdom) to decide how to be. Health care professionals are
usually motivated to improve the wellbeing of their patients. In pursuing this end, they
must balance their expert knowledge and understanding with the preferences of their
patients, taking into consideration the means by which that person has made their
choice and ensuring they themselves do not transgress anymedical moral code. Doctors
in the 21st century are encouraged to work in partnership with their patients, informing,
guiding, advising, and helping them to make appropriate choices about how to deal with
their illness. These choices are typically adapted to suit individuals, taking into

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consideration such factors as their health beliefs, cultural background, and social
situation. The patient is likely to be deeply influenced by their upbringing, their
personal priorities, the community in which they live, or indeed their faith. These
factors may well influence them to make a choice that is at variance with the
professional judgment of their doctor. This can be challenging when a patient chooses
to reject a doctor’s guidance—for example, refusing treatment, which the doctor knows
may adversely affect her patient’s wellbeing. Doctors are trained how to tolerate such
uncertainty and the risks involved but when such a decision might affect the survival of
the patient, the moral burden for the doctor can be tremendous. Eg. Jehovas witness
case If the patient is deemed competent to make decisions about his health, he is
therefore competent to make decisions about his spiritual faith. It is wise and prudent to
respect the faith that an individual has chosen to follow of his own free will and under
no duress. As we have recognised, patients’ understanding and beliefs will influence the
priority they give to options in managing their health. In this situation the patient has
chosen to prioritise what he believes is his eternal existence over that of his current
physical health. He is prepared to take the risk that he might die in order to ensure,
according to his own belief system, that he will have eternal life. In being
compassionate, the doctor would imagine what it must be like to be a person who is
prepared to risk death because of the sincerity and devotion to their faith. She is likely
to recognise the courage of her patient, which in turn may provoke feelings of respect
and admiration Patients bring their deepest and most personal concerns and problems,
allow the most intimate of examinations, and confide their private vulnerabilities. They
rely on the moral character and competence of their doctor and must be able to trust that
their doctor will behave well […]In this situation it is very unlikely that we will be able
to persuade the patient to change his ideology at this stage. If the doctor overrides the
patient’s request and imposes her medical solution upon him, the patient will have
difficulty in trusting his doctor again and indeed may not trust the medical profession in
the future.

 Virtue ethics has a number of advantages over the four principles:

• It recognises that emotions are an integral and important part of our moral perception.

• It considers the motivation of the agent to be of crucial importance. Decisions are

anchored in the characteristic virtuous disposition of the moral agent who typically
wants to behave well.

• As there are no rigid rules to be obeyed, it allows any choices to be adapted to the
particulars of a situation and the people involved. Two people might both behave well
when resolving the same situation in different ways.

• This flexibility encourages the pursuit of creative solutions to tragic dilemmas.

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 • Virtue ethicists recognise that tragic dilemmas can rarely be resolved to the complete
satisfaction of all parties and that any conclusion is likely to leave some remainder of
pain and regret.

VI.

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VII. PHYSICIAN-PATIENT DIALOGUE - 31/102017

 There is a need of “mutual comprehension” between the Physician and Patient.

There is more gravity attached towards the patient because his life is at risk.
 The Physician’s work is either social/service obligation or consumer
service/service for consideration.
 Patient has to take an informed call. Patient has to consent. The consent should
be valid and informed.
 Consent is related to the Standard of duty and care followed.
 Lack of duty – Negligence and Lack of standard – Inadequacy

Level of consent required:

 Need to look at the entire patient profile (Hippocratic Oath: Not treating merely
a disease but an individual/entire human)
 Physician needs to understand the background of the patient to establish “mutual
comprehension” – like paitent’s intellectual capacity; education; purchasing power.
(Like getting sociological position of the patient).

Patient competence

 C-Section- fear of needles example

Doctor–patient relationship

The doctor–patient relationship is central to the practice of healthcare and is essential

for the delivery of high-quality health care in the diagnosis and treatment of disease.
The doctor–patient relationship forms one of the foundations of contemporary medical
ethics. Most universities teach students from the beginning, even before they set foot in
hospitals, to maintain a professional rapport with patients, uphold patients' dignity, and
respect their privacy.

Concept of Consent

From Text, Cases and Materials on Medical Law

 Requirement that a patient must give consent is based on the principle of body
inviolability.
 Mill: A member can rightfully exercise power over any other’s body only to
prevent harm to others. His own good, either physicial or moral is not sufficient
warrant.

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 Cardozo J. in a case: Every human being has a right to determine what should be
done with his body.
 Paternilism: Doctors believe medical procedure is appropriate and necessary
cand can overrise autonomy in best interests of the patients.
 Without valid consent, a doctor will be commiting the tort of trespass to human
body or battery – both a crime and a tort – upon non-consensual touching.
 No clear cut dichotomy but most of the problems in medical ethics and
conflicting opinions arise because of debate between paternilism and patient autonomy.
 Paternilism is based on the idea that doctor knows the best for the paitient – and
hence the best view should prevail. Autonomy on the other hand focusses on the
principle of right to decide what to do with body.
 The deontological approach people will argue against Euthanasia because
sanctity of life is one of those inviolable principles which cannot be broken irrespective
of consequences.
 Utilinarianism most famous consequentialist approac h. Pleasure –pain. Higher
the pleasure – better. Pleasure machine – how it can be created artificially – problem.
 Deon = greek word for duty.
 Gyaenaologist example (motivation) and child example (painful life because of
disability)

Gillick Competency

 Dept. of Health came up with guidelines on famly planning for youg that stated
that doctors can lawfully prescribe contraceptives for children less than 16 years of age
without informing their parents or taking parents’ consent. Mrs. Gillick a mother of five
daughters contended that this was unlawful + her consent should have been taken.
 House of Lords decided the case in favour of the Health Authority with a
majority of three to two. The majoity judges said that if the minors were deemed to
have sufficient understanding and maturity to take their decisions, known as having
“Gillick Competence.” then can make own healthcare choices. Lord Templeman and
Bradon dissented and found for Mrs. Gillick. She won unanimously in the Court of
Appeal.

Negligence

 Clinical negligence, formerly known as 'medical negligence', is the process by

which a patient takes his or her medical attendants to a civil court for compensation. It
is not about professional conduct or terms of service.

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 In order for negligence to be proven a Claimant (usually the patient) must show
that the doctor owed a duty of care to the patient, that the doctor was negligent in his or
her management, and also that the patient suffered harm as a result. The Claimant has to
succeed on both liability and causation to obtain compensation:
 Liability to show that the doctor or nurse must have been found to have acted in
a manner that no other similar professional would have done.
 Causation that harm has resulted which would not otherwise have occurred (on
the balance of probability, ie the action of the doctor or nurse was more than 50% likely
to have caused the harm).
 The Claimant's loss is then assessed in terms of quantum (loss of current and
future earnings, reduced quality of life, mental anguish) and the recompense is money -
nothing more and nothing less.

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VIII. CASE BRIEFS

1. Marshall v. Curry (1933)

C operated on M to cure a hernia. During the operation, C found problems with M’s left
testicle and decided to remove it to save him. M sued C in battery for removing the
testicle.

Issue(s): Did the surgeon act without consent?

Ratio:  In a medical emergency where it is impossible to obtain a person's consent,

health care professionals may intervene to save that person's life.

Analysis: 

Per Chisholm CJ, there are rules governing consent to medical treatment:
→ 1. Where consent can be obtained, it must be obtained;
→ 2. Such consent can be expressed or implied;
→ 3. Consent can be implied from conversations before surgery or from preceding
circumstances

But in a medical emergency when it is impossible to obtain consent, surgeons can

intervene to save a person’s life. C should not be held liable for carrying out the
procedure.

Holding:  Decision in favour of C

 This is an action for damages for negligence and assault in the course of a
surgical operation. The judgment, rendered by Chisholm, C. J., in the Nova Scotia
Supreme Court, is one of the most important in recent years upon the legal
responsibility of the surgeon. Here is discussed in detail, with references to the
jurisprudence, the duty of a surgeon who when operating for one condition discovers
another which he had not foreseen, but which in his opinion endangers the health or the
life of the patient.

 The plaintiff alleged that he had employed the defendant to perform an

operation for the cure of a hernia, and that, while doing so, and while the plaintiff was
under the influence of an anaesthetic, the defendant without his knowledge or consent
removed the plaintiff's left testicle. Further it was alleged that the defendant was
negligent in diagnosing the case, and in not informing the plaintiff that it might be
necessary in treating the hernia to remove the testicle, and finally that in removing the
testicle in these circumstances the defendant had committed an assault upon the
plaintiff. As a question of fact the Court found that there had been no express consent
by the plaintiff to the removal complained of, that there had been no implied consent in

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the conversations that took place between the plaintiff and the defendant before the
operation, and, finally, that the extended operation was necessary for the health and in
the opinion of the defendant reasonably necessary to preserve the plaintiff's life. In
these circumstances was the defendant surgeon responsible for the consequences of the
extended operation or was he justified in performing it? "It seems to me," said the
Court, "that that justification must be found either in an assent implied by the
circumstances which arose or in some other principle-broader than and outside of any
consent-founded on philanthropic or humanitarian considerations."

 Quoting an American case, the Court laid it down as a general principle of law
that "ordinarily, where the patient is in full possession of all his mental faculties and in
such physical health as to be able to consult about his condition without the consultation
being fraught with dangerous consequences to the patient's health, and when no
emergency exists making it impracticable to confer with him, it is manifest that his
consent should be a prerequisite to a surgical operation". In other words under a free
government the first right of a citizen is the right to the inviolability of his person, and
the necessary consequence of this right is that a surgeon who has been asked to
examine, diagnose, advise, and prescribe for his patient cannot without the patient's
permission violate his bodily integrity by a major or capital operation, placing him
under an anaesthetic for that purpose, and operating upon him without his consent or
knowledge. It is the right of every one to determine what shall be done with his own
body. Practical considerations, however, require that this rule should not be applied too
strictly. If a person should be injured and rendered unconscious, and his injuries are of
such a nature as to require prompt surgical attention, a medical man would be justified
in applying such medical or surgical treatment as might reasonably be necessary for the
preservation of his life or limb, without his express consent. Again, if in the course of
an operation to which the patient had consented, the medical man should discover
conditions not anticipated before the operation was commenced, and which, if not
removed, would endanger the life or health of the patient, he would be justified in
extending the operation to remove or overcome them, though no express consent to the
extension could be given in the nature of things. In such an emergency the surgeon
would not be responsible unless the patient had expressly forbidden any extension of
the operation.

 The juridical basis for holding the surgeon blameless in such cases is sometimes
said to be the implied consent that the patient is presumed to have given, sometimes that
the operating surgeon is the representative of the patient to give consent. To this the
Court said, with much reason,” I am unable to see the force of the opinion, that in cases
of emergency, where the patient agrees to a particular operation, and in the prosecution
of the operation, a condition is found calling in the patient's interest for a different
operation, the patient is said to have made the surgeon his representative to give
consent. There is unreality about that view. The idea of appointing such a
representative, the necessity for it, the existence of a condition calling for a different

Page Number: [30]

operation, are entirely absent from the minds of both patient and surgeon. The will of
the patient is not exercised on the point. There is, in reality, no such appointment. I
think it is better, instead of resorting to a fiction, to put consent altogether out of the
case, where a great emergency which eould not be anticipated arises, and to rule that it
is the surgeon's duty to act in order to save the life or preserve the health of the patient,
and that in the honest execution of that duty he should not be exposed to legal liability."

 The Court came to the conclusion that the defendant, after he had commenced
the operation, discovered conditions that neither he nor the patient had anticipated and
which could not have been reasonably foreseen, and that in extending the operation the
defendant acted in the interest of his patient and for the protection of his health and
possibly his life. "The removal I find was in that sense necessary, and it would be
unreasonable to postpone the removal to a later date". For this reason, as well as on the
ground that the action was barred under the Statute of Limitations, the action was
dismissed.

5. Associated Provincial Picture Hourses Ltd. v. Wednesbury Corporation

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223

is an English law case that sets out the standard of unreasonableness of public-body
decisions that would make them liable to be quashed on judicial review, known as
Wednesbury unreasonableness. The court gave three conditions on which it would
intervene to correct a bad administrative decision, including on grounds of its
unreasonableness in the special sense later articulated in Council of Civil Service
Unions v Minister for the Civil Service by Lord Diplock: So outrageous in its defiance
of logic or accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it.

6. Murray v. McMurchy

 In Murray v McMurchy [18] while the surgeon was performing a caesarean

section, he believed that tying the fallopian tubes would be in the patient's best interests,
as going through another pregnancy would be hazardous. The need for the procedure to
be taken could be for good intention but there was no urgency and it could have been
postponed to acquire consent; the court held the surgeon for an act of battery.

Facts: Woman goes in for Cesarian. Doctor, while doing operation finds out that she has
tumour, and ties off her fallopian tubes. Doctor performed procedure with no consent,
and situation was not an emergency. Ratio: If it is an not a medical emergency, doctors
must leave decisions to the patient. Analysis: She should have been informed about the
tumour post-Cesearian, but to immediately tie off fallopian tubes is not appropriate.

7. Bolam v. Friern Hospital Management Committee

Page Number: [31]

 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an
English tort law case that lays down the typical rule for assessing the appropriate
standard of reasonable care in negligence cases involving skilled professionals (e.g.
doctors): the Bolam test. Where the defendant has represented him or herself as having
more than average skills and abilities, this test expects standards which must be in
accordance with a responsible body of opinion, even if others differ in opinion. In other
words, the Bolam test states that “If a doctor reaches the standard of a responsible
body of medical opinion, he is not negligent”

 Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution

run by the Friern Hospital Management Committee. He agreed to undergo electro-
convulsive therapy. He was not given any muscle relaxant, and his body was not
restrained during the procedure. He flailed about violently before the procedure was
stopped, and he suffered some serious injuries, including fractures of the acetabula. He
sued the Committee for compensation. He argued they were negligent for (1) not
issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

 It is important to note that at this time juries were still being used for tort cases
in England and Wales, so the judge's role would be to sum up the law and then leave it
for the jury to hold the defendant liable or not.
 McNair J at the first instance noted that expert witnesses had confirmed, much
medical opinion was opposed to the use of relaxant drugs, and that manual restraints
could sometimes increase the risk of fracture. Moreover, it was the common practice of
the profession to not warn patients of the risk of treatment (when it is small) unless they
are asked. He held that what was common practice in a particular profession was highly
relevant to the standard of care required. A person falls below the appropriate standard,
and is negligent, if he fails to do what a reasonable person would in the circumstances.
But when a person professes to have professional skills, as doctors do, the standard of
care must be higher. "It is just a question of expression," said McNair J.

 "I myself would prefer to put it this way, that he is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by a responsible body of
medical men skilled in that particular art. I do not think there is much difference in
sense. It is just a different way of expressing the same thought. Putting it the other way
round, a man is not negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion who would take a contrary view. At the same time,
that does not mean that a medical man can obstinately and pig-headedly carry on with
some old technique if it has been proved to be contrary to what is really substantially
the whole of informed medical opinion. Otherwise you might get men today saying: "I
do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to
do my surgery in the way it was done in the eighteenth century." That clearly would be
wrong."[1]

Page Number: [32]

 In this case, the jury delivered a verdict in favour of the defendant hospital.
Given the general medical opinions about what was acceptable electro-shock practice,
they had not been negligent in the way they carried out the treatment. That passage is
quoted very frequently, and has served as the basic rule for professional negligence over
the last fifty years.

 Facts: The defendant was the body who employed a doctor who had not given a
mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to
giving them electro-convulsive therapy. The claimant suffered injuries during the
procedure. The claimant sued the defendant, claiming the doctor was negligent for not
restraining them or giving them the drug.
 Issue: Establishing the tort of negligence involves establishing that the
defendant breached their duty of care to the claimant. To establish breach, the claimant
must establish that the defendant failed to act as a reasonable person would in their
position. This standard is higher in the case of professionals: they must act as a
reasonable professional would. The issue in this case was how to assess the standard of
care imposed on a professional defendant where a substantial portion of professionals
opposed a particular practice, while others did not.
 Held: The High Court held that the doctor had not breached his duty to the
patient, and so the defendant was not liable. McNair J set out the test for determining
the standard of care owed by medical professionals to their patients (sometimes referred
to as the ‘Bolam test’). The professional will not be in breach of their duty of care if
they acted in a manner which was in accordance with practices accepted as proper by a
responsible body of other medical professionals with expertise in that particular area. If
this is established, it does not matter that there are others with expertise who would
disagree with the practice. As the methods used in this case were approved of by a
responsible portion of the medical profession, there was no breach.
 The standard to be applied is not that of a most astute doctor or necessarily that
of a professor of general practice, but that of an ordinary and competent GP acting
responsibly
 In the case of Gregg vs Scott brought to the House of Lords in 2002, it was
established that a patient must prove that a doctor's action, or lack of it, caused the
patient to suffer injury and not just the chance of avoiding an injury. In practical terms
this means that a doctor failing to diagnose a case of cancer in which a patient has only
a 25% chance of survival would not be found negligent. Only if the chance of survival
was over 50%, ie a probability of a cure rather than a chance of a cure, would
negligence be found.

8. Griswold v. Connecticut

 Griswold v. Connecticut, 381 U.S. 479 (1965),[1] is a landmark case in the

United States in which the Supreme Court of the United States ruled that the
Constitution, through the Bill of Rights, implies a fundamental right to privacy. The
case involved a Connecticut"Comstock law" that prohibited any person from using "any

Page Number: [33]

drug, medicinal article or instrument for the purpose of preventing conception." By a
vote of 7–2, the Supreme Court invalidated the law on the grounds that it violated the
"right to marital privacy", establishing the basis for the right to privacy with respect to
intimate practices.

9. Roe v. Wade

 The reasoning and language of both Griswold and Eisenstadt were cited in the
concurring opinion by Associate Justice Potter Stewart in support of Roe v. Wade, 410
U.S. 113 (1973).[14] The decision in Roe struck down a Texas law that criminalized
aiding a woman in getting an abortion.[15] The Court ruled that this law was a violation
of the Due Process Clause of the Fourteenth Amendment. Abortion became legalized
for any woman for any reason, up through the first trimester, with possible restrictions
for maternal health in the second trimester (the midpoint of which is the approximate
time of fetal viability). In the third trimester of pregnancy, abortion is potentially illegal
with exception for the mother's health, which the court defined broadly in Doe v.
Bolton.
 Roe v. Wade, legal case in which the U.S. Supreme Court on January 22, 1973,
ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a
majority opinion written by Justice Harry A. Blackmun, the court held that a set of
Texas statutes criminalizing abortion in most instances violated a woman’s
constitutional right of privacy, which it found to be implicit in the liberty guarantee of
the due process clause of the Fourteenth Amendment (“…nor shall any state deprive
any person of life, liberty, or property, without due process of law”).

 The case began in 1970 when “Jane Roe”—a fictional name used to protect the
identity of the plaintiff, Norma McCorvey—instituted federal action against Henry
Wade, the district attorney of Dallas county, Texas, where Roe resided. The Supreme
Court disagreed with Roe’s assertion of an absolute right to terminate pregnancy in any
way and at any time and attempted to balance a woman’s right of privacy with a state’s
interest in regulating abortion. In his opinion, Blackmun noted that only a “compelling
state interest” justifies regulations limiting “fundamental rights” such as privacy and
that legislators must therefore draw statutes narrowly “to express only the legitimate
state interests at stake.” The court then attempted to balance the state’s distinct
compelling interests in the health of pregnant women and in the potential life of fetuses.
It placed the point after which a state’s compelling interest in the pregnant woman’s
health would allow it to regulate abortion “at approximately the end of the first
trimester” of pregnancy. With regard to the fetus, the court located that point at
“capability of meaningful life outside the mother’s womb,” or viability.

10. Reibl v. Hughes

Page Number: [34]

 Reibl v Hughes [1980] 2 S.C.R. 880 is a leading decision of the Supreme Court
of Canada on negligence, medical malpractice, informed consent, the duty to warn, and
causation.

 The case settled the issue of when a physician may be sued for battery and when
it is more appropriate to sue the doctor in negligence. The Court wrote unanimously
that "unless there has been misrepresentation or fraud to secure consent to the treatment,
a failure to disclose the attendant risks, however serious, should go to negligence rather
than to battery." The case also marked the creation of a standard whereby a physician
must give the patient sufficient information so that an objective, reasonable person in
the patient's position would be able to make an informed choice about a medical
procedur

Background[edit]
Robert A. Hughes, a physician, was in the process of competently performing an
endarterectomy on his patient, John Reibl, when Reibl suffered a massive stroke.
Paralysis and impotence resulted. Reibl alleged that he had not truly given informed
consent, and as such the surgery constituted battery.[1] Although Reibl was aware that
the surgery was not without risks, he felt that Hughes had implied that the risks of not
having the surgery were greater. Reibl was eighteen months away from obtaining a
lifetime pension, and the stroke prevented him from earning that pension. He stated that
if he had been aware of the risks in the surgery, he would have waited the year and a
half to earn his pension before undergoing the procedure, even if it meant a shortened
life.

In the original trial, Reibl was awarded monetary damages for negligence and battery,
irrespective of his having signed a formal consent form. On appeal to the Ontario Court
of Appeal, the court directed that a new trial be held, but that the charge of battery be
disallowed from the new proceedings.

Ruling[edit]
It is a general principle in tort law that a defendant is not liable for damages unless their
negligence was the cause of the injury to the plaintiff.

In the context of a medical malpractice claim where it is alleged the doctor failed to
inform the patient of a risk, the doctor will not be held liable if the patient would have
had the procedure anyway (even if they knew of the risk).

Reibl v. Hughes the Supreme Court outlined a "modified objective test" for causation in
medical malpractice. It is well established in Canadian law that a doctor cannot be sued
for not disclosing information if the patient would have consented to the operation
irrespective of whether or not the information was disclosed.

Page Number: [35]

 Consider this example: your doctor knows that a surgery has a 5% chance of causing
complete paralysis but does not tell you. Without the operation, however, you will very
likely die within 12 months.

The court looked at two approaches: an objective test ("what would a reasonable person
do?") and a subjective ("what would this plaintiff have done?"). There was concern that
an objective test favors the doctor while a subjective test favors the plaintiff.

In an objective test, the Court would accept medical evidence that the chance of
paralysis was 5% and the chance of death was high. A reasonable person, thinking
rationally, would take the risk of paralysis over death.

If it were a subjective test, the Court would ask the plaintiff. Logically, the plaintiff,
who is paralysed will say "no." Logically, if the plaintiff said they would have had the
operation anyway, they would not be suing the doctor.

In Reibl, The Court created a "modified objective test" which starts with the
"reasonable person" and adds some of the characteristics of the plaintiff, such as age,
sex, and family circumstances but will not allow "irrational beliefs" to be taken into
account.

The test has been frequently used to determine many medical malpractice and
negligence cases, including Arndt v. Smith.[2]

How specific must the information about the risks of a medical procedure be to enable
a person to make an informed choice between surgery and no surgery?

Facts Edit
Reibl underwent surgery for the removal of an occlusion in the left internal carotid
artery. Hughes, the surgeon, performed the surgery properly, however either during or
immediately after the surgery the plaintiff had a massive stroke that left him paralyzed
on the right side of his body and impotent. Prior to the surgery the respondent did not
inform the appellant specifically about the risk of stroke. The appellant consented to the
surgery. He only had 1.6 years left at his job before he was eligible for his pension and
extended disability benefits. Reibl was successful at trial and recovered $225,000;
however a new trial was awarded upon appeal.

1. Issue Edit
How specific must the information about the risks of a medical procedure be to enable a
person to make an informed choice between surgery and no surgery?

2. Reasons Edit
Laskin, writing for a unanimous court, agrees with the trial judge that Hughes did not
properly inform Reibl of the risks involved. He holds that you must inform a patient

Page Number: [36]

 about all potential material risks, and specifically if there is any chance of death or
paralysis it should be discussed even if the chances are very small. In the case at bar the
chances of having a stroke were about 1 in 10. The doctor told the appellant that he
would be better off having the surgery (it was not an emergency), but this is the extent
of the information provided. Reibl believed that the surgery would correct his
headaches and allow him to work better, but the doctor did not guarantee this.
 Even with this finding, however, Laskin states that the doctor is not liable for
battery. Actions for battery in respect to surgery or other medical procedures should be
limited to circumstances where consent has not been given for the particular procedure.
This was a breach of the duty of care; there is no invalidity to the consent given.
 Laskin holds that the Ontario Court of Appeal gave too much deference to
doctors. Although medical information is necessary and very helpful in determining if
sufficient information was given, it is not determinative. Medical information does not
determine whether there has been a breach the duty of care. The test is whether a
reasonable person in the appellant's shoes would have elected to have the surgery or not
when the proper information was known (an objective test). In the case at bar the court
must also consider Reibl's work situation. The court finds that a reasonable person
would have delayed the surgery if they had known all of the information. Causation is
satisfied as with the proper information the plaintiff would not have had the surgery or
the resulting stroke.

3. Ratio Edit
 Doctors must inform their patients of all material risks before the patient can give
informed consent. This includes a discussion of any possible serious outcomes such as
death or paralysis, even if they are very remote.
 The test to see if enough information has been given is to objectively ask: would a
reasonable person in the plaintiff's shoes decide to have the surgery or not if they were
given all of the information? Is this different than the answer with only the amount of
information that was given?

11. Sideway v. Board of Governers

 Facts: The claimant suffered from pain in her neck, right shoulder, and arms.
Her neurosurgeon took her consent for cervical cord decompression, but did not include
in his explanation the fact that in less than 1% of the cases, the said decompression
caused paraplegia. She developed paraplegia after the spinal operation. This Will come
up in the UCL SBA.

 Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871

is an important House of Lords case in English tort law, specifically medical
negligence, concerning the duty of a surgeon to inform a patient of the risks before
undergoing an operation.

Page Number: [37]

 Rejecting her claim for damages, the court held that consent did not require an
elaborate explanation of remote side effects. In dissent, Lord Scarman said that the
Bolam test should not apply to the issue of informed consent and that a doctor should
have a duty to tell the patient of the inherent and material risk of the treatment
proposed.

 Lord Diplock stated "we are concerned here with volunteering unsought
information about risks of the proposed treatment failing to achieve the result sought or
making the patient’s physical or mental condition worse rather than better. The only
effect that mention of risks can have on the patient’s mind, if it has any at all, can be in
the direction of deterring the patient from undergoing the treatment which in the expert
opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the
existence of which a patient should be voluntarily warned and the terms in which such
warning, if any, should be given, having regard to the effect that the warning may have,
is as much an exercise of professional skill and judgment as any other part of the
doctor’s comprehensive duty of care to the individual patient, and expert medical
evidence on this matter should be treated in just the same way. The Bolam test should
be applied.’ and ‘a doctor’s duty of care, whether he be general practitioner or
consulting surgeon or physician is owed to that patient and none other, idiosyncrasies
and all.’ .’[1]
 The Bolam principle may be formulated as a rule that a doctor is not negligent if
he acts in accordance with a practice accepted at the time as proper by a responsible
body of medical opinion even though other doctors adopt a different practice. In short,
the law imposes the duty of care: but the standard of care is a matter of medical
judgement.

 The patient was suffering from neck pain. Remedy of neck pain inevitably
involved a 1-2% risk of spinal cord injury. Here, the patient was not warned of the risk
and hence she became severely disabled. She brought an action for negligence.
 England's appellate court upheld a ruling that a surgeon who had performed an
operation resulting in severe spinal cord damage, without having advised the patient of
the risk of such an occurrence, was not liable. The physician's duty of care is discharged
by revealing enough information to enable the patient to make a rational decision, with
the extent of disclosure to be based on accepted medical practice. The judges rejected,
as not in accord with English law, the American doctrine of informed consent based on
the patient's right to disclosure of all material risks of significance to a "prudent
patient."

12. Gillick v. West Norfolk

 Gillick competence is a term originating in England and is used in medical law

to decide whether a child (under 16 years of age) is able to consent to his or her own
medical treatment, without the need for parental permission or knowledge. The standard

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is based on the 1985 decision of the House of Lords in Gillick v West Norfolk and
Wisbech Area Health Authority

 The Gillick case involved a health departmental circular advising doctors on the
contraception of minors (for this purpose, under sixteens). The circular stated that the
prescription of contraception was a matter for the doctor's discretion and that they could
be prescribed to under sixteens without parental consent. This matter was litigated
because an activist, Victoria Gillick (née Gudgeon), ran an active campaign against the
policy. Gillick sought a declaration that prescribing contraception was illegal because
the doctor would commit an offence of encouraging sex with a minor and that it would
be treatment without consent as consent vested in the parent.[4]

 The issue before the House of Lords was only whether the minor involved could
give consent. "Consent" here was considered in the broad sense of consent to battery or
assault: in the absence of patient consent to treatment, a doctor, even if well-
intentioned, might be sued/charged.

 The House of Lords focused on the issue of consent rather than a notion of
'parental rights' or parental powers. In fact, the court held that 'parental rights' did not
exist, other than to safeguard the best interests of a minor. The majority held that in
some circumstances a minor could consent to treatment, and that in these circumstances
a parent had no power to veto treatment.[5]

 Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge
agreed with both). Lord Scarman's test is generally considered to be the test of 'Gillick
competency'. He required that a child could consent if he or she fully understood the
medical treatment that is proposed:

 As a matter of Law the parental right to determine whether or not their minor
child below the age of sixteen will have medical treatment terminates if and when the
child achieves sufficient understanding and intelligence to understand fully what is
proposed.

— Lord Scarman[1]

The ruling holds particularly significant implications for the legal rights of minor
children in England in that it is broader in scope than merely medical consent. It lays
down that the authority of parents to make decisions for their minor children is not
absolute, but diminishes with the child's evolving maturity. The result of Gillick is that
in England today, except in situations that are regulated otherwise by law, the legal
right to make a decision on any particular matter concerning the child shifts from the
parent to the child when the child reaches sufficient maturity to be capable of making
up his or her own mind on the matter requiring decision.

Page Number: [39]

13. F v. West Berkshire

Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important
English tort law case, on the standard of care required by medical specialists. It follows
the Bolam test for professional negligence, and addresses the interaction with the
concept of causation.

14. Re F (Mental patient sterilisation) [1990] 2 AC 1

F was a 36 year old woman. She had a serious mental disability caused by an infection
when she was a baby. She had been a voluntary in patient in a mental hospital since the
age of 14. She had the verbal capacity of a child of two and the mental capacity of a
child of 4. She developed a sexual relationship with a fellow patient. Her mother and
medical staff at the hospital were concerned that she would not cope with pregnancy
and child birth and would not be able to raise a child herself. Other methods of
contraceptives were not practical for her. They sought a declaration that it would be
lawful for her to be sterilised. F was incapable of giving valid consent since she did not
appreciate the implications of the operation.

Held:

The declaration was granted. It would be lawful for the doctors to operate without her
consent.

Lord Goff:

"It is well established that, as a general rule, the performance of a medical operation
upon a person without his or her consent is unlawful, as constituting both the crime of
battery and the tort of trespass to the person. Furthermore, before Scott Baker J. and the
Court of Appeal, it was common ground between the parties that there was no power in
the court to give consent on behalf of F. to the proposed operation of sterilisation, or to
dispense with the need for such consent…. If such treatment administered without
consent is not to be unlawful, it has to be justified on some other principle. Upon what
principle can medical treatment be justified when given without consent? We are
searching for a principle upon which, in limited circumstances, recognition may be
given to a need, in the interests of the patient, that treatment should be given to him in
circumstances where he is (temporarily or permanently) disabled from consenting to it.
It is this criterion of a need which points to the principle of necessity as providing
justification."

Page Number: [40]

Where a patient lacks capacity, there is the power to provide him with whatever
treatment or care is necessary in his own best interests. Medical treatment can be
undertaken in an emergency even if, through a lack of capacity, no consent had been
competently given, provided the treatment was a necessity and did no more than was
reasonably required in the best interests of the patient.
The parent of a mentally-disabled adult had no power at common law to consent to a
medical operation on her behalf).
Lord Brandon said: ‘The application of the principle which I have described means that
the lawfulness of a doctor operating on, or giving other treatment to, an adult patient
disabled from giving consent, will depend not on any approval or sanction of a court,
but on the question whether the operation or other treatment is in the best interests of
the patient concerned. That is, from a practical point of view, just as well, for, if every
operation to be performed, or other treatment to be given, required the approval or
sanction of the court, the whole process of medical care for such patients would grind to
a halt.’ and ‘although in the case of an operation of the kind under discussion
involvement of the court is not strictly necessary as a matter of law, it is nevertheless
highly desirable as a matter of good practice.’ and
‘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.’
Lord Goff of Chieveley: ‘every person’s body is inviolate.’ Lord Goff discussed the
doctrine of necessity within the context of the law of tort: ‘That there exists in the
common law a principle of necessity which may justify action which would otherwise
be unlawful is not in doubt. But historically the principle has been seen to be restricted
to two groups of cases, which have been called cases of public necessity and cases of
private necessity. The former occurred when a man interfered with another man’s
property in the public interest – for example (in the days before we would dial 999 for
the fire brigade) the destruction of another man’s house to prevent the spread of
catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter
cases occurred when a man interfered with another’s property to save his own person or
property from imminent danger – for example, when he entered upon his neighbour’s
land without his consent, in order to prevent the spread of fire onto his own land.’
As to the court’s jurisdiction to make declaratory judgments: ‘indeed there is authority
in the English cases that a declaration will not be granted where the question under
consideration is not a real question, nor where the person seeking the declaration has no
real interest in it, nor where the declaration is sought without proper argument . . . In the
present case, however, none of these objections exists. Here the declaration sought does
indeed raise a real question; it is far from being hypothetical or academic. The plaintiff
has a proper interest in the outcome, so that it can properly be said that she is seeking
relief . . . The matter has been fully argued in court . . . I wish to add that no question

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arises in the present case regarding future rights: the declaration asked relates to the
plaintiff’s position as matters stand at present.

15. R v. Cox

 When, for example, in 1991, Nigel Cox, a rheumatologist, administered

potassium chloride, a lethal substance with no analgesic or therapeutic effect, to a
terminally ill woman of 70, he was tried and convicted of attempted murder 5. Like
Moor, he argued that he had been motivated solely by a desire to end the patient's
suffering. However, his choice of drug meant that death had been a primary rather than
an incidental consequence of his actions. Both Cox and Moor were victims of their own
integrity. Cox wrote what he had done in the patient's notes, while Moor made no secret
of his role in bringing about pain-free and comfortable deaths.

16. Planned Parenthood v Casey

17. R v. W

The English Court of Appeal, Civil Division, exercised its unlimited inherent
jurisdiction over minors, and ordered that a 16-year-old girl suffering from anorexia
nervosa be transferred against her will from an adolescent residential unit to a hospital
specializing in eating disorders. Although the girl had sufficient intelligence and
understanding to make informed decisions, the special hospital was in the girl's best
interest. The court emphasized that, because a unique characteristic of anorexia nervosa
is that the patient desires not to be cured, adhering to the minor's wishes in this case
could lead to her death or severe permanent injury. The court explained that treatment
of an anorexic patient must consider state of mind, as well as body weight. The court
further held that the 1969 Family Law Reform Act is inapplicable to the issue of
whether a 16-year-old minor has the absolute right to refuse medical treatment.

18. Airedale NHS Trust v Bland

 Tony Bland was a young supporter of Liverpool F.C. who was caught in the
Hillsborough crush which reduced him to a persistent vegetative state. He had been in
this state for three years and was being kept alive on life support machines. His brain
stem was still functioning, which controlled his heartbeat, breathing and digestion, so
technically he was still alive. However, he was not conscious and had no hope of
recovery. The hospital with the consent of his parents applied for a declaration that it
might lawfully discontinue all life-sustaining treatment and medical support measures
designed to keep him alive in that state, including the termination of ventilation,
nutrition and hydration by artificial means.

Held: The declaration was granted.

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 The court recognised there was the intention was to cause death. Lord goff
stated to actively to bring a patient's life to an end is:- "to cross the Rubicon which runs
between on the one hand the care of the living patient and on the other hand euthanasia
- actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at
common law": per Lord Goff at p. 865 F.

 Withdrawal of treatment was, however, properly to be characterised as an

omission. An omission to act would nonetheless be culpable if there was a duty to act.
There was no duty to treat if treatment was not in the best interests of the patient. Since
there was no prospect of the treatment improving his condition the treatment was futile
and there was no interest for Tony Bland in continuing the process of artificially
feeding him upon which the prolongation of his life depends

19. Gian Kaur v. State of Punjab

 he question of suicide is a controversial one, both in the legal as well as ethical

sphere. Whether suicide is in consonance with the constitution is a matter widely
debated. It first came to light in the case of P. Rathinam v Union of India wherein
suicide was adjudged to be permissible and acceptable. This judgement was overruled
in the case of GianKaur v. State of Punjab. These judgements are based on different
interpretations of Article 21 of the Constitution of India (COI) which deals with ‘Right
to Life and Personal Liberty’. They also seek to determine the legality of Section 306 of
the Indian Penal Code (IPC) which punishes abettors to suicide and Section 309 of the
IPC which punishes the person who attempted suicide.
 OUTLINE
 In GianKaur’s case, GianKaur and her husband Harbans Singh had been
charged for abetting suicide of their daughter-in-law Kulwant Singh. They had
fearlessly poured kerosene on her and they had a clear intention to see her dead. This
was challenged by the Trial Court. On appeal it came before the High Court.
 STAND OF THE PROSECUTION
 The prosecution referred to P. Rathinam’s case to justify their actions. They held
that criminalising commission or abetment of suicide (Secions 309 and 306 of IPC)
would be a cruel and unreasonable act. A person who has committed suicide since he is
suffering from a sever grievance is made to further suffer if he fails in his attempt to do
so. Beside, suicide is a personal choice. It does not have any religious, moral or social
consequences. It does not affect another person’s liberty and does not cause harm to
another person. So there is no reason it must be declared illegal. Moreover it was
contended that since ‘freedom of speech and expression’ included freedom not to speak
or ‘freedom to carry out any business’ included freedom not to do business, similarly
‘right to life’ under Article 21 of COI automatically includes the right to die. This
implies that the provisions of Sections 306 and 309 are unconstitutional as they deprive
a person from exercising his constitutional right to die. It was argued that the ambit of
‘right to live’ must be widened from including a merely ‘animal existence’ to a ‘right to
live with dignity’.

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 STAND OF THE DEFENCE
 They distinguished between the ‘right to die’ and the ‘right to die with dignity’.
The former implies that the death is unnatural whereas the latter implies the right to live
with dignity until the natural span of one’s life. Thus ‘right to life’ under Article 21 of
COI does not include ‘right to die’. Sections 306 and 309 of the IPC are in tune with the
constitution.
 RATIO DECIDENDI
 Whether provisions of Section 306 of the IPC are in violation of the COI and
whether the provisions of Article 309 are in violation of Articles 14 and 21 of the COI.
 JUDGEMENT
 The High Court upheld the judgement of the Trial Court and thereby rejected
the appeal. Since the act of committing suicide is itself illegal, the act of abetting
suicide is also automatically a punishable offence. Thus GianKaur and her husband
were sentenced to six years’ imprisonment and fine of Rs. 2000 each.

20. Bolitho v. City

21. St. George’s Healthcare NHS Trust v. S (?)

 The patient came to hospital pregnant. The doctors advised a caesarian section
but she refused it. The doctors said that she lacked capacity and applied to the court for
leave to proceed. Held: It was wrong to apply to the court to override the will of a
patient with full capacity. Capacity is not necessarily lost if a patient is committed
under the Mental Health Act. Advance Directives are to be heeded. Patients without
mental capacity are to be treated according to the medical views of the doctors. The
court gave guidelines on the procedures to be followed.

22. Aruna Ramchandra Shanbaug v. UoI

 The Hon’ble Supreme Court of India, in the present matter, was approached
under Article 32 of the Indian Constitution to allow for the termination of the life of
Aruna Ramchandra Shanbaug, who was in a permanent vegetative state. The petition
was filed by Ms. Pinki Virani, claiming to be the next friend of the petitioner. The
Court in earlier cases has clearly denied the right to die and thus legally, there was no
fundamental right violation that would enable the petitioner to approach the court under
Article 32. Nonetheless, the Supreme Court taking cognizance of the gravity of the
matter involved and the allied public interest in deciding about the legality of
euthanasia accepted the petition.
 Facts: It was stated that the petitioner Aruna Ramachandra Shanbaug was a staff
Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of
27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog
chain around her neck and yanked her back with it. He tried to rape her but finding that
she was menstruating, he sodomized her. To immobilize her during this act he twisted

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the chain around her neck. The next day, a cleaner found her in an unconscious
condition lying on the floor with blood all over. It was alleged that due to strangulation
by the dog chain the supply of oxygen to the brain stopped and the brain got damaged.

 Thirty six years had lapsed since the said incident. She had been surviving on
mashed food and could not move her hands or legs. It wass alleged that there is no
possibility of any improvement in the condition and that she was entirely dependent on
KEM Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna
and let her die in peace.
 The respondents, KEM Hospital and Bombay Municipal Corporation  filed a
counter petition. Since, there were disparities in the petitions filed by the petitioner and
respondents, the court decided to appoint a team of three eminent doctors to investigate
and report on the exact physical and mental conditions of Aruna Shanbaug.
 They studied Aruna Shanbaug’s medical history in detail and opined that she is
not brain dead. She reacts to certain situations in her own way. For example, she likes
light, devotional music and prefers fish soups. She is uncomfortable if a lot of people
are in the room and she gets distraught. She is calm when there are fewer people around
her. The staff of KEM Hospital was taking sufficient care of her. She was kept clean all
the time . Also, they did not find any suggestion from the body language of Aruna as to
the willingness to terminate her life. Further, the nursing staff at KEM Hospital was
more than willing to take care of her. Thus, the doctors opined that that euthanasia in
the instant matter is not necessary.

ISSUES RAISED

 When a person is in a permanent vegetative state (PVS), should withholding or

withdrawal of life sustaining therapies be permissible or `not unlawful’?
 If the patient has previously expressed a wish not to have life-sustaining
treatments in case of futile care or a PVS, should his/ her wishes be respected when the
situation arises?
 In case a person has not previously expressed such a wish, if his family or next
of kin makes a request to withhold or withdraw futile life-sustaining treatments, should
their wishes be respected?

Introduction to Euthanasia

 To be able to adjudicate upon the aforementioned issues, the court explained as

to what is euthanasia. Euthanasia or mercy killing is of two types: active and passive.
Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a
lethal injection given to a person with terminal cancer who is in terrible agony. Passive
euthanasia entails withholding of medical treatment for continuance of life, e.g.
withholding of antibiotics where without giving it a patient is likely to die, or removing
the heart lung machine, from a patient in coma.

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 A further categorization of euthanasia is between voluntary euthanasia and non-
voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the
patient, whereas non-voluntary euthanasia is where the consent is unavailable e.g. when
the patient is in coma, or is otherwise unable to give consent. While there is no legal
difficulty in case of the former, the latter poses several problems. The present case dealt
with passive non-voluntray euthanasia.

Precedents

In the case of State of Maharashtra v. Maruty Shripati Dubal,[i] the contention was that
Section 309 of the Indian Penal Code was unconstitutional as it is violative of Article
19 and 21. It was held in this case by the Bombay high court that ‘right to life’ also
includes ‘right to die’ and section 309 was struck down. The court clearly said in this
case that right to die is not unnatural; it is just uncommon and abnormal. In the case of
P.Rathinam v. Union of India,[ii] it was held that the scope of Article 21 includes the
‘right to die’. P. Rathinam held that Article 21 has also a positive content and is not
merely negative in its reach. In the case of Gian Kaur v. State of Punjab,[iii]the validity
of Section 306 of the IPC was in question, which penalised the abetment of suicide.
This case overruled P.Rathinam but the court opined that in the context of a terminally
ill patient or one in the PVS, the right to die is not termination of life prematurely but
rather accelerating the process of death which has already commenced.[iv] Further, it
was also submitted that the right to live with human dignity[v] must also include a
death with dignity and not one of subsisting mental and physical agony.

Reliance was placed on the landmark judgement of Airedale NHS Trust v. Bland,[vi]
where for the first time in the English history, the right to die was allowed through the
withdrawal of life support systems including food and water. This case placed the
authority to decide whether a case is fit or not for euthanasia in the hands of the Court.
Also, in the case of Mckay v. Bergsted,[vii] the Supreme Court of Navada, after due
evaluation of the state interest and the patient’s interest, upheld the permission for the
removal of respirator. However, in the instant case, Aruna could breathe by herself and
did not need any external assistance to breath and thus, distinguished from the Mckay
case.

The Hon’ble Division Bench of the Supreme Court of India, comprising Justice
Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic
judgment on March 7, 2011. The Court opined that based on the doctors’ report
and the definition of brain death under the Transplantation of Human Organs
Act, 1994, Aruna was not brain dead. She could breathe without a support
machine, had feelings and produced necessary stimulus. Though she is in a
PVS, her condition was been stable. So, terminating her life was unjustified.

Further, the right to take decision on her behalf vested with the management
and staff of KEM Hospital and not Pinki Virani. The life saving technique  was

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the mashed food, because of which she was surviving. The removal of life
saving technique in this case would have meant not feeding her. The Indian law
in no way advocated not giving food to a person. Removal of ventilators and
discontinuation of food could not be equated. Allowing of euthanasia to Aruna
would mean reversing the efforts taken by the nurses of KEM Hospital over the
years.

Moreover, in furtherance of the parens patriae principle, the Court to prevent any

misuse in the  vested the power to determine the termination of life of person in
the High Court. Thus, the Supreme Court allowed passive euthanasia in certain
conditions, subject to the approval by the High Court following the due
procedure. When an application for passive euthanasia is filed the Chief Justice
of the High Court should forthwith constitute a Bench of at least two Judges
who should decide to grant approval or not. Before doing so the Bench should
seek the opinion of a committee of three reputed doctors to be nominated by
the Bench after consulting such medical authorities/medical practitioners as it
may deem fit. Simultaneously with appointing the committee of doctors, the
High Court Bench shall also issue notice to the State and close relatives e.g.
parents, spouse, brothers/sisters etc. of the patient, and in their absence
his/her next friend, and supply a copy of the report of the doctor’s committee to
them as soon as it is available. After hearing them, the High Court bench should
give its verdict. The above procedure should be followed all over India until
Parliament makes legislation on this subject.

However, Aruna Shanbaug was denied euthanasia as the court opined that the
matter was not fit for the same. If at any time in the future, the staff of KEM
hospital or the management felt a need for the same, they could approach the
High Court under the procedure prescribed.

This case clarified the issues revolving around euthanasia and also laid down
guidelines with regard to massive euthanasia. Alongside, the court also made a
recommendation to repeal Section 309 of the Indian Penal Code. This case is a
landmark case as it prescribed the procedure to be followed in an area that has
not been legislated upon.

 On 7 March 2011, the Supreme Court, in a landmark judgement, issued a set of

broad guidelines legalizing passive euthanasia in India.[23][24] These guidelines for
passive euthanesia—i.e. the decision to withdraw treatment, nutrition, or water—
establish that the decision to discontinue life support must be taken by parents, spouse,
or other close relatives, or in the absence of them, by a "next friend". This decision
requires approval from the concerned High Court.

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 In its judgement, the court declined to recognize Virani as the "next friend" of
Aruna Shanbaug, and instead treated the KEM hospital staff as the "next friend."

 We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather,
we wish to express our appreciation of the splendid social spirit she has shown. We
have seen on the internet that she has been espousing many social causes, and we hold
her in high esteem. All that we wish to say is that however much her interest in Aruna
Shanbaug may be it cannot match the involvement of the KEM hospital staff who have
been taking care of Aruna day and night for 38 years.[25]:127-128

 Since the KEM Hospital staff wished that Aruna Shanbaug be allowed to live,
Virani's petition to withdraw life support was declined. However, the court further
stipulated that the KEM hospital staff, with the approval of the Bombay High Court,
had the option of withdrawing life support if they changed their mind:

 However, assuming that the KEM hospital staff at some future time changes its
mind, in our opinion in such a situation the KEM hospital would have to apply to the
Bombay High Court for approval of the decision to withdraw life support.[25]:128

23. Mrs. X and Ors. V. UoI

 The Petitioner No. 1- Mrs. X is about 22 years' old. She has approached this
Court under Artilce 32 of the Constitution of India seeking directions to the respondents
to allow her to undergo medical termination of her pregnancy. According to her, fetus
which is about 22 weeks old on the date of the petition has a condition knowns as
bilateral renal agenesis and anhydramnios. She apprehends that the fetus has no chance
of survival and the delievery may endanger her life. In order to verify the condition of
petitioner No. 1, this Court by order dated 03.02.2017 while issuing notice to the
respondents directed examination of the petitioner by a medical Board consisting of
following seven Doctors.
 Opinion of Pediatric Surgeon in charge of Birth Defect Clinic : There is risk of
intrauterine fetal death/ still birth and there is no chance of long term post natal
survival, and no curative treatment is available at present for bilateral rengal agenesis.
 There is thus a clear diagnosis of the condition of the single live fetus which is
said to have bialateral renal agenesis wheich means the fetus has no kidneys and
anhydramnios which means that there is an absence of amniotic fluid in the womb.
Further, there is a clear observation that there is a risk of intrauterine fetal death, i.e.
death within womb and there is no chance of a long term post natal survival. What is
important is that there is no curative treatment available at present for bilateral renal
agenesis.
 The Medical Board has opined that the condition of the fetus is incompatible
with extra-uterine life, i.e. outside the womb because prolonged absence of amniotic
fluid results in pulmonary hypoplasia leading to severe respiratory insufficiency at

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birth. From the point of view of the petitioner the report has observed risk to the mother
since continuation of pregnancy can endanger her physical and mental health.
 We have already vide order dated 16.01.2017 upheld the right of a mother to
preserve her life in view of foreseeable danger in case the pregnancy is allowed to run
its full course. This Court in that case relied upon the case of Suchita Srivastava and
Anr. vs. Chandigarh Administration [(2009) 9 SCC 1], where a bench of three Judges
held "a woman's right to make reproductive choices is also a dimension of 'personal
liberty' as understood under Article 21 of the Constitution".
 In these circumstances we find that the right of bodily integrity calls for a
permission to allow her to terminate her pregnancy.
 The report of the Medical Board clearly warrants the inference that the
continuance of the pregnancy involves the risk to the life of the petitioner and a possible
grave injury to her physical or mental health as required by Section 3 (2)(i) of the
Medical Termination of Pregnancy Act, 1971.
 It may be noted that Section 5 of the Act enables termination of pregnancy
where an opinion if formed by not less than two medical practitioners in a case where
opinion is for the termination of such pregnancy is immediately necessary to save the
life of the pregnant woman.
 Though the current pregnancy of the petitioner is about 24th weeks and
endanger to the life and inevitable to the death of the fetus outside womb, we consider it
appropriate to permit the petitioner to undergo termination of her pregnancy under the
provisions of the Medical Termination of Pregnancy Act, 1971. We order accordingly.
 The termination of pregnancy of petitioner no.1 will be performed by the
Doctors of the hospital where she has undergone medical check-up. Further,
termination of her pregnancy would be supervised by the above stated Medical Board
who shall maintain complete record of the procedure which is to be performed on
petitioner No.1 for termination of her pregnancy.
 Shri Ranjit Kumar, learned solicitor General rightly points out that the affidavit
in the present case is not sworn by petitioner No. 1 who seeks termination of her
pregnancy and is sworn by a Doctor who is petitioner No.3.
 We might note that a relator action may not be permitted in a case of this kind.
There would be various circumstances about which the Court must be assured of before
the order is made. Conceivably, in a given case petitioner No. 1 may be under some
misconception or under coercion. We do not find that to be case here because Petitioner
No. 1 has been examined by the Medical Board about her mental condition.
 In fact the Board has made a psychiatric evaluation of her and has stated that the
patient is co-operative and coherent and has no psychiatric or emotional problems.
Hence we do not propose to deny relief to petitioner No. 1. It is however, made clear
that such action must be supported by affidavits of the petitioner No. 1 herself .
Needless to state that KEM Hospital will take her consent before terminating her
pregnancy. With the aforesaid directions, the instant writ petition is allowed in terms of

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prayer (a) seeking direction to the respondents to allow petitioner no.1 to undergo
medical termination of her pregnancy.

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