No Acts & Articles mentioned in this case
2026 INSC 222 REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRA-ORDINARY APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 2238 OF 2025
IN
SPECIAL LEAVE PETITION (CIVIL) NO. 18225 OF 2024
HARISH RANA …APPLICANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENT S
J U D G M E N T
Miscellaneous Application No. 2238 of 2025 Page 1 of 286
J.B. PARDIWALA, J.:
For the convenience of exposition, this judgment is divided into the
following parts:
INDEX
(A). FACTUAL MATRIX .................................................................. 6
(B). SUBMISSIONS ON BEHALF OF THE APPLICANT .................... 15
(C). SUBMISSIONS ON BEHALF OF THE UNION OF INDIA............. 21
(D). CORE CONCEPTS UNDERLYING THE DECISION IN COMMON
CAUSE 2018 ......................................................................... 24
I. The Essential Distinction: Active and Passive Euthanasia . 27
II. Permissibility of Passive Euthanasia under Article 21 of the
Constitution of India .......................................................................... 38
(a) The unifying and omnipresent force of ‘dignity’ in the
discourse on ‘right to die with dignity’ ........................................... 39
(b) Viewing the “right to die with dignity” through the prism of
self-determination, individual autonomy and privacy. ......... 48
(c) Recognising non-voluntary passive euthanasia within the
framework of Article 21 .......................................................................... 58
(i) ‘Dignity’ as the standalone basis for the recognition of
non-voluntary passive euthanasia. ........................................ 60
(ii) Unconscious or incompetent patients and their right to
bodily integrity. .................................................................................. 74
(iii) ‘Authorized omission’ in consonance with the duty of
care of doctors .................................................................................... 79
III. Impermissibility of Active Euthanasia under Article 21 of the
Constitution of India .......................................................................... 83
IV. Establishing the Permissibility of Advanced Medical
Directives ................................................................................................ 87
Miscellaneous Application No. 2238 of 2025 Page 2 of 286
V. Procedural Framework for Passive Euthanasia ........................ 99
(E). ISSUES FOR DETERMINATION ............................................ 110
(F). ANALYSIS ........................................................................... 111
(1) Whether the administration of CANH is to be regarded as
“medical treatment”? ..................................................................... 111
(2) What is the meaning, scope, and contours of the principle of
“best interest of the patient” in determining whether medical
treatment should be withdrawn or withheld? ....................... 127
(a) Best interest of the patient in United States of America (USA)
........................................................................................................................... 131
(b) Best interest of the patient in United Kingdom (UK) .......... 156
(c) Best interest of the patient in Ireland ......................................... 197
(d) Best interest of the patient in Italy ............................................... 199
(e) Best interest of the patient in Australia ..................................... 203
(f) Best interest of the patient in New Zealand ............................. 209
(g) Best interest of the patient in European Union (EU) .......... 213
(h) Best interest of the patient in India .............................................. 214
(i) Medical considerations under the best interest principle
.................................................................................................................... 221
(ii) Non-medical considerations under the best interest
principle ................................................................................................ 224
(i) Application of the best interest principle................................... 228
(3) Whether it is in the best interest of the applicant that his life
be prolonged by continuation of medical treatment? ....... 231
(4) What are the further steps to be undertaken in the event that
a decision to withdraw or withhold medical treatment is
arrived at? ........................................................................................... 237
(5) Streamlining and contextualising the Common Cause
Guidelines ............................................................................................ 247
Miscellaneous Application No. 2238 of 2025 Page 3 of 286
I. Safeguarding Checkpoints that remove any hesitation
amongst doctors ....................................................................... 249
II. Role of the patient’s next of kin/next friend/guardian
......................................................................................................... 251
III. Bridging the procedural gap for patients who are
undertaking medical treatment in a home -setting ..... 252
IV. Nomination of registered medical practitioner by CMO
......................................................................................................... 254
V. Reconsideration Period .......................................................... 256
VI. Court Intervention ................................................................... 258
(6) Legislative inaction and the need for legislation ................. 259
I. The 196
th Law Commission Report ................................... 261
II. The decision of Aruna Shanbaug ........................................ 261
III. The 241
st Law Commission Report ................................... 262
IV. The decision of Common Cause 2018 .............................. 263
V. Draft Guidelines of 2024 ....................................................... 264
(G). CONCLUSION ...................................................................... 265
I. Summary of our discussion .................................................. 265
(a) Understanding Common Cause 2018 ............................... 265
(b) CANH is a medical treatment ................................................. 270
(c) Best Interest Principle ................................................................ 272
(d) Palliative and EOL Care ............................................................. 277
(e) Streamlining of the Common Cause Guidelines ......... 278
(f) Need for a comprehensive statutory framework .......... 280
II. The Final Order ......................................................................... 281
Miscellaneous Application No. 2238 of 2025 Page 4 of 286
“God asks no man whether
he will accept life.
That is not the choice.
You must take it.
The only choice is how.”
1. The above words of Henry Ward Beecher assume great significance
in the present case, more particularly when the courts are asked to
give their decision on the question whether an individual can
choose to accept life by preferring to die. The famous
Shakespearean dilemma of “to be or not to be”, which had so far
remained as a literary quote, is now being used for judicial
interpretation to canvass the liberty to die.
2. The present Miscellaneous Application (“MA”) has been filed by a
mentally and physically incapacitated applicant, namely, Harish
Rana, through his parents, in the captioned SLP that came to be
disposed of by this Court vide order dated 08.11.2024. By way of
the said order, this Court resolved the matter between the parties
by ensuring that adequate care and necessary treatment are
provided to the applicant, including but not limited to the provision
of home care, at the expense of the respondents.
3. The captioned SLP had arisen from the order dated 02.07.2024
passed by the High Court of Delhi in Writ Petition (C) No. 4927 of
2024, whereby the High Court had dismissed the writ petition on
the ground that the applicant was not being kept alive mechanically
and that he was able to sustain himself without any extra or
external medical aid. In the High Court’s opinion, such a condition
did not require any judicial intervention. Aggrieved by the said
Miscellaneous Application No. 2238 of 2025 Page 5 of 286
order, the applicant, through his parents, preferred the captioned
SLP.
4. While disposing of the captioned SLP, this Court had granted liberty
to the applicant to move this Court through his parents for
obtaining any further directions should it become necessary to do
so. Accordingly, owing to the applicant’s continued vegetative
existence, which violates his right to live with dignity as enshrined
under Article 21 of the Constitution of India, the parents have
moved this Court once again vide the present MA inter alia seeking:
(i) constitution and referral of the applicant’s case to the primary
medical board; and (ii) declaration that the provision of Clinically
Assisted Nutrition and Hydration (hereinafter referred to as
“CANH”) which is currently being administered to him through a
Percutaneous Endoscopic Gastrostomy tube (hereinafter referred to
as “PEG tube”) is “medical treatment”.
5. Further, the parents have also prayed that the suitability of
continuation of CANH be assessed in accordance with the ruling of
the five- judge Constitution Bench of this Court in Common Cause
v. Union of India, reported in (2018) 5 SCC 1 (hereinafter referred
to as “Common Cause 2018 ”) and the guidelines ascribed therein,
which were later modified to some extent by Common Cause v.
Union of India, reported in (2023) 14 SCC 131 (hereinafter
referred to as “Common Cause 2023”). For ease of reference, the
guidelines regarding withdrawal and withholding of medical
treatment where no Advance Medical Directive (“AMD”) exist, as laid
down in Common Cause 2018 (supra) and modified in Common
Miscellaneous Application No. 2238 of 2025 Page 6 of 286
Cause 2023 (supra), will be hereinafter referred to as “Common
Cause Guidelines”
(A). FACTUAL MATRIX
6. The applicant, presently aged 32 years, was once a young man of
20 years with a promising future, pursuing a B.Tech degree at
Punjab University, when he met with a tragic and life-altering
accident. On the fateful evening of 20.08.2013, at around 6 p.m.,
the applicant is stated to have fallen from the fourth floor of his
paying guest accommodation, as a result of which he sustained a
diffuse axonal injury. He was initially rushed to the Garhwal local
hospital, but within a few hours, he had to be shifted to the
Postgraduate Institute of Medical Education & Research,
Chandigarh (“PGI, Chandigarh”) due to the severity of his medical
condition. From 21.08.2013 to 27.08.2013, he remained admitted
at the PGI, Chandigarh, where he was administered treatment in
the form of conservative management, including AED, analgesics,
ventilating support, antibiotics, tracheostomy, and feeding through
a Ryle’s tube (nasogastric tube). Although he was discharged from
PGI, Chandigarh, on 27.08.2013, yet unfortunately, his condition
remained far from recovery.
7. Following his discharge, his fragile health condition necessitated
frequent hospital admissions and regular medical treatments for his
head injury, seizures, pneumonia and bedsores at the Jai Prakash
Narayan Trauma Centre, All India Institute of Medical Sciences,
New Delhi (“AIIMS”). In the year 2013, the mode of administering
Miscellaneous Application No. 2238 of 2025 Page 7 of 286
CANH to the petitioner came to be switched from Ryle’s
Tube/nasogastric tube to a surgically placed PEG tube, which now
requires replacement at a hospital every two months.
8. Ever since the incident, the applicant has been on tracheostomy,
urinary catheter and CANH administered through the PEG tube.
The applicant’s medical records also indicate that he had a history
of seizures in the year 2014, for which he was put on medication.
The last seizure occurred in the year 2016, and since then, he has
been receiving anti-seizure drugs for its prevention.
9. Medical reports of the applicant indicate that he exhibits no
evidence of awareness of his environment and is incapable of
interacting with others. He also does not indicate by any facial
gesture, grunting, or body movement if he is hungry, has soiled
himself or is in any other discomfort. The family of the applicant
have also conveyed that they have not noted any significant benefit
from any of the several treatments, including hyperbaric oxygen
therapy, that were tried over the span of the last 13 years. The
applicant’s neurological condition has remained static with no
improvement. He is unable to express his needs and has be en
dependent on all activities of self-care.
10. He has sleep-wake cycles and sleeps through the night. His eyes
open with normal blinks but with no purposeful movement or as a
response to auditory, verbal, tactile or painful stimulus. The
applicant has remained bedridden ever since the incident, due to
which he has often suffered terribly from painful bedsores, despite
receiving the most attentive nursing care from his mother. Although
Miscellaneous Application No. 2238 of 2025 Page 8 of 286
the applicant has largely been cared for at home, yet his susceptible
condition has time and again necessitated hospitalisation for
infections. His most recent hospitalisation had been in May 2025,
at the District Hospital Ghaziabad, for the treatment of coughing
and bedsores. The week-long hospitalisation also involved another
tracheostomy.
11. Furthermore, the disability certificate dated 21.11.2014 issued by
the Janakpuri Super Speciality Hospital Society (Autonomous
Institute), Government of NCT of Delhi, which has been annexed
with the present MA, certified the applicant’s condition as having a
head injury with diffuse axonal injury with vegetative stage,
quadriplegia and 100% permanent physical disability in relation to
the whole body. The relevant extract from the said disability
certificate is as follows:
“This is to certify that Harish Rana, Age 21 years, Sex
Male, S/o Shri Ashok Rana, Resident of Block-D-House
No. 309-A, Street No. 55A, Mahavir Enclave, NEW DELHI-
110059, Registration No-0026879 is a case of Head
Injury with Diffuse Axonal Injury with Vegetative Stage,
Quadriplegic. He is Physically disabled and has 100%
[Hundred percent] disability in relation to his whole body
and is Permanent in nature.”
12. Another disability certificate dated 13.04.2016, issued by Dr. Ram
Manohar Lohia Hospital, New Delhi, Government of India, certified
that the applicant is in a Persistent Vegetative State (hereinafter
referred to as “PVS”) with complete sensorimotor dysfunction, and
100% permanent physical impairment. The relevant extract from
the said disability certificate is as follows:
Miscellaneous Application No. 2238 of 2025 Page 9 of 286
“This is to certify that I have carefully examined Mr.
Harish Rana, S/o Mr. Ashok Rana, 24Y/M, r/o- D-309/A,
Gali No. 55A, Mahavir Enclave III, Delhi-110059,
photograph is affixed above, and am satisfied that he is
a case of PERSISTENT VEGETATION STAGE WITH
COMPLETE SENSORIMOTOR DYS FUNCTION, HIS
PERMANENT PHYSICAL IMPAIRMENT IS 100%
(HUNDRED PERCENT). His extent of physical
impairment/disability has been evaluated as per
guidelines F. No. A13021/2010-MS/MH-II-Directorate
General of Health Services (Medical Hospital Section-II),
Nirman Bhawan, New Delhi dated 18 .06.2010 and is
shown against the relevant disability in the table below
[…]”
13. In the aforementioned circumstances, when the present MA came
before this Court, vide order dated 26.11.2025, we directed the
constitution of a primary medical board of doctors in accordance
with the Common Cause Guidelines . The primary medical board
was directed to submit its report ascertaining whether life-
sustaining treatment ought to be withdrawn or withheld in the
present case.
14. Pursuant to the above, the Chief Medical Officer, Ghaziabad, U.P.,
constituted the primary medical board which visited the residence
of the applicant for the purpose of evaluating his health condition.
The primary medical board comprised of Dr. Sachin Garg,
Neurologist, Dr. Amit Srivastava, Plastic Surgeon, Dr. Ankit Kumar,
Anaesthesiologist and Dr. Akhil Prakash, Neurosurgeon. The
primary medical board examined the applicant and addressed a
letter to the Principal, LLRM Medical College, Meerut, UP. The
contents of the letter read thus:
Miscellaneous Application No. 2238 of 2025 Page 10 of 286
“This is to say that after consulting with CMO Ghaziabad
we have visited residential place of Mr. Harish Rana S/O
Mr. Ashok Rana R/O- AM-1314, Raj Empire, Rajnagar
Extension, Ghaziabad for evaluation of his health
condition. The team included a neurosurgeon, a
neurologist, a plastic surgeon and a critical care expert.
Attendants Mr. Ashish Rana (brother) and Ms. Bhawna
Rana (sister) were present during evaluation. Harish
Rana suffered injuries about 13yrs back since that time
he is under medical care under many centers. At present
Patient was lying in bed with tracheostomy tube for
respiration and gastrostomy for feeding. Patient was
opening eyes spontaneously. His breathing was
spontaneous with treacheostomy tube. He was
emasciated and contactures were present in both lower
limb and upper limb at shoulder, elbow, wrist, fingers,
knee, ankle and toes. His pupils were normal in size but
sluggish in reaction with no movement restriction. No
facial asymmetry present. Gag reflex present. He was
having spasticity all over both upper limb and lower limb
with deep tendon exaggerated at bicep, triceps,
supinator, knee, ankle. Sensory and cerebellar
examination could not be accurately assessed due to his
state. He had intact brainstem function but due to his
vegetative state he requires external support for his
feeding, bladder bowel and back. He needs constant
physiotherapy and tracheostomy tube care. The chances
of his recovery from this state is negligible.”
15. Following the primary medical board’s report, vide order dated
11.12.2025, we directed the AIIMS, New Delhi, to constitute a
secondary medical board, in accordance with the Common Cause
Guidelines, for the purpose of further examination and evaluation
of the applicant’s condition.
16. Pursuant to the same, the AIIMS constituted a secondary medical
board comprising Dr. Vimi Rewari, Professor, Dept. of Anaesthesia
Miscellaneous Application No. 2238 of 2025 Page 11 of 286
as the Chairperson; Dr. Pratap Saran, Professor & Head, Dept. of
Psychiatry; Dr. Deepti Vibha, Professor, Dept. of Neurology; Dr.
Deepak Kumar Gupta, Professor, Dept. of Neuro Surgery ; Dr.
Sheetal Singh, Assoc. Professor, Dept. of Hospital Administration;
Dr. Swati Kedia Gupta, Asst. Professor, Dept. of Psychiatry; and Dr.
Poonam, Dept. of Hospital Administration (Member Secretary) as
members. The secondary medical board issued its report dated
17.12.2025, inter alia consisting of the medical history, the general
examination, the neurological examination, other observations
made, as well as the diagnostic criteria that were applied. The said
report further included a table indicating the clinical assessment of
the patient’s awareness, and a table indicating the patient’s
assessment when the diagnostic criteria of PVS are applied. The
said report of the secondary medical board concludes with the
following observation:
“Based on the history and examination findings, the
medical board is of the following opinion:
a. Mr. Harish Rana has non -progressive, irreversible
brain damage following severe traumatic brain injury
with diffuse axonal injury. He fulfills the criteria of
permanent vegetative state (PVS) and has been in this
state for the past 13 years.
b. The continued administration of clinically assisted
nutrition and hydration is required for the sustenance of
his survival. However, it may not aid in improving his
medical condition or repairing his underlying brain
damage.”
17. Thereafter, vide order dated 18.12.2025, we requested the learned
counsel for the applicant and the learned Additional Solicitor
Miscellaneous Application No. 2238 of 2025 Page 12 of 286
General (ASG) appearing for the respondents to jointly speak to the
parents and other family members of the applicant and to submit a
report in that regard. Pursuant to the same, a Joint Report came to
be filed inter alia stating that the learned counsels had interacted
with the family of the applicant. During the discussion, the family
spoke to the learned counsels about the nature of the applicant’s
life before the incident. They informed that the applicant was the
eldest child who was extremely energetic and physically active.
Further, they shared that the applicant was deeply interested in
gymming and playing football. The applicant’s brother fondly
remembered that the applicant used to play football and video
games with him. The brother also stated that after years of
exhaustive efforts, the family and the doctors have reached to the
decision with great difficulty and on firm belief that the continuation
of medical treatment no longer serves any meaningful purpose and
only prolongs the agony of the applicant.
18. In the aforesaid discussion, the parents stated that they have been
taking care of the applicant for more than 13 years and that they,
along with doctors, have done everything within their human
capacity to alleviate the condition of the applicant during this
period. However, they believe there has been no improvement in his
condition. Both parents are worried as to who would take care of
the applicant if anything were to happen to either of them due to
their old age. According to the parents, brother, and sister, the
applicant has no voice of his own, he has not been able to speak,
hear or see, or recognise anyone or eat on his own or respond to
touch or affection for the past 13 years, and he is entirely dependent
Miscellaneous Application No. 2238 of 2025 Page 13 of 286
on artificial support. The applicant’s sister is of the opinion that the
decision is being taken by the family solely in furtherance of the
applicant’s dignity and best interests.
19. Following the in-person meeting dated 07.01.2026, another meeting
was conducted by the learned ASG, through video conferencing on
08.01.2026. The said meeting was attended by the learned ASG
herself, along with the representatives of the Ministry of Health and
Family Welfare (“MoHFW”), and the doctors who were part of the
secondary medical board, namely Professor Deepti Vibha, Professor
Nishkarsh Gupta, and other concerned officials. During the course
of the meeting, the following points were deliberated upon:
“Present Medical Status of the Petitioner as per Clinical
Findings
(i) The petitioner has been in an irreversible permanent
vegetative state for the last 13 years;
(ii) There is no chance of improvement or repair of the
medical condition, rendering continued treatment futile;
(iii) There exists a clear, unquivocal and well-considered
view of the parents of the petitioner, who are also the
primary caregivers, arrived at after informed interaction
and deliberation.”
20. Thereafter, in pursuance of our Order dated 18.12.2025, the father,
the mother and the younger brother of the petitioner were present
before us in the committee room of this Court. All three made a
fervent appeal before us to take necessary steps to ensure that the
applicant does not suffer any more. They tried to convey to us that
the medical treatment imparted over a period of almost 13 years be
discontinued and nature be allowed to take its own course.
According to them, if the medical treatment is not making any
Miscellaneous Application No. 2238 of 2025 Page 14 of 286
difference, then there is no point in continuing with such medical
treatment and making the applicant suffer for no good reason. They
believe that the applicant is immensely suffering and should thus
be relieved of all further pain and suffering. We acknowledge that
they may not be aware of the legal nuances involved in this
litigation. However, they were very clear that in view of the two
reports filed by the primary medical board and the secondary
medical board, respectively, there is no sign, or rather no hope, for
the applicant to recover.
21. During this interaction before us on 13.01.2025, the learned ASG
submitted that she had a talk with the team of doctors, i.e., the
members of the primary medical board as well as the members of
the secondary medical board. The doctors are of the opinion that
the medical treatment of the applicant should be discontinued as
its continuation is not in the best interest of the applicant, and that
in the given circumstances, nature should be allowed to take its
own course. The doctors are also of the opinion that the petitioner
would remain in this PVS for years to come, with the PEG tubes
inserted all over his body. However, he would never be able to
recover and live a normal life.
22. In such circumstances referred to above, the learned counsel
appearing for the parties made their final submissions before us on
15.01.2025. The same are delineated in detail in the next section.
Miscellaneous Application No. 2238 of 2025 Page 15 of 286
(B). SUBMISSIONS ON BEHALF OF THE APPLICANT
23. Ms. Rashmi Nandakumar , assisted by Ms. Dhvani Mehta, Ms.
Shivani Mody, Ms. Anindita Mitra & Ms. Yashmita Pandey, the
learned counsels appearing on behalf of the applicant made the
following submissions:
(a) That the present matter concerns the application of the
guidelines laid down by this Court in Common Cause 2018
(supra), on the withdrawal or withholding of medical
treatment. The judgment in Common Cause 2018 (supra) or
in Common Cause 2023 (supra) respectively, does not
contemplate routine or initial adjudication by constitutional
courts in such matters. On the contrary, the mechanism for
withdrawal or withholding of medical treatment in cases
where no AMD exists is predicated on the hospital in which
the patient is undergoing treatment, which is required to
constitute a primary medical board, followed by a secondary
medical board. She submitted that judicial intervention by
the High Court under Article 226 of the Constitution of India
is envisaged only at a later stage, i.e., when there is a
disagreement between the primary medical board and the
secondary medical board and that the High Court was
intended to play a limited, supervisory role, stepping in only
when the medical decision-making process reaches an
impasse. Ordinarily, therefore, courts are not required to
adjudicate in the determination of whether medical
treatment ought to be withdrawn or withheld. However, in
Miscellaneous Application No. 2238 of 2025 Page 16 of 286
the present case, owing to the absence of an institutional
mechanism to trigger the process for a patient who was being
provided long-term home-based care, the applicant’s family
was left with no alternative but to approach the High Court
of Delhi under Article 226 of the Constitution of India in Writ
Petition (Civil) No. 4927 of 2024, seeking a determination
regarding the continuation of the medical treatment which
the applicant was undergoing, in accordance with the
Common Cause Guidelines . The High Court of Delhi had
declined the applicant’s prayer seeking to obtain an opinion
from the medical boards regarding the withdrawal of the PEG
tube on the ground that the applicant was not being kept
alive mechanically and that he was able to sustain himself
without any extra external aid and that such condition did
not allow the High Court to intervene and grant the relief
prayed for.
(b) After the Delhi High Court dismissed the writ petition, the
applicant filed the captioned SLP, which in turn was
disposed of with the direction to the respondent no. 1 in
conjunction with the Government of Uttar Pradesh, to
provide home-based care to the applicant, but with the
liberty to the parents to move this Court in the future should
it become necessary for further directions.
(c) Owing to further deterioration in the applicant’s condition,
including hospitalisation in May 2025, and the need for a
fresh tracheostomy, the present MA was filed. The learned
Miscellaneous Application No. 2238 of 2025 Page 17 of 286
counsel submitted that with this Court’s orders dated
26.11.2025 and 11.12.2025 respectively, whereby the
primary medical board and secondary medical board were
directed to be constituted, the medical decision-making
framework as envisaged under the Common Cause
Guidelines was effectively restored.
(d) On the issue regarding the withdrawal or withholding of
medical treatment, the learned counsel submitted that the
PEG tube through which the applicant receives artificial
nutrition and hydration is a form of mechanical life-support.
The learned counsel submitted that the appropriate medical
term for such forms of support providing artificial nutrition
and hydration is CANH, and the same has been widely
recognised, both medically and legally, as a form of life-
sustaining ‘treatment’.
(e) The learned counsel further submitted that this Court in
Common Cause 2018 (supra), has already recognised that
feeding tubes constitute a form of life support. She quoted
the following extracts from the concurring opinions authored
by Sikri J., and D.Y. Chandrachud, J. respectively, to
substantiate her contention:
A.K. Sikri, J.
“219. Passive euthanasia occurs when medical
practitioners do not provide life -sustaining
treatment (i.e. treatment necessary to keep a
patient alive) or remove patients from life -
sustaining treatment. This coul d include
Miscellaneous Application No. 2238 of 2025 Page 18 of 286
discontinuing treatment. This could include
discontinuing life-support machines or feeding
tubes or not carrying out life-saving operations or
providing life-extending drugs.”
D.Y. Chandrachud, J.
“359. Individuals who suffer from chronic disease
or approach the end of the span of natural life often
lapse into terminal illness or a pe rmanent
vegetative state. When a medical emergency leads
to hospitalization, individuals in that condition are
sometimes deprived of their right to refuse
unwanted medical treatment such as feeding
through hydration tubes or being kept on a
ventilator and other life support equipment. Life is
prolonged artificially resulting in human
suffering.”
(f) Most pertinently, the learned counsel went on to submit that
the question that must be considered by this Court is not
whether it is in the best interest of the patient to die, but
whether it is in their best interest to prolong life-support
artificially through the continued provision of CANH.
(g) Furthermore, the learned counsel submitted that there
exists a long line of cases in the United Kingdom wherein it
has been held that the continued provision of CANH to
persons in PVS or other irreversible conditions would not be
in their best interests, given the irreversibility and
incurability of the condition, the futile and burdensome
nature of CANH, the wishes of the caregivers of such persons,
and the court’s assessment of what such persons would
themselves have wished had they possessed decision-making
Miscellaneous Application No. 2238 of 2025 Page 19 of 286
capacity. The learned counsel placed reliance on the
following cases:
(i) Airdale NHS Trust v. Bland, reported in (1993) All ER
821,
(ii) County Durham and Darlington NHS Foundation
Trust v PP and Ors, reported in [2014] EWCOP 9;
(iii) M v. Mrs. N and Ors., reported in 2015 EWCOP 76 ;
(iv) Cumbria NHS Clinical Commissioning Group v. Miss
S, reported in [2016] EWCOP 32 (Fam);
(v) NHS Windsor And Maidenhead Clinical
Commissioning Group v. SP , reported in [2018]
EWCOP 11;
(vi) Hillingdon Hospitals NHS Foundation Trust v. IN &
Ors, reported in [2023] EWCOP 32; and,
(vii) NHS South East London Integrated Care Board v. JP
(by his litigation friend, the Official Solicitor), The
Royal Hospital for Neuro -disability, TP, VP, OP
reported in [2025] EWCOP 4 (T3).
(h) The learned counsel also submitted that this Court in
Common Cause 2018 (supra) has recognised that doctors
owe a duty of care to also determine whether certain kinds of
medical treatments are warranted and are in the patient’s
best interests. This is drawn from the common law principle
that any medical treatment constitutes a trespass to the
person, and it therefore, must always be justified.
Miscellaneous Application No. 2238 of 2025 Page 20 of 286
(i) The learned counsel also submitted that this Court in
Common Cause 2018 (supra) firmly established the link
between the right to dignity, the freedom from continuing in
an undignified state like the one that the applicant is in and
the removal of medical intervention that only artificially
extends life and prolongs suffering.
(j) Lastly, the learned counsel raised certain serious concerns
relating to the implementation of the guidelines as laid down
in Common Cause (supra). She submitted that the
guidelines have not been translated into on-ground action
and that there is a considerable amount of legal uncertainty
amongst medical professionals and hospitals regarding their
obligations. As a result, harmful practices like routinely
obtaining signatures on “Discharge against Medical Advice”
forms, where patients are sent home without appropriate
palliative and comfort care, get encouraged. In light of this
concern, the learned counsel urged that appropriate steps be
directed to be taken by the respective Governments of the
States and the Union Territories, in order to dispel the
confusion faced by medical practitioners. In this regard, the
learned counsel also put forth a suggestion that the following
measures can be taken by the concerned government to
implement the Common Cause Guidelines more effectively:
(i) The nomination of competent officials in local
government as ‘custodians’ of AMD.
Miscellaneous Application No. 2238 of 2025 Page 21 of 286
(ii) Issuing directions to hospitals to constitute primary and
secondary medical boards or to establish clear-cut
mechanisms for their constitution.
(iii) Issuing directions to the Chief Medical Officers (CMO) of
each district to nominate or create a process for the
nomination of registered medical practitioners to
secondary medical boards.
24. In light of the aforesaid, the learned counsel prayed that the present
Miscellaneous Application be allowed and the reliefs prayed for, be
granted.
(C). SUBMISSIONS ON BEHALF OF THE UNION OF INDIA
25. Ms. Aishwarya Bhati, the learned ASG, assisted by Ms. Shivika
Mehra and Ms. Shreya Jain, the learned counsels, appearing on
behalf of the respondents, submitted as follows:
(a) On the issue of the permissibility of passive euthanasia, the
learned ASG submitted that passive euthanasia, in law and
in medical ethics, refers to the withdrawal or withholding of
medical treatment, where such treatment no longer serves
any therapeutic purpose and merely prolongs the dying
process. She submitted that this Court in Common Cause
2018 (supra) recognised that where continued medical
treatment is futile and serves no purpose except prolonging
an irreversible condition, the withdrawal or withholding of
such treatment would be constitutionally permissible.
Miscellaneous Application No. 2238 of 2025 Page 22 of 286
(b) As regards the question whether CANH administered
through medical devices constituted ‘medical treatment’, the
learned ASG submitted that this Court in Common Cause
2018 (supra), by approving the principle laid down by the
House of Lords in Airdale (supra), has recognised that CANH
administered through medical devices indeed constitutes
medical treatment and cannot be categorised as mere basic
care.
(c) On the aspect of legal justification for the withdrawal of
artificial feeding, the learned ASG submitted that this Court
in Common Cause 2018 (supra) draws a clear and
constitutionally significant distinction between an unlawful
positive act causing death and the lawful withdrawal of futile
medical treatment. She submitted that this Court in
Common Cause 2018 (supra) held that the removal of
artificial feeding mechanisms does not amount to causing
death. Rather, it constitutes cessation of an artificial medical
intervention, allowing death to ensue due to the underlying
irreversible condition of the patient. This, she submitted, was
based on this Court’s reasoning that the withdrawal of a
nasogastric tube does not itself cause death, as the tube has
no life-sustaining function independent of the medical
regime it facilitates. Rather, upon such withdrawal or
withholding, the patient ultimately succumbs to the natural
consequences of the underlying fatal condition, and not to
any positive act of the physician. Thus, in this backdrop, the
Miscellaneous Application No. 2238 of 2025 Page 23 of 286
withdrawal or withholding of CANH would amount to an act
of omission, falling within the permissible contours of
passive euthanasia as recognised in Common Cause 2018
(supra).
(d) The learned ASG further highlighted that upon perusal of the
reports of the primary medical board, the secondary medical
board, and the subsequent deliberations dated 08.01.2025,
respectively, it clearly emerges that the clinical assessment
of the applicant has been done by applying established
diagnostic criteria. What has emerged from the same is that
the applicant is in an irreversible PVS. Furthermore, the
medical opinion certifies that there is no hope of
improvement of the applicant’s neurological condition and
that continuation of treatment constitutes medical futility.
(e) It was further submitted that the parents and the siblings
who are the caregivers of the applicant, for the past 13 years,
have exhibited a clear, categoric, and well-considered
decision to allow the applicant a humane and kind passing
away and thereby further his dignity.
(f) Thus, in view of the medical opinion and the settled
constitutional position, the learned ASG submitted that this
Court may consider permitting the withdrawal or
withholding of CANH being provided to the applicant through
the PEG tube.
Miscellaneous Application No. 2238 of 2025 Page 24 of 286
(g) In the last, the learned ASG with a view to further the best
interests of the applicant, prayed that appropriate
arrangements for palliative care at home or at a choice of
hospital indicated by the applicant’s family, be permitted to
be provided by the government to ensure dignity, humane
support and comfort to the applicant in the course of
implementation of the decision to withdraw the CANH.
(D). CORE CONCEPTS UNDERLYING THE DECISION IN COMMON
CAUSE 2018
26. A detailed perusal of the facts makes it evident that this case
revolves around one central issue: whether, when and on what legal
basis can medical treatment be withdrawn or withheld? In
addressing this issue, we are not writing on a clean slate. The
definitive word on this subject lies in the decision rendered by a
five-judge Constitution Bench of this Court in Common Cause
2018 (supra). As the aforesaid decision forms the essential
foundation upon which our current decision must rest, we deem it
not only important but absolutely necessary to begin by discussing
the principles laid down and the line of reasoning adopted therein.
27. The decision in Common Cause 2018 (supra) arose from the
reference by a three-judge bench of this Court which sought to inter-
alia resolve certain inconsistencies which existed in earlier judicial
pronouncements and provide some clarity on the “right to die with
dignity” and other concomitant issues, such as euthanasia.
Miscellaneous Application No. 2238 of 2025 Page 25 of 286
28. The primary contentions of the petitioners in Common Cause 2018
(supra) were two-fold: (i) declaration to the effect that the “right to
die with dignity” forms an integral part of the “right to live with
dignity” guaranteed under Article 21 of the Constitution of India,
and (ii) legal recognition of Living Wills/ AMD/Attorney
Authorisation through which individuals could specify their wish to
forgo medical treatment in the future, or authorize an attorney to
make such decisions on their behalf should they lose the capacity
to do so. While examining these contentions, this Court found it
necessary to discuss the concepts of both active and passive
euthanasia and determine their permissibility within our
constitutional framework.
29. Succinctly put, this Court in Common Cause 2018 (supra), across
the four concurring opinions, held the following: (i) the “right to live
with dignity” under Article 21 of the Constitution of India inherently
includes the “right to die with dignity” and (ii) passive euthanasia
and AMD are both legal and permissible under the framework of
Article 21, being rooted in the constitutional values of liberty,
dignity, and individual privacy.
30. Dipak Misra, CJ., (as he then was), in his leading opinion,
prescribed a detailed set of guidelines governing the execution and
enforcement of AMDs. Furthermore, he laid down the mandatory
procedure for deciding whether the medical treatment of an
incompetent patient must be terminated, covering both scenarios
in which an AMD existed and in which it was absent. These
guidelines and the prescribed procedure received the concurrence
Miscellaneous Application No. 2238 of 2025 Page 26 of 286
of the other members of the Constitution Bench, who affirmed them
through their respective opinions. It was directed that these
guidelines would remain in force as the law of the land until the
Parliament enacts a specific legislation on the subject. We note that,
as of the date of this judgment, no such legislation has been
brought into the field.
31. We must further observe that in the year 2023, an MA was moved
before this Court in Common Cause 2018 (supra) seeking certain
clarifications on the judgment, specifically regarding the challenges
encountered in the practical implementation of the guidelines as
laid down therein. Recognising the procedural difficulties faced by
patients and medical practitioners alike, this Court modified and
streamlined the guidelines to ensure that they remain workable.
Throughout this judgment, we have taken care to refer to these
updated and modified guidelines, wherever applicable.
32. We shall now delve deeper into certain substantive aspects that
need to be duly addressed in any discussion surrounding
euthanasia. While analyzing and demystifying the reasoning
adopted in Common Cause 2018 (supra) as regards several legal
issues which have arisen in the matter before us, we wish to weave
in some of our own views to the existing discourse as well. Our
analysis will focus on the following core areas: (i) the conceptual
distinction between active and passive euthanasia; (ii) the
constitutional basis for permitting passive euthanasia under Article
21 of the Constitution of India; (iii) the impermissibility of active
euthanasia under Article 21 of the Constitution of India; (iv) the
Miscellaneous Application No. 2238 of 2025 Page 27 of 286
permissibility of AMDs and (v) the procedure used to determine
whether medical treatment ought to be withdrawn or withheld.
I. The Essential Distinction: Active and Passive Euthanasia
33. As D.Y. Chandrachud, J., has observed in his concurring opinion
in Common Cause 2018 (supra), the discourse on euthanasia is
rendered complex by the problems of the uncertain and shifting
descriptions of key concepts. Therefore, he noted that in examining
the legality of euthanasia, clarity on terminology is of absolute
essence. This is more so now, where there is a clear ruling to the
effect that only passive euthanasia is permissible. The legality of a
medical professional’s action often depends entirely on which side
of this conceptual line their action falls. If our understanding of
active and passive euthanasia is imprecise, it would breed a
precarious environment and, consequently, render any decision-
making ambiguous. More critically, such confusion leaves medical
practitioners in constant danger of unwittingly violating the law, or
conversely, withholding necessary care out of an unfounded fear of
legal reprisal. We, therefore, find it imperative to delineate the
boundaries between active and passive euthanasia with absolute
clarity.
34. At this juncture, it is essential to examine the meaning attributed
to the terms active and passive euthanasia in Common Cause
2018 (supra) in each of the four concurring opinions. The relevant
extracts are reproduced below:
Miscellaneous Application No. 2238 of 2025 Page 28 of 286
Dipak Misra, CJ.,
“178. It is to be borne in mind that passive euthanasia
fundamentally connotes absence of any overt act either
by the patient or by the doctors [...]
xxx xxx xxx
202.6. In active euthanasia, a specific overt act is done to
end the patient's life whereas in passive euthanasia,
something is not done which is necessary for preserving
a patient's life....”
Dr. A.K. Sikri, J.,
“219. Contrary to the above, in legal parlance,
euthanasia has since come to be recognised as of two
distinct types: the first is active euthanasia, where death
is caused by the administration of a lethal injection or
drugs. Active euthanasia also includes physician -
assisted suicide, where the injection or drugs are
supplied by the physician, but the act of administration is
undertaken by the patient himself […] Passive euthanasia
occurs when medical practitioners do not provide life-
sustaining treatment (i.e. treatment necessary to keep a
patient alive) or remove patients from life-sustaining
treatment. This could include disconnecting life support
machines or feeding tubes or not carrying out life-saving
operations or providing life-extending drugs....”
Dr. D.Y. Chandrachud, J.,
“384 […]
(iv) active euthanasia refers to a positive contribution to
the acceleration of death;
(v) passive euthanasia refers to the omission of steps
which might otherwise sustain life […]
385. The expression “passive” has been used to denote
the withdrawal or withholding of medical treatment […]”
Ashok Bhushan, J.,
Miscellaneous Application No. 2238 of 2025 Page 29 of 286
“602...Euthanasia, as noted above, as the meaning of the
word suggest is an act which leads to a good death. Some
positive act is necessary to characterise the action as
euthanasia […]
603. Withdrawal of medical assistance or withdrawal of
medical devices which artificially prolong the life cannot
be regarded as an act to achieve a good death [...]”
(Emphasis Supplied)
35. On a close examination of the excerpts above, it is apparent that
while the descriptions of the terms active and passive euthanasia
vary at a granular level across the four concurring opinions, they
converge on a single, broader understanding. The Constitution
Bench consistently characterises ‘Active Euthanasia’ as involving a
positive or overt act, such as the administration of a lethal injection
or drugs, which serves to either cause death or directly accelerate
it. In contrast, ‘Passive Euthanasia’ is defined by the absence of
such an overt act. It is characterised by an omission (a decision not
to intervene) and primarily encompasses the withdrawal or
withholding of medical treatments that would otherwise sustain
and/or preserve life.
36. At first blush, it would appear that the primary distinction between
active and passive euthanasia rests solely on the binary of “acts”
versus “omissions”. Such an understanding is only natural. Indeed,
in the preceding paragraph, we ourselves have used phrases like
“positive or overt acts” to describe active euthanasia, while
characterising passive euthanasia through terms such as
“omission”, “absence of an overt act”, or “decision not to intervene”.
Miscellaneous Application No. 2238 of 2025 Page 30 of 286
However, we must caution that a distinction between the two based
on the simplistic dichotomy of “act” versus “omission” would be
problematic.
37. While passive euthanasia is defined by the withdrawal or
withholding of medical treatment, the physical process of
withdrawing such treatment, for instance, switching off a ventilator
or removing a feeding tube, requires a positive, physical movement.
If we were to apply the simplistic act versus omission test, such
necessary steps could be misconstrued as active measures, i.e.,
acts. This would potentially place them outside the legal protections
afforded to passive euthanasia. This dilemma had also been
brought forth in the concurring opinion of D.Y. Chandrachud, J., in
Common Cause 2018 (supra).
38. The complexity of this issue is further compounded by the extensive
academic discourse regarding the precise meaning to be attributed
to the terms “acts” and “omissions”. We need not delve into this
debate here, as doing so would only further obscure the
jurisprudence surrounding active and passive euthanasia. For our
present purposes, it is sufficient to observe that while the
distinction between the two forms of euthanasia is partially rooted
in the conventional understanding of acts and omissions, that the
binary alone does not complete the legal picture.
39. It is clear that a more nuanced approach is required in order to
understand the difference between active and passive euthanasia,
one that allows for the difference on the basis of act and omission
Miscellaneous Application No. 2238 of 2025 Page 31 of 286
to exist broadly, but one that also provides more grounding on other
facets. What would these other facets include? A closer look at some
of the observations made in Common Cause 2018 (supra) would
provide additional guidance. The relevant extracts are reproduced
below:
Dipak Misra, CJ.,
“49. While scrutinising the distinction between active and
passive euthanasia, the paramount aspect is “foreseeing
the hastening of death”. The said view has been
propagated in several decisions all over the world. The
Supreme Court of Canada, in Rodriguez v. Attorney
General of Canada, drew the distinction between these
two forms of euthanasia on the basis of intention. Echoing
a similar view, the Supreme Court of the United States
affirmed the said distinction on the basis of “intention”
in Vacco wherein Rehnquist, C.J. observed that the said
distinction coheres with the fundamental legal principles
of causation and intention. In case when the death of a
patient occurs due to removal of life-supporting measures,
the patient dies due to an underlying fatal disease
without any intervening act on the part of the doctor or
medical practitioner, whereas in the cases coming within
the purview of active euthanasia, for example, when the
patient ingests lethal medication, he is killed by that
medication.
xxx xxx xxx
202.5. There is an inherent difference between active
euthanasia and passive euthanasia as the former entails
a positive affirmative act, while the latter relates to
withdrawal of life-support measures or withholding of
medical treatment meant for artificially prolonging life.”
Dr. A.K. Sikri, J.,
“219. […] Passive euthanasia occurs when medical
practitioners do not provide life-sustaining treatment (i.e.
Miscellaneous Application No. 2238 of 2025 Page 32 of 286
treatment necessary to keep a patient alive) or remove
patients from life-sustaining treatment. This could include
disconnecting life support machines or feeding tubes or
not carrying out life-saving operations or providing life-
extending drugs. In such cases, the omission by the
medical practitioner is not treated as the cause of death;
instead, the patient is understood to have died because
of his underlying condition.”
Dr. D.Y. Chandrachud, J.,
“388. The correctness of this precept may be questioned
by pointing out that there is a qualitative difference
between a positive medical intervention (such as a lethal
injection) which terminates life and a decision to not put
a patient on artificial life support, which will not
artificially prolong life. The former brings a premature
extinction of life. The latter does not delay the end of life
beyond its natural end point […]
xxx xxx xxx
398. […] Moreover, passive euthanasia is conceived with
a purpose of not prolonging the life of the patient by
artificial medical intervention. Both in the case of a
withdrawal of artificial support as well as in non -
intervention, passive euthanasia allows for life to ebb
away and to end in the natural course. In contrast, active
euthanasia results in the consequence of shortening life
by a positive act of medical intervention [...]
xxx xxx xxx
450. […] necessary to distinguish between active and
passive euthanasia in terms of the underlying
constitutional principles as well as in relation to the
exercise of judicial power. Passive euthanasia—whether
in the form of withholding or withdrawing treatment—has
the effect of removing, or as the case may be, not
providing supportive treatment. Its effect is to allow the
individual to continue to exist until the end of the natural
span of life. On the other hand, active euthanasia involves
Miscellaneous Application No. 2238 of 2025 Page 33 of 286
hastening of death : the lifespan of the individual is
curtailed by a specific act designed to bring an end to life
[...]”
Ashok Bhushan, J.,
606. Withdrawal of life-saving devices, leads to natural
death which is arrested for the time being due to above
device and the act of withdrawal put the life on the
natural track. Decision to withdraw life-saving devices is
not an act to cause good death of the person rather,
decision to withdraw or not to initiate life-supporting
measures is a decision when treatment becomes futile
and unnecessary....”
(Emphasis Supplied)
40. A deeper analysis of the above extracts from Common Cause 2018
(supra) reveals that, according to the Constitution Bench, the true
distinction between active and passive euthanasia lies not merely
in the nature of the conduct, i.e., acts or omissions, but also in the
source of the harm that leads to death. Active euthanasia is
characterised as causing death because it introduces a new,
external agency of harm, such as a lethal injection, that was not
previously present. In such cases, death is not the result of the
patient’s underlying illness, but of an intervention that sets a new
chain of events in motion. It is for this reason that active euthanasia
is understood as an intervention that disrupts the natural path
towards death.
41. Conversely, passive euthanasia is understood as allowing death to
occur. By withdrawing or withholding life support, the physician is
not creating a new risk of death. Rather, they are choosing to allow
Miscellaneous Application No. 2238 of 2025 Page 34 of 286
the underlying fatal condition to take its natural course by no longer
continuing the medical interventions that were artificially
prolonging life. In this sense, the doctor simply allows the original
harm-causing event to run its natural course, returning the patient
to their natural path towards death. The undeniable fact remains
that the patient’s affliction, i.e., the underlying medical condition,
is not caused by any act or omission of the doctor. Rather, the
underlying condition is due to factors independent of the doctor or
their actions.
42. Having said so, one must also remain vigilant and qualify the
aforesaid reasoning, i.e., that it is the original affliction of the
patient which is allowed to resume its control over the patient, with
a sufficient condition. The sufficient condition being that there must
be no violation of the duty of care that a doctor would otherwise, in
all circumstances, owe to the patient. In other words, the
surrendering of any medical effort must not be at loggerheads with
the duty of care which joists all medical action. A more detailed
perspective of the passive euthanasia dilemma from a “duty of care”
lens and when the withdrawal or withholding of medical
intervention would be in consonance with the duty of care expected
of doctors, has been provided in the later paragraphs of our
discussion. We have simply alluded to the same in our current
discussion on the broad conceptual distinction between active and
passive euthanasia, to aid better context-setting.
43. Coming back to the focal point of our discussion herein, when
viewed through the lens of “causing death” versus “allowing death
Miscellaneous Application No. 2238 of 2025 Page 35 of 286
to occur”, the traditional distinction between acts and omissions
also begins to acquire significance. While admittedly the physical
withdrawal of treatment involves a willed bodily movement,
conventionally viewed as an ‘act’, the consequence of that
movement is simply the termination of life-saving medical
treatment. If the focus is shifted from the nature of the conduct to
the ultimate effect of the conduct, the same course of action could
be correctly characterised as an omission. Even when “allowing
death to occur” is initiated by a physician’s physical action, it
remains an omission in the eyes of the law because the essence of
the conduct is a decision not to do something, i.e., ‘omission to treat'
or 'omission to ventilate’. Thus, at a broader level, passive
euthanasia is defined by this refusal to impede the natural progress
of death.
44. The aforesaid discussion also finds support in the reasoning given
by both, the Court of Appeals and the House of Lords respectively
in Airedale (supra). Butler-Sloss L.J., Hoffmann L.J., Lord Goff,
and Lord Browne -Wilkinson, respectively, drew a distinction
between active and passive euthanasia on similar grounds. It is
important to note, however, that the House of Lords did not
explicitly frame the issue as a choice between active and passive
euthanasia. For their Lordships, the term ‘euthanasia’ was reserved
exclusively for ‘Active Euthanasia’. What all the four concurring
opinions in Common Cause 2018 (supra) categorised as passive
euthanasia was referred to by the House of Lords simply as the
withholding or withdrawal of medical treatment. The relevant
extracts are reproduced below:
Miscellaneous Application No. 2238 of 2025 Page 36 of 286
Butler-Sloss L.J. (in the Court of Appeal)
“The position of Dr. Cox is different (Reg. v. Cox , 18
September 1992, Ognall J.). He injected a lethal dose
which was designed to cause death and was an external
and intrusive act committed by an outsider and was not
in accordance with his duty of care as a doctor. The effect
of the cessation of artificial feeding is to place the patient
in the position he would have been in before the
nasogastric tube was inserted. Without the tube he would
have died from his medical condition and with it he has
been artificially kept alive despite that condition until
now. Whether this is an act or omission carries the matter
no further. The distinction between Mr. Bland's doctors
and Dr. Cox is between an act or omission which allows
causes already present in the body to operate and the
introduction of an external agency of death.”
Hoffmann L.J.
“On the other hand, we recognise that, one way or
another, life must come to an end. We do not impose on
outsiders an unqualified duty to do everything possible to
prolong life as long as possible. I think that the principle
of inviolability explains why, although we accept that in
certain cases it is right to allow a person to die (and the
debate so far has been over whether this is such a case)
we hold without qualification that no one may introduce
an external agency with the intention of causing death. I
do not think that the distinction turns upon whether what
is done is an act or omission. This leads to barren
arguments over whether the withdrawal of equipment
from the body is a positive act or an omission to keep it in
place. The distinction is between an act or omission which
allows an existing cause to operate and the introduction
of an external agency of death.”
Lord Goff
“I agree that the doctor's conduct in discontinuing life
support can properly be categorised as an omission. It is
Miscellaneous Application No. 2238 of 2025 Page 37 of 286
true that it may be difficult to describe what the doctor
actually does as an omission, for example where he takes
some positive step to bring the life support to an end. But
discontinuation of life support is, for present purposes, no
different from not initiating life support in the first place.
In each case, the doctor is simply allowing his patient to
die in the sense that he is desisting from taking a step
which might, in certain circumstances, prevent his patient
from dying as a result of his pre-existing condition; and
as a matter of general principle an omission such as this
will not be unlawful unless it constitutes a breach of duty
to the patient. I also agree that the doctor's conduct is to
be differentiated from that of, for example, an interloper
who maliciously switches off a life support machine
because, although the interloper may perform exactly the
same act as the doctor who discontinues life support, his
doing so constitutes interference with the life-prolonging
treatment then being adminis tered by the doctor.
Accordingly, whereas the doctor, in discontinuing life
support, is simply allowing his patient to die of his pre-
existing condition, the interloper is actively intervening to
stop the doctor from prolonging the patient's life, and such
conduct cannot possibly be categorised as an omission”
Lord Browne-Wilkinson
“The positive act of removing the nasogastric tube
presents more difficulty. It is undoubtedly a positive act,
similar to switching off a ventilator in the case of a patient
whose life is being sustained by artificial ventilation. But
in my judgment in neither case should the act be
classified as positive, since to do so would be to introduce
intolerably fine distinctions. If, instead of removing the
nasogastric tube, it was left in place but no further
nutrients were provided for the tube to convey to the
patient's stomach, that would not be an act of
commission. Again, as has been pointed out ( Skegg, Law,
Ethics and Medicine (1984), p.169 et seq.) if the switching
off of a ventilator were to be classified as a positive act,
exactly the same result can be achieved by installing a
time-clock which requires to be reset every 12 hours: the
failure to reset the machine could not be classified as a
Miscellaneous Application No. 2238 of 2025 Page 38 of 286
positive act. In my judgment, essentially what is being
done is to omit to feed or to ventilate: the removal of the
nasogastric tube or the switching off of a ventilator are
merely incidents of that omission: see Glanville Williams,
Textbook of Criminal Law , p.282; Skegg , pp.169 et seq.”
(Emphasis Supplied)
45. In summation, the essential distinction between active and passive
euthanasia transcends the simplistic binary of acts and omissions.
Active euthanasia is characterised as “causing death” because it
introduces an external, intrusive agency, such as a lethal injection,
an intervention that disrupts the natural path towards death.
Conversely, passive euthanasia is understood as “allowing death to
occur” or “letting die”. By withdrawing or withholding medical
treatment that was otherwise prolonging life, the physician allows
the original harm causing event to run its natural course, returning
the patient to their natural path toward death. When viewed
through this lens, the role of acts and omissions also becomes clear.
While the physical withdrawal of treatment may involve an ‘act’, its
effect is an omission, i.e., omission to treat. By shifting the focus
from the muscle movement to the conduct’s ultimate effect, there is
a recognition that such interventions are, in substance, omissions.
II. Permissibility of Passive Euthanasia under Article 21 of the
Constitution of India
46. Our preceding analysis establishes that the Constitution Bench in
Common Cause 2018 (supra) envisaged passive euthanasia as
being synonymous with the withdrawal or withholding of medical
Miscellaneous Application No. 2238 of 2025 Page 39 of 286
treatment. For the Constitution Bench, these two concepts are
functionally identical, i.e., withdrawing and withholding medical
treatment constitute the very essence of passive euthanasia. To
comprehend the legal logic that renders such conduct permissible
under Article 21 of the Constitution of India, while simultaneously
holding that active euthanasia is not permissible, it is essential to
examine how the Court interpreted the fundamental concepts of
life, dignity, privacy and autonomy. It is through the intricate
interlinking of these core constitutional values that the Bench
established the “right to die with dignity” and the permissibility of
passive euthanasia under the framework of Article 21 of the
Constitution of India.
(a) The unifying and omnipresent force of ‘dignity’ in the discourse
on ‘right to die with dignity’
47. Article 21 of the Constitution of India mandates that no person shall
be deprived of their life or personal liberty except according to the
procedure established by law. In interpreting this guarantee, this
Court in Common Cause 2018 (supra) unequivocally held that
“life” cannot be reduced to mere animal existence or a state of
continued drudgery. Instead, it was observed that the expression
“life” has a much wider meaning, with the non-negotiable element
of “dignity” being at its very core. Dignity is viewed as the unifying
force of all fundamental rights, as these rights collectively seek to
secure for every individual a dignified existence. In acting as this
unifying force, dignity acts as the normative basis for the
fundamental rights enshrined in the Constitution of India, and as
Miscellaneous Application No. 2238 of 2025 Page 40 of 286
an essential interpretative principle for determining the true scope
and reach of those rights.
48. Despite its central importance, dignity remains a malleable concept,
difficult to define and perhaps best left undefined. This inherent
conceptual flexibility allows proponents of varying, and often
contradicting, legal perspectives to invoke dignity as the primary
justification for their respective positions. D.Y. Chandrachud, J.,
and A.K. Sikri, J., in their respective concurring opinions,
acknowledge that this conceptual tension also arises in the debate
over euthanasia and the right to die with dignity.
49. On one side are the proponents of a rather strict “Sanctity of Life”
principle, who argue that because every individual possesses
dignity by the mere virtue of their existence, life must be preserved
at all times. From this perspective, any intentional ending of life is
viewed as an act against that person’s inherent dignity. This
sanctity of life principle forms the very core of the Article 21
framework. It is rooted in the understanding that the preservation
of life is of paramount importance and that the intrinsic worth of
life is not conditional upon what it seeks to or is capable of
achieving. Rather, life is valuable simply because it is. Under the
Constitution, this right to life is protected as a supreme right,
inalienable and inviolable even during an Emergency, envisaging
only the most limited and strictly defined circumstances where a
person may be deprived of it [See Parmanand Katara v. Union of
India, reported in (1989) 4 SCC 286].
Miscellaneous Application No. 2238 of 2025 Page 41 of 286
50. Conversely, the concept of dignity is also invoked to support the
“Quality of Life” proposition. For those who hold this view, the
constitutional guarantee of a dignified life extends beyond mere
biological persistence to include the right to leave the world in a
peaceful and dignified manner. Under this interpretation, living
with dignity is seen as the right to a meaningful existence
characterised by certain essential qualities.
51. Acknowledging this profound jurisprudential conflict, D.Y.
Chandrachud, J., in his concurring opinion, probed the very
essence of these competing values. While accepting that the
preservation of life is fundamentally rooted in the recognition of
human dignity, he raised critical inquiries regarding the point at
which this dignity might be compromised by the realities of terminal
suffering. He questioned whether the progressive loss of bodily and
mental functions, coupled with the imminence of death, does not
itself erode the dignity that the law seeks to protect. This led him to
the following pivotal questions: What constitutes the core of life that
the law is bound to protect? Does a severely diminished quality of
life, cast in the shadow of impending death, impact the value of that
life to such an extent that it reduces the protection traditionally
offered by the sanctity of life doctrine? And ultimately, are there
constitutional limits to the principle of sanctity itself?
52. It was in the pursuit of answers to these questions and dilemmas
that the Constitution Bench, across all four opinions, arrived at a
seminal conclusion. The Bench unequivocally held that the ‘right to
Miscellaneous Application No. 2238 of 2025 Page 42 of 286
live with dignity’ under Article 21 extends beyond the preservation
of life to encompass the ‘right to die with dignity’.
53. In his opinion, Dipak Misra, CJ., anchored the right to die with
dignity on the observations of the Constitution Bench in Gian Kaur
v. State of Punjab, reported in (1996) 2 SCC 648. He reasoned
that the fundamental right to life under Article 21 is not merely a
guarantee of biological survival but a right to live with dignity.
Crucially, this entitlement does not cease as life nears its end.
Rather, it extends to the very terminus of existence. Consequently,
it was held that the “right to live with dignity” inherently embraces
the right to dignity until the moment of death, including a right to
have a dignified process of death. To fully comprehend the weight
of this reasoning, it is apposite that we look closely at the specific
context in which Gian Kaur (supra) held that the ‘right to live with
dignity’ could encompass a ‘right to die with dignity’.
54. The Constitution Bench in Gian Kaur (supra) held that the right to
life under Article 21 of the Constitution of India does not include
the right to die in its absolute sense. In coming to the conclusion,
the Court in Gian Kaur (supra) emphasized on two strands: (i) that
the extinction of life or the extinguishment of life would violate the
sanctity of life, and consequently be in teeth with Article 21 itself,
which recognizes the said sanctity of life, and (ii) that the right to
life is a natural right and suicide as an unnatural extinction of life
is incompatible with it. Further, while dealing with the issue
therein, the Court took note of the debate on euthanasia in the
context of individuals in PVS and observed that: (i) the right to live
Miscellaneous Application No. 2238 of 2025 Page 43 of 286
with human dignity would mean the existence of such a right up to
the end of natural life and may include the right of a dying man to
a die with dignity when his life is ebbing out; and (ii) in such cases,
premature termination of life would not amount to extinguishing
life but only constitute accelerating the conclusion of the process of
natural death which has already commenced. However, this Court
sounded a clear note of caution that such cases should not be
equated with the right to die an unnatural death i.e., one that
curtails the natural span of life. The relevant observations made by
this Court in Gian Kaur (supra) are reproduced as follows:
“22. When a man commits suicide he has to undertake
certain positive overt acts and the genesis of those acts
cannot be traced to, or be included within the protection
of the “right to life” under Article 21. The significant aspect
of “sanctity of life” is also not to be overlooked. Article 21
is a provision guaranteeing protection of life and personal
liberty and by no stretch of imagination can “extinction of
life” be read to be included in “protection of life”. Whatever
may be the philosophy of permittin g a person to
extinguish his life by committing suicide, we find it
difficult to construe Article 21 to include within it the “right
to die” as a part of the fundamental right guaranteed
therein. “Right to life” is a natural right embodied in
Article 21 but suicide is an unnatural termination or
extinction of life, and therefore, incompatible and
inconsistent with the concept of “right to life […]”
23. To give meaning and content to the word “life” in
Article 21, it has been construed as life with human
dignity. Any aspect of life which makes it dignified may
be read into it but not that which extinguishes it and is,
therefore, inconsistent with the continued existence of life
resulting in effacing the right itself. The “right to die”, if
any, is inherently inconsistent with the “right to life” as is
“death” with “life”.
Miscellaneous Application No. 2238 of 2025 Page 44 of 286
24. Protagonism of euthanasia on the view that existence
in persistent vegetative state (PVS) is not a benefit to the
patient of a terminal illness being unrelated to the
principle of “sanctity of life” or the “right to live with
dignity” is of no assistance to determine the scope of
Article 21 for deciding whether the guarantee of “right to
life” therein includes the “right to die”. The “right to life”
including the right to live with human dignity would mean
the existence of such a right up to the end of natural life.
This also includes the right to a dignified life up to the
point of death including a dignified procedure of death. In
other words, this may include the right of a dying man to
also die with dignity when his life is ebbing out. But the
“right to die” with dignity at the end of life is not to be
confused or equated with the “right to die” an unnatural
death curtailing the natural span of life.
25. A question may arise, in the context of a dying man
who is terminally ill or in a persistent vegetative state that
he may be permitted to terminate it by a premature
extinction of his life in those circumstances. This category
of cases may fall within the ambit of the “right to die” with
dignity as a part of right to live with dignity, when death
due to termination of natural life is certain and imminent
and the process of natural death has commenced. These
are not cases of extinguishing life but only of accelerating
conclusion of the process of natural death which has
already commenced. The debate even in such cases to
permit physician-assisted termination of life is
inconclusive. It is sufficient to reiterate that the argument
to support the view of permitting termination of life in such
cases to reduce the period of suffering during the process
of certain natural death is not available to interpret Article
21 to include therein the right to curtail the natural span
of life.”
(Emphasis Supplied)
55. Building upon this fine distinction between ‘extinguishing life’ and
merely ‘accelerating the conclusion of the natural process of death’
Miscellaneous Application No. 2238 of 2025 Page 45 of 286
as expounded in Gian Kaur (supra), Dipak Misra, CJ., in his
opinion in Common Cause 2018 (supra), proceeded to hold that
passive euthanasia falls firmly within the ambit of Article 21 of the
Constitution of India. He reasoned that the withdrawal or
withholding of medical treatment of a person in PVS would not be
considered as suicide or abetment of suicide but rather as an
acceleration of the process of natural death, which has already
commenced.
56. We must, however, hasten to clarify that the use of the words
“acceleration of the process of natural death” in the aforesaid
context must not again be confused and pitted against any debate
on active euthanasia. The word “accelerate” has essentially been
used to connote the phenomenon of “allowing natural death to
occur” which is central to passive euthanasia. The same
clarification inheres in the use of the phrase “premature extinction
of life” which has been used in Common Cause 2018 (supra). On a
cursory reading, these phrases may appear to blur the lines with
active euthanasia, which is also described as an act that “hastens
death”. However, the use of these expressions must be understood
in their appropriate context. In active euthanasia, the acceleration
curtails the natural lifespan. In contrast, the acceleration referred
to in passive euthanasia is only relative to the artificially prolonged
existence sustained by medical technology. For instance, when a
ventilator is withdrawn, death is ‘accelerated’ only in the sense that
the patient dies sooner than they would have if the machine had
remained and not been withdrawn. However, viewed in light of the
underlying ailment, this withdrawal is not an acceleration but
Miscellaneous Application No. 2238 of 2025 Page 46 of 286
rather the removal of an artificial barrier, allowing the natural
trajectory of life to resume and reach its inevitable conclusion.
57. Having clarified the same, what then follows is that the opinion of
Dipak Misra, CJ., roots the withdrawal and withholding of medical
treatment as a mode and mechanism that furthers the dying
person’s dignity. The relevant observations made in his opinion are
reproduced as follows:
“164. In Gian Kaur, the Constitution Bench indicates
acceleration of the conclusion of the process of death
which has commenced and this indication, as observed
by us, allows room for expansion. In the said case, the
Court was primarily concerned with the question of
constitutional validity of Sections 306 and 309 IPC. The
Court was conscious of the fact that the debate on
euthanasia was not relevant for deciding the question
under consideration. The Court, however, in no uncertain
terms expounded that the word “life” in Article 21 has
been construed as life with human dignity and it takes
within its ambit the “right to die with dignity” being part
of the “right to live with dignity”. Further, the “right to live
with human dignity” would mean existence of su ch a
right up to the end of natural life which would include the
right to live a dignified life up to the point of death
including the dignified procedure of death. While
adverting to the situation of a dying man who is
terminally ill or in a persistent vegetative state where he
may be permitted to terminate it by a premature extinction
of his life, the Court observed that the said category of
cases may fall within the ambit of “right to die with
dignity” as part of the right to live with dignity when
death due to the termination of natural life is certain and
imminent and the process of natural death has
commenced, for these are not cases of extinguishing life
but only of accelerating the conclusion of the process of
natural death which has already commenced. […]
Miscellaneous Application No. 2238 of 2025 Page 47 of 286
165. In the context of the issue under consideration, we
must make it clear that as part of the right to die with
dignity in case of a dying man who is terminally ill or in
a persistent vegetative state, only passive euthanasia
would come within the ambit of Article 21 and not the one
which would fall within the description of active
euthanasia in which positive steps are taken either by the
treating physician or some other person. That is because
the right to die with dignity is an intrinsic facet of Article
21. The concept that has been touched deserves to be
concretised, the thought has to be realised. It has to be
viewed from various angles, namely, legal permissibility,
social and ethical ethos and medical values.
166. The purpose of saying so is only to highlight that the
law must take cognizance of the changing society and
march in consonance with the developing concepts. The
need of the present has to be served with the
interpretative process of law. However, it is to be seen
how much strength and sanction can be drawn from the
Constitution to consummate the changing ideology and
convert it into a reality. The immediate needs are required
to be addressed through the process of interpretation by
the Court unless the same totally falls outside the
constitutional framework or the constitutional
interpretation fails to recognise such dynamism. The
Constitution Bench in Gian Kaur, as stated earlier,
distinguishes attempt to suicide and abetment of suicide
from acceleration of the process of natural death which
has commenced. […]
xxx xxx xxx
202.1. A careful and precise perusal of the judgment
in Gian Kaur case reflects the right of a dying man to die
with dignity when life is ebbing out, and in the case of a
terminally-ill patient or a person in PVS, where there is no
hope of recovery, accelerating the process of death for
reducing the period of suffering constitutes a right to live
with dignity.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 48 of 286
(b) Viewing the “right to die with dignity” through the prism of
self-determination, individual autonomy and privacy.
58. The Constitution Bench in Common Cause 2018 (supra) has
charted out the “right to die with dignity” in the context of passive
euthanasia by also interlinking key facets of the right to life that
have already been cemented in Article 21 jurisprudence, i.e.,
through a combined interpretation of the right to s elf-
determination, individual autonomy and privacy.
59. Dipak Misra, CJ., builds this reasoning by opining that, when the
treatment is administered only as a procrastinating effort, the
patient would be condemned to a continuum of pain and suffering
which would violate the preserved concepts of bodily autonomy and
right to privacy. He further pinpoints that, especially in relation to
health and medical care decisions, a person’s exercise of self-
determination and autonomy would involve the exercise of their
right to decide whether and to what extent they are willing to subject
themselves to medical procedures and treatments. In exercising
such a freedom in decision-making, one may choose to opt out of
any treatment which is not in consonance with their own individual
aspirations and values. This is precisely how adults with the
capacity to consent manifest their right to self-determination in the
medical context. The relevant observations in the opinion of Dipak
Misra, CJ., which evince the same are reproduced thus:
Miscellaneous Application No. 2238 of 2025 Page 49 of 286
“166. […] The concept is based on non-prolongation of life
where there is no cure for the state the patient is in and
he, under no circumstances, would have liked to have
such a degrading state. The words “no cure” have to be
understood to convey that the patient remains in the
same state of pain and suffering or the dying process is
delayed by means of taking recourse to modern medical
technology. It is a state where the treating physicians and
the family members know fully well that the treatment is
administered only to procrastinate the continuum of
breath of the individual and the patient is not even aware
that he is breathing. Life is measured by artificial
heartbeats and the patient has to go through this
undignified state which is imposed on him. The dignity of
life is denied to him as there is no other choice but to
suffer an avoidable protracted treatment thereby thus
indubitably casting a cloud and creating a dent in his
right to live with dignity and face death with dignity,
which is a preserved concept of bodily autonomy and
right to privacy. In such a stage, he has no old memories
or any future hopes but he is in a state of misery which
nobody ever desires to have. […]
xxx xxx xxx
169. In the context of health and medical care decisions,
a person's exercise of self-determination and autonomy
involves the exercise of his right to decide whether and to
what extent he/she is willing to submit himself/herself to
medical procedures and treatments, choosing amongst
the available alternative treatments or, for that matter,
opting for no treatment at all which, as per his or her own
understanding, is in consonance with his or her own
individual aspirations and values.
xxx xxx xxx
174. Thus, enquiring into Common Law and statutory
rights of terminally ill persons in other jurisdictions would
indicate that all adults with the capacity to consent have
the Common Law right to refuse medical treatment and
the right of self-determination.”
Miscellaneous Application No. 2238 of 2025 Page 50 of 286
(Emphasis Supplied)
60. A.K. Sikri, J., in his concurring opinion, begins by noting that the
“personal autonomy” of an individual, as a part of human dignity,
can be pressed into service in the context of euthanasia. He
combines this with other facets of human dignity namely self -
expression and the right to self-determination, to buttress that the
choice to receive or not receive treatment must be made available
to patients. By weaving these multiple facets together, A.K. Sikri,
J., took the view that dignity envisions within itself a quality of life
consistent with the ability to exercise self -determined and
autonomous choices. However, this comes with the obvious caveat
that such a freedom in decision-making would not include the
intentional curtailment or extinguishment of the natural span of
one’s life. The relevant observations are reproduced as follows:
“305. In the context of euthanasia, “personal autonomy”
of an individual, as a part of human dignity, can be
pressed into service. In National Legal Services
Authority v. Union of India, this Court observed : (SCC p.
491, para 75)
“75. Article 21, as already indicated, guarantees the
protection of “personal autonomy” of an individual.
In Anuj Garg v. Hotel Assn. of India, this Court held
that personal autonomy includes both the negative
right of not to be subject to interference by others and
the positive right of individuals to make decisions about
their life, to express themselves and to choose which
activities to take part in. Self-determination of gender is
an integral part of personal autonomy and self -
expression and falls within the realm of personal
liberty guaranteed under Article 21 of the Constitution
of India.”
Miscellaneous Application No. 2238 of 2025 Page 51 of 286
306. In addition to personal autonomy, other facets of
human dignity, namely, “self-expression” and “right to
determine” also support the argument that it is the choice
of the patient to receive or not to receive treatment.
xxx xxx xxx
308. Dignity is, thus, the core value of life and dying in
dignity stands recognised in Gian Kaur . It becomes a
part of right of self-determination.
xxx xxx xxx
310. Taking into consideration the conceptual aspects of
dignity and the manner in which it has been judicially
adopted by various judgments, the following elements of
dignity can be highlighted (in the context of death with
dignity):
310.1. Encompasses self-determination; implies a quality
of life consistent with the ability to exercise self-
determined choices;
310.2. Maintains/ability to make autonomous choices;
high regard for individual autonomy that is pivotal to the
perceived quality of a person's life;
310.3.Self-control (retain a similar kind of control over
dying as one has exercised during life —a way of
achieving death with dignity);
310.4. Law of consent : The ability to choose —
orchestrate the timing of their own death; […]
310.9. Dignity commands emphatic respect:
310.9.1. Reason and emotion are both significant in
treatment decisions, especially at the end of life where
compassion is a natural response to appeals made on the
basis of stifled self-determination; […]
310.11.2. Dignity clearly does play a valuable role in
contextualising people's perceptions of death and dying,
especially as it appears to embody a spirit of self-
determination that advocates of voluntary euthanasia
crave.
Miscellaneous Application No. 2238 of 2025 Page 52 of 286
311. Once we examine the matter in the aforesaid
perspective, the inevitable conclusion would be that
passive euthanasia and death with dignity are
inextricably linked, which can be summed up with the
following pointers:
311.1. The opportunity to die unencumbered by the
intrusion of medical technology and before experiencing
loss of independence and control, appears to many to
extend the promise of a dignified death. When medical
technology intervenes to prolong dying like this it does not
do so unobtrusively;
311.2. Today many patients insist on more than just a
right to healthcare in general. They seek a right to choose
specific types of treatment, able to retain control
throughout the entire span of their lives and to exercise
autonomy in all medical decisions conce rning their
welfare and treatment;
311.3. A dreadful, painful death on a rational but
incapacitated terminally-ill patient are an affront to
human dignity.”
(Emphasis Supplied)
61. D.Y. Chandrachud, J., in his concurring opinion, further expanded
this jurisprudential horizon by situating the right to die with dignity
at the intersection of dignity, privacy, autonomy and liberty.
Dignity, he held, must infuse every stage of human exis tence,
including the closing chapters of one’s life. Crucially, D.Y.
Chandrachud, J., brought the “protective mantle of privacy” to the
forefront, ruling that decisions regarding death are as intimate and
protected as decisions regarding birth, marriage, or procreation.
Further, he unequivocally recognised that a competent individual
possesses an unconditional right to refuse medical treatment, a
choice that requires no justification to the State and is not subject
to the supervisory control of any outside entity. The relevant
Miscellaneous Application No. 2238 of 2025 Page 53 of 286
observations made by D.Y. Chandrachud, J., are reproduced as
follows:
“434. Liberty and autonomy promote the cause of human
dignity. Arguments about autonomy are often linked to
human dignity. Gostin evaluates the relationship
between the dignity of dying with autonomy thus:
“The dying process, after all, is the most intimate,
private and fundamental of all parts of life. It is the
voice that we, as humans, assert in influencing this
autonomous part of our life. At the moment of our
death, this right of autonomy ought not to be taken
from us simply because we are dying. An autonomous
person should not be required to have a good reason
for the decision that he or she will make; that is the
nature of autonomy. We do not judge for other
competent human beings what may be in their best
interest, but instead allow them to determine that for
themselves. As such, an autonomous person does not
need to have a good understanding or even good
reasons. All they need is an understanding of what
they are confronting. There is no reason to believe that
when a person faces imminent death that they have
less human understanding, or less ability to fathom
what they will face, than other people. Of course,
death is a mystery. But death is what we will all
confront sooner or later, and we all may wish to assert
our interests in how we may die.”
xxx xxx xxx
436. An article titled “Euthanasia : A Social Science
Perspective” in the Economic & Political Weekly has
suggested that the discourses on death with dignity
“need to be situated within processes of living with
dignity in everyday contexts”. The end of life must not be
seen as “human disposal”, but, as “the enhancement of
human dignity by permitting each man's last act to be an
exercise of his free choice between a tortured, hideous
death and a painless, dignified one.”
Miscellaneous Application No. 2238 of 2025 Page 54 of 286
xxx xxx xxx
438. Human dignity is an essential element of a
meaningful existence. A life of dignity comprehends all
stages of living including the final stage which leads to
the end of life. Liberty and autonomy are essential
attributes of a life of substance. It is liberty which enables
an individual to decide upon those matters which are
central to the pursuit of a meaningful existence. The
expectation that the individual should not be deprived of
his or her dignity in the final stage of life gives expression
to the central expectation of a fading life : control over pain
and suffering and the ability to determine the treatment
which the individual should receive. When society
assures to each individual a protection against being
subjected to degrading treatment in the process of dying,
it seeks to assure basic human dignity. Dignity ensures
the sanctity of life. The recognition afforded to the
autonomy of the individual in matters relating to end-of-
life decisions is ultimately a step towards ensuring that
life does not despair of dignity as it ebbs away.
439. From Maneka Gandhi to Puttaswamy, dignity is the
element which binds the constitutional quest for a
meaningful existence. […] Dignity in death has a sense of
realism that permeates the right to life. It has a basic
connect with the autonomy of the individual and the right
to self-determination. Loss of control over the body and
the mind are portents of the deprivation of liberty. As the
end of life approaches, a loss of control over human
faculties denudes life of its meaning. Terminal illness
hastens the loss of faculties. Control over essential
decisions about how an individual should be treated at
the end of life is hence an essential attribute of the right
to life. Corresponding to the right is a legitimate
expectation that the State must protect it and provide a
just legal order in which the right is not denied. In matters
as fundamental as death and the process of dying, each
individual is entitled to a reasonable expectation of the
protection of his or her autonomy by a legal order founded
on the rule of law. A constitutional expectation of
Miscellaneous Application No. 2238 of 2025 Page 55 of 286
providing dignity in death is protected by Article 21 and
is enforceable against the State.
xxx xxx xxx
440. The nine-Judge Bench decision of this Court in K.S.
Puttaswamy v. Union of India held privacy to be the
constitutional core of human dignity. The right to privacy
was held to be an intrinsic part of the right to life and
liberty under Article 21 and protected under Part III of the
Constitution [...]
441. The protective mantle of privacy covers certain
decisions that fundamentally affect the human life cycle.
It protects the most personal and intimate decisions of
individuals that affect their life and development. Thus,
choices and decisions on matters such as procreation,
contraception and marriage have been held to be
protected. While death is an inevitable end in the
trajectory of the cycle of human life of individuals are
often faced with choices and decisions relating to death.
Decisions relating to death, like those relating to birth,
sex, and marriage, are protected by the Constitution by
virtue of the right of privacy. The right to privacy resides
in the right to liberty and in the respect of autonomy. The
right to privacy protects autonomy in making decisions
related to the intimate domain of death as well as bodily
integrity. Few moments could be of as much importance
as the intimate and private decisions that we are faced
regarding death. Continuing treatment against the
wishes of a patient is not only a violation of the principle
of informed consent, but also of bodily privacy and bodily
integrity that have been recognised as a facet of privacy
by this Court.
442. Just as people value having control over decisions
during their lives such as where to live, which occupation
to pursue, whom to marry, and whether to have children,
so people value having control over whether to continue
living when the quality of life deteriorates.
xxx xxx xxx
Miscellaneous Application No. 2238 of 2025 Page 56 of 286
517. The entitlement of each individual to a dignified
existence necessitates constitutional recognition of the
principle that an individual possessed of a free and
competent mental state is entitled to decide whether or
not to accept medical treatment. The right of such an
individual to refuse medical treatment is unconditional.
Neither the law nor the Constitution compel an individual
who is competent and able to take decisions, to disclose
the reasons for refusing medical treatment nor is such a
refusal subject to the supervisory control of an outside
entity;”
(Emphasis Supplied)
62. On a holistic reading of the above extracted paragraphs across the
various concurring opinions in Common Cause 2018 (supra), a
clear basis for allowing passive euthanasia in cases involving
competent patients is made out (otherwise commonly referred to as
voluntary passive euthanasia). For individuals who have the
capacity to make decisions, the justification rests on the
convergence of two legal principles: (i) the common law right to
refuse medical treatment (ii) the constitutional guarantees of
dignity, liberty, privacy and self-determination. In this framework,
withdrawing or withholding treatment is not just a medical decision
but a fundamental exercise of the patient’s right to choose, rooted
in one’s rights to dignity, autonomy, liberty, and self-determination.
For a competent individual, this choice is absolute and free from
the State’s or any external entity’s supervisory control. Such a
person is under no legal obligation to provide reasons for refusing
medical treatment. Their autonomy is paramount, and their
decision to reject treatment is a protected expression of their dignity
which even trumps traditional notions regarding the Sanctity of
Miscellaneous Application No. 2238 of 2025 Page 57 of 286
Life. Hoffmann L.JJ pithily captures this point in the Court of
Appeals decision of Airedale (supra) in the following manner:
“A conflict between the principles of the sanctity of life
and the individual's right of self-determination may
therefore require a painful compromise to be made. In the
case of the person who refuses an operation without
which he will certainly die, one or other principle must be
sacrificed. We may adopt a paternalist view, deny that
his autonomy can be allowed to prevail in so extreme a
case, and uphold the sanctity of life. Sometimes this looks
an attractive solution, but it can have disturbing
implications. Do we insist upon patients accepting life-
saving treatment which is contrary to their strongly held
religious beliefs? Should one force-feed prisoners on
hunger strike? English law is, as one would expect,
paternalist towards minors. But it upholds the autonomy
of adults. A person of full age may refuse treatment for
any reason or no reason at all, even if it appears certain
that the result will be his death.”
63. Where then does this jurisprudence place incompetent patients,
i.e., those who, due to their condition, lack the capacity to make
decisions for themselves? A careful reading of Common Cause
2018 (supra) clarifies that the permission for passive euthanasia,
i.e., withholding or withdrawing of medical treatment, is not the
exclusive preserve of the competent. It extends to incompetent
patients as well, including those patients who may not have
appointed proxies or executed AMD. However, some careful
attention must be paid to how the constitutional basis for cases
involving non-voluntary passive euthanasia, or in simple terms, for
incompetent patients, has been charted out.
Miscellaneous Application No. 2238 of 2025 Page 58 of 286
(c) Recognising non-voluntary passive euthanasia within the
framework of Article 21
64. On a bare overview, it may seem as though the Constitution Bench
in Common Cause 2018 (supra) has rooted its constitutional
permissibility of voluntary and non-voluntary passive euthanasia
respectively, on identical foundations. In other words, the rooting of
the right to refuse medical treatment in the combined guarantees
of dignity, liberty, privacy, self-determination, individual autonomy
and freedom from bodily invasion, could appear to have been
echoed for both, competent and incompetent patients alike .
However, such a reading would give way to criticisms which point
out that the specific constitutional protections of the right to
privacy, self-determination and individual autonomy would only be
available for ‘voluntary’ passive euthanasia and be unavailable for
non-voluntary passive euthanasia. According to them, this would
be so, since, privacy, self-determination or individual autonomy
form part of those bouquet of rights which can be exerted or
exercised in pursuance of something ‘by the patient alone’ and not
vicariously. Hence, in a case where the patient is in PVS, since there
is no exercise of choice on his part, it may not entirely be
appropriate to strictly tether the permissibility of passive
euthanasia to the values of privacy or individual autonomy.
65. D.Y. Chandrachud, J., briefly alludes to this criticism
1 which seems
to have gained some momentum in the aftermath of the decision of
1
Peter J. Riga, “Privacy and the Right to Die”, The Catholic Lawyer (2017) Vol. 26: No. 2, Article
2
Miscellaneous Application No. 2238 of 2025 Page 59 of 286
the New Jersey Supreme Court in In re Quinlan, reported in 70 N.
J. 10. Therein, the Court while holding that the incompetent
patient’s right to make a private decision supersedes the State’s
interest in preserving life, also reasoned that since the patient
herself was not competent to assert her right to privacy, it may be
asserted by her parents who would qualify as persons who had been
intimately involved in the patient’s life.
66. Viewed from the perspective of autonomy as well, such criticisms
may assume the forefront. In a very literal sense, autonomy means
‘self-government’. People are autonomous to the extent to which
they are able to control their own choices by the exercise of their
own faculties, free from any arbitrary or otherwise unjustified
interference.
2 Capacity is, therefore, often described as the
gatekeeper and agent for autonomy. The exercise of the right to self-
determination and autonomy may, again, be so intimate to the
specific individual or patient that it may never come to be
appropriately exercised by another on the patient’s behalf.
67. However, this is not to say that autonomy must always be viewed
from this angle. We would be remiss not to acknowledge that, on
the other side of the spectrum, there are views propounding that in
situations where the patient themselves are unable to make a
decision, autonomy morphs into ‘relational autonomy’ – it
transforms from being an individualistic concept to a relational
one.
3 Autonomy is relational owing to the fact that a person’s
2
Mirko Bagaric, Euthanasia: Patient Autonomy versus the Public Good, 18 University of
Tasmania Law Review 149 (1999).
3
Jonathan Herring, Relational Autonomy and Family Law, 11 (Springer, New York, 2014).
Miscellaneous Application No. 2238 of 2025 Page 60 of 286
decision-making is shaped by their environment and relationships,
and therefore, family members or the next of kin can fill in when
autonomy in its traditional understanding becomes vulnerable on
account of the unconscious state of the patient.
68. Having duly acknowledged such perspectives on the right to privacy
and self-determination and its rather complex relationship with
non-voluntary passive euthanasia, we are nevertheless of the view
that they don’t muddy the waters insofar as the constitutional
recognition of the right to die with dignity, through the withdrawal
or withholding of medical treatment for incompetent patients, is
concerned. This is because its permissibility can be fastened upon
the standalone basis of dignity and bodily integrity as well, one that
may not necessarily closely intersect with the elements of privacy,
autonomy and self-determination.
(i) ‘Dignity’ as the standalone basis for the recognition of non -
voluntary passive euthanasia.
69. Dignity is the most sacred possession of a human being. Its
possession can neither be said to lose its sanctity in the process of
death nor when death occurs. Across the four concurring opinions
in Common Cause 2018 (supra), there is an absolute convergence
on the view that the process of death must not be characterised
with a continuum of cruel, degrading and inhuman treatment,
especially when medical intervention is conferring no benefit to the
patient and only exacerbating pain and suffering. This would go
against the assurance of basic human dignity to all.
Miscellaneous Application No. 2238 of 2025 Page 61 of 286
70. Temporarily keeping alive a terminally ill patient who is brain dead
or in PVS, solely because doctors are able to leverage the
technological advancements in medicine, and compelling such
patients to endure a slow, agonising death, cannot fully be
compatible with the constitutional ideal of dignity. There would
arise a point of precipice where such prolonged medical treatment
would stand as an affront to basic human dignity. Ascertaining
when such a point of precipice has arisen for an
unconscious/incompetent patient, i.e., where any further
continuation of medical treatment comes with a serious risk of
infringing dignity, is undoubtedly a complex task. This Court
recognized the complicated nature of such decision-making and
accordingly provided clear guidance for the same in Common
Cause 2018 (supra).
71. The exercise of the right to die with dignity in the form of passive
euthanasia for competent and incompetent patients, i.e., for
voluntary and non-voluntary passive euthanasia, respectively,
differs significantly. Unlike competent patients, whose right to
refuse treatment is unencumbered and absolute, the path for
incompetent patients is far more restricted and arduous. It is
hedged by strict procedural safeguards and, crucially, can only be
initiated if specific threshold conditions are met. Once these
threshold conditions are met, it could be said that the point of
precipice, as referred to above, has been reached. Drawing from the
opinions of Dipak Misra, CJI., and A.K. Sikri, J., this Court in
Common Cause 2018 (supra) established that passive euthanasia
Miscellaneous Application No. 2238 of 2025 Page 62 of 286
for incompetent patients can only be entertained when the following
three prerequisites/medical parameters are satisfied:
a) The patient must be diagnosed to be suffering from a medical
ailment and be classified as either terminally ill, in a PVS, or
like conditions;
b) The patient must be undergoing prolonged medical treatment
with respect to the said ailment, indicating that the
intervention has ceased to be temporary; and
c) The ailment must be irreversible, meaning:
i. the condition is incurable; or
ii. there is no hope of the patient being cured.
72. When the aforesaid threshold conditions/medical parameters are
met, any medical intervention would prove to be futile and not
afford any benefit to the patient. In such a situation, merely
prolonging an inevitable death comes with the heavy cost of pain
and suffering, which directly impacts the right to die with dignity.
For incompetent patients who cannot directly express their wishes,
it is at this stage that constitutional morality, underscored by
dignity, must take over. This direct relationship between the
prolonged administration of futile and invasive treatment that does
not confer any benefit or which is sans any purpose to the patient,
and the infringement of dignity, comes across from the opinions of
Dipak Misra, CJI., Sikri, J., and Chandrachud, J., respectively, in
Common Cause 2018 (supra) as follows:
Miscellaneous Application No. 2238 of 2025 Page 63 of 286
(i). Dipak Misra, CJ., while discussing social morality, medical
ethicality and the State interest under the constitutional backdrop,
emphasised that withdrawal of treatment in an ‘irreversible’
situation or when life is ebbing out, must not give way to social
morality or the doctor’s dilemma about their Hippocratic Oath.
“When prolongation is done sans purpose”, the aforesaid
considerations must not assume the forefront, but rather, it is the
sustenance of dignity and self-respect of an individual, which is
inherent in Article 21, that needs protection. Moreover, passive
euthanasia, in such cases, essentially involves the prevention of
unnecessary intrusion into the physical frame of a person in order
to enable a smooth exit from life, one that is without pain, suffering
and most importantly, indignity. The relevant observations are
reproduced as thus:
“M. Social morality, medical ethicality and State interest
176. Having dwelt upon the issue of self-determination,
we may presently delve into three aspects, namely, social
morality, medical ethicality and the State interest. The
aforesaid concepts have to be addressed in the
constitutional backdrop. We may clearly note that the
society at large may feel that a patient should be treated
till he breathes his last breath and the treating physicians
may feel that they are bound by their Hippocratic oath
which requires them to provide treatment and save life
and not to put an end to life by not treating the patient.
The members of the family may remain in a constant state
of hesitation being apprehensive of many a social factor
which include immediate claim of inheritance, social
stigma and, sometimes, the individual gu ilt. The
Hippocratic oath taken by a doctor may make him feel
that there has been a failure on his part and sometimes
Miscellaneous Application No. 2238 of 2025 Page 64 of 286
also make him feel scared of various laws. There can be
allegations against him for negligence or criminal
culpability.
177. In this regard, two aspects are to be borne in mind.
First, withdrawal of treatment in an irreversible situation
is different from not treating or attending to a patient and
second, once passive euthanasia is recognised in law
regard being had to the right to die with dignity when life
is ebbing out and when the prolongation is done sans
purpose, neither the social morality nor the doctors'
dilemma or fear will have any place. It is because the
sustenance of dignity and self-respect of an individual is
inhered in the right of an individual pertaining to life and
liberty and there is necessity for this protection. And once
the said right comes within the shelter of Article 21 of the
Constitution, the social perception and the apprehension
of the physician or treating doctor regarding facing
litigation should be treated as secondary because the
primacy of the right of an individual in this regard has to
be kept on a high pedestal.
178. It is to be borne in mind that passive euthanasia
fundamentally connotes absence of any overt act either
by the patient or by the doctors. It also does not involve
any kind of overt act on the part of the family members. It
is avoidance of unnecessary intrusion in the physical
frame of a person, for the inaction is meant for smooth exit
from life. It is paramount for an individual to protect his
dignity as an inseparable part of the right to life which
engulfs the dignified process of dying sans pain, sans
suffering and, most importantly, sans indignity.
179. There are philosophers, thinkers and also scientists
who feel that life is not confined to the physical frame and
biological characteristics. But there is no denial of the fact
that life in its connotative expanse intends to search for
its meaning and find the solution of the riddle of existence
for which some lean on atheism and some vouchsafe for
faith and yet some stand by the ideas of an agnostic.
However, the legal fulcrum has to be how Article 21 of the
Constitution is understood. If a man is allowed to or, for
Miscellaneous Application No. 2238 of 2025 Page 65 of 286
that matter, forced to undergo pain, suffering and state of
indignity because of unwarranted medical support, the
meaning of dignity is lost and the search for meaning of
life is in vain.”
(Emphasis Supplied)
(ii). A.K. Sikri, J., while discussing the “morality of euthanasia”
underscored that euthanasia is one such issue where law cannot
be divorced from morality. Viewed from this lens, he proposes that
the “sanctity of life” principle might not strictly require that life be
preserved “at all costs”. The principle only requires that there
should not be a deliberate destruction of human life. Therefore,
when a certain brink is reached, withdrawal of life-prolonging
treatment might very well be in consonance with the preservation
of the sanctity of life in its fullest form. He opines that the right to
life with dignity subsumes within itself the right to die a natural
death and therefore, would permit the withdrawal of prolonged
treatment which has no curative effect. The relevant observations
are reproduced as thus:
“263. Influenced primarily by the aforesaid
considerations, I deem it relevant to indulge into
discussion on morality.
xxx xxx xxx
266. The moral dilemma is that it projects both the
sides—protracted as well as intractable. On the one
hand, it is argued by those who are the proponents of a
liberal view that a right to life must include a concomitant
right to choose when the life becomes unbearable and not
so worth living, when such a stage comes and the sufferer
feels that that the life has become useless, he should have
right to die. Opponents, on the other hand, project
Miscellaneous Application No. 2238 of 2025 Page 66 of 286
“Sanctity of Life” (SOL) as the most important factor and
argue that this “SOL” principle is violated by self-styled
angles of death. Protagonists on “SOL” principle believe
that life should be preserved at all costs and the least
which is expected is that there should not be a deliberate
destruction of human life, though it does not demand that
life should always be prolonged as long as possible.
267. It might therefore be argued, as Emily Jackson
(2008) cogently does, that the law's recognition that
withdrawal of life-prolonging treatment is sometimes
legitimate is not so much an exception to the SOL
principle, as an embodiment of it.
268. In the most secular judicial interpretation of the SOL
doctrine yet, Denman, J. of UKHL explicated thus:
“in respect a person's death, we are also respecting
their life — giving it sanctity…A view that life must be
preserved at all costs does not sanctify life.,..to care for
the dying, to love and cherish them, and to free them
from suffering rather than simply to postpone death is
to have fundamental respect for the sanctity of life and
its end.”
269. Hence, as the process of dying is an inevitable
consequence of life, the right to life necessarily implies the
right to have nature take its course and to die a natural
death. It also encompasses a right, unless the individual
so wishes, not to have life artificially maintained by the
provision of nourishment by abnormal artificial means
which have no curative effect and which are intended
merely to prolong life.
xxx xxx xxx
310. Taking into consideration the conceptual aspects of
dignity and the manner in which it has been judicially
adopted by various judgments, the following elements of
dignity can be highlighted (in the context of death with
dignity): […]
Miscellaneous Application No. 2238 of 2025 Page 67 of 286
310.5. Dignity may be compromised if the dying process
is prolonged and involves becoming incapacitated and
dependent;
310.6. Respect for human dignity means respecting
the intrinsic value of human life;
310.7. Avoidance of dependency;
310.8. Indefinite continuation of futile physical life is
regarded as undignified;[...]
311. Once we examine the matter in the aforesaid
perspective, the inevitable conclusion would be that
passive euthanasia and death with dignity are
inextricably linked, which can be summed up with the
following pointers:[…]
311.3. A dreadful, painful death on a rational but
incapacitated terminally-ill patient are an affront to
human dignity.”
(Emphasis Supplied)
(iii). D.Y. Chandrachud, J., also echoes the view taken by A.K. Sikri, J.,
insofar as the interpretation of the “Sanctity of Life” principle is
concerned, and elaborates that the said principle does not require
that life always be prolonged for as long as possible. He also
dissuades the adoption of an absolutist interpretation of Sanctity
of Life and states that a dignified existence is the cornerstone that
sanctifies life. When medical treatment can do nothing to restore
those in a PVS to a state of health, it would largely be futile. The
growth of modern medicine has found innovative ways to delay
death and prolong mere biological existence during the act of dying.
However, in his opinion, when the same medical knowledge
indicates a point of no return, endlessly continuing artificial
medical support would only protract indignity. The relevant
observations are thus:
Miscellaneous Application No. 2238 of 2025 Page 68 of 286
“413. Though the sanctity principle prohibits “the
deliberate destruction of human life, it does not demand
that life should always be prolonged for as long as
possible”. While providing for an intrinsic sacred value to
life “irrespective of the person's capacity to enjoy life and
notwithstanding that a person may feel their life to be a
great burden”, the principle holds that “life should not
always be maintained at any an d all cost”. Ethical
proponents of the sanctity of life tend to agree that when
“medical treatment, such as ventilation and probably also
antibiotics, can do nothing to restore those in permanent
vegetative state to a state of health and well-functioning,
it is futile and need not be provided”. Rao has thus
suggested that “the law's recognition that withdrawal of
life-prolonging treatment is sometimes legitimate” is not
generally an exception to the sanctity principle, but is
actually “an embodiment of it”.
xxx xxx xxx
423. Modern medicine has found ways to prolong life and
to delay death. But, it does not imply that modern
medicine “necessarily prolongs our living a full and robust
life because in some cases it serves only to prolong mere
biological existence during the act of dying”. This may, in
certain situations result in a mere “prolongation of a
heartbeat that activates the husk of a mindless,
degenerating body that sustains an unknowing and
pitiable life—one without vitality, health or any
opportunity for normal existence—an inevitable stage in
the process of dying”. Prolonging life in a vegetative state
by artificial means or allowing pain and suffering in a
terminal state would lead to questioning the belief that
any kind of life is so sanctified as to be preferred
absolutely over death.
xxx xxx xxx
437. Under our Constitution, the inherent value which
sanctifies life is the dignity of existence. Recognising
human dignity is intrinsic to preserving the sanctity of life.
Life is truly sanctified when it is lived with dignity. There
Miscellaneous Application No. 2238 of 2025 Page 69 of 286
exists a close relationship between dignity and the
quality of life. For, it is only when life can be lived with a
true sense of quality that the dignity of human existence
is fully realised. Hence, there should be no antagonism
between the sanctity of human life on the one hand and
the dignity and quality of life on the other hand. Quality
of life ensures dignity of living and dignity is but a process
in realising the sanctity of life.”
(Emphasis Supplied)
73. When the degree of bodily invasion progressively increases, and the
prognosis for recovery progressively decreases, there arises a
certain point when the State’s absolute interest in preserving life
must become subservient to the dignity of the said individual,
though he is unconscious or incompetent. The State’s interest must
not be allowed to overpower the dignity which must be equally
assured to all individuals in the process of life and in the process of
death. To obviate any confusion, we must clarify that there is no
real conflict between the patient’s right to dignity and the State’s
interest from the get-go when the patient is subjected to medical
treatment. This is because it is initially administered with a view to
confer some benefit to the patient and to secure or safeguard his
right to life with dignity. It is only post the fulfilment of the aforesaid
threshold prerequisites/medical parameters that this conflict
becomes apparent, particularly with reference to unconscious or
incompetent patients who are unable to exercise any choice in the
matter. That the vigour of the State interest is diluted in such a
situation has also been expounded by Dipak Misra, CJ., in his
opinion as follows:
Miscellaneous Application No. 2238 of 2025 Page 70 of 286
“O. Submissions of Intervenor (Society for the Right to Die
with Dignity)
182. […] It is his submission that in the modern State, the
State interest should not overweigh the individual interest
in the sphere of a desire to die a peaceful death which
basically conveys refusal of treatment when the condition
of the individual suffering from a disease is irreversible.
The freedom of choice in this sphere, as Mr Mohta would
put it, serves the cause of humanitarian approach which
is not the process to put an end to life by taking a positive
action but to allow a dying patient to die peaceably
instead of prolonging the process of dying without
purpose that creates a dent in his dignity
183. The aforesaid argument, we have no hesitation to
say, has force. It is so because it is in accord with the
constitutional precept and fosters the cherished value of
dignity of an individual. It saves a helpless person from
uncalled for and unnecessary treatment when he is
considered as merely a creature whose breath is felt or
measured because of advanced medical technology. His
“being” exclusively rests on the mercy of the technology
which can prolong the condition for some period. The said
prolongation is definitely not in his interest. On the
contrary, it tantamounts to destruction of his dignity
which is the core value of life. In our considered opinion,
in such a situation, an individual interest has to be given
priority over the State interest.”
(Emphasis Supplied)
74. In the aforesaid excerpt, it may seem as though the view that State
interest must not outweigh individual interest, is specific to a
context wherein the individual himself has expressed his desire to
die a peaceful death through the refusal of further invasive
treatment when the condition is irreversible. However, that would
be a rather restrictive outlook that ignores the depth of what was
sought to be conveyed by Dipak Misra, CJ. We say so because
Miscellaneous Application No. 2238 of 2025 Page 71 of 286
whether the affliction of the patient is reversible or not would be a
hurdle for a conscious patient who has expressed a desire to
withdraw or withhold medical treatment. Competent individuals
have an unconditional right to refuse medical treatment, and this
has been particularly emphasised in the opinion of D.Y.
Chandrachud, J., as we had already previously stated. It is under
such circumstances that we are of the view that the aforesaid
inverse relationship between state interest and withdrawal of
withholding of medical treatment must necessarily be understood
in the context of incompetent patients as well.
75. A sceptic might further argue that, because incompetent patients
are themselves unable to convey their decision on whether medical
treatment must be continued or withheld/withdrawn, a ‘choice’ is
being made for them by external individuals who have thought it fit
to calculate the subjective worth of the patient’s life. However, such
an argument would itself be built on shaky foundation as it
conveniently ignores the reality that the commencement of any
medical intervention already begins with a ‘choice’. More often than
not, this initial ‘choice’ to intervene commences with validation i.e.,
through the informed consent expressed by the patient himself. If
the ‘choice’ to ‘treat’, by any chance, is not set in motion with such
consent, it begins with necessity – the necessity to restore the
patient to health that combines itself with the Hippocratic Oath that
doctors always bind themselves to.
76. However, a crucial question that then arises is, how long can we
keep such medical intervention ongoing? Especially when the
Miscellaneous Application No. 2238 of 2025 Page 72 of 286
grounding of the medical intervention in necessity slowly begins to
fade away, owing to it being sans any purpose? Even if the consent
to intervene was initially expressed by the patient himself, the issue
still remains complex because one cannot endlessly assume
continuous consent despite the circumstances of the patient
undergoing myriad changes during the period of unconsciousness.
Assuming the existence of such a continuous and endless consent
would be problematic for several obvious reasons.
77. In such circumstances, continuing medical treatment or
withholding/withdrawing the same would both necessarily include
a ‘choice’. Any averment that only its discontinuation would involve
a moral, legal and ethical dilemma and its continuation would not,
is seriously misplaced. This aspect has been very pithily captured
by the following observations made by Hoffmann L.J. in the Court
of Appeals decision of Airedale (supra):
“Does this mean that people who have not expressed their
wishes in advance and are now incapable of expression
must lose all right to have treatment discontinued and
that those caring for them are in every case under a
corresponding duty to keep them alive as long as medical
science will allow? Counsel for the Official Solicitor said
that this was so. If they have not chosen, the court has no
right to choose on their behalf. I think that the fallacy in
this argument is that choice cannot be avoided. To
continue treatment is as much a choice as to discontinue
it. Why is it not an act of choice to decide to continue to
invade the privacy of Anthony Bland's body with tubes,
catheters, probes and injections? If on account of his
unconsciousness he is obliged to submit to such
treatment, one cannot say that it is because the court is
refusing to choose on his behalf. One way or the other, a
choice is being made. It is only if one thinks it natural and
Miscellaneous Application No. 2238 of 2025 Page 73 of 286
normal to want treatment that continuing to provide it
seems not so much a choice as a given state of affairs.
And of course in most cases this would be true. In a case
in which it was being said that a person should not be
given treatment which would avoid death and restore him
to full health, one would want to know that this was his
personal choice and that it had been expressed very
clearly indeed.
But Anthony Bland's is not a normal case. The
continuation of artificial sustenance and medical
treatment will keep him alive but will not restore him to
having a life in any sense at all […]
xxx xxx xxx
In my view the choice which the law makes must
reassure people that the courts do have full respect for
life, but that they do not pursue the principle to the point
at which it has become almost empty of any real content
and when it involves the sacrifice of other important
values such as human dignity and freedom of choice. I
think that such reassurance can be provided by a
decision, properly explained, to allow Anthony Bland to
die. It does not involve, as counsel for the Official Solicitor
suggested, a decision that he may die because the court
thinks that his “life is not worth living.”
(Emphasis Supplied)
78. Hoffmann L.J. was addressing a dilemma that preoccupied the
minds of this Court in Common Cause 2018 (supra) as well – when
patients have not expressed their wishes in advance, either
expressly through their informed consent during the
commencement of the medical intervention or by executing an
AMD, and have been subsequently rendered unconscious, whether
they must always succumb to the choice of continuing treatment
rather than the choice of bringing it to a halt? This was answered
Miscellaneous Application No. 2238 of 2025 Page 74 of 286
with an emphatic ‘No’, by highlighting that one cannot escape the
reality of the fact that there resides a choice in every action or
omission that is made in relation to the patient, and that the same
is true also as regards the unending continuation of medical
treatment. Therefore, when we are confronted with the truth that
both continuation and withdrawal of treatment are based on a
‘choice’, the duty of the court and the doctors alike, must be to
ensure that the scales tilt in favour of safeguarding the full respect
for life and its avowed values of human dignity.
(ii) Unconscious or incompetent patients and their right to bodily
integrity.
79. This ‘choice’ which has preoccupied our aforesaid discussion can
be looked at in relation to the concept of bodily integrity as well.
Before proceeding any further, it has to be clarified that bodily
integrity and bodily autonomy have a notable yet nuanced
conceptual difference. It may not be appropriate for us to equate
them to mean one and the same, under all circumstances. We
understand ‘bodily integrity’ as a right that exists with a separate
identity. It serves as one of the foundational bases upon which the
idea of ‘bodily autonomy’ rests. In other words, it is because one
enjoys the right to bodily integrity (amongst other personal rights),
that they are able to exercise the right to bodily autonomy. Now,
why is it important for us to highlight any distinction that may exist
between them? Once it is established that the right to bodily
integrity is neither a mere sub-set of autonomy nor its mirror
Miscellaneous Application No. 2238 of 2025 Page 75 of 286
reflection, we may be able to strongly cement that its strength is not
diluted for unconscious or incompetent patients.
80. The most common definition of bodily integrity is the “right to be
free from physical interference”
4. Jonathan Herring argues that the
right to bodily integrity provides for the exclusive use and control
over our own bodies on the basis that our bodies are the “site” and
“location” of where our subjectivity engages with the world.
5
Therefore, the right carries with it, the concomitant right to exclude
all others from the body. If there existed no right to bodily integrity
and no right to exclude, then any right to either invite or deny would
lose its value.
6 Bodily autonomy, on the other hand, protects a
person’s capacity to make his or her own decisions in relation to his
or her body. Therefore, when there is an infringement upon the
bodily integrity of another, the same would amount to a disrespect
that is broader than the disrespect for the person’s capacity to live
life according to their own reasons, motivations and terms. Bodily
integrity reflects a focus on the welfare, well-being and respect for
one’s personhood rather than a myopic focus on his rational
decision-making capacity. Such a right carries with it strict duties
of non-interference against an open set of persons and makes any
infringement actionable.
81. We also wish to elucidate the existence of the aforesaid conceptual
difference between bodily autonomy and bodily integrity through
4
D. Feldman, Civil Liberties and Human Rights in England and Wales, 2
nd
ed. (Oxford, 2002),
241.
5
Jonathan Herring and Jesse Wall, The Nature and Significance of the Right to Bodily Integrity,
76(3) Cambridge Law Journal 577, 2017
6
Ibid at 581.
Miscellaneous Application No. 2238 of 2025 Page 76 of 286
certain observations made by A.K. Sikri, J. and Ashok Bhushan J.,
respectively. The relevant observations are reproduced as follows:
A.K. Sikri, J.,
“315. I had indicated at the earlier stage that Hippocratic
Oath, coupled with ethical norms of medical profession,
stand in the way of euthanasia. It brings about a
situation of dilemma insofar as medical practitioner is
concerned. On the one hand his duty is to save the life of
a person till he is alive, even when the patient is
terminally ill and there are no chances of revival. On the
other hand, the concept of dignity and right to bodily
integrity, which recognises legal right of autonomy and
choice to the patient (or even to his relations in certain
circumstances, particularly when the patient is
unconscious or incapacitated to take a decision) may lead
to exercising his right of euthanasia.
316. Dignity implies, apart from a right to life enjoyment
of right to be free of physical interference. At common law,
any physical interference with a person is, prima facie,
tortious. If it interferes with freedom of movement, it may
constitute a false imprisonment. If it involves physical
touching, it may constitute a battery. If it puts a person in
fear of violence, it may amount to an assault. For any of
these wrongs, the victim may be able to obtain damages.
317. When it comes to medical treatment, even there the
general common law principle is that any medical
treatment constitutes a trespass to the person which must
be justified, by reference either to the patient's consent or
to the necessity of saving life in circumstances where the
patient is unable to decide whether or not to consent
Ashok Bhushan, J.,
“611. The rights of bodily integrity and self-determination
are the rights which belong to every human being. When
an adult person having mental capacity to take a decision
Miscellaneous Application No. 2238 of 2025 Page 77 of 286
can exercise his right not to take treatment or withdraw
from treatment, the above right cannot be negated for a
person who is not able to take an informed decision due
to terminal illness or being in a persistent vegetative state
(PVS). The question is who is competent to take decision
in case of terminally ill or PVS patient, who is not able to
take decision. In case of a person who is suffering from a
disease and is taking medical treatment, there are three
stakeholders; the person himself, his family members
and doctor treating the patient. The American Courts give
recognition to opinion of “surrogate” where person is
incompetent to take a decision. No person can take
decision regarding life of another unless he is entitled to
take such decision authorised under any law. The
English Courts have applied the “best interests” test in
case of an incompetent person. The best interests of the
patient have to be found out not by doctor treating the
patient alone but a team of doctors specifically nominated
by the State Authority. […]”
(Emphasis Supplied)
82. Firstly, A.K. Sikri, J., identifies that it is the concept of dignity and
the right to bodily integrity, which in turn recognises the legal right
of autonomy and choice afforded to the patient. Therefore, he aptly
places the right to bodily integrity at a core and higher conceptual
standing instead of viewing it as a subset of autonomy. Recognising
this hierarchical relationship, he then alludes to the idea that,
despite unconscious or incapacitated patients being unable to
exercise their choice, they may still secure their right to bodily
integrity through their relations/kin. This reinforces the broader
normative basis that we have assigned to bodily integrity – one that
is not necessarily to be conflated with bodily autonomy or the
individual’s choice. He echoes that everyone enjoys the right to be
free from physical interference and that in common law, any
infringement is tortious.
Miscellaneous Application No. 2238 of 2025 Page 78 of 286
83. Secondly, Ashok Bhushan, J., while stating that the rights of bodily
integrity and self-determination belong to every human being, also
does not commingle the two. He carries forward the same idea
propounded by A.K. Sikri, J., that the option not to take treatment
or withdraw from treatment, which would thereby secure bodily
integrity, cannot be made unavailable for a patient who is in a PVS
state. It is in this regard that he identifies three key stakeholders in
the process – the patient himself, his family members and the
doctor treating the patient. Therefore, when a patient is
incompetent, it would be the remaining stakeholders who would be
assigned the responsibility to safeguard the bodily integrity of the
patient from a well-being point of view.
84. It is to ensure that the other stakeholders conscientiously safeguard
the dignity and right to bodily integrity of the patient that the “best
interest” standard has been jurisprudentially developed, especially
to answer legal issues surrounding non -voluntary passive
euthanasia. This doctrine or standard would bind both the
remaining stakeholders as identified by Ashok Bhushan, J., i.e., the
family/kin and the treating doctors, respectively. This is precisely
why they both play a key role in the procedure la id down by
Common Cause 2018 (supra) in the process of determining
whether the medical treatment must be withheld or withdrawn. We
have briefly contextualised the ‘best interest’ doctrine here but have
deemed it appropriate to discuss the same separately under another
section to afford the doctrine the detailed discussion that it
deserves.
Miscellaneous Application No. 2238 of 2025 Page 79 of 286
(iii) ‘Authorized omission’ in consonance with the duty of care of
doctors
85. Despite the constitutional permissibility of passive euthanasia
under Article 21, the fear of criminal liability creates a hurdle in its
rightful exercise and implementation. The looming threat that a
doctor could be charged with a crime for withdrawing life support
creates a chilling effect. Physicians, wary of prosecution, may
hesitate to withhold futile treatment, even when continuing it
prolongs the patient’s suffering and indignity. Such an environment
risks relegating the rights and dignity of incompetent patients to the
background in favour of legal wariness. This Court in Common
Cause 2018 (supra), while addressing this issue, explicitly ruled
that when treatment is withdrawn or withheld in strict adherence
to the prescribed procedural safeguards, no criminal liability could
be attached to the physician. While this Court explored various legal
justifications for this immunity, including the lack of intent and
causation, we are of the considered opinion that the most robust
defence lies in the absence of an ‘illegal omission’, as once the same
is established, the doctor cannot be held liable, rendering further
inquiries into intent or causation unnecessary. The observation
made by Dipak Misra, CJ., that such a withdrawal or withholding
either comes within the protection of informed consent (in cases of
voluntary passive euthanasia) or “authorised omission” (in cases of
non-voluntary passive euthanasia) respectively, and hence, no
criminal liability can be attached, captures this perfectly. The same
is reproduced thus:
Miscellaneous Application No. 2238 of 2025 Page 80 of 286
“166. […] The authorities, we have noted from other
jurisdictions, have observed the distinctions between the
administration of lethal injection or certain medicines to
cause painless death and non-administration of certain
treatment which can prolong the life in cases where the
process of dying that has commenced is not reversible or
withdrawal of the treatment that has been given to the
patient because of the absolute absence of possibility of
saving the life. To explicate, the first part relates to an
overt act whereas the second one would come within the
sphere of informed consent and authorised omission. The
omission of such a nature will not invite any criminal
liability if such action is guided by certain safeguards.”
(Emphasis Supplied)
86. It is true that under the Indian penal law, the definition of an ‘act’
encompasses illegal omissions. Further, it is fairly well established
that the fiduciary relationship between a doctor and a patient
generally imposes a duty of care on the doctor to preserve life.
Consequently, a failure to treat would, in normal circumstances,
constitute a breach of this duty, thereby inviting liability. However,
this duty does not translate into a mandate to artificially prolong
life ad infinitum or to avert death at all costs. It is recognised that
‘to be is to die’ and that death is the inevitable conclusion of
existence. In such circumstances, it would be legally and logically
unreasonable to impose upon doctors a duty to perpetually prevent
the unpreventable. Therefore, the scope of this duty of care shifts
shape when a patient meets t he threshold conditions/medical
parameters previously discussed, i.e., when they are terminally ill
or in a PVS, undergoing prolonged medical treatment with no hope
of cure. In such scenarios, where continued intervention ceases to
Miscellaneous Application No. 2238 of 2025 Page 81 of 286
be ‘treatment’ and becomes merely a mechanism for prolonging
physical life, causing harm to the patient’s dignity, the duty to avert
death ceases to exist. Simply put, in such cases, if the doctor
withdraws or withholds treatment in accordance with the
prescribed procedure, then such omission to treat will not
constitute a breach of their duty of care. It, in fact, becomes the
truest manifestation of the duty of care. Consequently, the act of
withdrawing or withholding medical treatment, in such scenarios,
will not be held to be an ‘illegal omission’.
87. D.Y. Chandrachud. J., in his concurring opinion in Common Cause
2018 (supra), stated that the treatment of the human body involves
a “continuous association” between the caregiver and the receiver.
He further stated that the expert caregiver is involved in a
continuous process where medical knowledge, the condition of the
patient, and the relevant circumstances, require them to constantly
evaluate choices, i.e., choices on the nature and extent of medical
intervention, the wisdom regarding a course of action, and about
what should or should not be done. This perspective was also
expressed by Sir Thomas in Airedale (supra), wherein he held that
what is involved is not just medical treatment, but medical
treatment in accordance with the doctor’s best judgment as to what
is in the patient’s best interests. Dr. Atul Gawande, in his acclaimed
book, Being Mortal, brings to the fore this point in a beautiful
manner:
“If to be human is to be limited, then the role of caring
professions and institutions—from surgeons to nursing
homes—ought to be aiding people in their struggle with
Miscellaneous Application No. 2238 of 2025 Page 82 of 286
those limits. Sometimes we can offer a cure, sometimes
only a salve, sometimes not even that. But whatever we
can offer, our interventions, and the risks and sacrifices
they entail, are justified only if they serve the large aims
of a person's life. When we forget that, the suffering we
inflict can be barbaric. When we remember it, the good we
do can be breathtaking.”
88. Thus, when a doctor, on the basis of the best interests of their
patient and in accordance with the procedural safeguards
prescribed under Common Cause 2018 (supra), withholds or
withdraws medical treatment, it can very well be termed as a step
taken in furtherance of their duty of care, not in contradiction to it.
In fact, the procedural safeguards prescribed in Common Cause
2018 (supra), especially the establishment of two independent
medical boards, were intended to ensure that any act taken in
accordance with that procedure would best take care of two things
simultaneously – ensure that patient interests are kept at the
forefront and also that the doctors are not exposed to any liability.
89. It could be argued that, in essence, withdrawing support places the
patient back into the “zone of danger” from which they were initially
rescued. Does this not constitute a breach of the duty of care? By
exposing the patient to the potential pain and agony associated with
the removal of life support, such as a ventilator or feeding tube, are
we not contradicting the very principles of dignity that support
passive euthanasia in the first place? To answer this, it is important
to understand passive euthanasia as a termination of a ‘rescue
operation’ and not as the ‘abandonment’ of a patient. As noted
above, the duty of care does not cease. It merely shifts from curative
Miscellaneous Application No. 2238 of 2025 Page 83 of 286
treatment to palliative care. In cases where medical treatment is
withdrawn or withheld, the doctor’s duty entails providing robust
palliative care (as discussed in further detail in the later parts of
this judgment) and ensuring that the act of withdrawal does not
result in a situation in which the patient’s dignity is further
compromised.
III. Impermissibility of Active Euthanasia under Article 21 of the
Constitution of India
90. One of the many aspects that have been highlighted by us in the
preceding paragraphs is the concurrence in the opinions of A.K.
Sikri, J., and Chandrachud, J., that the right to a dignified death
cannot be said to be at loggerheads with the conception of sanctity
of life. If one accepts the nuanced interpretation where the quality
of life breathes meaning into the sanctity of life, a natural corollary
might suggest that active euthanasia should also be permissible.
Indeed, in their respective opinions, both A.K. Sikri, J., and
Chandrachud, J., have themselves acknowledged the existence of a
body of scholarship arguing that, on moral grounds, the distinction
between active and passive euthanasia is tenuous, and that, if any
difference exists, it is purely a matter of policy. However, the Court
noted that its role was not to test the touchstone of morality, but to
apply the yardstick of constitutional principles inherent in Article
21. Consequently, while the moral divide between the two may be
blurred for philosophers, for the Bench in Common Cau se 2018
(supra), the constitutional divide remained clear.
Miscellaneous Application No. 2238 of 2025 Page 84 of 286
91. To understand the basis for the constitutional divide between active
and passive euthanasia, it is apposite to look at the observations
made by this Court in Common Cause 2018 (supra), which are as
follows:
Dipak Misra, CJ.,
“165. In the context of the issue under consideration, we
must make it clear that as part of the right to die with
dignity in case of a dying man who is terminally ill or in
a persistent vegetative state, only passive euthanasia
would come within the ambit of Article 21 and not the one
which would fall within the description of active
euthanasia in which positive steps are taken either by the
treating physician or some other person. That is because
the right to die with dignity is an intrinsic facet of Article
21 [...]”
Dr. A.K. Sikri, J.,
“220. […] Thus, insofar as active euthanasia is
concerned, this has to be treated as legally impermissible,
at least for the time being. It is more so, as there is
absence of any statutory law permitting active
euthanasia. If at all, legal provisions in the form of
Sections 306 and 307 IPC, etc. point towards its
criminality.”
Dr. D.Y. Chandrachud, J.,
“398. […] Voluntary passive euthanasia, where death
results from selective non-treatment because consent is
withheld, is therefore legally permissible while voluntary
active euthanasia is prohibited. Moreover, passive
euthanasia is conceived with a purpose of not prolonging
the life of the patient by artificial medical intervention.
Both in the case of a withdrawal of artificial support as
well as in non-intervention, passive euthanasia allows for
life to ebb away and to end in the natural course. In
Miscellaneous Application No. 2238 of 2025 Page 85 of 286
contrast, active euthanasia results in the consequence of
shortening life by a positive act of medical intervention. It
is perhaps this distinction which necessitates legislative
authorisation for active euthanasia, as differentiated
from the passive.
xxx xxx xxx
450. […] While noticing this criticism, it is necessary to
distinguish between active and passive euthanasia in
terms of the underlying constitutional principles as well
as in relation to the exercise of judicial power. Passive
euthanasia—whether in the form of withholding or
withdrawing treatment—has the effect of removing, or as
the case may be, not providing supportive treatment. Its
effect is to allow the individual to continue to exist until
the end of the natural span of life. On the other hand,
active euthanasia involves hastening of death: the
lifespan of the individual is curtailed by a specific act
designed to bring an end to life. Active euthanasia would
on the state of the penal law as it stands constitute an
offence. Hence, it is only Parliament which can in its
legislative wisdom decide whether active euthanasia
should be permitted. Passive euthanasia on the other
hand would not implicate a criminal offence since the
decision to withhold or withdraw artificial life support
after taking into account the best interest of the patient
would not constitute an illegal omission prohibited by
law.
451. Moreover, it is necessary to make a distinction
between active and passive euthanasia in terms of the
incidents of judicial power […]
“[…] Parliament was and is entitled to decide that the
clarity of such a moral position could only be achieved
by means of such a rule. Although views about this
vary in society, we think that the legitimacy of
Parliament deciding to maintain such a clear line that
people should not seek to intervene to hasten the death
of a human is not open to serious doubt. Parliament is
entitled to make the assessment that it should protect
Miscellaneous Application No. 2238 of 2025 Page 86 of 286
moral standards in society by issuing clear and
unambiguous laws which reflect and embody such
standards.”
In taking the view which has been taken in the present
judgment, the Court has been conscious of the need to
preserve to Parliament, the area which properly belongs
to its legislative authority. Our view must hence be
informed by the impact of existing legislation on the field
of debate in the present case.”
Ashok Bhushan, J.,
“606. Withdrawal of life-saving devices, leads to natural
death which is arrested for the time being due to above
device and the act of withdrawal put the life on the
natural track. Decision to withdraw life-saving devices is
not an act to cause good death of the person rather,
decision to withdraw or not to initiate life-supporting
measures is a decision when treatment becomes futile
and unnecessary. Practice of euthanasia in this country
is prohibited and for medical practitioners it is already
ordained to be unethical conduct [...]”
(Emphasis Supplied)
92. A close scrutiny of the above-quoted paragraphs reveals that the
Court’s distinction between active and passive euthanasia in
Common Cause (supra) was based on the constitutional principles
underlying Article 21. This Court reasoned that active euthanasia
involves a positive, overt act which is designed to curtail the natural
lifespan and extinguish life. Under the mandate of Article 21, no
person can be deprived of their life except in accordance with a
procedure established by law. Consequently, for active euthanasia
to be legally permissible, there must be an explicit legislative
enactment authorizing such deprivation. The Bench noted the
Miscellaneous Application No. 2238 of 2025 Page 87 of 286
absence of such a statute and observed that active euthanasia in
such circumstances would constitute a penal offence under the
existing laws of our country. Further, this Court held that it is
Parliament’s call to decide whether active euthanasia should be
allowed, as it is the proper forum to address such fundamentally
contentious moral issues, and the Court cannot usurp powers
properly belonging to the legislature. In stark contrast to active
euthanasia, the legal permissibility of passive euthanasia rests on
a fundamentally different premise.
IV. Establishing the Permissibility of Advanced Medical Directives
93. Beyond establishing the constitutional permissibility of passive
euthanasia, this Court in Common Cause 2018 (supra) also
validated the legal status of AMDs. This Court held that these
instruments are not void or legally unenforceable but are, in fact, a
permissible exercise of rights under the Constitution of India.
However, before delving into the Court’s rationale for establishing
their validity, it is essential to clarify what the Bench understood by
the term ‘Advanced Medical Directive’ or ‘Advanced Directive’. A
review of the concurring opinions reveal convergence on the view
that an AMD is a mechanism that effectively bridges the gap
between present competence and future incapacity . It is
characterised as a document executed by a person while they are
still in possession of their mental faculties and decision-making
capacity, specifying their instructions regarding medical treatment
or appointment of a trusted surrogate to make medical decisions on
their behalf, upon the occurrence of a specific future event, and
Miscellaneous Application No. 2238 of 2025 Page 88 of 286
them being unable to communicate their wishes. The relevant
observations made by this Court are as follows:
Dipak Misra, CJ.
“185. Advance Directives for healthcare go by various
names in different countries though the objective by and
large is the same, that is, to specify an individual's
healthcare decisions and to identify persons who will
take those decisions for the said individual in the event
he is unable to communicate his wishes to the doctor.
186. Black's Law Dictionary defines an Advance Medical
Directive as, “a legal document explaining one's wishes
about medical treatment if one becomes incompetent or
unable to communicate”. A living will, on the other hand,
is a document prescribing a person's wishes regarding
the medical treatment the person would want if he was
unable to share his wishes with the healthcare provider.
187. Another type of Advance Medical Directive is
medical power of attorney. It is a document which allows
an individual (principal) to appoint a trusted person
(agent) to take healthcare decisions when the principal is
not able to take such decisions. The agent appointed to
deal with such issues can interpret the principal's
decisions based on their mutual knowledge and
understanding.
Dr. A.K. Sikri, J.
“335. Advance Directives are instruments through which
persons express their wishes at a prior point in time,
when they are capable of making an informed decision,
regarding their medical treatment in the future, when
they are not in a position to make an informed decision,
by reason of being unconscious or in a PVS or in a coma.
A medical power of attorney is an instrument through
which persons nominate representatives to make
decisions regarding their medical treatment at a point in
Miscellaneous Application No. 2238 of 2025 Page 89 of 286
time when the persons executing the instrument are
unable to make informed decisions themselves […]”
Dr. D.Y. Chandrachud, J.
“471. Broadly, there are two forms of Advance Directives:
(i) A Living Will which indicates a person's views and
wishes regarding medical treatment.
(ii) A Durable Power of Attorney for Health Care or
healthcare proxy which authorises a surrogate decision-
maker to make medical care decisions for the patient in
the event she or he is incapacitated.
Although there can be an overlap between these two
forms of Advance Directives, the focus of a durable power
is on who makes the decision while the focus of a living
will is on what the decision should be. A “living will” has
also been referred as “a declaration determining the
termination of life”, “testament permitting death”,
“declaration for bodily autonomy”, “declaration for ending
treatment”, “body trust”, or other similar reference. Living
wills are not a new entity and were first suggested by US
attorney, Luis Kutner, in late 1960s.
472. Advance Directives have evolved conceptually to
deal with cases where a patient who subsequently faces
a loss of the mental faculty to decide has left instructions,
when he or she was possessed of decision -making
capacity, on how future medical decisions should be
made. […]”
(Emphasis Supplied)
94. In Common Cause 2018 (supra), this Court held that AMDs are
legal and valid instruments, as they facilitate the exercise of the
right to die with dignity, specifically for patients who have lost their
decision-making capacity. The reasoning was that if a competent
patient has the right to make decisions regarding medical
treatment, then, as a natural corollary, even incompetent patients
should be entitled to the same right. However, due to their lack of
Miscellaneous Application No. 2238 of 2025 Page 90 of 286
decision-making capacity, a precarious situation may arise. It is
this very gap that AMDs seek to bridge.
95. In effect, an AMD is an instrument that allows a decision regarding
medical treatment to be made in advance, on the notion that if the
situation prescribed therein arises at a later time when the patient
is incompetent, the decision will be enforced. The justification is
that if competent patients have the right to refuse treatment now,
they would also have the right to refuse treatment that might be
imposed on them even in the future. In other words, if a decision on
whether or not to receive medical treatment is valid for the present,
such a decision must be equally valid when it is intended to operate
in the future. Thus, the notions of patient autonomy and consent
played an instrumental role in the Court’s recognition of AMDs as
valid under the law. In fact, the Constitution Bench was
unequivocal in stating that, in cases where there is a valid AMD,
the right of self-determination, rooted in autonomy and consent,
trumps notions of sanctity of life. The relevant observations made
by the Court in this regard are as follows:
Dipak Misra, CJ.
“198. In our considered opinion, Advance Medical
Directive would serve as a fruitful means to facilitate the
fructification of the sacrosanct right to life with dignity.
The said directive, we think, will dispel many a doubt at
the relevant time of need during the course of treatment
of the patient. That apart, it will strengthen the mind of
the treating doctors as they will be in a position to ensure,
after being satisfied, that they are acting in a lawful
manner […]
xxx xxx xxx
Miscellaneous Application No. 2238 of 2025 Page 91 of 286
202.11. A failure to legally recognise Advance Medical
Directives may amount to non-facilitation of the right to
smoothen the dying process and the right to live with
dignity.[…]
202.12. Though the sanctity of life has to be kept on the
high pedestal yet in cases of terminally ill persons or PVS
patients where there is no hope for revival, priority shall
be given to the Advance Directive and the right of self-
determination.”
Dr. A.K. Sikri, J.
333. I am also of the view that such an advance authority
is akin to well-recognised common law right to refuse
medical treatment.
Dr. D.Y. Chandrachud, J.
“473. The principles of patient autonomy and consent are
the foundation of Advance Medical Directives. A
competent and consenting adult is entitled to refuse
medical treatment. By the same postulate, a decision by
a competent adult will be valid in respect of medical
treatment in future. […]
xxx xxx xxx
476. The reason for recognising an Advance Directive is
based on individual autonomy. As an autonomous
person, every individual has a constitutionally recognised
right to refuse medical treatment. The right not to accept
medical treatment is essential to liberty. Medical
treatment cannot be thrust upon an individual, however,
it may have been conceived in the interest of the
individual. The reasons which may lead a person in a
sound state of mind to refuse medical treatment are
inscrutable. Those decisions are not subject to scrutiny
and have to be respected by the law as an essential
attribute of the right of the individual to have control over
the body. The State cannot compel an unwilling individual
Miscellaneous Application No. 2238 of 2025 Page 92 of 286
to receive medical treatment. While an individual cannot
compel a medical professional to provide
a particular treatment (this being in the realm of
professional medical judgment), it is equally true that the
individual cannot be compelled to undergo medic al
intervention. The principle of sanctity of life thus
recognises the fundamental liberty of every person to
control his or her body and as its incident, to decline
medical treatment. The ability to take such a decision is
an essential element of the privacy of the being. Privacy
also ensures that a decision as personal as whether or
not to accept medical treatment lies exclusively with the
individual as an autonomous being. The reasons which
impel an individual to do so are part of the privacy of the
individual. The mental processes which lead to decision-
making are equally part of the constitutionally protected
right to privacy.
477. Advance Directives are founded on the principle that
an individual whose state of mind is not clouded by an
affliction which prevents him or her from taking decisions
is entitled to decide whether to accept or not accept
medical intervention. If a decision can be made for the
present, when the individual is in a sound state of mind,
such a person should be allowed to decide the course of
action which should be followed in the future if he or she
were to be in a situation which affects the ability to take
decisions. If a decision on whether or not to receive
medical treatment is valid for the present such a decision
must be equally valid when it is intended to operate in the
future. Advance Directives are, in other words, grounded
in a recognition by the law of the importance of consent
as an essential attribute of personal liberty. It is the
consensual nature of the act underlying the Advance
Directive which imparts sanctity to it in future in the same
manner as a decision in the present on whether or not to
accept medical treatment.
Ashok Bhushan, J.
“617. […] The foundation for seeking direction regarding
Advance Medical Directive is extension of the right to
Miscellaneous Application No. 2238 of 2025 Page 93 of 286
refuse medical treatment and the right to die with dignity.
When a competent patient has right to take a decision
regarding medical treatment, with regard to medical
procedure entailing right to die with dignity, the said right
cannot be denied to those patients, who have become
incompetent to take an informed decision at the relevant
time. The concept of Advance Medical Directive has
gained ground to give effect to the rights of those patients,
who at a particular time are not able to take an informed
decision.”
(Emphasis Supplied)
96. While recognising AMDs as valid legal instruments, the
Constitution Bench was cognisant that their enforcement could give
rise to misuse. Chandrachud, J., in his concurring opinion, went a
step further, acknowledging the limitations of such AMDs and the
challenges that may arise in implementing them. It is in this context
that he made the following observations:
“485. Human experience suggests that there is a chasm
of imponderables which divide the present from the
future. Such a divide may have a bearing on whether and
if so, the extent to which an Advance Directive should
bind in the future. As stated above, the sanctity of an
Advance Directive is founded upon the expression of the
will of an individual who is in a sound state of mind when
the directive is executed. Underlying the consensual
character of the declaration is the notion of the consent
being informed. Undoubtedly, the reasons which have
weighed with an individual in executing the Advance
Directive cannot be scrutinised (in the absence of
situations such as fraud or coercion which implicate the
very basis of the consent). However, an individual who
expresses the desire not to be subjected to a particular
line of treatment in the future, should she or he be ailing
in the future, does so on an assessment of treatment
options available when the directive is executed. For
instance, a decision not to accept chemotherapy in the
Miscellaneous Application No. 2238 of 2025 Page 94 of 286
event that the individual is detected with cancer in the
future, is based on today's perception of the trauma that
may be suffered by the patient through that treatment.
Advances in medical knowledge between the date of the
execution of the document and an uncertain future date
when the individual may possibly confront treatment for
the disease may have led to a re-evaluation by the person
of the basis on which a desire was expressed several
years earlier. Another fundamental issue is whether the
individual can by means of an Advance Directive compel
the withholding of basic care such as hydration and
nourishment in the future. Protecting the individual from
pain and suffering as well as the indignity of debility may
similarly raise important issues. Advance Directives may
hence conceivably raise ethical issues of the extent to
which the perception of the individual who executes it
must prevail in priority to the best interest of the patient.
xxx xxx xxx
509. Advance Directives also have limitations.
Individuals may not fully understand treatment options
or recognise the consequences of certain choices in the
future. Sometimes, people change their minds after
expressing Advance Directives and forget to inform
others. Another issue with Advance Directives is that
vague statements can make it difficult to understand the
course of action when a situation arises. For example,
general statements rejecting “heroic treatments” are
vague and do not indicate whether you want a particular
treatment for a specific situation (such as antibiotics for
pneumonia after a severe stroke). On the other hand, very
specific directives for future care may not be useful when
situations change in unexpected ways. New medical
therapies may also have become available since an
Advance Directive was given. Thus, Advance Directives
should be reviewed and revised regularly if feelings about
certain issues change, so that current wishes and
decisions are always legally documented.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 95 of 286
97. Well aware of such challenges in their implementation and the
potential for misuse, Common Cause 2018 (supra) noted that
recognition of AMDs cannot be withheld solely because, in their
implementation, they might create a potential for misuse or raise
certain ethical or legal challenges. It is to alleviate such concerns of
misuse that the Bench found it fit to lay down broad principles to
govern and provide a just basis for the execution and enforcement
of such AMDs. Dipak Misra, CJ., in his leading opinion, laid down
guidelines that would govern aspects such as: (i) who can execute
an AMD, (ii) what such a directive should contain, (iii) how it
should be recorded and preserved, and lastly, (iv) when and by
whom it can be given effect to. Acknowledging and directly
addressing the challenge of enforcing AMDs due to the chasm that
divides the past and present, the following guideline was also
incorporated:
“198.6.2. An Advance Directive shall not be applicable to
the treatment in question if there are reasonable grounds
for believing that circumstances exist which the person
making the directive did not anticipate at the time of the
Advance Directive and which would have affected his
decision had he anticipated them.”
98. In addition to the guidelines on execution and enforcement of an
AMD, Dipak Misra, CJ., also laid down guidelines regarding the
procedure to be followed for undertaking passive euthanasia in
those scenarios where no AMD exists. Therefore, when dealing with
an AMD and passive euthanasia (with or without an AMD), the
guidelines as laid down by this Court in Common Cause 2018
Miscellaneous Application No. 2238 of 2025 Page 96 of 286
(supra) and later modified in Common Cause 2023 (supra)
constitute the governing law of the land.
99. On the issue of who can execute an AMD, this Court in Common
Cause 2018 (supra) laid down the following guidelines:
a) The Advance Directive can be executed only by an adult who is
of a sound and healthy state of mind and in a position to
communicate, relate and comprehend the purpose and
consequences of executing the document.
7
b) It must be voluntarily executed and without any coercion or
inducement or compulsion and after having full knowledge or
information.
8
c) It should have characteristics of an informed consent given
without any undue influence or constraint.
9
d) It shall be in writing clearly stating as to when medical treatment
may be withdrawn or no specific medical treatment shall be
given which will only have the effect of delaying the process of
death that may otherwise cause him/her pain, anguish and
suffering and further put him/her in a state of indignity.
10
100. On the issue of what an AMD should contain, this Court in
Common Cause 2018 (supra) laid down the following guidelines:
7
Para 198.1.1 of Common Cause 2018.
8
Para 198.1.2 of Common Cause 2018.
9
Para 198.1.3 of Common Cause 2018.
10
Para 198.1.4 of Common Cause 2018.
Miscellaneous Application No. 2238 of 2025 Page 97 of 286
a) It should clearly indicate the decision relating to the
circumstances in which withholding or withdrawal of medical
treatment can be resorted to.
11
b) It should be in specific terms and the instructions must be
absolutely clear and unambiguous.
12
c) It should mention that the executor may revoke the
instructions/authority at any time.
13
d) It should disclose that the executor has understood the
consequences of executing such a document.
14
e) It should specify the name of a guardian(s) or close relative(s)
who, in the event of the executor becoming incapable of taking
decision at the relevant time, will be authorised to give consent
to refuse or withdraw medical treatment in a manner consistent
with the Advance Directive.
15
f) In the event that there is more than one valid Advance Directive,
none of which have been revoked, the most recently signed
Advance Directive will be considered as the last expression of
the patient's wishes and will be given effect to.
16
101. On the issue of how an AMD should be recorded and preserved, this
Court in Common Cause 2018 (supra) laid down the following
guidelines:
11
Para 198.2.1 of Common Cause 2018.
12
Para 198.2.2 of Common Cause 2018.
13
Para 198.2.3 of Common Cause 2018
14
Para 198.2.4 of Common Cause 2018.
15
Para 198.2.5 of Common Cause 2018, as modified by Common Cause 2023.
16
Para 198.2.6 of Common Cause 2018.
Miscellaneous Application No. 2238 of 2025 Page 98 of 286
a) The document should be signed by the executor in the presence
of two attesting witnesses, preferably independent, and
attested before a notary or gazetted officer.
17
b) The witnesses and the notary or gazetted officer shall record
their satisfaction that the document has been executed
voluntarily and without any coercion or inducement or
compulsion and with full understanding of all the relevant
information and consequences.
18
c) The executor shall inform, and hand over a copy of the Advance
Directive to the person or persons named in para 57(e) as well
as to the family physician, if any.
19
d) A copy shall be handed over to the competent officer of the local
Government or the Municipal Corporation or Municipality or
Panchayat, as the case may be. The aforesaid authorities shall
nominate a competent official in that regard who shall be the
custodian of the said document. The executor may also choose
to incorporate their Advance Directive as a part of the digital
health records, if any.
20
102. On the issue of withdrawal, revocation and inapplicability of an
AMD, this Court in Common Cause 2018 (supra) laid down the
following guidelines:
a) An individual may withdraw or alter the Advance Directive at
any time when he/she has the capacity to do so and by following
17
Para 198.3.1 of Common Cause 2018, as modified by Common Cause 2023.
18
Para 198.3.2 of Common Cause 2018, as modified by Common Cause 2023.
19
Para 198.3.5 of Common Cause 2018, as modified by Common Cause 2023.
20
Para 198.3.6 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 99 of 286
the same procedure as provided for recording of Advance
Directive. Withdrawal or revocation of an Advance Directive must
be in writing.
21
b) It will be open to the executor to revoke the document at any
stage before it is acted upon and implemented.
22
c) An Advance Directive shall not be applicable to the treatment in
question if there are reasonable grounds for believing that
circumstances exist which the person making the directive did
not anticipate at the time of the Advance Directive and which
would have affected his decision had he anticipated them.
23
d) If the Advance Directive is not clear and ambiguous, the Medical
Boards concerned shall not give effect to the same and, in that
event, the guidelines meant for patients without Advance
Directive shall be made applicable.
24
103. The step-wise procedure to undertake passive euthanasia as laid
down in Common Cause 2018 (supra), both in situations where an
AMD exists and where there is no such AMD, is discussed in the
next sub-section.
V. Procedural Framework for Passive Euthanasia
104. On a close reading of this Court’s decision in Common Cause 2018
(supra), it appears to us that this Court declared the law on
withholding or withdrawing medical treatment by categorising
21
Para 198.6.1 of Common Cause 2018.
22
Para 198.4.8 of Common Cause 2018.
23
Para 198.6.2 of Common Cause 2018.
24
Para 198.6.3 of Common Cause 2018.
Miscellaneous Application No. 2238 of 2025 Page 100 of 286
patients into three distinct categories. The applicability of the
procedure depends on the patient’s category. The three categories
are as follows:
a) Where the patient is competent and capable of making an
informed decision regarding their medical treatment.
b) Where the patient is incompetent and incapable of taking an
informed decision, but has executed a valid AMD in accordance
with the safeguards laid down above.
c) Where the patient is incompetent and has not executed an
AMD, or the same is invalid or inapplicable.
105. For competent patients, withdrawal or withholding of medical
treatment is rooted in their right to refuse medical treatment, which
is part of the right to live with dignity, combined with personal
autonomy and self-determination. As noted above, this right to
refuse medical treatment for competent patients is unencumbered,
and the right of self-determination in such situations trumps the
interest in the sanctity of life. Thus, any patient, regardless of the
medical condition they are suffering from, has the right to refuse
treatment. In situations where a competent patient, aware of the
consequences, refuses medical treatment, the treating physician is
bound by that informed decision and must withdraw or withhold
medical treatment to give effect to it. In such cases, the withdrawal
or withholding of medical treatment would be fairly uncontroversial
and authorised, as it is supported by the patient’s explicit and
informed consent at the time of the withdrawal or withholding. In
Miscellaneous Application No. 2238 of 2025 Page 101 of 286
our opinion, if a patient is competent, it would eliminate the need
to refer to or consider any existing AMD.
106. When dealing with incompetent patients, the circumstances are
more knotty. It could be argued that an AMD represents express
consent from the patient and, consequently, that its enforcement
should be as unencumbered as the right to refuse treatment.
However, it is important to recognise the qualitative difference
between explicit consent given at the very time of withdrawal or
withholding, and consent derived from a past directive. Relying on
a past decision is admittedly fraught with complexities. The
patient's knowledge at the time may have been limited, or
circumstances may have effectively changed. Essentially, there is
no absolute equivalence between the past and the present. Events
may have occurred that could have altered the patient’s decision,
but their current incompetence prevents us from accurately
ascertaining this. Due to these uncertainties, the unrestrained
enforcement of an AMD was not permitted, and a strict procedure
was put in place.
107. The most important restriction, however, appears to be that an AMD
can also only be enforced in situations where the executor is in a
condition so as to fulfil the three prerequisites/medical parameters
that we have culled out above, when discussing passive euthanasia
for incompetent patients. Thus, following this Court’s ruling in
Common Cause 2018 (supra), passive euthanasia for incompetent
patients, regardless of whether an AMD exists or not, is permitted
only if the following conditions are met:
Miscellaneous Application No. 2238 of 2025 Page 102 of 286
a) The patient must be diagnosed to be suffering from a medical
ailment and be classified as either terminally ill, in a PVS, or
like conditions.
b) The patient must be undergoing prolonged medical treatment
with respect to the said ailment, indicating that the
intervention has ceased to be temporary.
c) The ailment must be irreversible, meaning:
i. the condition is incurable; or
ii. there is absolutely no hope of the patient being cured.
108. To reiterate, an AMD which conveys the refusal of treatment cannot
be enforced unless all the aforementioned conditions are satisfied.
This applies even where the directive is explicit. For instance,
consider a patient whose directive specifically states that no
treatment should be administered in the event of a heart attack. If
this patient is admitted with a heart attack, that instruction cannot
be given effect to. The same is because the patient’s condition does
not meet the requisite threshold conditions as aforesaid (e.g.,
terminally ill in PVS, prolonged medical treatment etc.) and
therefore, the directive remains unenforceable despite its specific
wording. In effect, the decision in Common Cause 2018 (supra)
limited the enforceability of AMDs to rare and extreme cases,
precluding their application in general medical circumstances,
thereby, differentiating us from certain other jurisdictions.
Miscellaneous Application No. 2238 of 2025 Page 103 of 286
109. With that being said, on the procedure to be followed to undertake
passive euthanasia in those cases where an AMD exists, this Court
in Common Cause 2018 (supra) laid down the following guidelines:
a) In the event the executor becomes terminally ill and is
undergoing prolonged medical treatment with no hope of
recovery and cure of the ailment, and does not have decision-
making capacity, the treating physician, when made aware
about the Advance Directive, shall ascertain the genuineness
and authenticity thereof with reference to the existing digital
health records of the patient, if any or from the custodian of the
document referred to in para 58(d).
25 The instructions in the
document must be given due weight by the doctors. However, it
should be given effect to only after being fully satisfied that the
executor is terminally ill and is undergoing prolonged treatment
or is surviving on life support and that the illness of the executor
is incurable or there is no hope of him/her being cured.
26
b) If the physician treating the patient (executor of the document) is
satisfied that the instructions given in the document need to be
acted upon, he shall inform the person or persons named in the
Advance Directive, as the case may be, about the nature of
illness, the availability of medical care and consequences of
alternative forms of treatment and the consequences of
remaining untreated. He must also ensure that he believes on
reasonable grounds that the person in question understands the
information provided, has cogitated over the options and has
25
Para 198.4.1 of Common Cause 2018, as modified by Common Cause 2023.
26
Para 198.4.2 of Common Cause 2018.
Miscellaneous Application No. 2238 of 2025 Page 104 of 286
come to a firm view that the option of withdrawal or refusal of
medical treatment is the best choice.
27
c) The hospital where the executor has been admitted for medical
treatment shall then constitute a Primary Medical Board
consisting of the treating physician and at least two subject
experts of the specialty concerned with at least five years'
experience, who, in turn, shall visit the patient in the presence of
his guardian/close relative and form an opinion preferably
within 48 hours of the case being referred to it whether to certify
or not to certify carrying out the instructions of withdrawal or
refusal of further medical treatment. This decision shall be
regarded as a preliminary opinion.
28
d) In the event the Primary Medical Board certifies that the
instructions contained in the Advance Directive ought to be
carried out, the hospital shall then immediately constitute
a Secondary Medical Board comprising one registered medical
practitioner nominated by the Chief Medical Officer of the district
and at least two subject experts with at least five years'
experience of the specialty concerned who were not part of the
Primary Medical Board. They shall visit the hospital where the
patient is admitted and if they concur with the initial decision of
the Primary Medical Board of the hospital, they may endorse the
certificate to carry out the instructions given in the Advance
Directive. The Secondary Medical Board shall provide its opinion
preferably within 48 hours of the case being referred to it.
29
27
Para 198.4.3 of Common Cause 2018, as modified by Common Cause 2023.
28
Para 198.4.4 of Common Cause 2018, as modified by Common Cause 2023.
29
Para 198.4.5 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 105 of 286
e) The Secondary Board must beforehand ascertain the wishes of
the executor if he is in a position to communicate and is capable
of understanding the consequences of withdrawal of medical
treatment. In the event the executor is incapable of taking
decision or develops impaired decision-making capacity, then
the consent of the person or persons nominated by the executor
in the Advance Directive should be obtained regarding refusal or
withdrawal of medical treatment to the executor to the extent of
and consistent with the clear instructions given in the Advance
Directive.
30
f) The hospital where the patient is admitted, shall convey the
decision of the Primary and Secondary Medical Boards and the
consent of the person or persons named in the Advance
Directive to the jurisdictional JMFC before giving effect to the
decision to withdraw the medical treatment administered to the
executor.
31
g) If permission to withdraw medical treatment is refused by
the Secondary Medical Board, it would be open to the person or
persons named in the Advance Directive or even the treating
doctor or the hospital staff to approach the High Court by way of
writ petition under Article 226 of the Constitution. If such
application is filed before the High Court, the Chief Justice of the
said High Court shall constitute a Division Bench to decide upon
grant of approval or to refuse the same. The High Court will be
free to constitute an independent committee consisting of three
doctors from the fields of general medicine, cardiology,
30
Para 198.4.6 of Common Cause 2018, as modified by Common Cause 2023.
31
Para 198.4.7 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 106 of 286
neurology, nephrology, psychiatry or oncology with experience in
critical care and with overall standing in the medical profession
of at least twenty years.
32
h) The High Court shall hear the application expeditiously after
affording opportunity to the State counsel. It would be open to
the High Court to constitute Medical Board in terms of its order
to examine the patient and submit report about the feasibility of
acting upon the instructions contained in the advanced
directive.
33 Needless to say that the High Court shall render its
decision at the earliest as such matters cannot brook any delay
and it shall ascribe reasons specifically keeping in mind the
principles of “best interests of the patient”.
34
i) Where the Primary Medical Board takes a decision not to follow
an Advance Directive while treating a person, the person or
persons named in the Advance Directive may request the
hospital to refer the case to the Secondary Medical Board for
consideration and appropriate direction on the Advance
Directive.
35
110. As discussed above, the Court also noted that there would be many
scenarios in which no AMDs would exist, or where the directive
would become inapplicable for various reasons. For undertaking
passive euthanasia in such scenarios, the Bench in Common
Cause 2018 (supra) held that the procedure and safeguards are
largely to be the same as applied to cases where an AMD is in
32
Para 198.5.1 of Common Cause 2018, as modified by Common Cause 2023.
33
Para 198.5.2 of Common Cause 2018.
34
Para 198.5.3 of Common Cause 2018.
35
Para 198.6.4 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 107 of 286
existence; in addition thereto, the following procedure shall be
followed:
a) In cases where the patient is terminally ill and undergoing
prolonged treatment in respect of ailment which is incurable or
where there is no hope of being cured, the physician may inform
the hospital, which, in turn, shall constitute a Primary Medical
Board in the manner indicated earlier. The Primary Medical
Board shall discuss with the family physician, if any, and
the patient's next of kin/next friend/guardian and record the
minutes of the discussion in writing. During the discussion,
the patient's next of kin/next friend/guardian shall be apprised
of the pros and cons of withdrawal or refusal of further medical
treatment to the patient and if they give consent in writing, then
the Primary Medical Board may certify the course of action to be
taken preferably within 48 hours of the case being referred to it.
Their decision will be regarded as a preliminary opinion.
36
b) In the event the Primary Medical Board certifies the option of
withdrawal or refusal of further medical treatment, the hospital
shall then constitute a Secondary Medical Board comprising in
the manner indicated hereinbefore. The Secondary Medical
Board shall visit the hospital for physical examination of the
patient and, after studying the medical papers, may concur with
the opinion of the Primary Medical Board. In that event,
intimation shall be given by the hospital to the JMFC and the
36
Para 199.1 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 108 of 286
next of kin/next friend/guardian of the patient preferably within
48 hours of the case being referred to it.
37
c) There may be cases where the Primary Medical Board may not
take a decision to the effect of withdrawing medical treatment of
the patient or the Secondary Medical Board may not concur with
the opinion of the Primary Medical Board. In such a situation,
the nominee of the patient or the family member or the treating
doctor or the hospital staff can seek permission from the High
Court to withdraw life support by way of writ petition under
Article 226 of the Constitution in which case the Chief Justice of
the said High Court shall constitute a Division Bench which shall
decide to grant approval or not. The High Court may constitute
an independent committee to depute three doctors from the fields
of general medicine, cardiology, neurology, nephrology,
psychiatry or oncology with experience in critical care and with
overall standing in the medical profession of at least twenty
years after consulting the competent medical practitioners. It
shall also afford an opportunity to the State counsel. The High
Court in such cases shall render its decision at the earliest since
such matters cannot brook any delay. Needless to say, the High
Court shall ascribe reasons specifically keeping in mind the
principle of “best interests of the patient”.
38
111. Before addressing the substantive issues, a clarification regarding
nomenclature is essential. The ruling of this Court in Common
Cause 2018 (supra) permitted passive euthanasia while prohibiting
37
Para 199.2 of Common Cause 2018, as modified by Common Cause 2023.
38
Para 199.4 of Common Cause 2018, as modified by Common Cause 2023.
Miscellaneous Application No. 2238 of 2025 Page 109 of 286
active euthanasia. It is also abundantly clear that, for the Court in
Common Cause 2018 (supra), the term ‘passive euthanasia’ was
equated or synonymised with the withholding or withdrawal of
medical treatment. However, there seems to be a general consensus
on the fact that ‘passive euthanasia’ is an obsolete and a rather,
confusing term. We are also of the view that imprecise terminology
unnecessarily obscures the legal position. Therefore, to ensure
clarity in this judgment, we will henceforth adopt the following
definitions/phrases:
a) ‘Euthanasia’ will refer strictly to active euthanasia, which
remains impermissible.
b) ‘Withdrawing or Withholding of Medical Treatment’ will replace
the term ‘passive euthanasia’.
It is imperative to state that this change is merely a matter of
terminology, not of substance. Accordingly, the withholding or
withdrawing of medical treatment remains strictly governed by the
guidelines and procedural safeguards established for ‘passive
euthanasia’ in Common Cause 2018 (supra).
112. While the preceding discussion has dwelt at length on the
constitutional basis and procedural mechanics of withholding or
withdrawing medical treatment, we must not lose sight of another
substantive aspect we briefly broached in this section. The
Constitution Bench in Common Cause 2018 (supra) was
unequivocal in holding that such withdrawal or withholding is
permissible only when it serves the ‘best interests’ of the patient.
Miscellaneous Application No. 2238 of 2025 Page 110 of 286
This principle serves as the bedrock of the entire legal framework.
Consequently, any decision to withdraw or withhold medical
treatment must withstand scrutiny on two primary grounds: first,
the intervention in question must qualify as ‘medical treatment’,
and secondly, its withdrawal must strictly be in the patient’s best
interests.
(E). ISSUES FOR DETERMINATION
113. Having heard the learned counsel appearing for the parties, having
gone through the materials on record and having exhaustively
examined the reasoning adopted in Common Cause 2018 (supra),
the following questions fall for our consideration:
(1) Whether the administration of CANH is to be regarded as
“medical treatment”?
(2) What is the meaning, scope, and contours of the principle of
“best interest of the patient” in determining whether medical
treatment should be withdrawn or withheld?
(3) Whether it is in the best interest of the applicant that his life
be prolonged by continuation of medical treatment?
(4) What are the further steps to be undertaken in the event that
a decision to withdraw or withhold medical treatment is arrived
at?
Miscellaneous Application No. 2238 of 2025 Page 111 of 286
(F). ANALYSIS
(1) WHETHER THE ADMINISTRATION OF CANH IS TO BE REGARDED AS
“MEDICAL TREATMENT ”?
114. The present medical condition of the applicant necessitates the
determination of an issue that is central to the further course of
action which is to be adopted. In the present matter, the applicant
has sustained non-progressive, irreversible brain damage having
suffered a severe traumatic brain injury with diffuse axonal injury
at the time of the fateful incident. Following his discharge from the
hospital in the immediate aftermath of the incident, his fragile
health condition has necessitated frequent hospital admissions for
the treatment of his head injury, seizures, pneumonia and
bedsores. However, his medical condition has been such that it did
not warrant continuous hospitalisation all the time and, therefore,
he has largely been maintained at home, albeit with a tracheostomy
tube, urinary catheter, and PEG tube in situ. He retains intact
brainstem function and breathes spontaneously with the
tracheostomy tube in place. Nonetheless, due to his PVS condition,
his survival is dependent upon the continued administration of
CANH.
115. The pertinent question before us is whether the applicant’s medical
treatment can be withdrawn or withheld. Since the applicant is
being sustained through the provision of CANH, through a PEG
tube, it is essential for us to first determine whether the
administration of CANH constitutes ‘medical treatment’ and would
Miscellaneous Application No. 2238 of 2025 Page 112 of 286
therefore be amenable to being lawfully withheld or withdrawn. In
other words, it is only in the event that CANH is recognised as a
medical treatment, as opposed to being regarded as basic primary
care that the withholding or withdrawal of such treatment would be
permissible. In order to analyse this issue, we have delved into some
landmark cases across developed common law jurisdictions,
including briefly revisiting those cases already referred to in our
preceding discussion, to answer the limited question whether CANH
is a form of “medical treatment” and therefore, is amenable to the
same principles governing the withholding or withdrawal of any
other form of medical treatment.
116. Before proceeding any further, we must begin by clarifying that by
the term CANH, we refer to all forms of enteral nutrition and
parenteral nutrition which are administered upon clinical
indication, which is not inclusive of oral feeding, by cup, spoon, or
any other method of delivering food or nutritional supplements into
the patient’s mouth. In order to ascertain the status of CANH as a
“medical treatment”, it is crucial that the scope of the term CANH,
as it is currently understood, be explained in some detail. CANH
can be primarily categorised into two broad categories: enteral
nutrition and parenteral nutrition.
(a) Enteral nutrition, also known as “tube feeding”, is a method of
providing nutrition directly into the gastrointestinal (GI) tract
through an enteral access device (feeding tube) that is passed
either through the nose, mouth or directly through the
Miscellaneous Application No. 2238 of 2025 Page 113 of 286
abdominal wall, up to the stomach or small intestine.
39 Enteral
nutrition is a special liquid food mixture containing all the
nutrients required to meet the nutritional needs, such as
protein, carbohydrates, fats, vitamins, minerals, etc. of the
patient. The formula can include ready -to-feed liquids,
formulas made from a powder or a concentrate, or blenderized
food, but the suitability of the feed type would vary on a case
to case basis, as per the clinical judgment of the medical
practitioner.
40 The enteral access device/feeding tubes can be
of various types such as:
(i). Tubes placed through the nose into the stomach
(nasogastric) or the small intestine
(nasoduodenal/nasojejunal), called nasoenteral tubes.
(ii). Tubes placed through the mouth into the stomach
(orogastric) or the small intestine
(oroduodenal/orojejunal), called oroenteral tubes.
(iii). Tubes surgically placed directly through the skin into
the stomach (gastrostomy) or small intestine
(jejunostomy), for e.g. Percutaneous Endoscopic
Gastrostomy (PEG) tube, Percutaneous Endoscopic
Jejunostomy (PEJ) tube, etc.
41
39
ASPEN (American Society for Parental and Enteral Nutrition), What is Enteral Nutrition?, available at:
https://nutritioncare.org/about/what-we-do/nutrition-support/what-is-enteral-nutrition/ (last visited on:
05.02.2026)
40
Ibid.
41
Bedfordshire Hospitals, NHS Foundation Trust, Having a PEG Tube Inserted, available at:
https://www.bedfordshirehospitals.nhs.uk/patient-information-leaflets/having-a-peg-tube-inserted/, (Last
visited on : 10.02.2026); Cambridge University Hospitals, NHS Foundation Trust, Direct (Surgically
Miscellaneous Application No. 2238 of 2025 Page 114 of 286
(b) Parenteral nutrition is a method for patients to receive
nutrition other than through the gastrointestinal (GI) tract, and
may comprise a unique sterile intravenous (IV) solution
administered directly into the bloodstream via a catheter
inserted into a vein.
42
117. There is no gainsaying that the prescription and administration of
CANH involves careful consideration of a multitude of clinical
factors, ranging from installation of the CANH device (placed
surgically or otherwise), precise assessment of the patient’s
nutritional requirements, the underlying clinical condition of the
patient, gastrointestinal tolerance, potential metabolic instability,
and an assessment of the anticipated duration of CANH support ,
amongst others.
43 Some complications that are associated with
CANH include the risk of aspiration pneumonia, peritonitis, and
wound/stoma site infection.
44 Administration of CANH also
requires periodic medical review of its indications, route of
administration, risks, benefits and therapeutic goals. Even where
enteral nutrition is administered by caregivers in a home setting,
the process remains strictly governed by medical protocols,
placed) Jejunostomy tube- information for parents/carers, available at: https://www.cuh.nhs.uk/patient-
information/direct-surgically-placed-jejunostomy-tube-information-for-parentscarers/ , (Last visited on:
10.02.2026)
42
Ibid.
43
National Collaborating Centre for Acute Care at The Royal College of Surgeons of England, Nutrition
Support for Adults Oral Nutrition Support, Enteral Tube Feeding and Parenteral Nutrition: Methods,
Evidence & Guidance, 2006, (Last updated: July 2017), available at:
https://www.nice.org.uk/guidance/cg32/evidence/full-guideline-194889853, (Last visited on: 06.02.2026)
44
Royal Berkshire NHS Foundation Trust, Percutaneous Endoscopic Gastrostomy (PEG) tube- what is it?,
(Last updated : February 2025), available at: https://www.royalberkshire.nhs.uk/media/ji4ptjfd/peg-tube-
what-is-it_feb25.pdf, (Last visited on: 10.02.2026)
Miscellaneous Application No. 2238 of 2025 Page 115 of 286
requiring the prescribing clinician to specify the nutritional
formulation, dosage, rate and method of delivery.
45 For example,
feeding pumps are used to regulate the flow of feed delivered over a
specific period of time. The enteral nutrition administration may be
through the use of an electronic feeding pump or by bolus feeding
using a syringe. This may include ‘continuous gravity feeding’ that
is manually controlled with a feeding bag and a roller clamp to help
control the rate; and ‘intermittent gravity feeding’ where liquid feeds
are delivered over a certain duration or, ‘bolus feeding’ where a
specific volume of feeding is infused via bag or a syringe rapidly over
several minutes
46. Pump assisted feeding utilizes an electric pump
device to more precisely control the rate of delivery in patients who
are at a higher risk of inadvertently getting formula in their lungs,
sensitive to volume, have delayed gastric emptying or are being fed
into the small intestine.
47 Regular flushing of feeding tubes,
preventing and controlling of infections and monitoring for
complications are integral components of CANH protocols.
48 The
45
North Tees and Hartlepool, NHS Foundation Trust, Percutaneous Endoscopic Gastrostomy (PEG) : A
Patient leaflet for those having a PEG feeding tube inserted, (Last updated : 09.05.2025) available at:
https://www.nth.nhs.uk/resources/percutaneous-endoscopic-gastrostomy-peg/, (last visited on 10.02.2026);
Kent Community Health, NHS Foundation Trust, Care of a PEG feeding tube, (Last updated: on
05.02.2024), available at: https://www.kentcht.nhs.uk/leaflet/care-of-a-peg-feeding-tube/, (Last visited on
10.02.2026);
46
American College of Gastroenterology, Enteral and Parenteral Nutrition, available at:
https://gi.org/topics/enteral-and-parenteral-nutrition/, (Last visited on 05.02.2026)
47
Ibid.
48
Ibid.; Tees, Esk and Wear Valleys, NHS Foundation Trust, Enteral Feeding (PEG) Procedure (Adults):
Ref CLIN-0077-v3, available at https://www.tewv.nhs.uk/wp-content/uploads/2021/12/Enteral-feeding-
PEG-procedure-adults.pdf , (Last updated on: 08.04.2021), (Last visited on 10.02.2026); Milton Keynes
University Hospital, NHS Foundation Trust, Adult Enteral Tube Feeding Guidelines for Clients in their
own Homes or Care Homes, (Last updated on August, 2016), available at https://www.mkuh.nhs.uk/wp-
content/uploads/2019/01/Adult-Enteral-Tube-Feeding-Guidelines-for-adults-in-their-own-homes-or-
carehomes.pdf, (Last visited on 10.02.2026); The Leeds Teaching Hospitals NHS Trust, Jejunostomy
feeding tube care advice - information for patients, available at:
https://www.leedsth.nhs.uk/patients/resources/jejunostomy-feeding-tube-care-advice/, (Last visited on
10.02.2026)
Miscellaneous Application No. 2238 of 2025 Page 116 of 286
CANH protocols require that enteral feeding tubes be flushed with
water before and after medication or feeding, or at certain hourly
intervals during continuous feeding, to prevent clogging and ensure
adequate hydration.
49 The protocols further mandate that, in the
event a CANH device gets dislodged, the reinsertion of the CANH
shall be undertaken only under appropriate medical supervision so
as to obviate the high risk of peritonitis and aspiration, which are
potentially fatal complications.
50 For example, if a PEG tube
becomes partially dislodged and such dislodgement goes unnoticed,
the specialised liquid nutrition, fluids, or medication administered
through it may leak into the abdominal cavity, leading to peritonitis,
which is a severe infection that may be life-threatening. Similarly,
if a nasogastric or orogastric tube gets misplaced, it risks
introducing fluids or medication into the respiratory tract or pleura,
which could be fatal. Therefore, medical guidance has to be sought
for reinsertion, to prevent such adverse consequences.
51
118. The aforesaid clinical and procedural characteristics of CANH
indicate, without an iota of doubt, that CANH cannot be regarded
as a mere means of basic sustenance or primary care, but should
49
Ibid.
50
North Tees and Hartlepool, NHS Foundation Trust, Percutaneous Endoscopic Gastrostomy (PEG) : A
Patient leaflet for those having a PEG feeding tube inserted, (Last updated : 09.05.2025) available at:
https://www.nth.nhs.uk/resources/percutaneous-endoscopic-gastrostomy-peg/, (last visited on 10.02.2026);
Kent Community Health, NHS Foundation Trust, Care of a PEG feeding tube, (Last updated: on
05.02.2024), available at: https://www.kentcht.nhs.uk/leaflet/care-of-a-peg-feeding-tube/, (Last visited on
10.02.2026); NHS England, Patient safety alert: Nasogastrict tube misplacement: continuing risk of death
and severe harm , (Last updated on 14.02.2022), available at:
https://www.england.nhs.uk/publication/patient-safety-alert-nasogastric-tube-misplacement-continuing-
risk-of-death-and-severe-harm/, (Last visited on 11.02.2026)
51
Sandwell and West Birbingham Hospitals NHS Trust, Nasogastric tube feeding : Information and advice
for patients (2012), available at: https://www.swbh.nhs.uk/wp-content/uploads/2012/07/Nasogastric-tube-
feeding-ML4763.pdf, (Last visited on 11.02.2026).
Miscellaneous Application No. 2238 of 2025 Page 117 of 286
be recognised as a technologically mediated medical intervention
that is prescribed, supervised and periodically reviewed by trained
healthcare professionals in accordance with established medical
standards.
119. We are in respectful agreement with Schreiber J.’s erudite
reasoning in In re Conroy, reported in 98 N.J. 321, wherein,
although he acknowledged the emotional symbolism of food and the
innate emotions which are invoked when it comes to feeding and
nourishment, yet he went on to hold that CANH methods are
significantly different from bottle feeding or spoon feeding when
judged on medical parameters. He observed that artificial feeding
mechanisms such as nasogastric tubes, gastrostomies and
intravenous infusions are significantly different from bottle or
spoon feeding as they are medical procedures with inherent risks
and possible side effects, administered by skilled health care
providers to compensate for impaired physical functioning. Drawing
an analogy between artificial feeding by means of a nasogastric tube
or intravenous infusion and artificial breathing by means of a
respirator, Schreiber J. elaborated on how these medical
procedures that ensure nutrition and hydration involve the risks
and burdens of serious complications and could sometimes be
seriously distressing to the patient. The pertinent observations
made by Schreiber J. read thus:
“Certainly, feeding has an emotional significance. As
infants we could breathe without assistance, but we
were dependent on others for our lifeline of nourishment.
Even more, feeding is an expression of nurturing and
Miscellaneous Application No. 2238 of 2025 Page 118 of 286
caring, certainly for infants and children, and in many
cases for adults as well.
Once one enters the realm of complex, high technology
medical care, it is hard to shed the 'emotional symbolism'
of food. However, artificial feedings such as nasogastric
tubes, gastrostomies, and intravenous infusions are
significantly different from bottle feeding or spoon feeding
- they are medical procedures with inherent risks and
possible side effects, instituted by skilled health care
providers to compensate for impaired physical
functioning. Analytically, artificial feeding by means of a
nasogastric tube or intravenous infusion can be seen as
equivalent to artificial breathing by means of a respirator.
Both prolong life through mechanical means when the
body is no longer able to perform a vital bodily function
on its own.
Furthermore, while nasogastric feeding and other
medical procedures to ensure nutrition and hydration are
usually well tolerated, they are not free from risks or
burdens; they have complications that are sometimes
serious and distressing to the patient.”
(Emphasis Supplied)
120. Drawing upon this analogy between CANH and artificial respiratory
support given by Schreiber J., we may refer to one another crucial
observation made by the High Court of Auckland, New Zealand in
Auckland Area Health Board v. Attorney -General reported in
(1992) 8 CRNZ 634 regarding the role played by such artificial life
sustaining systems and why their medical function or purpose
should be given due regard when considering their administration.
In Auckland Area Health Board (supra), while considering the
permissibility of withholding artificial respiratory support, Thomas
J. observed that a life support system may by itself not prevent or
Miscellaneous Application No. 2238 of 2025 Page 119 of 286
cure the underlying life-threatening condition but may nonetheless
serve a therapeutic or medical function by enabling the patient to
survive long enough for recovery. In such a case, the intervention
only alleviates the effect(s) of the illness while nature or other
medical treatments address the underlying condition. In that sense,
unless the life support system serves further medical function or
therapeutic purpose, it would not be unlawful to discontinue it if
such discontinuance is in accordance with good medical practice.
Thomas J. goes on to observe that:
“To require the administration of a life support system
when such a system has no further medical function or
purpose and serves only to defer the death of the patient
is to confound the purpose of medicine. In such
circumstances, the continuation of the artificial ventilation
may be lawful, but that does not make it unlawful to
discontinue it if the discontinuance accords with good
medical practice.”
This reasoning adopted in Auckland Area Health Board (supra)
applies with equal force to CANH. Thus, like artificial ventilatory
support, CANH also serves a therapeutic or medical function and
must therefore be assessed under the same legal framework
applicable to other life-sustaining medical interventions.
121. Furthermore, in Airedale (supra), Lord Keith rejected the argument
that artificial feeding by nasogastric tube was indistinguishable from
normal feeding, the latter of which did not amount to medical
treatment. He emphatically acknowledged that there is a distinction
between CANH and nor mal feeding, as the administration of
nourishment by artificial means involves the application of a medical
Miscellaneous Application No. 2238 of 2025 Page 120 of 286
technique. Driving home this point, Lord Keith succinctly observed
that it is incorrect to direct exclusive attention to the fact that
nourishment is being provided. Rather, regard should be had for the
whole regime of medical treatment that keeps the pati ent alive,
including that of artificial feeding, which involves the application of
medical technique. In observing thus, Lord Keith places CANH on
the same pedestal as other forms of medical treatment, vis-à-vis
which the medical practitioners are under no greater duty to
administer it if such medical treatment would not confer any benefit
to the patient. We consider it important to quote Lord Keith’s
observations in Airedale (supra), which are as follows:
“[…] It was argued for the guardian ad litem, by analogy
with that case, that here the doctors in charge of Anthony
Bland had a continuing duty to feed him by means of the
nasogastric tube and that if they failed to carry out that
duty they were guilty of manslaughter, if not murder. This
was coupled with the argument that feeding by means of
the nasogastric tube was not medical treatment at all, but
simply feeding indistinguishable from feeding by normal
means. As regards this latter argument, I am of the
opinion that regard should be had to the whole regime,
including the artificial feeding, which at present keeps
Anthony Bland alive. That regime amounts to medical
treatment and care, and it is incorrect to direct attention
exclusively to the fact that nourishment is being provided.
In any event, the administration of nourishment by the
means adopted involves the application of a medical
technique. But it is, of course, true that in general it would
not be lawful for a medical practitioner who assumed
responsibility for the care of an unconscious patient
simply to give up treatment in circumstances where
continuance of it would confer some benefit on the
patient. On the other hand a medical practitioner is under
no duty to continue to treat such a patient where a large
body of informed and responsible medical opinion is to
Miscellaneous Application No. 2238 of 2025 Page 121 of 286
the effect that no benefit at all would be conferred by
continuance. Existence in a vegetative state with no
prospect of recovery is by that opinion regarded as not
being a benefit, and that, if not unarguably correct, at
least forms a proper basis for the decision to discontinue
treatment and care: Bolam v. Friern Hospital
Management Committee [1957] 1 W.L.R. 582”
(Emphasis Supplied)
122. The aforementioned observation made by Lord Keith regarding
consideration of the whole regime of medical treatment, including
artificial feeding, when read with Lord Lowry’s observation Airedale
(supra), makes it all the more poignant. Taking a comprehensive
view of CANH, Lord Lowry observed that an artificial feeding regime
is inevitably associated with the continuous use of catheters and
enemas and the constant combating of potentially deadly
infection(s). He observes thus:
“4. Although entirely satisfied with your Lordships'
consensus, I ought finally to touch on the real point in the
case. The strength of the Official Solicitor's argument lies
in its simplicity. In answer to the respondent's reliance on
accepted medical opinion that feeding (nutrition and
hydration), particularly by sophisticated artificial
methods, is part of the life-supporting medical treatment,
he says that the duty to feed a helpless person, such as
a baby or an unconscious patient, is something different,
an elementary duty to keep the patient alive which exists
independently of all questions of treatment and which the
person in charge cannot omit to perform: to omit
deliberately to perform this duty in the knowledge that
the omission will lead to the death of the helpless one,
and indeed with the intention, as in the present case, of
conducing to that death, will render those in charge guilty
of murder. One of the respondent's counter- arguments,
albeit not conclusive, is based on the overwhelming
Miscellaneous Application No. 2238 of 2025 Page 122 of 286
verdict of informed medical opinion worldwide, with
particular reference to the common law jurisdictions,
where the relevant law generally corresponds closely
with our own, that therapy and life-supporting care,
including sophisticated methods of artificial feeding, are
components of medical treatment and cannot be
separated as the Official Solicitor contends. In this
connection it may also be emphasised that an artificial
feeding regime is inevitably associated with the
continuous use of catheters and enem as and the
sedulous avoidance and combatting of potentially deadly
infection. I consider that the court, when intent on
reaching a decision according to law, ought to give weight
to informed medical opinion both on the point now under
discussion and also on the question of what is in the best
interests of a patient and I reject the idea, which is
implicit in the appellant's argument, that informed
medical opinion in these respects is merely a disguise for
a philosophy which, if accepted, would legalise
euthanasia.”
(Emphasis Supplied)
123. At this juncture, it is pertinent to refer to the observation regarding
‘feeding tubes’ made by Sikri, J. in Common Cause 2018 (supra),
which reads thus:
“219. Passive euthanasia occurs when medical
practitioners do not provide life-sustaining treatment (i.e.
treatment necessary to keep a patient alive) or remove
patients from life-sustaining treatment. This could
include discontinuing treatment. This could include
discontinuing life-support machines or feeding tubes or
not carrying out life-saving operations or providing life-
extending drugs.”
(Emphasis Supplied)
124. A similar view has been echoed by D.Y. Chandrachud, J., in
Common Cause 2018 (supra), in his reference to feeding through
hydration tubes as an example of medical treatment which an
Miscellaneous Application No. 2238 of 2025 Page 123 of 286
individual might be subjected to in an emergency, but with regard
to which one should have the right of refusal if such artificial
prolongation results in human suffering. D.Y. Chandrachud, J., in
Common Cause 2018 (supra) observes thus:
“359. Individuals who suffer from chronic disease or
approach the end of the span of natural life often lapse
into terminal illness or a permanent vegetative state.
When a medical emergency leads to hospitalisation,
individuals in that condition are sometimes deprived of
their right to refuse unwanted medical treatment such as
feeding through hydration tubes or being kept on a
ventilator and other life support equipment. Life is
prolonged artificially resulting in human suffering […]”
125. To acknowledge that the very survival of the patient in a PVS
condition is resting on an invasive form of artificial support made
possible by medical science and technology, yet deny such
intervention the status of a ‘medical treatment’ in respect of which
doctors could exercise their clinical judgment, would stretch the
concept of basic or primary care to an extent that it becomes
illogical. Thus, it is crucial that CANH be regarded as medical
treatment, forming an integral part of a patient’s medical
management, and be subject to the same ethical, legal, and clinical
principles that govern the initiation, continuation, withholding, or
withdrawal of other life-sustaining medical interventions. To deny
it recognition as a medical treatment would reduce the patient to
being a passive subject of medical technology, while simultaneously
depriving doctors of the agency necessary to responsibly assess the
therapeutic value of such intervention in the discharge of their duty
of care.
Miscellaneous Application No. 2238 of 2025 Page 124 of 286
126. However, another significant aspect that needs to be addressed is
whether CANH that is administered at home can still be regarded
as a medical treatment. We hereby clarify that merely because
routine feeding in the form of CANH can be administered at home,
by an informed lay person, it cannot be relegated to a non-medical
status. We find the reasoning given by Morris J., in Re BWV; Ex
parte Gardner, reported in 2003 VSC 173, to be most apt in
addressing this point. Therein it was recognised by the Supreme
Court of Victoria, Australia, that artificial nutrition and hydration
involves protocols, skills and care which draw from and depend
upon medical knowledge. In his opinion, Morris J., clearly reasons
out why the use of PEG for artificial nutrition and hydration is
unquestionably a medical procedure. He explains how artificial
nutrition and hydration will inevitably require the careful choice of
materials and preparation methods, close consideration of dosage
rates, measures to prevent infection, and regular cleaning of
conduits. These measures cannot be regarded as common
knowledge. Rather, they draw from and depend upon medical
knowledge. More pertinently, he observes, that although artificial
nutrition and hydration, via a PEG, can be performed at home by
an informed lay person, it remains a medical procedure because
such administration of nutrition and hydration must necessarily be
performed under regular medical and nursing supervision,
involving skills and protocols which the lay person would need to
specifically obtain by drawing upon medical knowledge. Morris J.’s
observations read as follows:
Miscellaneous Application No. 2238 of 2025 Page 125 of 286
“76. It is not necessary to explore all the circumstances
which might be said to constitute a medical procedure:
because, unquestionably in my judgment, the use of a
PEG for artificial nutrition and hydration, or for that
matter any form of artificial feeding, is a "medical"
procedure. Artificial nutrition and hydration involves
protocols, skills and care which draw from, and depend
upon, medical knowled ge. Artificial nutrition and
hydration will inevitably require careful choice of and
preparation of materials to be introduced into the body,
close consideration to dosage rates, measures to prevent
infection and regular cleaning of conduits. These are not
matters of common knowledge. In this regard, I
particularly rely upon the evidence given to the Court by
Dr Woodward, Professor Ashby and Professor Horne.
77. In my opinion, the claim that artificial nutrition and
hydration via a PEG, can be performed in the home by an
informed lay person does not mean that this procedure is
not a medical procedure. Quite apart from the fact that
the evidence is that such artificial nutrition and hydration
must necessarily be performed under regular medical
and nursing supervision, such a procedure involves skills
and protocols which the lay person would need to
specifically obtain by drawing upon medical knowledge.”
(Emphasis Supplied)
127. The recognition accorded to CANH as a ‘medical treatment’ is of
particular importance as it enables doctors acting in good faith and
with due medical propriety to undertake such treatment and be able
to take further decisions regarding its discontinuation, in the same
manner as any other decision the doctor is duty-bound to make
concerning the appropriateness of continuing a medical
intervention. In other words, recognising CANH as a medical
treatment brings decisions regarding its administration, refusal,
withholding or withdrawal squarely within the realm of clinical
Miscellaneous Application No. 2238 of 2025 Page 126 of 286
judgment, thereby making physicians duty -bound to evaluate
whether it is in the best interest of the patient to continue such
treatment, or whether it has lost its therapeutic purpose and has
become futile, thereby outweighing its intended benefits. It cannot
be said that a patient should be made a passive subject of medical
technology without allowing the doctors to engage in clinical
decision-making regarding such technological intervention.
128. We are therefore of the considered view that CANH constitutes
‘medical treatment’ and must be governed by the same legal
principles applicable to the withholding or withdrawal of other
forms of life-sustaining medical interventions, subject, of course, to
the safeguards and procedural requirements laid down by this
Court in Common Cause 2018 (supra).
129. In the present matter before us, the applicant is sustained through
the administration of nutrition and hydration in medically
prescribed quantities of certain prescribed feed, via a surgically
installed PEG tube. We have already explained how the
continuation of such CANH requires an ongoing clinical decision-
making process, through routine medical supervision, periodic
evaluation, and emergency medical management in case of infection
or dislodgment of the CANH device. Consequently, it is beyond
question that administration of CANH in this case is to be
considered as medical treatment. Further, as we have already
explained hereinabove, the fact that the applicant is administered
CANH at home does not displace the status of such CANH as being
considered as a medical treatment.
Miscellaneous Application No. 2238 of 2025 Page 127 of 286
130. Therefore, in line with our considered view that CANH constitutes
medical treatment, it is permissible for the primary medical board
and secondary medical board to exercise their clinical judgment
with regard to the continuation or withdrawal or withholding of
CANH, like any other form of medical treatment, in accordance with
the guidelines as laid down in Common Cause (supra). In other
words, the primary and secondary medical boards are at liberty to
exercise their independent clinical judgment on the question of
continuation or withdrawal of CANH, as they would in respect of
any other form of medical treatment.
(2) WHAT IS THE MEANING , SCOPE, AND CONTOURS OF THE PRINCIPLE OF
“BEST INTEREST OF THE PATIENT ” IN DETERMINING WHETHER MEDICAL
TREATMENT SHOULD BE WITHDRAWN OR WITHHELD ?
131. As discussed above, a five-judge Constitution Bench of this Court
in Common Cause 2018 (supra) had inter alia laid out certain
guidelines for the withdrawal or withholding of medical treatment.
According to the Common Cause 2018 (supra), when following
these step-by-step guidelines and determining whether a particular
medical treatment is to be withdrawn or withheld, the doctors and
the courts have to keep in mind the principle of “best interest of the
patient”.
132. While referring to this principle, Dipak Misra, CJ., in his opinion,
referred to the decision of the House of Lords in Airedale (supra)
wherein it was settled that the life sustaining treatment can be
Miscellaneous Application No. 2238 of 2025 Page 128 of 286
withdrawn in the case of a competent patient, if he consents to it
and in the case of an incompetent patient, if it is in his best interest
to do so. Similarly, A.K. Sikri, J., in his opinion, was of the same
view that the decision of a doctor to withdraw or withhold medical
treatment must be based on what is in the best interest of the
patient. Additionally, D.Y. Chandrachud, J., also expressed in clear
and categorical terms, that the decision of a treating doctor to
withdraw or withhold medical treatment is legally protected, so long
as such decision is taken bona fide, in faithful discharge of
professional duty, and in the best interests of the patient. Lastly,
Ashok Bhushan, J., while concurring with the aforesaid views, also
observed that in cases involving incompetent patients who are
incapable of taking an informed decision, the governing principle
shall be the “best interests of the patient”, and the determination in
that regard must rest with competent medical experts. The relevant
observations are as under:
Dipak Misra, CJ.
“192. […] In general, as per the settled law vide the decision
in Airedale, life-sustaining treatment including artificial
nutrition and hydration can be withdrawn if the patient
consents to it and in case of incompetent patients, if it is in
their best interest to do so.”
A.K. Sikri, J.
“462 […] Placing a patient on artificial life support would, in
such a situation, merely prolong the agony of the patient.
Hence, a decision by the doctor based on what is in the
best interest of the patient precludes an intent to cause
death […].
Miscellaneous Application No. 2238 of 2025 Page 129 of 286
D.Y. Chandrachud, J.
“521. The decision by a treating doctor to withhold or
withdraw medical intervention in the case of a patient in the
terminal stage of illness or in a persistently vegetative state
or the like where artificial intervention will merely prolong
the suffering and agony of the patient is protected by the
law. Where the doctor has acted in such a case in the best
interest of the patient and in bona fide discharge of the
duty of care, the law will protect the reasonable exercise of
a professional decision.”
Ashok Bhushan, J.
“629.9. We are also of the opinion that in cases of
incompetent patients who are unable to take an informed
decision, "the best interests principle" be applied and
such decision be taken by specified competent medical
experts and be implemented after providing a cooling period
to enable aggrieved person to approach the court of law.”
(Emphasis Supplied)
133. Furthermore, according to Para. 198.5.3 (cases where an AMD is
present) and Para. 199.4 (cases where an AMD is absent) of the
guidelines as laid down in Common Cause (supra), respectively, it
is also obligatory upon the court dealing with the question of
withdrawal or withholding of medical treatment to ascribe reasons
for the same, while specifically keeping in mind the principle of best
interest of the patient. At Para. 202.14 of the guidelines as laid
down in Common Cause (supra), this Court also laid down that
when withdrawing or withholding medical treatment is considered
medically appropriate as a part of the patient’s palliative care, then
the patient’s best interests must take priority over the interests of
Miscellaneous Application No. 2238 of 2025 Page 130 of 286
the State to preserve life. The relevant excerpts from the guidelines
as laid down in Common Cause (supra) are as follows:
“198.5.3. Needless to say that the High Court shall render
its decision at the earliest as such matters cannot brook any
delay and it shall ascribe reasons specifically keeping in
mind the principles of “best interests of the patient”.
xxx xxx xxx
199.4. […] Needless to say, the High Court shall ascribe
High Court shall ascribe reasons specifically reasons
specifically keeping in mind the keeping principle of "best
interests of the patient".
xxx xxx xxx
202.14. When passive euthanasia as a situational palliative
measure becomes applicable, the best interest of the patient
shall override the State interest.
(Emphasis Supplied)
134. From the foregoing discussion, it emerges that the application of the
principle of the “best interests of the patient” possesses an intrinsic
and qualified significance in determining whether medical
treatment should be withdrawn or withheld. However, at this stage,
a pertinent question arises as to the precise content, contours, and
scope of this principle, and the manner in which it is to be applied
to the facts and circumstances of each individual case. We are,
therefore, of the considered view that it is imperative, at the
threshold, to elucidate the meaning and ambit of the principle of
best interests, which receives paramount consideration in
contemplating the withdrawal or withholding of medical
Miscellaneous Application No. 2238 of 2025 Page 131 of 286
intervention. We intend to undertake this exercise by examining a
series of decisions rendered by courts across various jurisdictions,
wherein the principle of best interests has been expounded,
particularly in the context of issues relating to the withdrawal or
withholding of medical treatment. We shall also advert, albeit
briefly, to the meaning and scope of this principle as evidenced in
the recommendations given by the Law Commission of India in its
196
th Report titled “Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners)” and in its 241
st
Report titled “Passive Euthanasia – A Relook”, and, finally, to the
exposition of this Court in Common Cause 2018 (supra).
(a) Best interest of the patient in United States of America (USA)
135. The earliest authority in the USA relevant for our discourse is of In
re Eichner on behalf of Fox, reported in 73 A.D.2d 431. In this
case, the Supreme Court of New York was concerned with the case
of Brother Joseph Charles Fox, an 83-year-old Catholic monk who
suffered a cardiac arrest during routine hernia surgery, resulting in
severe and irreversible brain damage and leaving him in a PVS. He
was sustained solely by artificial ventilation and had no prospect of
recovery. Father Philip K. Eichner, a close associate and religious
superior, applied before the court seeking a declaration of the
patient’s incompetence and authorisa tion to withdraw the
respirator, relying on the patient’s previously expressed wishes not
to be kept alive by extraordinary means. The trial court permitted
withdrawal of the respirator. The District Attorney preferred an
appeal. During the pendency of the appeal, the patient died
Miscellaneous Application No. 2238 of 2025 Page 132 of 286
naturally; however, the court proceeded to determine the matter,
observing that similar issues were capable of recurring. The
Supreme Court of New York ultimately affirmed the decision of the
trial court, holding that withdrawal of extraordinary life-sustaining
treatment was permissible, subject to strict procedural safeguards
and clear medical confirmation. The court observed that the law
confers jurisdiction upon the court to act in relation to an
incompetent person only in furtherance of his best interests and in
exercise of its protective jurisdiction.
136. The court then addressed the question of the patient’s wishes and
recognised that, in many cases, a specific prior statement of intent
may not be available. In such circumstances, the court held that an
alternative mechanism is required to safeguard the patient’s right
to refuse treatment. The court approved the use of the substituted
judgment standard in such circumstances and recognised that
such an approach had received judicial acceptance in the USA. The
court further observed that substituted judgment is intended to give
effect to the patient’s own wishes and autonomy and is best
undertaken by persons who knew the patient closely. The court
further emphasised that the substituted judgment must proceed on
the basis that it reflects the patient’s own choice, i.e., what the
patient would have wanted if he had capacity. The relevant
observations are as under:
“The legal component concerns the mechanism by which the
patient's intentions are ascertained, if possible, and his best
interests safeguarded.
Miscellaneous Application No. 2238 of 2025 Page 133 of 286
But the question does not end there for we recognize that a
specific statement of intent by the patient will occur only in
a minority of cases. Another mechanism is required if the
comatose patient's [**548] right to refuse extraordinary life-
prolonging medical treatment is to be safeguarded. Both
Quinlan and Saikewicz faced the problem, although in
different contexts: in Quinlan the 21-year-old Karen, in the
full flower of her [***89] health, had no reason to
contemplate the possibility of death and therefore no reason
to make known her wishes; in Saikewicz, the 67-year-old
retardate had an I.Q. of 10, and a mental age of less than
three, and hence was incapable of intelligently expressing
his wishes […] Both courts, however, elected a similar
procedural mechanism: a "substitute" or proxy judgment by
the patient's guardian in the best interests of the
incompetent patient. This was no great departure from the
norm since "[courts] in the exercise of their parens patriae
responsibility to protect those under disability have
sometimes implemented medical decisions and authorized
their carrying out under the doctrine of 'substituted
judgment […] The Quinlan court held that the “only practical
way to prevent destruction of the right is to permit the [***90]
guardian and family of Karen to render their best judgment
* * * as to whether she would exercise it in these
circumstances”. Similarly, the guardian ad litem in
Saikewicz was required to make a substitute judgment
based on the "incompetent person's actual interests and
preferences […] We believe that this is essentially a sound
approach, borne of the exigencies of the circumstances. We
look particularly to a close family relative, a spouse, parent,
child, brother, sister or grandchild -- in Brother Fox's case, a
member of his religious family -- as an appropriate person to
initiate, as committee of the incompetent, the process of
reaching such a decision. Such an individual who has
known and loved the patient personally, presumably for
years, can best determine what that patient would have
wanted under the circumstances. It is a decision we trust
that will derive from a deep and abiding respect for the
patient as an individual. But more important, [***91] we
believe that it must be based on the assumption that the
patient would have wanted it that way. This approach seeks
Miscellaneous Application No. 2238 of 2025 Page 134 of 286
to fulfill what would be deemed to be the dying patient's own
wishes, and reaffirms notions of self-determination.
We note that the doctrine of substitute judgment is not
unknown in this jurisdiction in incompetency proceedings.”
(Emphasis Supplied)
137. In Barber v Superior Court, reported in 147 Cal App 3d 1006,
the patient had suffered a cardiac arrest resulting in severe brain
damage and leaving him in a deep and irreversible vegetative state
with virtually no prospect of regaining cognitive or motor function.
He was sustained on life-support systems, including a respirator
and intravenous nutrition and hydration. After being informed of
the prognosis, the patient’s wife and children requested withdrawal
of all life-sustaining treatment, consistent with the patient’s
previously expressed wishes not to be kept alive artificially. The
treating physicians thereafter withdrew the respirator and
subsequently, the CANH. The patient , thereafter, died while
receiving palliative care. In consequence, the doctors were charged
with murder and conspiracy to commit murder, which they
challenged before the Court of Appeal of California by seeking a writ
of prohibition. The court held that the doctors’ omission to continue
treatment did not constitute an unlawful failure to perform a legal
duty when the patient had virtually no prospect of recovering
cognitive function.
138. In holding so, the court emphasised that medical decision-making
in such cases must be rationally approached by examining whether
the proposed treatment is proportionate or disproportionate, having
Miscellaneous Application No. 2238 of 2025 Page 135 of 286
regard to the benefits and burdens associated with such treatment.
The court recognised that treatment may still be regarded as
proportionate, even if painful or intrusive, where there exists a
reasonable prospect of cure or significant improvement in the
patient’s condition. The court further recognised that the patient’s
interests and desires constitute central components of the decision-
making process. However, in cases where the possibility of full
recovery is virtually non-existent, and the patient is incapable of
expressing his wishes, the focus of the inquiry must shift to the
medical prognosis, particularly the reasonable possibility of return
to cognitive and sapient life, as distinct from mere continuation of
biological existence in a vegetative state. The court recognised that
where the patient’s choice cannot be ascertained, the surrogate
must act in the patient’s best interests, assessed by factors such as
relief from suffering, preservation or restoration of functioning, and
the quality and extent of life sustained. The surrogate may also
consider the impact of the decision on those closest to the patient.
The relevant observations are as under:
“[…] A more rational approach involves the determination of
whether the proposed [*1019] treatment is proportionate or
disproportionate in terms of the benefits to be gained versus
the burdens caused.
Under this approach, proportionate treatment is that which,
in the view of the patient, has at least a reasonable chance
of providing [***22] benefits to the patient, which benefits
outweigh the burdens attendant to the treatment. Thus,
even if a proposed course of treatment might be extremely
painful or intrusive, it would still be proportionate treatment
if the prognosis was for complete cure or significant
improvement in the patient's condition […]
Miscellaneous Application No. 2238 of 2025 Page 136 of 286
xxx xxx xxx
Of course the patient's interests and desires are the key
ingredients of the decision-making process. When dealing
with patients for whom the possibility of full recovery is
virtually nonexistent, and who are incapable of expressing
their desires, there is also something of a consensus on the
standard to be applied.
The focal point of decision should be the prognosis as to the
reasonable possibility of return to cognitive and sapient life,
as distinguished from the forced continuance of that
biological vegetative existence.
Prolongation of life […] does not mean a mere suspension of
the act of dying, but contemplates, at the very least, a
remission of symptoms enabling a return towards a normal,
functioning, integrated existence.
If it is not possible to ascertain the choice the patient would
have made, the surrogate ought to be guided in his decision
by the patient's best interests. Under this standard, such
factors as the relief of suffering, the preservation or
restoration of functioning and the quality as well as the
extent of life sustained may be considered. Finally, since
most people are concerned about the well-being [***27] of
their loved ones, the surrogate may take into account the
impact of the decision on those people closest to the patient.”
(Emphasis Supplied)
139. Further, in In re Conroy (supra), the Supreme Court of New Jersey
considered the case of Claire C. Conroy, an incompetent, bedridden
nursing-home resident suffering from severe and irreversible
physical and mental impairments, including advanced dementia,
gangrene, ulcers, and inability to swallow. She was not terminally
ill, comatose, or in a vegetative state, but was being sustained
Miscellaneous Application No. 2238 of 2025 Page 137 of 286
through a nasogastric feeding tube, which constituted her sole
source of nutrition and hydration. Her nephew and legal guardian
sought judicial authorisation to withdraw the feeding tube,
contending that continued artificial feeding merely prolonged her
suffering and was inconsistent with what she would have wanted.
The trial court permitted withdrawal of the feeding tube. However,
the Appellate Division reversed, holding that withdrawal of
nourishment would amount to killing. During the pendency of the
appeal, the patient died naturally, yet the Supreme Court of New
Jersey proceeded to determine the matter in view of its pub lic
importance.
140. The court held that a patient’s best interests may be assessed
through structured objective standards. Under the limited-objective
test, life-sustaining treatment may be withdrawn where there is
some trustworthy evidence of the patient’s prior wishes to refuse
such treatment and where the burdens of continued life with
treatment clearly outweigh its benefits, including unavoidable and
continuing pain and suffering. In the absence of any trustworthy
evidence of prior wishes, the court recognised that withdrawal may
still be permissible under a pure-objective test, where the net
burdens of continued treatment clearly and markedly outweigh the
benefits and the patient’s suffering renders continuation inhumane.
The court, however, clarified that even under such objective
standards, treatment must not be withdrawn where the patient had
previously expressed a clear wish to be kept alive despite suffering.
The relevant observations are as under:
Miscellaneous Application No. 2238 of 2025 Page 138 of 286
“[…] We therefore hold that life-sustaining treatment may
also be withheld or withdrawn from a patient in Claire
Conroy's situation if either of two "best interests" tests-- a
limited-objective or a pure-objective test – is satisfied.
Under the limited-objective test, life-sustaining treatment
may be withheld or withdrawn from a patient in Claire
Conroy's situation when there is some trustworthy evidence
that the patient would have refused the treatment, and the
decision-maker is satisfied that it is clear that the burdens
of the patient's continued life with the treatment outweigh
the benefits of that life for him. By this we mean that the
patient is suffering, and will continue to suffer throughout
the expected duration of his life, unavoidable pain, and
that the net burdens of his prolonged life (the pain
and suffering of his life with the treatment less the
amount and duration of pain that the patient would
likely experience if the treatment were withdrawn)
markedly outweigh any physi cal pleasure, emotional
enjoyment, or intellectual satisfaction that the patient may
still be able to derive from life. This limited-objective
standard permits the termination of treatment for a patient
who had not unequivocally expressed his desires
before becoming incompetent, when it is clear that
the treatment in question would merely prolong the
patient's suffering.
This limited-objective test also requires some trustworthy
evidence that the patient would have wanted the treatment
terminated. This evidence could take any one or more of the
various forms appropriate to prove the patient's intent under
the subjective test. Evidence that, taken as a whole, would
be too vague, casual, or remote to constitute the clear proof
of the patient's subjective intent that is necessary to satisfy
the subjective test -- for example, informally expressed
reactions to other people's medical conditions and treatment
-- might be sufficient to satisfy this prong of the limited-
objective test.
In the absence of trustworthy evidence, or indeed any
evidence at all, that the patient would have declined the
treatment, life-sustaining treatment may still be withheld or
Miscellaneous Application No. 2238 of 2025 Page 139 of 286
withdrawn from a formerly competent person like Claire
Conroy if a third, pure-objective test is satisfied. Under that
test, as under the limited-objective test, the net burdens of
the patient's life with the treatment should clearly and
markedly outweigh the benefits that the patient derives from
life. Further, the recurring, unavoidable and severe pain of
the patient's life with the treatment should be such that the
effect of administering life-sustaining treatment would be
inhumane. Subjective evidence that the patient would not
have wanted the treatment is not necessary under this pure-
objective standard. Nevertheless, even in the context of
severe pain, life-sustaining treatment should not be
withdrawn from an incompetent patient who had previously
expressed a wish to be kept alive in spite of any pain that
he might experience.”
(Emphasis Supplied)
141. In Rasmussen v. Fleming, reported in 154 Ariz. 207, the Supreme
Court of Arizona was seized with a case involving a 64-year-old
patient named Mildred Rasmussen who was admitted to a nursing
home and later suffered multiple strokes, leading to severe,
irreversible brain damage and a chronic vegetative state. She
was incapable of caring for herself, was largely non-responsive, and
had no realistic prospects of recovery, according to medical experts.
142. The Supreme Court of Arizona expressed the view that in cases
involving surrogate medical decision -making, two distinct
standards have been developed by courts, namely, substituted
judgment and best interests. Under the substituted judgment
standard, the guardian is required to attempt to reach the decision
that the incapacitated person would have made if he or she had the
capacity to choose, and this standard is most appropriately applied
where the patient, while competent, has manifested his or her
Miscellaneous Application No. 2238 of 2025 Page 140 of 286
intentions concerning medical treatment. However, the court
clarified that where the evidentiary record is barren of any reliable
indication of the patient’s prior wishes, the substituted judgment
standard provides little or no meaningful guidance and must
therefore give way to the best interests standard. In such
circumstances, the surrogate decision -maker is required to
determine what course of medical treatment would best serve the
patient’s interests, assessed by reference to objective
considerations. The relevant observations are as under:
“We conclude that Rasmussen's right to refuse medical
treatment still existed despite her incompetency and her
failure to articulate her medical treatment desires prior to
becoming incompetent. Because she was incapable of
exercising that right, however, we must determine who could
exercise that right for her.
WHO CAN EXERCISE AN INCOMPETENT'S RIGHT TO
REFUSE MEDICAL TREATMENT
The court of appeals held that either a family member or a
guardian could exercise Rasmussen's right to refuse medical
treatment […] The guardian ad litem contends that the
guardian should not have unbridled discretion to decide
whether to refuse any or all medical treatment. We agree.
Courts have developed two standards to guide surrogate
decision making: "substituted judgment" and "best
interests." Under the substituted judgment standard, the
guardian "attempt[s] to reach the [***36] decision that the
incapacitated person would make if he or she were able to
choose." […] This standard best guides a guardian's
decision-making when a patient has manifested his or her
intent while competent. [***37] Unfortunately, the record in
this [*222] [**689] case is barren of any evidence that
Rasmussen expressed her medical desires in any form prior
to becoming incompetent. Where no reliable evidence of a
patient's intent exists, as here, the substituted judgment
Miscellaneous Application No. 2238 of 2025 Page 141 of 286
standard provides little, if any, guidance to the surrogate
decisionmaker and should be abandoned in favour of the
"best interests" standard […] Under the best interests
standard, the surrogate decisionmaker assesses what
medical treatment would be in the patient's best interests as
determined by such objective criteria as relief from suffering,
preservation or restoration of functioning, and quality and
extent of sustained life.”
(Emphasis Supplied)
143. Later, in the landmark decision of Cruzan v Director, Missouri
Department of Health, reported in 497 U.S. 261, the Supreme
Court of the USA considered the case of Nancy Cruzan, a 25-year-
old woman who had suffered severe brain damage due to oxygen
deprivation following a motor vehicle accident, leaving her in a PVS
with no realistic prospect of regaining cognitive function. She was
sustained by CANH through a feeding tube, though she could
breathe without mechanical assistance. Nancy’s parents, acting as
her guardians, sought withdrawal of the feeding tube, relying upon
her prior informal statements indicating that she would not wish to
live in a “vegetable-like” condition. The hospital declined to
withdraw life-sustaining treatment without judicial authorisation.
The Missouri Supreme Court denied permission, holding that there
was no clear and convincing evidence of Nancy’s wishes to refuse
life-sustaining treatment.
144. The matter reached the Supreme Court of the United States to
decide whether the Federal Constitution required the State of
Missouri to permit withdrawal of CANH in such circumstances. A
majority of the court, speaking through Chief Justice Rehnquist
Miscellaneous Application No. 2238 of 2025 Page 142 of 286
and four concurring judges, upheld the decision of the Missouri
Supreme Court. While recognising that a competent person has a
constitutionally protected liberty interest in refusing unwanted
medical treatment, the court held that an incompetent person
cannot exercise such a choice directly, and that any decision in that
regard must be made through a surrogate, subject to procedural
safeguards designed to reflect, as nearly as possible, the patient’s
own wishes expressed while competent. The court further held that
the Constitution does not prohibit a State from requiring that an
incompetent patient’s wishes regarding withdrawal of life -
sustaining treatment be established by clear and convincing
evidence. It observed that close family members, though often
acting in good faith, cannot automatically be presumed to represent
the patient’s own views, and that the State may therefore insist on
a heightened evidentiary standard. Applying this standard, the
court held that the evidence relied upon by Nancy Cruzan’s parents
did not satisfy the clear and convincing threshold and accordingly
affirmed the decision to continue CANH. The relevant observations
of the majority opinion are as under:
“The difficulty with petitioners' claim [****35] is that in a
sense it begs the question: An incompetent person is not able
to make an informed and voluntary choice to exercise a
hypothetical right to refuse treatment or any other right.
Such a "right" must be exercised for her, if at all, by some
sort of surrogate. Here, Missouri has in effect recognised that
under certain circumstances a surrogate may act for the
patient in electing to have hydration and nutrition
withdrawn in such a way as to cause death, but it has
established a procedural safeguard to assure that the action
of the surrogate conforms as best it may to the wishes
expressed by the patient while competent. Missouri requires
Miscellaneous Application No. 2238 of 2025 Page 143 of 286
that evidence of the incompetent's wishes as to the
withdrawal of treatment be proved by clear and convincing
evidence. The question, then, is whether the United States
Constitution forbids the establishment of this procedural
requirement by the State. We hold that it does not.
xxx xxx xxx
No doubt is engendered by [****47] anything in this record
but that Nancy Cruzan's mother and father are loving and
caring parents. If the State were required by the United
States Constitution to repose a right of "substituted
judgment" with anyone, the Cruzans would surely qualify.
But we do not think the Due Process Clause requires the
State to repose judgment on these matters with anyone but
the patient herself. Close family members may have a strong
feeling -- a feeling not at all ignoble or unworthy, but not
entirely disinterested, [**2856] either -- that they do not wish
to witness the continuation of the life of a loved one which
they regard as hopeless, meaningless, and even degrading.
But there is no automatic assurance that the view of close
family members will necessarily be the same as the patient's
would have been had she been confronted with the prospect
of her situation while competent. All of the reasons
previously discussed for allowing Missouri to require clear
and convincing evidence of the patient's wishes lead us to
conclude that the State may [*287] choose to defer only to
those wishes, rather than confide the decision to close
family members.”
(Emphasis Supplied)
145. However, Justice Brennan and Justice Stevens dissented from the
above opinion. Justice Brennan’s dissent was concurred by 2 other
judges, and Justice Stevens delivered a separate dissent.
146. Justice Brennan, in his dissent, was of the view that the majority
had erred in permitting the State’s abstract interest in the
preservation of life to override the concrete and individual best
Miscellaneous Application No. 2238 of 2025 Page 144 of 286
interests of Nancy Cruzan. According to him, the Missouri Supreme
Court adverted to no evidence supporting its decision, but
nevertheless concluded that there was no clear and convincing,
inherently reliable evidence establishing that Nancy would have
wished to avoid further treatment. In doing so, the court, in Justice
Brennan’s view, failed to consider relevant and material evidence,
including statements made by Nancy to family members and a close
friend, as well as the testimony of her mother and sister, who were
certain that Nancy would have wished to discontinue CANH. He
noted that this omission occurred despite the court’s own finding
that Nancy’s family was loving and acted without any improper or
malignant motive. Justice Brennan further observed tha t the
Missouri Supreme Court failed to give due consideration to the
conclusions of the guardian ad litem appointed by the trial court,
who had found clear and convincing evidence that Nancy would
have wished to discontinue medical treatment and that such
discontinuation was in her best interests. According to Justice
Brennan, such an approach imposed an unduly rigid and
unrealistic evidentiary burden, inconsistent with the realities of
medical decision-making and personal autonomy. The relevant
observations from Justice Brennan’s dissenting opinion are as
follows:
“[…] The court adverted to no evidence supporting its
decision, but held that no clear and convincing, inherently
reliable evidence had been presented to show that Nancy
would want to avoid further treatment. In doing so, the court
failed to consider statements Nancy had made to
family members and a close friend. The [***270] court
also failed to consider testimony [*322] from Nancy's mother
Miscellaneous Application No. 2238 of 2025 Page 145 of 286
and sister that they were certain that Nancy would want to
discontinue artificial nutrition and hydration, even after the
court found that Nancy's family was loving and without
malignant motive. The court also failed to consider
the conclusions of the guardian ad litem, appointed by
the trial court, that there was clear and convincing
evidence that Nancy would want to [*323] discontinue
medical treatment and that this was in her best
interests. The court did not specifically define what kind
of evidence it would consider [**2875] clear and convincing,
but its general discussion suggests that only a living will or
equivalently formal directive from the patient when
competent would meet this standard.”
(Emphasis Supplied)
147. Justice Stevens, in his dissent, was of the further view that the
majority had impermissibly allowed the State’s undifferentiated
interest in preserving life to overwhelm Nancy Cruzan’s individual
best interests, which, according to undisputed findings at trial,
would have been served by permitting her guardians to exercise her
constitutional right to discontinue medical treatment. He found it
ironic that the court reached this conclusion despite endorsing
propositions which, in his view, should have led to the opposite
result. In his opinion, the Constitution required the State to care
for Nancy Cruzan’s life in a manner that accords appropriate
respect to her own best interests.
148. Justice Stevens emphasised that this case was the first in which
the apex court of USA was called upon to consider whether, and in
what manner, the Constitution protects the liberty of seriously ill
patients to be free from medical treatment. He cautioned against
resolving the issue in the abstract and stressed that the court’s
responsibility was to address the problem as illuminated by the
Miscellaneous Application No. 2238 of 2025 Page 146 of 286
specific facts before it. In this regard, he highlighted that clear and
convincing evidence established that Nancy Cruzan was
permanently unconscious, incapable of swallowing food or water,
and would never recover any cognitive function, with irreversible
and progressive cerebral cortical atrophy. Recovery and
consciousness were impossible, and the highest level of function
that could be hoped for was a reflexive response to painful stimuli.
Justice Stevens further noted that the trial judge had examined the
potential impact of withdrawing treatment on third parties and had
found that Nancy’s parents were motivated neither by economic
considerations nor by any improper purpose, and that granting
their request would neither harm innocent third parties nor violate
ethical medical standards. He further observed that the guardian
ad litem, despite appealing the trial court’s order as a matter of
duty, did not disagree with its conclusion and expressly endorsed
the finding that it was in Nancy Cruzan’s best interests to have tube
feeding discontinued. According to Justice Stevens, this critical
conclusion was undisputed by the parties and ought to have been
dispositive. He questioned how, in such circumstances, where
continued treatment served no interest of the patient and where the
good faith of the family was not in doubt, the state could legitimately
insist upon continued medical treatment, particularly when the
Missouri Supreme Court had largely ignored the trial court’s
findings regarding Nancy Cruzan’s intere sts. The relevant
observations from Justice Brennan’s dissenting opinion are as
follows:
“The Court would make an exception here. It permits the
State's abstract, undifferentiated interest in the
Miscellaneous Application No. 2238 of 2025 Page 147 of 286
preservation of life to overwhelm the best interests of Nancy
Beth Cruzan, interests which would, according to an
undisputed finding, be served by allowing her guardians to
exercise her constitutional right to discontinue medical
treatment. Ironically, the Court reaches this conclusion
despite endorsing three significant propositions which
should save it from any such dilemma.
I would so hold: In my view, the Constitution requires the
State to care for Nancy Cruzan's life in a way that gives
appropriate respect to her own best interests.
This case is the first in which we consider whether, and
how, the Constitution protects the liberty of seriously ill
patients to be free from life-sustaining medical treatment. So
put, the question is both general and profound. We need not,
however, resolve the question in the abstract. Our
responsibility as judges both enables and compels us to
treat the problem as it is illuminated by the facts of the
controversy before us.
[*332] The most important of those facts are these: "Clear
and convincing evidence" established that Nancy Cruzan is
"oblivious to her environment except for reflexive responses
to sound and perhaps to painful stimuli"; that "she has no
cognitive or reflexive ability to swallow food or water"; that
"she will never recover" these abilities; and that her "cerebral
cortical atrophy is irreversible, permanent, progressive and
[***276] ongoing." App. to Pet. for Cert. A94-A95. Recovery
and consciousness are impossible; the highest cognitive
brain function [****125] that can be hoped for is a grimace in
"recognition of ordinarily painful stimuli" or an "apparent
response to sound." Id., at A95.
[****126] [**2880] After thus evaluating Nancy Cruzan's
medical condition, the trial judge next examined how the
interests of third parties would be affected if Nancy's
parents were allowed to withdraw the gastrostomy tube
that had been implanted in [*333] their daughter. His
findings make it clear that the parents' request had no
economic motivation, and that granting their request would
Miscellaneous Application No. 2238 of 2025 Page 148 of 286
neither adversely affect any innocent third parties nor
breach the ethical standards of the medical profession. [...]
Because he believed he had a duty to do so, the independent
guardian ad litem appealed the trial court's order to the
Missouri Supreme Court. In that appeal, however, the
guardian advised the court that he did not disagree with
the trial court's decision. Specifically, he endorsed the
critical finding [****129] that "it was in Nancy Cruzan's best
interests to have the tube feeding discontinued."
That important conclusion thus was not disputed by the
litigants. One might reasonably suppose that it would be
dispositive: If Nancy Cruzan has no interest in continued
treatment, and if she has a liberty interest in being free from
unwanted treatment, and if the cessation of treatment
would have no [**2881] adverse impact on third parties, and
if no reason exists to doubt the good faith of Nancy's parents,
then what possible basis could the State have for insisting
upon continued medical treatment? Yet, i nstead of
questioning or endorsing the trial court's [****130]
conclusions about Nancy Cruzan's interests, the State
Supreme Court largely ignored them.”
(Emphasis Supplied)
149. From above, it is our view that the real divergence in Cruzan (supra)
lay not in the recognition of a patient’s liberty to refuse medical
treatment, but in whether the State of Missouri could have
constitutionally insisted upon a rigid and formal application of the
“clear and convincing evidence” standard, even where the patient’s
best interests were undisputed and her wishes could be reasonably
inferred through substituted judgment.
150. Thereafter, in In re Guardianship of Jane Doe , reported in 411
Mass. 512, the Supreme Court of Massachusetts considered the
Miscellaneous Application No. 2238 of 2025 Page 149 of 286
case of Jane Doe, a 33-year-old woman suffering from Canavan’s
disease, who was also in a PVS, with no prospect of improvement.
The medical evidence established that she had suffered a total loss
of cerebral functioning, had no awareness of herself or her
surroundings, and was incapable of experiencing cognitive
responses to stimuli, hunger, or thirst. For nearly a decade, she had
been sustained through CANH administered via a nasoduodenal
tube. In such circumstances, a petition was brought before the
Probate and Family Court by Doe’s permanent guardian seeking
authorisation for the withdrawal of the feeding tube. The Probate
Court judge applied the doctrine of substituted judgment and
recognised substituted judgment as a legal fiction in cases involving
incompetent persons, through which liberty interests of the patient
may nonetheless be vindicated. While applying the substituted
judgment standard, the judge concluded that, if Doe had been
competent, he would have chosen to discontinue CANH, and
accordingly allowed the petition. On appeal, the Supreme Court of
Massachusetts affirmed the decision of the judge, reiterating that
although best interests considerations are relevant to substituted
judgment analysis, yet they are relevant only to the extent that the
individual herself would have considered them in deciding whether
to accept or refuse continued treatment, if he were to be competent.
The relevant observations are as under:
“Lack of a prior expressed intention regarding medical
treatment does not bar use of the doctrine of substituted
judgment […] We recognize that in situations in which there
is an attempt to use substituted judgment for a never-
competent person, it is a legal fiction. It is the legal
mechanism by which society (at least in Massachusetts)
Miscellaneous Application No. 2238 of 2025 Page 150 of 286
attempts to vindicate liberty interests, albeit through a legal
fiction. We are also aware that therefore “the substituted
judgment [doctrine] is difficult to apply.” That difficulty,
however, “provides inadequate justification for denying its
benefits” […] “While it may ... be necessary to rely to a
greater degree on objective criteria [in the case of a never-
competent person] ... the effort to bring the substituted
judgment into step with [***15] the values and desires of the
affected individual must not, and need not, be abandoned”.
Some of these objective criteria are the same as those
considered in the “best interests of the ward” test. “[T]he
best interests analysis, like that of the substituted judgment
doctrine, requires a court to focus on the various factors
unique to the situation of the individual for whom it must
act.” […] while ward's best interests are relevant to
substituted judgment determination, “they are relevant only
to the extent that the individual, if competent, would weigh
them in deciding whether to accept treatment”.”
(Emphasis Supplied)
151. In the case of In re Guardianship of L.W., reported in 167 Wis.
2d 53, the Supreme Court of Wisconsin examined whether life -
sustaining medical treatment, including artificial nutrition and
hydration, could be withdrawn from an incompetent patient in a
PVS, and whether such a decision could lawfully be taken by a
guardian. In this case, L.W., a 79-year-old man with a long history
of severe schizophrenia who had been admitted to the hospital for
decades and may never be competent, suffered a cardiac arrest and
thereafter entered a chronic PVS. His physicians advised that,
absent his improvement, withdrawal of life-sustaining treatment
would be considered. The guardian sought declaratory guidance as
to whether he could consent to such withdrawal without prior court
approval. Although L.W. died naturally while the matter was
Miscellaneous Application No. 2238 of 2025 Page 151 of 286
pending, the court addressed the issues owing to their public
importance. The court held that an incompetent individual in a PVS
possesses a constitutionally protected right to refuse unwanted
medical treatment, including CANH, and that a guardian may
exercise that right on the ward’s behalf where withdrawal is in the
ward’s best interests. The court clarified that, where a patient’s
wishes can be clearly ascertained, it is in the patient’s best interests
to honour those wishes, however, where there is little or no reliable
evidence of past wishes (as in the case of a never-competent or long-
incompetent patient) the substituted judgment standard would be
inapplicable, and the decision must instead be governed exclusively
by the best interests principle. In applying that principle, the
guardian must begin from a presumption in favour of the
continuation of life, but may rebut that presumption through a good
faith assessment of objective factors viewed from the patient’s
standpoint, including prognosis, life expectancy, prospects of
recovery, the burdens and benefits of continued treatment, and the
degree of humiliation, dependence, and loss of dignity likely to
result from the patient’s condition and its treatment. The court gave
ample caution that in such circumstances the guardian must not
substitute his own assessment of the beliefs, values, and wishes of
the patient’s life. The relevant observations are as under:
“We conclude that an incompetent individual in a persistent
vegetative state has a constitutionally protected right to
refuse unwanted medical treatment, including artificial
nutrition and hydration, that a court-appointed guardian
may consent to withdrawal of such treatment where it is in
the “best interests” of the ward to do so, and that the
guardian does not need the prior authority of the court,
Miscellaneous Application No. 2238 of 2025 Page 152 of 286
although that decision may be reviewed by the court at the
instance of parties in interest. We stress that this opinion is
limited in scope to persons in a persistent vegetative state.
xxx xxx xxx
Certainly the patient's wishes, as far as they can be
discerned, are an appropriate consideration for the
guardian. If the wishes are clear, it is invariable as a matter
of law, both common and statutory, that it is in the best
interests of the patient to have those wishes honored, for the
patient has made the pre-choice of what he or she considers
to be the best interests under the *80 circumstances that
arise […]
xxx xxx xxx
We also hold that in a case such as this one where there can
be no reliable ascertainment of the incompetent's wishes,
only the best interests standard can be applied. We are fully
in accord with the circuit court's conclusion in this respect.
In the circumstances of this proceeding the guardian.
xxx xxx xxx
In making the best interests determination, the guardian
must begin with a presumption that continued life is in the
best interests of the ward. Whether that presumption may
be overcome depends upon a good faith assessment by the
guardian of several objective factors.
Objective factors the guardian may consider include:
The degree of humiliation, dependence, and loss of dignity
probably resulting from the condition and treatment; the life
expectancy and prognosis for recovery with and without
treatment; the various treatment options; and the risks, side
effects, and benefits of each of those options.
xxx xxx xxx
Miscellaneous Application No. 2238 of 2025 Page 153 of 286
In determining whether to withdraw or withhold medical
treatment from patient in persistent vegetative state,
guardian must assess objective factors from standpoint of
patient, and should not substitute his or her own view of
“quality of life” of ward; guardian's determination of what is
in ward's best interests necessarily involves assessment of
value that continuation of life has for ward, but should not
involve value others find in continuation of ward's life, and
guardian should not engage in subjective quality of life
determination on behalf of ward. U.S.C.A. Const. Amend.
14; W.S.A. Const. Art. 1, § 1; W.S.A. 154.01 et seq.”
(Emphasis Supplied)
152. From the above, it appears that courts in the USA have approached
decisions relating to withdrawal of life-sustaining treatment
through a structured interaction between the substituted judgment
standard and the best interests principle, rather than treating them
as isolated or competing tests.
153. Where evidence exists of the patient’s prior wishes, values, or
convictions, the courts in the USA have preferred the substituted
judgment standard as the primary mode of decision-making. This
is evident in In re Eichner (supra), where the court emphasised
that the role of the surrogate is to determine what the patient would
have decided if he had been competent, based on prior expressions
and deeply held beliefs, while simultaneously grounding that
inquiry in the objective threshold of medical findings of
irreversibility, absence of cognitive function, and lack of therapeutic
purpose i.e., medically what is in best interest. Similarly, in Barber
(supra), the court acknowledged the prior expressions of the
patient’s wishes and then evaluated continued treatment through a
Miscellaneous Application No. 2238 of 2025 Page 154 of 286
proportionality analysis, holding that treatment which merely
prolongs biological existence without any reasonable prospect of
recovery does not serve the patient’s interests and imposes no legal
duty on physicians to continue it.
154. At the same time, the courts have repeatedly acknowledged that
substituted judgment cannot operate meaningfully in the absence
of reliable evidence of the patient’s intentions. In such
circumstances, the substituted judgment standard yields to a best
interests determination grounded in objective criteria. This
transition is clearly articulated in Rasmussen (supra), where the
court held that substituted judgment is appropriate only where the
patient has expressed his wishes while competent, and that where
the record is barren of such evidence, decisions must be guided
solely by the patient’s best interests, assessed through factors such
as relief from suffering, recovery of cognitive functioning, and the
quality and extent of life sustained. A similar approach is reflected
in In re Conroy (supra), where the court developed best interests
tests to govern cases involving incompetent patients whose wishes
could not be clearly established, permitting withdrawal of treatment
where the burdens of continued life with treatment clearly outweigh
its benefits and continuation would be inhumane.
155. The decision of the Supreme Court of the USA in Cruzan (supra),
introduces an important point of divergence. While the majority
upheld the State’s requirement of clear and convincing evidence of
the patient’s wishes before permitting withdrawal of life-sustaining
treatment, the dissenting opinions, particularly those of Justice
Miscellaneous Application No. 2238 of 2025 Page 155 of 286
Brennan and Justice Stevens, placed greater emphasis on the
patient’s best interests and the factual findings of the trial court.
The dissent criticised the elevation of the State’s abstract interest
in preserving life over the individual patient’s interests, especially
where the medical evidence established permanent
unconsciousness, irreversibility, and the absence of any benefit to
the patient from continued treatment. The dissent further noted
that the trial court had already found, on clear and convincing
evidence, that withdrawal of treatment was in the patient’s best
interests, that the family acted in good faith, and that no third-party
interests were adversely affected. We resonate with the observations
made in the dissenting opinions, more particularly, the primacy
that they have accorded to the patient’s welfare and dignity, rather
than endorsing very strict procedural evidentiary thresholds that
serve to defeat substantively just outcomes in cases where
continued treatment serves no purpose for the patient.
156. Subsequent State court decisions reflect both strands of Cruzan
(supra). In Guardianship of Jane Doe (supra), the Supreme Court
of Massachusetts reaffirmed the continued applicability of
substituted judgment even for incompetent patients, recognising it
as a legal fiction but one necessary to vindicate liberty interests,
while permitting reliance on objective criteria where subjective
intent cannot be reconstructed. Conversely, in In the Matter of
Guardianship of L.W. (supra), the Supreme Court of Wisconsin
drew a clearer line between substituted judgment and best
interests, holding that where the patient’s wishes cannot be reliably
ascertained, only the best interests standard may be applied,
Miscellaneous Application No. 2238 of 2025 Page 156 of 286
beginning with a presumption in favour of life but allowing that
presumption to be rebutted through a good-faith, patient-centred
assessment of prognosis, dignity, and the burdens of treatment,
without importing subjective quality-of-life judgments of others.
(b) Best interest of the patient in United Kingdom (UK)
157. In one of the first cases of its kind in the United Kingdom, the House
of Lords in In re F. (Mental Patient: Sterilisation), reported in
(1990) 2 AC 1, was seized with an issue involving a patient F,
suffering from a severe mental disability, with the verbal capacity of
a two-year old and the mental capacity of a child aged about four-
five years. F resided as a voluntary patient in a mental hospital
where she formed a sexual relationship with a male patient, P.
Although F had the physical capacity to conceive, she was incapable
of understanding the causal link between intercourse and
pregnancy, nor could she cope with the psychiatric consequences
of pregnancy and childbirth. Medical evidence established that
standard reversible contraceptives were medically contraindicated
or impracticable for her. Consequently, her mother and doctors
sought a declaration that the sterilisation of F by tubal occlusion
would not be unlawful, despite F’s inability to consent to the
procedure. In this backdrop, the House of Lords had held that it
would be lawful to sterilise a mental patient who was incapable of
giving consent to the procedure on the ground that sterilisation
would be in the patient's best interests. The House of Lords further
observed that the duty of a doctor towards a patient who lacks
mental capacity to express his own wishes and has not expressed
Miscellaneous Application No. 2238 of 2025 Page 157 of 286
at any time when he had such capacity, is to give or withhold
treatment according to what appears to be in the best interests of
the patient. The House of Lords observed that an operation or a
medical treatment will be said to be in the best interests of the
patient only if it is carried out in order either to save their lives, or
to ensure improvement or prevent deterioration in the patient’s
health. The relevant observation is as follows:
“At common law, a doctor cannot lawfully operate on adult
patients of sound mind, or give them any other treatment
involving the application of physical force however small
("other treatment"), without their consent. If a doctor were
to operate on such patients, or give them other treatment,
without their consent, he would commit the actionable tort of
trespass to the person. There are, however, cases where
adult patients cannot give or refuse their consent to an
operation or other treatment. One case is where, as a result
of an accident or otherwise, an adult patient is unconscious
and an operation or other treatment cannot be safely
delayed until he or she recovers consciousness. Another
case is where a patient, though adult, is not by reason of
mental disability, able to understand the nature or purpose
of an operation or other treatment. The common law would
be seriously defective if it failed to provide a solution to the
problem created by such inability to consent. In my opinion,
however, the common law does not so fail. In my opinion,
the solution to the problem that the common law provides is
that a doctor can lawfully operate on, or give other treatment
to, adult patients who are incapable, for one reason or
another, of consenting to his doing so, provided that the
operation or other treatment concerned is in the best
interests of such patients. The operation or other treatment
will be in their best interests if, but only if, it is carried out in
order either to save their lives, or to ensure improvement or
prevent deterioration in their F physical or mental health.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 158 of 286
158. In another pivotal ruling in the case of Airedale (supra), the
House of Lords was seized of a matter involving a patient,
Anthony Bland, who was 17 years old and had sustained
irreversible damage to the brain, which had left him in a PVS,
without cognitive function, and loss of sight and hearing. He was
artificially fed by CANH via a nasogastric tube. After three years
with no hope of recovery, his doctors and family felt that no
fruitful purpose would be served by continuing the medical
treatment. Therefore, they sought a declaration from the court
that it would be lawful to withdraw CANH and associated medical
treatment. While holding that it would be in good medical practice
and in the best interest of the patient, the House of Lords
permitted discontinuation of medical treatment, including the
CANH.
159. While doing so, Lord Keith observed that the existence in a
vegetative state with no prospect of recovery is regarded as not
being beneficial and forms a proper basis for the decision to
discontinue medical treatment. Lord Keith was also of the view
that the decision whether the continued treatment confers any
benefit on a PVS patient is essentially a decision for the doctor in
charge. The relevant observations of Lord Keith are as under:
“[…] But it is, of course, true that in general it would not be
lawful for a medical practitioner who assumed responsibility
for the care of an unconscious patient simply to give up
treatment in circumstances where continuance of it would
confer some benefit on the patient. On the other hand, a
medical practitioner is under no duty to continue to treat
such a patient where a large body of informed and
Miscellaneous Application No. 2238 of 2025 Page 159 of 286
responsible medical opinion is to the effect that no benefit at
all would be conferred by continuance. Existence in a
vegetative state with no prospect of recovery is, by that
opinion, regarded as not being a benefit, and that, if not
unarguably correct, at least forms a proper basis for the
decision to discontinue treatment and care […]"
(Emphasis Supplied)
160. In addition to this, Lord Goff, while emphasising the principle of the
best interest of the patient, referred to In re F. (Mental Patient:
Sterilisation) (supra) and observed that a decision by a doctor
whether or not to initiate or to continue to provide treatment should
also be governed by the same fundamental principle of the patient's
best interest. According to Lord Goff, in cases involving the patient
being incompetent to consent to the discontinuation of medical
treatment where there is no hope for his recovery, and prolongation
of medical treatment is serving no therapeutic purposes, the
question is not whether it is in the best interests of the patient that
he should die, rather the correct question for consideration is
“whether it is in the best interests of the patient that his life should
be prolonged by the continuance of such form of medical treatment or
care”. Further, Lord Goff also observed that medical treatment is
neither appropriate nor requisite “simply to prolong a patient's life,
when such treatment has no therapeutic purpose of any kind, as
where it is futile because the patient is unconscious and there is no
prospect of any improvement in his condition”. Thereafter, the Lord
Goff observed that regard should also be had to the invasive
character of the treatment and to the “indignity” to which a patient
is subjected by prolonging his life by artificial means, which, in
turn, causes considerable distress to his family. In such cases, Lord
Miscellaneous Application No. 2238 of 2025 Page 160 of 286
Goff said that it is the futility of the treatment which justifies its
termination and in such circumstances, a doctor is not required to
initiate or to continue life-prolonging treatment or care, keeping in
mind the best interests of the patient. The relevant observations of
Lord Goff are as follows:
“[…] I return to the patient who, because, for example, he is
of unsound mind or has been rendered unconscious by
accident or by illness, is incapable of stating whether or not
he consents to treatment or care. In such circumstances, it is
now established that a doctor may lawfully treat such a
patient if he acts in his best interests, and indeed that, if the
patient is already in his care, he is under a duty so to treat
him: see In re F. (Mental Patient: Sterilisation) [1990] 2 A.C.
1, in which the legal principles governing treatment in such
circumstances were stated by this House. For my part, I can
see no reason why, as a matter of principle, a decision by a
doctor whether or not to initiate, or to continue to provide,
treatment or care which could or might have the effect of
prolonging such a patient's life, should not be governed by
the same fundamental principle […]
xxx xxx xxx
[…] Indeed, if the justification for treating a patient who
lacks the capacity to consent lies in the fact that the
treatment is provided in his best interests, it must follow that
the treatment may, and indeed ultimately should, be
discontinued where it is no longer in his best interests to
provide it. […] The question is not whether the doctor should
take a course that will kill his patient, or even take a course
which has the effect of accelerating his death. The question
is whether the doctor should or should not continue to
provide his patient with medical treatment or care which, if
continued, will prolong his patient's life […] This is because
the question is not whether it is in the best interests of the
patient that he should die. The question is whether it is in
the best interests of the patient that his life should be
Miscellaneous Application No. 2238 of 2025 Page 161 of 286
prolonged by the continuance of this form of medical
treatment or care.
xxx xxx xxx
[…] The correct formulation of the question is of particular
importance in a case such as the present, where the patient
is totally unconscious and where there is no hope
whatsoever of any amelioration of his condition. In
circumstances such as these, it may be difficult to say that
it is in his best interests that the treatment should be ended.
But if the question is asked, as in my opinion it should be,
whether it is in his best interests that treatment which has
the effect of artificially prolonging his life should be
continued, that question can sensibly be answered to the
effect that his best interests no longer require that it should
be.
xxx xxx xxx
[…] Here, the condition of the patient, who is totally
unconscious and in whose condition there is no prospect of
any improvement, is such that life-prolonging treatment is
properly regarded as being, in medical terms, useless […]
But for my part, I cannot see that medical treatment is
appropriate or requisite simply to prolong a patient's life,
when such treatment has no therapeutic purpose of any
kind, as where it is futile because the patient is unconscious
and there is no prospect of any improvement in his condition.
It is reasonable also that account should be taken of the
invasiveness of the treatment and of the indignity to which,
as the present case shows, a person has to be subjected if
his life is prolonged by artificial means […] But in the end, in
a case such as the present, it is the futility of the treatment
that justifies its termination. I do not consider that, in
circumstances such as these, a doctor is required to initiate
or to continue life-prolonging treatment or care in the best
interests of his patient […]”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 162 of 286
161. In a similar trend, Lord Mustill observed that it was in the best
interest of the community at large that Anthony Bland's life should
end. The doctors had done all they could have done. It was a lose-
lose situation as nothing would be gained by continuing Bland's
treatment. Lord Lowry also observed that in reaching a decision
according to law, one ought to give weight to informed medical
opinion both on the point whether to continue the artificial feeding
regime of a patient in PVS and also on the question of what is in the
best interests of a patient. The relevant observations of Lord Mustill
and Lord Lowry are as follows:
“[…] Threaded through the technical arguments addressed
to the House were the strands of a much wider position, that
it is in the best interests of the community at large that
Anthony Bland's life should now end. The doctors have done
all they can. Nothing will be gained by going on, and much
will be lost. The distress of the family will get steadily worse.
The strain on the devotion of a medical staff charged with
the care of a patient whose condition will never improve,
who may live for years and who does not even recognise
that he is being cared for, will continue to mount […]
xxx xxx xxx
[…] I consider that the court, when intent on reaching a
decision according to law, ought to give weight to informed
medical opinion both on the point now under discussion and
also on the question of what is in the best interests of a
patient and I reject the idea, which is implicit in the
appellant's argument, that informed medical opinion in these
respects is merely a disguise for a philosophy which, if
accepted, would legalise euthanasia.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 163 of 286
162. Lastly, Lord Browne-Wilkinson, in concurrence with the above
views, expressed the view that if there comes a stage where a
responsible doctor reaches a reasonable conclusion, which accords
with the views of a responsible body of medical opinion, that further
continuance of an intrusive life support system is not in the best
interests of the patient, the doctor can no longer lawfully continue
that life support system as to do so would constitute the crime of
battery and the tort of trespass. According to him, unless the doctor
has reached the affirmative conclusion that it is in the patient's best
interest to continue the invasive care, such care must cease. The
relevant observations of Lord Browne-Wilkinson are as under:
“[…] In my judgment it must follow from this that if there
comes a stage where the responsible doctor comes to the
reasonable conclusion (which accords with the views of a
responsible body of medical opinion) that further
continuance of an intrusive life support system is not in the
best interests of the patient, he can no longer lawfully
continue that life support system: to do so would constitute
the crime of battery and the tort of trespass to the person.
Therefore, he cannot be in breach of any duty to maintain
the patient's life. Therefore, he is not guilty of murder by
omission.”
(Emphasis Supplied)
163. Thus, from the collective reasoning and concurring opinions
expressed by the House of Lords in Airedale (supra), it becomes
manifest that the determination of what constitutes the “best
interests of the patient” must be guided by an objective evaluation
of the medical realities attending each individual case. Central to
this evaluation is the question of whether it is in the best interests
of the patient that his life should be prolonged by the continuation
Miscellaneous Application No. 2238 of 2025 Page 164 of 286
of medical treatment, which, in the given facts and circumstances,
may have ceased to serve any therapeutic purpose and has instead
become medically futile. In this context, as per Airedale (supra), the
principle of best interests does not mandate the preservation of life
at all costs or by every available artificial means, irrespective of the
quality of life and the invasiveness of the medical intervention.
Rather, the focus must remain on whether the continuation of such
treatment confers any real benefit upon the patient. Where a
responsible body of informed medical opinion concludes that the
patient’s condition is irreversible, that there exists no reasonable
hope of recovery, and that continued treatment merely sustains
biological existence without consciousness or cognitive function,
causing indignity to the life of the patient, such existence cannot, in
law or medical ethics, be regarded as constituting a benefit to the
patient.
164. What further emerges is that the correct formulation of the enquiry
is not whether it is in the best interests of the patient that he should
die, but whether it is in his best interests that his life should be
artificially prolonged through the continuation of medical treatment
which has become non-beneficial, non-therapeutic, or futile. Where
the answer to this enquiry, based on sound medical judgment and
ethical considerations, is in the negative, the withdrawal or
withholding of such treatment must accord with the principle of
best interests.
165. At this juncture, for the purposes of our discussion ahead, it is also
noteworthy to mention that Lord Goff in Airedale (supra) had also
Miscellaneous Application No. 2238 of 2025 Page 165 of 286
drawn a tangent upon the scope and application of the “substituted
judgment” standard while determining the “best interest of the
patient”. According to Lord Goff, American courts had adopted the
substituted judgment standard, where, in a case in which the
patient is incapacitated from expressing any view on the question
whether life-prolonging medical treatment should be withheld in the
relevant circumstances, the determination is anchored on what
decision the patient himself would have made had he been able to
do so. This came to be known as the substituted judgment
standard, and it generally involves a detailed patient -centric
consideration of his views and wishes. However, Lord Goff was of
the view that any such American standard did not form part of the
English law in relation to incompetent adults and in decisions
relating to withdrawal or withholding of their medical treatment.
The relevant observation is as under:
“I wish however, to refer at this stage to the approach
adopted in most American courts, under which the court
seeks, in a case in which the patient is incapacitated from
expressing any view on the question whether life-prolonging
treatment should be withheld in the relevant circumstances,
to determine what decision the patient himself would have
made had he been able to do so. This is called the
substituted judgment test, and it generally involves a
detailed inquiry into the patient's views and preferences”
(Emphasis Supplied
166. Later, in the case of Re A (Male Sterilisation), reported in [2000]
1 FLR 549 560 F-H, the Court of Appeal developed the use of a
“balance sheet approach” in determining the best interest of an
incompetent person. According to this approach, a judge who is
Miscellaneous Application No. 2238 of 2025 Page 166 of 286
tasked with the responsibility to make an evaluation of what is in
the best interest of the patient who lacks capacity should draw up
a balance sheet. In such a balance sheet, the first entry should be
of any factor or factors of actual benefit. On the other side, a judge
or a decision-maker should write any counter-balancing
disadvantages to the patient. Then he should enter on each side the
potential gains and losses for each instance. At the end of that
exercise, the judge or the decision-maker should be better placed to
strike a balance between the sum of certain and possible gains
against the sum of the certain and possible losses. The account that
has relatively significant credit will be the concluding factor in
deciding what is in the best interest of the patient. The relevant
observation is as under:
“Pending the enactment of a checklist or other statutory
direction it seems to me that the first instance judge with the
responsibility to make an evaluation of the best interests of
a claimant lacking capacity should draw up a balance sheet.
The first entry should be of any factor or factors of actual
benefit. In the present case the instance would be the
acquisition of foolproof contraception. Then on the other
sheet the judge should write any counterbalancing
disbenefits to the applicant. An obvious instance in this case
would be the apprehension, the risk and the discomfort
inherent in the operation. Then the judge should enter on
each sheet the potential gains and losses in each instance
making some estimate of the extent of the possibility that the
gain or loss might accrue. At the end of that exercise the
judge should be better placed to strike a balance between
the sum of the certain and possible gains against the sum of
the certain and possible losses. Obviously, only if the
account is in relatively significant credit will the judge
conclude that the application is likely to advance the best
interests of the claimant.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 167 of 286
167. In drawing up this balance sheet, the court is not concerned solely
with medical issues, but also takes into account wider factors
concerning the patient. Therefore, in Re A (Male Sterilisation)
(supra), the Court of Appeal had observed that the best interests of
the patient are not limited to best medical interests. In fact, the best
interests of the patient should encompass medical, emotional and
any other welfare issues as well. The relevant observation is as
under:
“In re MB (Medical Treatment) [1997] 2 FLR 426 I said at
page 439:
“Best interests are not limited to best medical interests.”
In my judgement best interests encompasses medical,
emotional and all other welfare issues.”
(Emphasis Supplied)
168. Further, in Re S (Adult Patient: Sterilisation), reported in [2001]
Fam 15, the Court of Appeal was of the view that in determining
what is in the best interest, the judge must have regard to welfare
as an important consideration, which means the determination
should embrace issues far wider than the medical ones. The
relevant observation is as under:
“in deciding what is best interest […] the judge must have
regard to […] welfare as the paramount consideration. That
embraces issues far wider than the medical. Indeed, it
would be undesirable and probably impossible to set
bounds to what is relevant to a welfare determination.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 168 of 286
169. In furtherance of the above, in the case of Portsmouth NHS Trust
v Wyatt, reported in [2005] 1 FLR 21, Lord Hedly, while relying on
Re A (Male Sterilisation) (supra) and Re S (Adult Patient:
Sterilisation) (supra) respectively, added that the infinite variety of
the human condition never ceases to surprise and it is that fact that
defeats any attempt to be more precise in a defining the contours of
the best interests of the patient principle.
170. Even so more, Lord Phillips in the case of R (Burke) v GMC (Official
Solicitor and others intervening), reported in [2005] EWCA Civ
1003, added that it is not possible to attempt to define what is in
the best interest of a patient by any single test.
171. At this juncture, it is pertinent to mention that post the landmark
ruling of Airedale (supra) and other cases as referred to above, the
Parliament of the UK found it necessary to introduce an exclusive
legislation in this respect.
172. Therefore, the Parliament of the UK introduced the Mental Capacity
Act, 2005 (“MCA”) inter alia, with an objective to provide a
comprehensive statutory regime for making decisions about
mentally incapacitated adults. This Act was supported by a Code of
Practice as well. The basic principles to be applied under the MCA
are set out in Section 1 and include, under Section 1(4), the cardinal
principle that “an act done, or decision made, under this Act for or
on behalf of a person who lacks capacity must be done, or made, in
his best interests”. The steps to be taken to determine what is in a
Miscellaneous Application No. 2238 of 2025 Page 169 of 286
person’s best interests are set out in Section 4, which provides inter
alia the determinants to be considered under the “Best Interest”
principle. Section 4 of this Act states that:
“(1) In determining for the purposes of this Act what is in a
person’s best interests, the person making the determination
must not make it merely on the basis of (a) the person’s age
or appearance or (b) a condition of his, or an aspect of his
behaviour, which might lead others to make unjustified
assumptions about what might be in his best interests.
(2) The person making the determination must consider all
the relevant circumstances and, in particular, take the
following steps.
(3) He must consider (a) whether it is likely that the person
will at some time have the capacity in relation to the matter
in question, and (b) if it appears likely that he will, when that
is likely to be.
(4) He must, so far as reasonably practicable, permit and
encourage the person to participate, or improve his ability to
participate, as fully as possible in any act done for him and
any decision affecting him.
(5) Where the determination relates to life-sustaining
treatment, he must not, in considering whether the treatment
is in the best interests of the person concerned, be motivated
by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable,
(a) the person’s past and present wishes and feelings (and,
in particular, any relevant written statement made by him
when he had capacity); (b) the beliefs and values that would
be likely to influence his decision if he had capacity, and (c)
the other factors that he would be likely to consider if he
were able to do so.
(7) He must take into account, if it is practicable and
appropriate to consult them, the views of (a) anyone named
Miscellaneous Application No. 2238 of 2025 Page 170 of 286
by the person as someone to be consulted on the matter in
question or on matters of that kind; (b) anyone engaged in
caring for the person or interested in his welfare; (c) any
donee of a lasting power of attorney granted by the person,
and (d) any deputy appointed by the court
xxx xxx xxx
(11) “Relevant circumstances” are those - (a) of which the
person making the determination is aware, and (b) which it
would be reasonable to regard as relevant.”
(Emphasis Supplied)
173. In a nutshell, the MCA did not provide a straight-jacketed one size
fit for all standard in determining what is in the best interest.
Instead, it delineated a set of guiding considerations, upon due
evaluation of which the best interests of the patient are to be
ascertained. The most notable addition to the position of law in the
UK was Section 4(6) of MCA, wherein due consideration was given
to the wishes, feelings, beliefs, and values of the patient while
determining his best interest. The person or body making such a
determination has been defined as a decision-maker.
174. The noticeable determinants under the MCA are as follows: (i) the
determination must not rest merely upon the patient’s age,
appearance, or any medical condition or behavioural aspect that
might give rise to unjustified assumptions; (ii) the decision-maker
must consider all the relevant circumstances of which he is aware,
and which would be reasonable to be regarded as relevant; (iii) due
regard must be had to the likelihood of the patient regaining
decision-making capacity and, if so, the probable timeframe thereof;
Miscellaneous Application No. 2238 of 2025 Page 171 of 286
(iv) where the determination concerns life-sustaining treatment, the
decision-maker must not be influenced by any desire to bring about
the patient’s death; (v) so far as reasonably ascertainable,
consideration must be accorded to the patient’s past and present
wishes and feelings, including any relevant written statements
made when the patient possessed capacity; (vi) equal regard must
be had to the beliefs, values, and other factors that would likely
have guided the patient’s decision had he been competent to decide;
and (vii), where practicable and appropriate, the views of those
among others who are engaged in the care of the patient or
otherwise interested in his welfare, must also be taken into account.
175. Moreover, the MCA is supported by a Code of Practice. Section 5 of
this Code of Practice gives specific guidance as to how to work out
someone’s best interests when making decisions about life -
sustaining treatment. Section 5.7 of the Code of Practice states that
when working out what is in the best interests of the person who
lacks capacity to make a decision or act for themselves, decision-
makers must take into account all relevant factors that would be
reasonable to consider, not just those that they think are important.
The decision-makers must not act or make a decision based on
what they would want to do if they were the person who lacked
capacity. Further, Section 5.19 of the Code of Practice states that
the relevant circumstances will, of course, vary from case to case.
For instance, when making a decision about major medical
treatment, a doctor would need to consider the clinical needs of the
patient, the potential benefits and burdens of the treatment on the
Miscellaneous Application No. 2238 of 2025 Page 172 of 286
person’s health and life expectancy and any other factor relevant to
making a professional judgement.
176. In particular, Section 5.31 of the Code of Practice provides that all
reasonable steps which are in the person’s best interests should be
taken to prolong their life. However, “there will be a limited number
of cases where treatment is futile, overly burdensome to the patient
or where there is no prospect of recovery. In circumstances such as
these, it may be that an assessment of best interests leads to the
conclusion that it would be in the best interests of the patient to
withdraw or withhold life-sustaining treatment, even if this may
result in the person’s death”. The decision maker must not be
motivated by a desire to bring about the person’s death for whatever
reason, even if this is from a sense of compassion. Section 5.33 of
the Code of Practice states that the requirement that a doctor must
not be motivated by a desire to bring about the patient’s death
cannot be interpreted to mean that doctors are under an obligation
to provide, or to continue to provide, a treatment where that
treatment is not in the best interests of the person. Section 5.38 of
the Code of Practice states that even if a patient cannot make the
decision due to his incapacity, “his wishes and feelings, beliefs and
values should be taken fully into account, whether expressed in the
past or now. But his wishes and feelings, beliefs and values will not
necessarily be the deciding factor in working out their best interests”.
Any such assessment must consider past and current wishes and
feelings, beliefs and values alongside all other factors, but the final
decision must be based entirely on what is in the person’s best
interests. The relevant portions of these provisions are as under:
Miscellaneous Application No. 2238 of 2025 Page 173 of 286
“5.7 When working out what is in the best interests of the
person who lacks capacity to make a decision or act for
themselves, decision-makers must take into account all
relevant factors that it would be reasonable to consider, not
just those that they think are important. They must not act
or make a decision based on what they would want to do if
they were the person who lacked capacity.
xxx xxx xxx
5.19 The relevant circumstances will of course vary from
case to case. For example, when making a decision about
major medical treatment, a doctor would need to consider
the clinical needs of the patient, the potential benefits and
burdens of the treatment on the person’s health and life
expectancy and any other factors relevant to making a
professional judgement […]
xxx xxx xxx
5.31 All reasonable steps which are in the person’s best
interests should be taken to prolong their life. There will be
a limited number of cases where treatment is futile, overly
burdensome to the patient or where there is no prospect of
recovery. In circumstances such as these, it may be that an
assessment of best interests leads to the conclusion that it
would be in the best interests of the patient to withdraw or
withhold life-sustaining treatment, even if this may result in
the person’s death. The decision-maker must make a
decision based on the best interests of the person who lacks
capacity. They must not be motivated by a desire to bring
about the person’s death for whatever reason, even if this is
from a sense of compassion. Healthcare and social care staff
should also refer to relevant professional guidance when
making decisions regarding life-sustaining treatment.
xxx xxx xxx
5.33 Importantly, section 4(5) cannot be interpreted to mean
that doctors are under an obligation to provide, or to continue
Miscellaneous Application No. 2238 of 2025 Page 174 of 286
to provide, life-sustaining treatment where that treatment is
not in the best interests of the person, even where the
person’s death is foreseen […]
xxx xxx xxx
5.38 In setting out the requirements for working out a
person’s ‘best interests’, section 4 of the Act puts the person
who lacks capacity at the centre of the decision to be made.
Even if they cannot make the decision, their wishes and
feelings, beliefs and values should be taken fully into
account – whether expressed in the past or now. But their
wishes and feelings, beliefs and values will not necessarily
be the deciding factor in working out their best interests. Any
such assessment must consider past and current wishes
and feelings, beliefs and values alongside all other factors,
but the final decision must be based entirely on what is in
the person’s best interests.”
(Emphasis Supplied)
177. Upon the introduction of the MCA, the Court of Protection in the
case of W v. M, reported in [2011] EWHC 2443 (Fam), was called
upon to consider a matter involving a patient, named ‘M’, who was
diagnosed with a state of mind called Minimally Conscious State
(MCS). In such a state, a patient is not in PVS. Rather, in MCS, a
patient is considered to be above the vegetative state and is aware
to some extent of herself and her environment, but does not have
full consciousness. The issue before the court was whether it is in
M’s best interests that all life-sustaining treatment, including
CANH, is withdrawn and withheld and, secondly, if it is in M’s best
interests to continue life-sustaining treatment, including CANH,
then what future management would be in her best interests. In
such circumstances, Justice Baker was of the opinion that the
reasoning adopted in Airedale (supra) more particularly that a
Miscellaneous Application No. 2238 of 2025 Page 175 of 286
balance sheet approach need not be undertaken in cases involving
PVS patients, cannot directly be imported to cases involving MCS
patients. On this basis, the Court of Protection adopted the balance
sheet approach to the MCS patient in weighing the benefits of
withdrawal of CANH against the disadvantages of continuing with
the same. On the aspect of the substituted judgment standard, the
court also observed that M’s past and present wishes and feelings,
so far as reasonably ascertainable, had to be given significant
weight when deciding whether CANH should be withdrawn or not.
The relevant observations of the Court of Protection are as under:
“4. Any decision made under the Mental Capacity Act for a
person who lacks capacity must be made in her best
interests. The law requires the court to identify those factors
which are relevant to the person’s best interests and carry
out a balancing exercise weighing up the factors on each
side of the issue. This approach is well established in cases
involving medical treatment. This is, however, the first time
in this country that a court has been asked to authorise the
withdrawal of artificial nutrition and hydration from a
patient in a minimally conscious state.
xxx xxx xxx
“81. It is important to note that, while any decision maker,
including a judge, is under an obligation to consider P’s
wishes and feelings, and the beliefs, values and other
factors that he would have taken into account if he had
capacity, the decision must be based on P’s best interests
and not on what P would have decided if he had capacity.
Like Lewison J (as he then was) in Re P (Statutory Wills)
[2009] EWHC 163 (Ch) [2010] Ch 33, I agree with the
observation in the explanatory notes to the original Mental
Capacity Bill (which in turn echoed the observation of Lord
Goff in the Bland case cited above) that "best interests is
not a test of ‘substituted judgement’ (what the person would
Miscellaneous Application No. 2238 of 2025 Page 176 of 286
have wanted), but rather it requires a determination to be
made by applying an objective test as to what would be in
the person's best interests." This is confirmed by the Code of
Practice at paragraph 5.38:”
xxx xxx xxx
99. On behalf of the Official Solicitor, Miss Harry Thomas
and Miss Apps argue that the balance sheet approach
should not be adopted in cases where the patient is
otherwise clinically stable. They argue that the balance
sheet analysis cannot apply in such circumstances as it can
never be in P’s best interests to withhold or withdraw life-
sustaining treatment. They submit that the House of Lords
in Bland specifically rejected the weighing up the benefits
and disadvantages of treatment in PVS cases and that the
balance sheet approach has been confined in other cases to
circumstances where the patient is very seriously ill or is at
the end of their life […]
100. This submission is opposed not only by the Applicant
but also by the Primary Care Trust. On behalf of the PCT,
Miss Dolan submits that the balance sheet approach is to be
applied in all cases save for those involving PVS. She
submits that a clear reading of the speeches in Bland
demonstrates that the House envisaged that weighing up
the patient’s best interests should be conducted in every
case save where the patient was in a PVS where the futility
of treatment means that treatment had no benefit at all […]
101. Miss Dolan submits that, whilst it is clear that the
benefit of preserving of life will always weigh extremely
heavily in the balance, it cannot be assumed that there will
always be no relevant dis-benefit to weigh against it. Even
in a clinically stable patient there must be room for any
relevant psychological and emotional aspects of their
position to be taken into account as part of the balancing
exercise. She further argues that the fact that the balance is
most likely to come down in favour of preserving life in a
MCS patient whose only medical treatment need is for ANH
is not grounds for saying that a balance between factors in
support of and against providing such treatment need not be
Miscellaneous Application No. 2238 of 2025 Page 177 of 286
struck in such cases. To do away with the balancing
exercise and balance sheet would be to disregard the
requirement of s.4(2) MCA that consideration be given to “all
of the relevant circumstances” and would also disregard
s.4(6) MCA which requires consideration of those matters of
import to P or that P would be likely to consider if he could
do so, when coming to any best interests decision […]
102. On this point I am wholly unpersuaded by the Official
Solicitor’s argument and fully accept the submissions
advanced by Miss Dolan on behalf of the PCT. There is, in
my judgment, no rationale for extending the approach
adopted by the House of Lords in Bland to non-VS cases.
Lord Goff specifically distinguished between cases in which,
having regard to all the circumstances, it may not be in the
patient’s best interests to continue treatment and cases in
which a patient was permanently insensate and thus
unable to benefit at all from the treatment. Crucially Lord
Goff observed: “In both classes of case, the decision whether
or not to withhold treatment must be made in the best
interests of the patient. In the first class, however, the
decision has to be made by weighing the relevant
considerations” […]
xxx xxx xxx
223. The second factor requires more extensive analysis. As
set out above, s.4(6) of the MCA requires the court to
consider, so far as reasonably ascertainable, M’s past and
present wishes and feelings. Even though M made no formal
advance decision as to medical treatment, it is said on
behalf of the Applicant that she expressed wishes and
feelings about the matter which should be give significant
weight when deciding whether ANH should now be
withdrawn. Indeed, Mr Sachdeva and Miss Butler-Cole on
behalf of the Applicant, say that this factor should be given
decisive weight and place M’s wishes and feelings at the
forefront of their argument. M’s family feel strongly that she
would have rejected her current treatment, and the rationale
for this application is fundamentally based on M’s perceived
wishes and feelings. They submit that those who oppose
this application fail to give appropriate respect to M’s wishes
Miscellaneous Application No. 2238 of 2025 Page 178 of 286
and feelings about the right to choose her life and the
manner of her death.
xxx xxx xxx
245. As set out above, it is the Official Solicitor’s submission
that the balance sheet approach is inappropriate in respect
of a patient in a MCS who is clinically stable. For the reasons
set out above, I do not accept this argument.
246. I adopt the balance sheet approach proposed by Thorpe
LJ in Re: A Male Sterilisation (supra) and applied in
subsequent cases. In my judgment, that process is best
expressed in this case by a comparison of the advantages of
withdrawing ANH against the advan tages of continuing
with the treatment.”
(Emphasis Supplied)
178. Following the ruling of W v. M (supra), the UK Supreme Court in the
case of Aintree University Hospitals NHS Foundation Trust v
James, reported in [2013] UKSC 67, was concerned with a patient
who had a very limited level of awareness and lacked the capacity
to make a decision concerning his medical treatment. The applicant
trust had applied to the court seeking the withdrawal of medical
treatment as it was in the patient’s best interest. The unanimous
view of the clinical team was that it would not be in the patient’s
best interests to receive these treatments, should his condition
deteriorate to the extent that he needed them. The family did not
agree with the withdrawal of treatment. They felt that every time the
patient had an infection, he had pulled through. According to the
family, although he would never regain his previous quality of life,
yet he found great enjoyment in seeing his family and close friends.
Miscellaneous Application No. 2238 of 2025 Page 179 of 286
179. In such circumstances, the trial judge approached the question of
best interests by adopting a patient-centred evaluation, wherein
medical considerations were treated as only one component of the
inquiry. He held that the concept of “futility” must be understood
as treatment being ineffective or of no benefit to the patient, rather
than treatment being incapable of curing the underlying disease.
He further held that “recovery” does not signify restoration to full
health, but rather the resumption of a quality of life which the
patient himself would regard as worthwhile. The judge emphasised
that the burdens of treatment must be weighed against the benefits
of continued existence and that due weight must be accorded to the
patient’s family life, emotional welfare, and dignity. Here, the
reference to a patient’s family life does not entail an assessment of
the lives, interests, or emotional needs of the family members
themselves, rather, it requires consideration of the life of the patient
as lived in and through his or her relationship with the family, and
the value that such family life holds for the patient in assessing
what constitutes his or her best interests.
180. The Court of Appeal, however, adopted a materially different
approach. Sir Alan Ward held that futility must be assessed against
the therapeutic goal sought to be achieved, namely, whether the
treatment had a real prospect of curing or at least palliating the life-
threatening illness. He further held that recovery must be
understood as the restoration of such a state of good health as
would avert the impending prospect of death. Sir Alan Ward of the
Court of Appeal further held that while best interests encompassed
more than medical factors, the patient’s wishes must yield to
Miscellaneous Application No. 2238 of 2025 Page 180 of 286
medical imperatives where treatment was futile, overly
burdensome, and incapable of restoring health. Arden LJ of the
Court of Appeal, while reaching the same result, applied a different
reasoning, holding that in the case of uncertainty regarding the
patient’s wishes, the court should proceed on the basis of what a
reasonable person would choose.
181. Due to contrary views taken by both the trial judge and the Court
of Appeal, the UK Supreme Court undertook a detailed review of the
legal principles governing best interests and disagreed with several
propositions advanced by the Court of Appeal while als o
substantially endorsing the approach of the trial judge. First, the
Supreme Court rejected the Court of Appeal’s formulation that the
futility of a treatment can be considered only if it has a real prospect
of curing or palliating the disease. The court held that such a
formulation sets the bar too high and is inconsistent with the view
flowing from Airedale (supra), clarifying that futility must be
understood in the sense of treatment being useless or pointless, i.e.,
conferring no benefit at all upon the patient. Secondly, the Supreme
Court rejected the Court of Appeal’s formulation of recovery as
restoration to such good health as would avert death. The Court
held that, particularly in cases involving incurable illness or
permanent disability, recovery cannot realistically be equated with
restoration of good health, and that the correct inquiry is whether
treatment would enable the patient to resume a quality of life which
he would himself regard as worthwhile. Thirdly, the Supreme Court
rejected the objective reasonable person standard adopted by Arden
LJ, holding that the best interests inquiry must focus on the
Miscellaneous Application No. 2238 of 2025 Page 181 of 286
particular patient’s own wishes, beliefs, and values, rather than on
what a hypothetical reasonable person would choose. The relevant
observation is as under:
“43. It follows that I respectfully disagree with the
statements of principle in the Court of Appeal where they
differ from those of the judge. Thus it is setting the goal too
high to say that treatment is futile unless it has ‘a real
prospect of curing or at least palliating the life-threatening
disease or illness from which the patient is suffering’ […]
Given its genesis in Bland, this seems the more likely
meaning to be attributed to the word as used in the Code of
Practice. A treatment may bring some benefit to the patient
even though it has no effect on the underlying disease or
disability.
44. I also respectfully disagree with the statement that ‘no
prospect of recovery’ means ‘no prospect of recovering such
a state of good health as will avert the looming prospect of
death if the life-sustaining treatment is given’. [...] It was
accepted in Burke (as it had been earlier) that where the
patient is close to death, the object may properly be to make
his dying as comfortable and as dignified as possible, rather
than to take invasive steps to prolong his life for a short
while (see paras 62-63). But where a patient is suffering
from an incurable illness, disease or disability, it is not very
helpful to talk of recovering a state of “good health”. The
patient’s life may still be very well worth living. Resuming a
quality of life which the patient would regard as worthwhile
is more readily applicable.
“45. Finally, insofar as Sir Alan Ward and Arden LJ were
suggesting that the test of the patient’s wishes and feelings
was an objective one, what the reasonable patient would
think, again I respectfully disagree [...] insofar as it is
possible to ascertain the patient’s wishes and feelings, his
beliefs and values [...] it is those which should be taken into
account.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 182 of 286
182. In addition to the foregoing, the UK Supreme Court observed that
the advantage of the best interests standard lies in its focus upon
the patient as an individual, rather than upon the conduct of the
doctor, and in its requirement to take into account the totality of
circumstances, both medical and non-medical. The Court further
held that the best interests inquiry must incorporate a strong
element of substituted judgment, by giving due regard to the
patient’s past and present wishes and feelings, as well as to the
considerations which the patient himself would have taken into
account had he possessed decision -making capacity. The UK
Supreme Court further stated that in considering the best interests
of a particular patient at a particular time, decision-makers must
look at his welfare in the widest sense, not just medical but social
and psychological; they must consider the nature of the medical
treatment in question, what it involves and its prospects of success;
they must consider what the outcome of that treatment for the
patient is likely to be; they must try and put themselves in the place
of the individual patient and ask what his attitude to the treatment
is or would be likely to be; and they must consult others who are
looking after him or interested in his welfare, in particular for their
view of what his attitude would be. The relevant observation is as
under:
“24. […] The advantage of a best interests test was that it
focused upon the patient as an individual, rather than the
conduct of the doctor, and took all the circumstances, both
medical and non-medical, into account (paras 3.26, 3.27).
But the best interests test should also contain “a strong
element of ‘substituted judgment’” (para 3.25), taking into
account both the past and present wishes and feelings of
Miscellaneous Application No. 2238 of 2025 Page 183 of 286
patient as an individual, and also the factors which he
would consider if able to do so (para 3.28). This might
include “altruistic sentiments and concern for others” (para
3.31). The Act has helpfully added a reference to the beliefs
and values which would be likely to influence his decision if
he had capacity. Both provide for consultation with carers
and others interested in the patient’s welfare as to what
would be in his best interests and in particular, what his
own views would have been. This is, as the Explanatory
Notes to the Bill made clear, still a “best interests” rather
than a “substituted judgment” test, but one which accepts
that the preferences of the person concerned are an
important component in deciding where his best interests lie
[…]
xxx xxx xxx
39. The most that can be said, therefore, is that in
considering the best interests of this particular patient at
this particular time, decision-makers must look at his
welfare in the widest sense, not just medical but social and
psychological; they must consider the nature of the medical
treatment in question, what it involves and its prospects of
success; they must consider what the outcome of that
treatment for the patient is likely to be; they must try and
put themselves in the place of the individual patient and ask
what his attitude to the treatment is or would be likely to be;
and they must consult others who are looking after him or
interested in his welfare, in particular for their view of what
his attitude would be.”
(Emphasis Supplied)
183. In short, the decision of the UK Supreme Court in Aintree (supra)
clarifies that the governing standard in cases of medical decision-
making for incapacitated patients is that of the patient’s best
interests. While substituted judgment forms an integral component
of this inquiry, it does not supplant the best interests test, but
instead informs it by incorporating the patient’s past and present
wishes, feelings, beliefs, and values. This means that though the
Miscellaneous Application No. 2238 of 2025 Page 184 of 286
substituted judgment standard is a component of the best interest
principle, it is the latter that would still remain as a governing test.
With respect to futility, the court further held that medical futility
is to be understood not in terms of the inability of treatment to cure
the underlying disease but in the absence of any benefit being
conferred to the patient. Likewise, recovery does not connote
restoration to full health or avoidance of death but rather the
resumption of a quality of life which the patient himself would
regard as worthwhile.
184. In another case, M v. Mrs. N (supra), the patient, a 68-year-old
woman was diagnosed as being in an MCS. Her condition was
profoundly impaired, both physically and cognitively, as a
consequence of the progressive degenerative nature of the disease.
Her family sought a declaration permitting the withdrawal of CANH.
While determining the patient’s best interests, the court held that
where the wishes, views, and feelings of the patient can be
ascertained with reasonable confidence, they must invariably be
accorded great respect. At the same time, the court observed that
such wishes, views, and feelings would rarely, if ever, be exclusively
determinative of a patient’s best interests. The court emphasised
that the assessment of best interests involves an intensely complex
and fact-sensitive exercise, in which numerous factors fall to be
considered, including the nature of the proposed treatment, its
degree of intrusiveness, and, most importantly, the likely outcome
of such treatment for the individual patient. Within this
multifaceted matrix, the weight to be attached to the patient’s
wishes may vary from case to case. A broader evaluative exercise
Miscellaneous Application No. 2238 of 2025 Page 185 of 286
may, therefore, require consideration of the patient’s past conduct
and life choices, insofar as they illuminate the strength and content
of her views on the contemplated treatment. In the facts of the case,
all medical experts concurred that, if CANH were withdrawn
pursuant to a structured palliative care plan, the patient would not
experience pain or distress. Upon an overall assessment of the
material on record, the court was satisfied that there existed no
realistic prospect of the patient attaining a life that she would
regard as meaningful, worthwhile, or dignified, and consequently
held that it was lawful and in her best interests to permit the
withdrawal of CANH. The relevant observations are as under:
“28. I have given both these passages very considerable
thought. I draw from them only this: where the wishes,
views and feelings of P can be ascertained with reasonable
confidence, they are always to be afforded great respect.
That said, they will rarely, if ever, be determinative of P’s
‘best interest’s’. Respecting individual autonomy does not
always require P’s wishes to be afforded predominant
weight. Sometimes it will be right to do so, sometimes it will
not. The factors that fall to be considered in this intensely
complex process are infinitely variable e.g. the nature of the
contemplated treatment, how intrusive such treatment might
be and crucially what the outcome of that treatment maybe
for the individual patient. Into that complex matrix the
appropriate weight to be given to P’s wishes will vary. What
must be stressed is the obligation imposed by statute to
inquire into these matters and for the decision maker fully to
consider them. Finally, I would observe that an assessment
of P’s wishes, views and attitudes are not to be confined
within the narrow parameters of what P may have said.
Strong feelings are often expressed non-verbally, sometimes
in contradistinction to what is actually said. Evaluating the
wider canvass may involve deriving an understanding of P’s
views from what he may have done in the past in
Miscellaneous Application No. 2238 of 2025 Page 186 of 286
circumstances which may cast light on the strength of his
views on the contemplated treatment […]
xxx xxx xxx
30. It is clear, therefore, that the framework of the Act and
the scheme of the Code of Practice place great emphasis on
the importance of personal autonomy and the obligation to
be alert to direct or indirect discrimination against those who
lack capacity. Decisions taken in the ‘best interests’ of an
incapacitous individual must factor in the recognition that
respect for an individual’s past and present (where relevant)
wishes and identifiable codes and beliefs by which he has
lived are a crucial part of promoting best interests. To
subvert these to a substitution of an objective evaluation, i.e.
to superimpose what the Court thinks best, may result in
indirect discrimination. The central objective is to avoid a
paternalistic approach and to ensure that the incapacitous
achieve equality with the capacitous.”
(Emphasis Supplied)
185. Further, in Lindsey Briggs v. Paul Briggs and Ors., reported in
[2016] EWCOP 53 , the patient, Mr. Paul Briggs, a 43-year-old
police officer, was diagnosed as being in an MCS. The treating
doctors had advised continuation of CANH. Although no formal
AMD had been executed, the patient’s family contended that, on the
basis of the his repeated informal statements, it was evident that he
would have preferred discontinuation of CANH. Upon considering
the principle of the best interests of the patient, the Court of
Protection permitted the withdrawal of CANH. At the threshold, the
court was of the prima facie view that the balance sheet approach
could be applied to the case, since the patient was in MCS. The
court held that the life of Mr. Briggs continued to possess some
benefit and value, and in such circumstances, the default position
Miscellaneous Application No. 2238 of 2025 Page 187 of 286
is founded upon the sanctity of life where life retains value.
However, the court held that the ultimate determination of best
interests required a careful weighing of all relevant and
determinative factors, chief among them being an assessment of
what Mr. Briggs would have wanted and considered to be in his own
best interests.
186. Relying upon Aintree (supra), the court reiterated that the best
interests principle is not a substituted judgment test, though it does
incorporate elements thereof. It affirmed that the best interests test
must be applied holistically and that such holistic application is
directed towards doing for the patient what he would have done for
himself had he possessed full capacity. The court evaluated the
evidence adduced by the patient’s family, who consistently stated
that Mr. Briggs would not have consented to the continuation of
CANH had he retained capacity and that he would have regarded
his condition as intolerable and one which he would not have
wished to endure. While permitting the discontinuation of CANH,
the court, however, reiterated that a conclusion as to what the
patient would have done is not, in itself, decisive. The governing test
remains that of best interests, which requires the decision-maker
to undertake a careful weighing and balancing exercise among a
range of divergent and competing cons iderations. The relevant
observations are as follows:
“44. The test is now a statutory test and the factors in s. 4
of the MCA are not given any priority. Of key importance in
this case is s. 4(6) and so the weight to be given (with my
Miscellaneous Application No. 2238 of 2025 Page 188 of 286
emphasis on parts of the language) so far as is reasonably
ascertainable to:
i) Mr Briggs' past and present wishes and feelings (and, in
particular, any relevant written statement made by him
when he had capacity),
ii) Mr Briggs' beliefs and values that would be likely to
influence his decision if he had capacity, and
iii) the other factors that Mr Briggs would be likely to
consider if he were able to do so.
45. Before any of these matters can be taken into account
they must be "reasonably ascertainable" and the influence
of Mr Briggs' beliefs and values is to be assessed on the
premise that he had capacity now and, in my view, the
influence of the other factors he would be likely to consider
is assessed if he were able to do so now, and so on the same
basis.
46. The sub-section clearly introduces a number of "what if"
issues and assessments. An obvious problem set by s. 4(6)
is how the decision maker is to determine the existence of,
and then the weight to be given to, the past and present
matters it refers to at a time when P cannot (or cannot
clearly) communicate and explain either:
i) what he or she used to wish and feel and how they would
have applied their beliefs, values and other factors they
thought were relevant,
ii) what he or she now wishes and feels or how they would
now take their past beliefs and values and other relevant
factors into account if they were able to do so.
47. As to the past a decision maker can gather and consider
evidence of what the relevant person has said and done
when he or she had capacity and was able to make their
own decisions.
48. A court can if necessary make binding findings of fact
and it carries out the weighing exercise required by the MCA
with the benefit of hearing evidence that is tested and
argument. As a consequence, it is likely to be in a better
position to determine the existence of, and the weight to be
given to, the matters set out in s. 4(6) of the MCA that are
Miscellaneous Application No. 2238 of 2025 Page 189 of 286
based on the past when P had capacity than, for example,
treating doctors are. So, if P's family are asserting that they
favour a different conclusion to that reached by the medical
team, it is likely that in many cases to be reasonable if not
inevitable for doctors to give great and probably
determinative weight to medical and ethical issues in their
exercise of the MCA best interests test pending the resolution
of the existence of the matters in s. 4(6) and the weight to be
given to them by a court.
xxx xxx xxx
100. Mr Briggs' wife is sure that her husband and the father
of their young child would not consent to his CANH
treatment being continued and made it clear that she is
pursuing this painful litigation to try to achieve the result for
her husband that she is sure he would have wanted and
chosen if he was able to do so. All his close family support
that position.
xxx xxx xxx
108. Mr Briggs' experience of witnessing death and the
consequences of serious accidents informs and probably
explains the number of conversations, views and
discussions reported in the evidence before me about death
and injury. The one closest to home relates to his mother-in-
law and her refusal of PEG feeding and nutrition when she
was terminally ill with cancer. His wife reports that he fully
supported her and her mother in this decision and told her
that he would never want a feeding tube. This provides a
clear indication that Mr Briggs did not consider it was
sensible to prolong life at all costs and thought it was right
that the suffering of his mother-in-law was not prolonged.
Indeed his wife reports that he used to ask why there was
not something legal that could be done to end her mother's
suffering […]
xxx xxx xxx
111. Members of the family told me that in their view Mr
Briggs would regard his present situation as horrible and
Miscellaneous Application No. 2238 of 2025 Page 190 of 286
one that he would not wish to continue. Included within the
reasons given are that a life in which he did not have the
ability to communicate with his wife and child is not one that
he would be willing to have […]
xxx xxx xxx
129. I have concluded that as I am sure that if Mr Briggs had
been sitting in my chair and heard all the evidence and
argument he would, in exercise of his right of self -
determination, not have consented to further CANH
treatment that his best interests are best promoted by the
court not giving that consent on his behalf.”
(Emphasis Supplied)
187. In the case of In re M (Incapacitated Person: Withdrawal of
Treatment), reported in [2018] 1 WLR 465, the Court of Protection
was seized of the case of M, whose condition had deteriorated to an
MCS. M’s mother and litigation friend, supported by her immediate
family, treating clinicians, and an independent external specialist,
approached the court seeking a declaration that it was no longer in
M’s best interests to continue CANH. The court emphasised that the
fundamental starting point in such cases is a strong presumption
in favour of the preservation of life, grounded in the sanctity of life
principle. However, the court clarified that this presumption is not
absolute, and that there are circumstances in which it may be
displaced, particularly where continuation of treatment would no
longer serve the patient’s overall welfare. Applying the statutory
framework underlying the MCA, the court was satisfied, on the
basis of comprehensive medical evidence and the consistent views
of the family, that it was no longer in M’s best interests for her life
to be artificially prolonged by CANH. The court accepted that the
Miscellaneous Application No. 2238 of 2025 Page 191 of 286
clinicians and family had arrived at their respective positions after
the most careful reflection, placing M at the centre of their concern,
and having concluded that she would not have wished to continue
living in her present state, nor to endure the inevitable further
decline attendant upon her terminal condition. The court further
observed that the concurrence of medical and familial views
reflected a considered and collaborative decision-making process,
thereby lending credibility to the conclusion reached. Accordingly,
the court granted the declaration sought, holding that CANH should
be discontinued and replaced by appropriate palliative care, to be
implemented in a planned and structured manner after
consultation between family members and medical pro fessionals.
The relevant observation is as follows:
“26. In this case, the evidence satisfied me that it was no
longer in M’s interests for her life to be artificially continued
by CANH. I accepted the evidence of the family and the
clinicians. They had reached their positions after the most
careful thought, placing M at the centre of their concern, and
concluding that she would not have wanted to go on living
like as she was, nor endure the inevitable continued decline
in her terminal condition. I therefore decided that CANH
should be discontinued and replaced by palliative care after
a meeting of family members and professionals had agreed
on a suitable timetable.
27 […] I also noted that the medical opinion on M’s overall
best interests was to some degree influenced by (and might,
in the end, be said to have been tipped by) the views of her
family. There is nothing wrong with that. For obvious
reasons, it is not found in many of the reported cases, which
often portray doctors and families in opposite camps, but
those cases are surely unrepresentative of the much greater
number where a common position is reached through people
listening to each other. Just as family members will
Miscellaneous Application No. 2238 of 2025 Page 192 of 286
naturally pay regard to the views of carers and doctors,
particularly on the medical aspects of the situation, so
doctors will naturally listen to the views of the family about
their relative’s wider best interests.”
(Emphasis Supplied)
188. Even in the recent case of An NHS Trust and others v. Y (Intensive
Care Society and others intervening) , reported in [2019] A.C.
978, the UK Supreme Court construed and affirmed the
observations as more particularly discussed above.
189. From a cumulative reading of the decisions of the Court of Appeals,
House of Lords and the UK Supreme Court respectively, together
with the statutory framework of the MCA and the Code of Practice
framed thereunder, it appears to us that the principle of the best
interests of the patient constitutes the governing standard for
decision-making concerning the withdrawal or withholding of
medical treatment of persons lacking capacity in the UK. The said
principle appears to be neither a narrow test nor a rigid, straight-
jacketed formula, but a holistic evaluative assessment requiring
due consideration of all relevant circumstances bearing upon the
patient’s welfare in the widest sense. This is evident from the
observation of Lord Hedley in Portsmouth (supra) wherein he had
observed that “the infinite variety of the human condition never
ceases to surprise, and it is that fact that defeats any attempt to be
more precise in a definition of best interests”. Similarly, in R (Burke)
(supra), Lord Phillips reiterated that “it is not possible to attempt to
define what is in the best interests of a patient by a single test”,
Miscellaneous Application No. 2238 of 2025 Page 193 of 286
affirming that the doctrine resists any rigid formulation and must
operate through a holistic assessment of all relevant circumstances.
190. At the foundational level, the best interests inquiry is anchored in
a strong presumption in favour of the preservation of life, reflecting
the sanctity of life. However, as consistently emphasised in
Airedale (supra) and reaffirmed in Aintree (supra), this
presumption is not absolute and may be displaced where
continuation of medical treatment ceases to serve any therapeutic
purpose, i.e., becomes futile, merely prolongs the suffering without
the hope of recovery or causes indignity to the life of the patient. In
such circumstances, the preservation of biological existence alone
does not constitute a determinative good, and the legal inquiry must
shift towards an assessment of whether continued treatment truly
advances the patient’s overall welfare.
191. The position of law in the UK further clarifies that the formulation
of the legal question itself is of decisive importance in cases
concerning withdrawal or withholding of life-sustaining treatment.
As held in Airedale (supra) and later followed by the UK Supreme
Court in Aintree (supra) and in other cases, as more particularly
discussed above, the inquiry must not be whether it is in the
patient’s best interests that he should die, nor whether the
proposed course would hasten or cause death. Rather, the correct
question should be whether it is in the patient’s best interests that
life should be prolonged by the continuance of the particular medical
treatment in question.
Miscellaneous Application No. 2238 of 2025 Page 194 of 286
192. In cases involving patients in a PVS, the House of Lords in Airedale
(supra) held that existence devoid of consciousness, cognition, or
awareness of the external world cannot be regarded as conferring
any benefit upon the patient. Where medical opinion establishes
that such a condition is irreversible or that no hope of recovery
exists, and that treatment merely sustains biological life without
therapeutic benefit, the medical treatment may be characterised as
futile. In such circumstances, the continuation of life-sustaining
treatment does not involve any meaningful weighing of competing
considerations, since no benefit exists to be balanced against the
burdens of treatment. Consequently, once futility is established,
withdrawal of life-sustaining treatment stands fully justified within
the framework of best interests. A distinction is, however, drawn
between patients in a PVS and those in an MCS. As discussed in W
v. M (supra) and subsequently applied in Lindsey Briggs (supra),
where some degree of awareness, responsiveness, or experiential
capacity subsists, life continues to retain some value. In such cases,
treatment cannot be presumed to be futile ab initio, and in such
cases, the determination of best interests would necessarily require
a balancing exercise to be undertaken. In a nutshell, this balance
sheet approach involves weighing the potential benefits of
continued treatment against its burdens, includ ing physical
suffering, invasiveness, indignity, psychological distress, the impact
upon the patient’s lived experience, etc.
193. However, we do not agree with the observation that for a PVS
patient, the continuation of life-sustaining treatment does not
involve any meaningful weighing of competing considerations under
Miscellaneous Application No. 2238 of 2025 Page 195 of 286
the balance sheet approach on the mere ground of having no
benefits to be balanced against the burdens of treatment. In our
considered view, post recognition of the substituted judgment
standard in MCA, the balance sheet approach can be drawn even
in the case of a PVS patient, since the wishes, feelings, beliefs, or
values of the patient, if ascertainable, would be a relevant entry in
the balance sheet. It is our view that Airedale (supra), while
endorsing the non-application of the balance sheet approach to PVS
patients, had not yet recognised the application of the substituted
judgment standard in the UK jurisprudence. Thus, Airedale
(supra), in the absence of such a recognition, limited itself to saying
that since there are of no benefits accruing whatsoever in cases
involving a patient with PVS, there is no need to go into the
balancing exercise. However, we are of the view that if there are any
wishes, feelings, beliefs, or values of a PVS patient that are
reasonably ascertainable, then the same shall also be weighed by
drawing a balance sheet despite the patient being in a PVS.
194. Another central consideration within the best interests framework
in the UK is the presence of terminal illness and the absence of any
realistic prospect of recovery. As explained in Aintree (supra) and
later affirmed in M v Mrs. N (supra), recovery does not signify
restoration to full physical health, but rather the resumption of a
quality of life which the patient would himself regard as worthwhile.
Where medical evidence establishes that such a quality of life
cannot be achieved and that continued treatment merely prolongs
the dying process, the patient’s best interests may lie in the
withdrawal of life-sustaining treatments.
Miscellaneous Application No. 2238 of 2025 Page 196 of 286
195. The courts in the UK have further recognised that the burdensome
and intrusive nature of medical treatment, the indignity inherent in
artificial prolongation of life, and prolongation of physical and
psychological suffering constitute a significant factor within the
best interests principle. Treatment that subjects a patient to
invasive interventions, loss of bodily integrity, and prolonged
distress, without corresponding therapeutic gain, cannot ordinarily
be justified as advancing the patient’s welfare. Thus, dignity and
experiential quality of life are treated as intrinsic components of the
best interests standard.
196. Another component of the best interests principle is the patient’s
own wishes, feelings, beliefs, and values, as statutorily mandated
under Section 4(6) of MCA and elaborated in cases above. These
factors are to be considered so far as reasonably ascertainable and
must be accorded great respect. However, the courts have
consistently clarified that such wishes, whether past or present, are
not determinative in themselves. While they constitute a strong
element and an often weighty component of the inquiry, they do not
displace the overarching obligation to act in the patient’s best
interests, which requires a holistic evaluation of all relevant
circumstances. The reason that the substituted judgment standard
does not override the best interest principle in the UK is that while
applying the substituted judgment standard, the family of the
patient makes reasonable endeavours to ascertain what the patient
would have wanted had he possessed the capacity, but such an
endeavour at its heart is a surmise at best and cannot in itself be a
Miscellaneous Application No. 2238 of 2025 Page 197 of 286
determinative factor to decide withdrawal or withholding of medical
treatment. Therefore, other relevant factors are also to be looked at
under the best interest principle. As explained in Aintree (supra)
and later followed in Lindsey Briggs (supra), the best interests
principle incorporates a strong element of the substituted judgment
standard, requiring the decision maker to place himself, so far as
possible, in the position of the patient and to consider what the
patient would have wanted if he had capacity. This enables the
doctors and the court to do for the patient what he would have done
for himself. However, substituted judgment does not operate
autonomously or in an overriding manner. The ultimate inquiry
remains what course of action would serve the patient’s best
interest, even where that conclusion diverges from a reconstructed
preference of the patient.
(c) Best interest of the patient in Ireland
197. In In the matter of a Ward of Court (No. 2), reported in [1996] 2
IR 79, the Supreme Court of Ireland was concerned with a case
involving a 22-year-old woman who had suffered three cardiac
arrests, resulting in profound anoxic brain damage. For more than
two decades thereafter, she remained in a near PVS, being spastic,
incontinent, bedridden, incapable of speech or meaningful
communication, and possessing only the most minimal cognitive
capacity. She was initially sustained by nasogastric feeding and
subsequently by a PEG tube. An application was made to the High
Court seeking authorisation for the withdrawal of CANH. The High
Court granted the application, holding that such withdrawal was
Miscellaneous Application No. 2238 of 2025 Page 198 of 286
lawful and in the patient’s best interests. Lynch J. found that
although the patient did not strictly satisfy the clinical definition of
a PVS, yet she was very nearly so, that any cognitive capacity she
retained was negligible, and that there was no prospect of
improvement in her condition. Applying the best interests principle,
Lynch J. framed the inquiry as whether it was in the patient’s best
interests that her life should be prolonged by the continuation of
artificial means of nourishment, and held that the court was
entitled, as part of that inquiry, to take into account what the ward’s
own wishes would likely have been had she been able to express
them i.e., substituted judgment. Thus, the Supreme Court of
Ireland acknowledged the existence of the substituted judgment
standard as a component of best interests in its jurisdiction. On a
consideration of the evidence, the withdrawal of CANH was
authorised and declared lawful. On appeal, the Supreme Court
affirmed the High Court’s decision, endorsing the application of the
best interests test and the conclusion that continued artificial
nourishment served no meaningful benefit to the patient. The
relevant observations are as under:
“I take the view that the proper and most satisfactory test to
be applied by the Court in this case is the best interests test,
i.e., whether it is in the best interests of the ward that her
life, such as it is at present, should be prolonged by the
continuation of the abnormal artificial means of
nourishment, […]
I am of opinion that it is or it is not in the best interests of the
ward that her life should be prolonged by the continuance of
the abnormal artificial means of nourishment, whether by
nasogastric or gastrostomy tube. Whilst the best interests of
the ward is the acid test, I think that I can take into account
Miscellaneous Application No. 2238 of 2025 Page 199 of 286
what would be her own wishes if she could be granted a
momentary lucid and articulate period in which to express
them and if, despite what I have already said, I can form a
view on the matter. I think that it is highly probable, and I
find the evidence of the family on this aspect of the case to
be clear and convincing, that the ward would choose to
refuse the continuance of the present regime to which she is
subjected involving abnormal artificial feeding and total
nursing care with all the indignities inherent in such care
and would instead choose the withdrawal of such abnormal
artificial feeding resulting in an immediate reduction of
bodily functions and their attendant indignities and a
peaceful death in accordance with nature within two weeks
or so.”
(Emphasis Supplied)
198. From the above, it is clear that the Supreme Court of Ireland also
rightly framed the question as proposed in Airedale (supra) i.e.,
whether it was in the patient’s best interests that her life should be
prolonged by the continuation of artificial means of nourishment.
The court also took into account what the ward’s own wishes would
likely have been had she been able to express them under the
substituted judgment standard. Further, the court also undertook
a balancing exercise by weighing the benefits of sustaining life by
artificial feeding with the burdens attendant upon such treatment
and concluded that the burdens far outweighed the benefits in the
case.
(d) Best interest of the patient in Italy
199. The position of law in Italy on the withdrawal of CANH was
authoritatively articulated by the Supreme Court of Cassation in
the case of Eluana Englaro, reported in Case No. 21748 of 2007.
Miscellaneous Application No. 2238 of 2025 Page 200 of 286
For the first time in Italy, the court had addressed the legality of
discontinuing CANH in a patient with PVS. The facts of the case
were such that the patient, a young woman, had lapsed into a PVS
following a road accident and had remained in that condition for
over fifteen years, being kept alive solely through CANH
administered via a nasogastric tube. Her guardian sought
authorisation for its withdrawal. The Court of Appeal of Milan
initially rejected the request, holding that, in the case of an
incapacitated patient, the right to life must unconditionally prevail
over the right to self-determination, and that the patient’s best
interests are objectively served by the preservation of life, save
where a living will exists. Aggrieved thereby, the guardian preferred
an appeal before the Supreme Court of Cassation. In allowing the
appeal, the Supreme Court expounded on the contours of the best
interests principle, holding that in consenting to or dissenting from
medical treatment on behalf of an incapacitated person, the
guardian decision maker is subject to a two-fold constraint: first,
that he must act exclusively in the interests of the incapacitated
person; and second, that in determining such interest, he must
decide neither “in the place of” nor “for” the incapacitated person,
but rather “with” her. According to the court, this necessitated a
reconstruction of the presumed will of the patient, who had been an
adult prior to losing consciousness, by reference to her previously
expressed wishes, or, in their absence, by inference from her
personality, lifestyle, inclinations, and her fundamental ethical,
religious, cultural, and philosophical convictions.
Miscellaneous Application No. 2238 of 2025 Page 201 of 286
200. The court further held that where a patient has remained for a
prolonged period in a PVS, marked by a complete and irreversible
incapacity to relate to the external world, and is sustained solely by
artificial nutrition and hydration, the judge may authorise the
withdrawal of such treatment, upon an application by the guardian
and after due consideration, only upon the satisfaction of two
cumulative conditions. First, that the vegetative state is, on the
basis of a rigorous and internationally accepted clin ical
assessment, irreversible, and that there exists no medical
foundation whatsoever to assume even the minimal possibility of
recovery of consciousness or perception of the external
environment. Second, that the application genuinely reflects the
patient’s own will, established on the basis of clear, univocal, and
convincing evidence, drawn either from her prior declarations or
from her personality, lifestyle, and deeply held convictions,
corresponding to her conception of human dignity prior to the onset
of unconsciousness. The relevant observations are as under:
“7.3 […] In the opinion of the bench, the highly personal
character of the right to health of the incapacitated person
requires that the reference to the institution of legal
representation does not transfer to the guardian, who is
invested with a function of private law, an unconditional
power to provide for the health of the person in a state of
total and permanent unconsciousness. In consenting to
medical treatment or in dissenting from the prosecution of
the same upon the incapacitated person, the representation
of the guardian is subjected to a two -fold order of
constraints: he must, above all, act in the exclusive interest
of the incapacitated person; and, in search of the best
interest, must decide not “in the place” of the incapacitated
person nor “for” the incapacitated, but “with” the
incapacitated person: therefore, reconstructing the
Miscellaneous Application No. 2238 of 2025 Page 202 of 286
presumed will of the unconscious patient, who was already
adult before falling into such a state, taking into account the
wishes expressed by him before the loss of consciousness,
or inferring that will from his personality, from his lifestyle,
from his inclinations, from his basic values and of his
ethical, religious, cultural and philosophical convictions.
xxx xxx xxx
10. Having absorbed the examination of the question of
constitutional legitimacy, the appeals are granted, according
to the reasoning and within the limits indicated in it. From
there ensues the cassation of the challenged decree and the
remand of the case to a different Section of the Court of
Appeals of Milan. Said Court will rule conforming itself to the
following principle of law: Where the sick person lingers for
very many years (in the case, more than fifteen) in a
permanent vegetative state, with c onsequent radical
incapacity of relating to the external world, and is kept
artificially alive by means of a nasogastric tube that
provides to her nutrition and hydration, upon request of the
guardian who represents her, and in the debate with the
guardian ad litem, the judge may authorize the deactivation
of such a health defense (except the application of the
measures suggested by science and medical practice in the
interest of the patient), only in the presence of the following
presuppositions: (a) when the condition of the vegetative
state is, on the basis of a rigorous clinical judgment,
irreversible and there isn’t any medical foundation
whatsoever, according to scientific standards recognized at
the international level, allowing the assumption of the
minimum possibility, even if faint, of the recovery of
consciousness and of returning to a perception of the
external world; and (b) on the condition that such an appeal
is truly expressive, on the grounds of clear, univocal and
convincing elements of proof, of the voice of the patient
herself, drawn from her previous declarations or from her
personality, from her lifestyle and from her convictions,
corresponding to her way of conceiving, before falling into a
state of unconsciousness, of the very idea of dignity of the
person. Where one or the other presupposition does not
exist, the judge must deny the authorization, with
Miscellaneous Application No. 2238 of 2025 Page 203 of 286
unconditional prevalence having then to be given to the right
to life, independently of the degree of health, autonomy and
capacity to understand and to express the will of the
interested subject and from the perception, that others are
able to have, of the quality of life itself.”
(Emphasis Supplied)
(e) Best interest of the patient in Australia
201. The position of law in Australia on this issue was considered by the
Supreme Court of Victoria in Re BWV (supra). In this case, the
patient was a 68-year-old woman suffering from a progressive and
fatal form of dementia, who was being kept alive through CANH
administered via a PEG tube. Medical reports confirmed that there
was no prospect of recovery or improvement in her condition. The
public advocate, appointed as the patient’s guardian, approached
the Supreme Court of Victoria seeking a determination as to
whether the PEG tube feeding constituted medical treatment that
could lawfully be discontinued. The evidence of three medical
practitioners, who had examined the patient, was unanimous in
concluding that the provision of nutrition and hydration through
the PEG tube was futile, and that it had no prospect whatsoever of
improving the patient’s condition, and that, in accordance with good
medical practice and principles of palliative care, the PEG tube
ought to be removed. The patient’s family also shared the view that
continued provision of nutrition and hydration was unwarranted
and unreasonable in the best interest of the patient. The court,
while holding that CANH administered through a PEG tube
constituted medical treatment, permitted its withdrawal, observing
Miscellaneous Application No. 2238 of 2025 Page 204 of 286
that where death has become inevitable, the patient’s best interests
are better served by treatment directed towards relief and comfort,
rather than by futile attempts to cure. The relevant observations are
as under:
“80. Various explanations are given of the nature of
palliative care. The report quotes various submissions,
including a submission from Right to Life Victoria, which
emphasises that when death has become inevitable,
treatment should be adjusted, since the patient’s best
interest would then be served by treatment that emphasised
relief, rather than futile attempts to cure.
81. I find that the administration of artificial nutrition and
hydration, via a PEG, cannot be regarded as palliative care,
where that expression is used in its natural sense. Such a
procedure is, in essence, a procedure to sustain life; it is not
a procedure to manage the dying process, so that it results
in as little pain and suffering as possible.”
(Emphasis Supplied)
202. Thereafter, in Messiha v South East Health , reported in [2004]
NSWSC 1061, the Supreme Court of New South Wales was seized
of a case concerning a 75-year-old patient who had suffered a
cardiac arrest resulting in severe hypoxic brain damage, leaving him
in a deep coma with no realistic prospect of neurological recovery.
The treating doctors concluded that any further medical treatment
had become futile and proposed the withdrawal of mechanical
ventilation and artificial nutrition so as to permit the patient to die
naturally. The patient’s family opposed this course, contending that
he had exhibited certain signs of life, such as opening his eyes, and
sought an injunction compelling the hospital to continue treatment.
Miscellaneous Application No. 2238 of 2025 Page 205 of 286
The court dismissed the family’s application and authorised the
withdrawal of treatment. The court observed that, in applications of
this nature, the paramount consideration is the health, welfare, and
best interests of the patient. The court further clarified that such
an approach does not entail any value judgment on the intrinsic
worth of the patient’s life in his existing condition, nor does it
disregard the family’s sincerely held hopes and beliefs. Rather, it
reflects a recognition of the reality that, where the court is satisfied
that treatment decisions are being taken in the welfare and best
interests of the patient, such determinations primarily fall within
the domain of professional medical expertise. On the facts, the court
was satisfied that the continuation of medical treatment, including
CANH, would serve no purpose beyond prolonging life for a brief
period and would be futile, burdensome, and intrusive upon the
patient. The relevant observations are as under:
“25. I appreciate that the Court on such an application as
the present is concerned with the best interest of the health
and welfare of the patient: Northridge at [22] and it is not
bound to give effect to the medical opinion, even where, as
here, it is unanimous. However, it seems to me that it would
be an unusual case where the Court would act against what
is unanimously held by medical experts as an appropriate
treatment regime for the patient in order to preserve the life
of a terminally ill patient in a deep coma where there is no
real prospect of recovery to any significant degree. This is
not to make any value judgment of the life of the patient in
his present situation or to disregard the wishes of the family
and the beliefs that they genuinely hold for his recovery. But
it is simply an acceptance of the fact that the treatment of
the patient, where, as here, the Court is satisfied that
decision as to the appropriate treatment is being made in the
welfare and interest of the patient, is principally a matter for
Miscellaneous Application No. 2238 of 2025 Page 206 of 286
the expertise of professional medical practitioners :
Northridge at [24].
xxx xxx xxx
28. Apart from extending the patient's life for some relatively
brief period, the current treatment is futile. I believe that it is
also burdensome and will be intrusive to a degree. I am not
satisfied that this Court's jurisdiction has been enlivened by
the evidence before me from the family members. The Court
is in no better position to make a determination of future
treatment than are those who are principally under the duty
to make such a decision. The withdrawal of treatment may
put his life in jeopardy but only to the extent of bringing
forward what I believe to be the inevitable in the short term.
I am not satisfied that the withdrawal of his present
treatment is not in the patient's best interest and welfare.”
(Emphasis Supplied)
203. Subsequently, the Supreme Court of the Australian Capital
Territory, in Australian Capital Territory v. JT , reported in
[2009] ACTSC 105, was seized of a case concerning a 69-year-old
man suffering from long-standing paranoid schizophrenia. The
patient believed that prolonged fasting would bring him closer to
God and consequently refused all nourishment. The medical
evidence established that the patient lacked the capacity to provide
informed consent and that his expressed wishes were the product
of delusional and irrational thought arising directly from his severe
mental illness. In such circumstances, the government sought a
declaration that it would be lawful for medical staff to desist from
forcibly feeding the patient, a process that would require physical
restraint and sedation. The court observed that the approach to his
care could be no different from that adopted in cases involving
Miscellaneous Application No. 2238 of 2025 Page 207 of 286
unconscious patients or helpless infants, since even his apparent
wish for death was premised upon irrational assumptions. Unlike
other cases where the wishes of the patient played an important
role in determining the best interest, the patient in this case was
not suffering from any terminal illness, and the medical opinion was
that his deteriorating condition was caused solely by self-imposed
starvation. According to the court, the CANH would, therefore,
provide a tangible benefit by preserving his life. The patient’s
guardian did not oppose the medical recommendations but
acknowledged that the patient’s stated wishes were fundamentally
compromised by his mental illness. In these circumstances, the
court was required to determine whether it would be lawful to
withhold nutrition and hydration, save for the provision of palliative
care. Higgins, CJ., after careful consideration, declined to grant the
declaration sought. The court held that the withdrawal of nutrition
and hydration would be unlawful, primarily on the ground that the
treatment was effective in sustaining the patient’s life and that he
was not otherwise dying from any irreversible underlying physical
condition. Accordingly, the court held that the patient’s best
interests lay in the continuation of nutrition and hydration, even if
this necessitated restraint and sedation. The relevant observations
are as under:
“18. The truth is that JT lacks the capacity for informed
consent and his ‘wishes’ are the product of delusional and
irrational thought in turn the product of his severe mental
illness. The approach to his care can be no less than would
be the case if he lacked consciousness or was a helpless
infant. Indeed, even his apparent acceptance of death is
Miscellaneous Application No. 2238 of 2025 Page 208 of 286
premised on the irrational view that God will preserve him
from such a consequence.
xxx xxx xxx
21. Ms Anita Phillips, Public Advocate, has the role of
guardian of JT under a guardianship order. She does not
oppose any course recommended by JT’s physicians. She
does not wish to propose that he be forcibly nourished to
sustain his life. Her conclusion, however, that it accords with
his wishes, must be qualified by the obvious conclusion that
those wishes are irrational and based on a delusional set of
assumptions arising from his mental illness.
xxx xxx xxx
33. In the present case the provision of nutrition and
hydration will provide a benefit, in the sense that life will be
maintained, albeit, that it will to an extent derogate from the
patient’s dignity.
(Emphasis Supplied)
204. From the above, it appears that Australian courts have construed
the determination of whether medical treatment ought to be
continued or withdrawn as one governed primarily by an
assessment of the patient’s best interests, grounded in clinical
medical assessment, rather than by a determinative factor under
the substituted judgment standard. In Re BWV (supra), the
Supreme Court of Victoria treated CANH as medical treatment and
held that where death has become inevitable, and treatment serves
no therapeutic purpose, the patient’s best interests are no longer
advanced by sustaining biological life through artificial means. A
similar approach is evident in Messiha (supra), where the court
reiterated that the paramount consideration is the health, welfare,
and best interests of the patient. Importantly, the court clarified
that authorising withdrawal of treatment in such circumstances
Miscellaneous Application No. 2238 of 2025 Page 209 of 286
does not involve a value judgment on the worth of the patient’s life,
nor a rejection of the family’s sincerely held beliefs, but rather an
acceptance that decisions concerning futile treatment lie principally
within the expertise of medical practitioners, provided they are
taken in good faith and in the patient’s welfare. The decision in the
Australian Capital Territory (supra) further clarifies the
Australian position by delineating the limits of the patient’s wishes
in the best interests inquiry. Unlike cases involving terminal illness
or irreversible injury, the court held that where treatment is
effective in sustaining life, and the patient is not otherwise dying
from an irreversible condition, such treatment cannot be
characterised as futile. The court expressly declined to give effect to
the patient’s stated wishes, as they were found to be the product of
delusional and irrational beliefs arising from severe mental illness.
(f) Best interest of the patient in New Zealand
205. The position of law in New Zealand on this issue was considered by
the High Court of New Zealand in Auckland Area Health Board
(supra). The case concerned a 59-year-old patient suffering from an
extreme form of Guillain-Barré Syndrome, resulting in total
paralysis and complete inability to communicate, who was being
kept alive solely by artificial ventilation. The medical consensus was
that there existed no prospect of recovery and that continued
ventilation of the patient served no therapeutic purpose. The court
held that a doctor acting in good faith and in accordance with good
medical practice is under no legal duty to administer life support
when, in his or her clinical judgment, such treatment is contrary to
Miscellaneous Application No. 2238 of 2025 Page 210 of 286
the patient’s best interests. Emphasising that modern medical
science is intended to benefit life and health, and not to prolong
biological existence devoid of therapeutic purpose, the court
observed that to compel continuation of life support in such
circumstances would be to confound the very purpose of medicine.
The court further recognised that no rigid rule can govern the
infinite variety of clinical situations, and that decisions of this
nature must rest upon a bona fide assessment of the patient’s best
interests, informed by prevailing medical standards, specialist
consultation, ethical oversight, and concurrence of the patient’s
family or guardian. While noting the conceptual proximity between
the best interests principle and the substituted judgment standard,
as developed in the UK and USA, Thomas J. suggested that the two
approaches are closely interlinked to each other, though he
refrained from conclusively delineating their precise doctrinal
relationship. The relevant observations are as under:
“[…] Two distinct approaches have been identified in the
exercise of this jurisdiction; the “substituted judgment”
approach […] I suspect that the two tests are inextricably
linked. But I do not need to take the issue further because of
the way in which the hearing developed […]
xxx xxx xxx
In my view, doctors have a lawful excuse to discontinue
ventilation when there is no medical justification for
continuing that form of medical assistance. To require the
administration of a life support system when such a system
has no further medical function or purpose and serves only
to defer the death of the patient is to confound the purpose
of medicine. In such circumstances, the continuation of the
artificial ventilation may be lawful, but that does not make
Miscellaneous Application No. 2238 of 2025 Page 211 of 286
it unlawful to discontinue it if the discontinuance accords
with good medical practice.
A phrase such as “good medical practice” may not have the
precision of meaning that the medical profession or the
public would desire. But that imprecision is inherent in the
problem itself. There can be no single or fixed rule as to
exactly when a doctor may withhold a life support system
which would cover the infinite variety of factual situations
arising in practice. Consequently, the criterion can only be a
general phrase such as “good medical practice”.
Nor is it imperative that the phrase “good medical practice”
be accepted in any exclusive or dogmatic sense. It has been
selected because it already enjoys some currency. But any
description such as “sound medical practice” or “proper
medical standards and procedures” would serve equally
well. What is important is its perceived content. Clearly, it
must begin with a bona fide decision on the part of the
attending doctors as to what, in their judgment, is in the best
interests of the patient. Equally, it must encompass the
prevailing medical standards, practices, procedures, and
traditions which command general approval within the
medical profession. All relevant tests would need to be
carried out […]
xxx xxx xxx
[...] The point, for present purposes is, as I apprehend it, that
a doctor acting in good faith and in accordance with good
medical practice is not under a duty to render life support
necessary to prolong life if that is, in his or her judgment,
contrary to the best interests of the patient.
(Emphasis Supplied)
206. Thereafter, the High Court of New Zealand, in In Re G, reported in
[1997] 2 NZLR 201, while relying upon the observation of Thomas
J. in Auckland Area Health Board (supra) and A Ward of Court
(supra), was of the opinion that in such cases the adoption of the
Miscellaneous Application No. 2238 of 2025 Page 212 of 286
best interest principle is proper, but weightage should also be given
to the likely wishes of the patient and to the view of the patient’s
family and carers, as the substituted judgment standard is closely
interlinked with the best interest principle. The relevant observation
is as under:
“In the extract from p 242 of Thomas J's judgment in the
Auckland Area Health Board case quoted above, discussing
the parens patriae jurisdiction, that learned Judge noted
that two distinct approaches have been identified: the
“substituted judgment” approach and the “best interests”
approach. He commented that he suspected the two tests
were inextricably linked.
Bearing this in mind, and having regard to the reasoning of
Hamilton CJ in the Ward of Court case (supra) at p 411, I
think that the proper course for me is to adopt the “best
interests” test but to give weight to the likely wishes of the
patient and to the views of the patient's family and carers.
(Emphasis Supplied)
207. From the above, it appears that courts in New Zealand have
consistently construed the best interests of the patient as the
governing standard in cases involving withdrawal or withholding of
medical treatment, with that standard being rooted primarily in
medical futility, good medical practice, and the intrinsic purpose of
medicine. At the same time, the courts have acknowledged the
conceptual proximity between best interests and substituted
judgment, without elevating substituted judgment into an
independent or controlling test.
Miscellaneous Application No. 2238 of 2025 Page 213 of 286
(g) Best interest of the patient in European Union (EU)
208. In the year 2015, the European Court of Human Rights (“ECHR”),
in Lambert v France, reported in (2016) 62 EHRR 2, considered
the issue of withdrawal of CANH. The case concerned a patient who
had sustained severe head injuries resulting in tetraplegia and
complete dependence, accompanied by irreversible brain damage.
He was being maintained on CANH through a gastric tube. He was
diagnosed with a chronic vegetative state. The treatment was
considered futile and disproportionate, serving no purpose other
than the artificial prolongation of life. The decision-making process
involved consultation with the patient’s wife and, subsequently,
with his parents, half-brother, and sister. While the patient’s wife
supported the decision, his parents, half-brother, and sister
opposed the withdrawal of CANH. In light of these circumstances,
the Conseil d’État was of the view that withdrawal of CANH must be
permitted. The Conseil d’État observed that where a patient is
unable to express his wishes due to incapacity, it is for the treating
doctor, acting within a collective decision-making process involving
relevant healthcare professionals, to take a clinical decision guided
by the patient’s best interests. In doing so, the doctor must take
into account all relevant elements, including consultation with
family members, close friends, any designated person of trust, and
any previously expressed wishes of the patient. The Conseil d’État
further observed that withdrawal of treatment is subject to
additional conditions, including the presence of serious and
irreversible medical consequences, the absence of any continuing
benefit to the patient, medical futility, and, where required, a
Miscellaneous Application No. 2238 of 2025 Page 214 of 286
sufficiently prolonged observation phase and review of the patient’s
condition. The relevant observations are as under:
“64. Other persons involved in the decision-making process
may include the patient’s legal representative or a person
granted a power of attorney, family members and close
friends, and the carers. The Guide stresses that doctors
have a vital, not to say primary, role because of their ability
to appraise the patient’s situation from a medical viewpoint.
Where patients are not, or are no longer, able to express their
wishes, doctors are the people who, in the context of the
collective decision-making process, having involved all the
health-care professionals concerned, will take the clinical
decision guided by the best interests of the patient. To this
end, they will have taken note of all the relevant elements
(consultation of family members, close friends, the person of
trust, and so on) and taken into account any previously
expressed wishes. In some systems the decision is taken by
a third party, but in all cases doctors are the ones to ensure
that the decision-making process is properly conducted.
xxx xxx xxx
76. In addition to the requirement to seek the patient’s
consent, the withdrawal of treatment is also subject to other
conditions. Depending on the country, the patient must be
dying or be suffering from a condition with serious and
irreversible medical consequences, the treatment must no
longer be in the patient’s best interests, it must be futile, or
withdrawal must be preceded by an observation phase of
sufficient duration and by a review of the patient’s
condition.”
(Emphasis Supplied)
(h) Best interest of the patient in India
Miscellaneous Application No. 2238 of 2025 Page 215 of 286
209. It is often suggested, in a rigid and oversimplified manner, that
courts in the USA proceed primarily on the subjective standard of
substituted judgment, whereas courts in the UK apply an objective
standard under the rubric of the best interests of the patient. In our
considered view, such a binary characterisation emerges only when
these tests are examined at t he surface. A closer, multi-
jurisdictional reading of the authorities we discussed above shows
that neither standard operates in isolation or in absolute terms. In
the USA, substituted judgment is not applied as a free-standing
exercise of personal preference. It is invariably conditioned by
objective medical findings, considerations of the futility of
treatment, proportionality of treatment, dignity of the patient, and
the patient’s present welfare. Where the patient’s wishes cannot be
reliably ascertained, courts explicitly abandon substituted
judgment in favour of a best interests analysis. Conversely, in the
UK, while best interests remains the governing test, it is neither
purely objective nor indifferent to the patient’s individuality, but
incorporates a strong subjective element through a consideration of
the patient’s past and present wishes, values, beliefs, and
conception of dignity.
210. A similar convergence is evident in other jurisdictions as well. In
Italy, the best interests inquiry is structured through a dual
threshold: (i) a clinical determination of irreversible vegetative state
and medical futility, (ii) coupled with a faithful reconstruction of the
patient’s presumed will, grounded in clear and convincing evidence
of values and conception of dignity. In Australia and New Zealand,
courts have consistently treated best interests as the controlling
Miscellaneous Application No. 2238 of 2025 Page 216 of 286
standard, yet it is required to be informed by good medical practice,
futility, proportionality, and the likely wishes of the patient, without
elevating the substituted judgment standard into an autonomous
rule. In the EU, the emphasis has been placed on a procedurally
robust, collective decision-making process guided by medical
proportionality, absence of unreasonable obstinacy, and respect for
human dignity, with prior wishes operating as an important but not
decisive consideration.
211. When examined in this manner, the two approaches, i.e., the best
interest principle and the substituted judgment standard, cease to
conform to a stark day and night distinction. Instead, they converge
at twilight where subjective autonomy and objective welfare
intersect, each informing and tempering the other, in order to reach
a decision that accords with what is overall in the best interest of
the patient in the facts and circumstances. It is worth mentioning
here that though the substituted judgment standard in the USA
may be heavily rooted in privacy and personal choice of the patient,
it is our endeavour, keeping in mind the vision of the Constitution
Bench in Common Cause 2018 (supra), to further this substituted
judgment standard from the lens of dignity.
212. At this juncture, it becomes imperative for us to also refer to
Common Cause 2018 (supra) to weave a comprehensive thread of
consensus upon the meaning and scope of the best interest
principle. However, before delving into that exercise, we must
reiterate that a competent person has the right to refuse medical
treatment within their right to self-determination under Article 21
Miscellaneous Application No. 2238 of 2025 Page 217 of 286
of the Constitution of India. It is also clear that the autonomy of a
competent person in refusing to take or continue a medical
treatment needs to be respected. This means that until the patient
is competent and is in a position to exercise his right to refuse
medical treatment, he may do so. However, it is only when the
patient becomes incompetent and is unable to make an informed
decision for himself that the need to construe the best interest
principle comes into play, because in such circumstances, the
decision to withdraw or withhold medical treatment needs to be
built upon the determination of whether it is in the best interest of
the patient.
213. Having said that, a reading of the guidelines as set out in Common
Cause (supra), particularly with respect to cases where there is an
AMD, shows that the treating physician triggers the process under
Para. 198.4.1 of the guidelines for withdrawal or withholding of
medical treatment upon the fulfilment of five broad conditions in
his opinion. They are: (i) the Executor becomes terminally ill, (ii) is
undergoing prolonged medical treatment, (iii) with no hope of
recovery, (iv) no cure of ailment, and (v) the patient does not have
decision-making capacity i.e., the patient is incompetent.
214. With respect to cases where there is no AMD, the treating physician
triggers the process under Para 199.1 of the guidelines for
withdrawal or withholding of medical treatment upon the fulfilment
of three broad conditions in his opinion: (i) the Patient is terminally
ill, (ii) is undergoing prolonged treatment in respect of an ailment
which is, (iii) incurable or where there is no hope of being cured.
Miscellaneous Application No. 2238 of 2025 Page 218 of 286
However, unlike Para 198.4.1 of the guidelines, Para 199.1 does not
explicitly set forth the fifth condition, i.e., that the patient does not
have decision-making capacity. This is because the incompetence
of the patient is implied in Para 199.1 of the guidelines. Had the
patient been competent to make an informed decision, he would
have exercised his right to refuse medical treatment, but it is only
when he is not in a position to exercise that right and where no
AMD exists in this regard that the treating physician, and patient’s
next of kin/next friend/guardian, followed by the primary medical
board and secondary medical board, undertake this task on behalf
of the patient. This is also clear from Para 199 of the guidelines,
which states that there will be cases where there is no existing AMD
and in such cases, the procedure and safeguards are required to be
the same as in cases where there is an existing AMD.
215. Once these threshold conditions/medical parameters are fulfilled,
and the treating physician informs the hospital to constitute a
primary medical board, the primary medical board gets constituted
by the hospital, which after taking a medical prognosis of the
patient and discussing the pros and cons of the withdrawal or
refusal of further medical treatment with the patient's next of
kin/next friend/guardian, and taking consent of the patient's next
of kin/next friend/guardian in writing, renders its opinion by either
certifying the withdrawal or refusal of further medical treatment or
opposing the option of withdrawal or refusal of further medical
treatment. In the event that the primary medical board certifies the
withdrawal or refusal of medical treatment, the secondary medical
board is constituted by the hospital, which, after taking a medical
Miscellaneous Application No. 2238 of 2025 Page 219 of 286
prognosis of the patient and studying the medical papers, either
concurs with or opposes the opinion of the primary medical board
for withdrawal or refusal of further medical treatment. In the event,
either at the primary board stage or at secondary board stage, the
primary medical board in the former or secondary medical board in
the latter opposes the withdrawal or refusal of medical treatment,
then the nominee of the patient or family member of the patient i.e.,
the patient's next of kin/next friend/guardian or treating physician
or hospital staff may knock the doors of High Court under Article
226 of the Constitution of India.
216. During this entire exercise as described above, at every stage, the
need to adhere to the best interest principle while determining
whether withdrawal or withholding of medical treatment must be
proceeded with, is of paramount importance, for all the
stakeholders including the medical boards, the patient’s next of
kin/next friend/guardian, and the courts (if involved).
217. The discussion above provides clarity as to when the best interest
principle ought to be applied and who should consider it. The next
concomitant question that arises is much more fundamental – why
do we have to adopt the best interest principle when determining
whether treatment ought to be withheld or withdrawn? The answer
lies somewhere between the realms of a doctor’s continuing duty to
provide treatment and the lawful discharge of that duty once the
threshold conditions/medical parameters are satisfied. In this
context, the decision of a doctor to withdraw or withhold medical
treatment on the basis of the best interests of the patient is not one
Miscellaneous Application No. 2238 of 2025 Page 220 of 286
directed towards causing death, but towards relieving pain,
suffering, and indignity in circumstances where continued
treatment no longer serves any therapeutic purpose. A doctor’s duty
to provide treatment obliges until the provision of treatment is
capable of conferring some therapeutic benefit upon the patient.
Where, however, the patient is in the terminal stage of illness or in
a vegetative state with no reasonable prospect of recovery, and the
continuation of treatment merely prolongs biological existence
without any therapeutic benefit, that duty no longer mandates
continuing with life-sustaining treatment. In determining whether
or not such a stage has been reached, the best interests of the
patient must be the driving force.
218. Now having understood when and why the best interest principle
comes into play, we shall attempt to explain what the best interest
principle entails on a holistic reading of the Constitution Bench
decision in Common Cause 2018 (supra).
219. As consistently recognised in Cruzan (supra), Re A (Male
Sterilisation) (supra), Aintree (supra) and many other cases as
above-mentioned, the best interest principle consists of both
medical and non -medical considerations. In fact, the Law
Commission of India, in its 196
th Report titled “Medical Treatment
to Terminally Ill Patients (Protection of Patients and Medical
Practitioners)” as well as in its 241
st Report titled “Passive
Euthanasia - A relook” was also of the view that the best interest
principle must not only include the medical interest of the patient
Miscellaneous Application No. 2238 of 2025 Page 221 of 286
but also certain non-medical considerations such as ethical, social,
moral, emotional, and other welfare considerations.
220. A similar approach can also be gauged from this court’s decision in
Common Cause 2018 (supra) wherein it was noted that the
application of the best interest principle entails taking into account
both medical and non -medical considerations. We shall now
discuss below the aspects that, as per Common Cause 2018
(supra), form part of such medical and non-medical considerations.
(i) Medical considerations under the best interest principle
221. Common Cause 2018 (supra) places great significance on factors
such as the futility of treatment, no hope of recovery or cure, and
the indignity of the patient, all of which forms a part of medical
considerations.
222. On the aspect of futility, Para 198.4.1 of the guidelines uses the
phrase “no cure of ailment”, and Para 199.1 of the guidelines uses
the phrase “incurable”. In addition to this, Ashok Bhushan, J., in
his opinion, also supported the view that the decision to withdraw
or withhold medical treatment is not the act of causing a good
death, but rather it is a decision one takes when treatment becomes
futile. Further, Dipak Misra, CJ., also supports the idea that the
words "no cure" have to be understood to convey that the patient
remains in the same state of pain and suffering and only the dying
process is delayed by means of taking recourse to modern medical
technology. However, we must also reflect upon what the UK
Miscellaneous Application No. 2238 of 2025 Page 222 of 286
Supreme Court in Aintree (supra) had observed i.e., that the
concept of futility must not be understood on the mere basis of the
treatment being incapable of curing the underlying disease of the
patient, rather futility must be understood as the treatment being
ineffective on the patient or of no benefit to the patient or useless in
that particular case of the patient. Thus, futility must be
understood by the doctors in the sense of the treatment being
useless or pointless on an individual case to case basis, i.e.,
conferring no benefit at all upon the patient in question. However,
this futility must only be conclusive when all possible means to cure
the ailment have been exhausted, and the particular medical
treatment has become so prolonged so as to render it futile. This
means that there must be an aspect of prolongation which is
attached to futility. This also necessarily means that calling a
condition incurable at the threshold without attaching the aspect of
prolongation of medical treatment to it, or in other terms, without
exploring all possible means to cure the condition, cannot be
considered sufficient for allowing the withdrawal or withholding of
medical treatment.
223. On the aspect of recovery, Para 198.4.1 of the guidelines uses the
phrase “no hope of recovery”, and Para 199.1 of the guidelines uses
the phrase “no hope of being cured”. In this context, Aintree (supra)
observes that the concept of recovery does not signify restoration to
full health, but rather the resumption of a quality of life which the
patient himself would regard as worthwhile. This emphasises that
the burdens of treatment must be weighed against the benefits of
Miscellaneous Application No. 2238 of 2025 Page 223 of 286
continued existence and that due weight must be accorded to other
non-medical considerations as well.
224. The dimension of dignity occupies a significant place in the
constitutional reasoning of Common Cause 2018 (supra). On the
aspect of indignity, Dipak Misra, CJ., was of the view that if a man
is allowed to or, for that matter, forced to undergo pain, suffering
and a state of indignity because of unwarranted medical support,
the meaning of dignity is lost, and the search for the meaning of life
is in vain. Similarly, D.Y. Chandrachud, J., in his opinion, was of
the view that the decision to withhold medical treatment is not
intended to cause death but to prevent pain, suffering and indignity
to a human being who is in the end stage of a terminal illness or of
a vegetative state with no reasonable prospect of cure. He also
observes that the law must protect a decision which has been made
in good faith by a medical professional not to prolong the indignity
of a life placed on artificial support in a situation where medical
knowledge indicates a point of no return. He was of the further
opinion that the court has a duty to interpret Article 21 of the
Constitution of India in a further dynamic manner in such a
manner that the right to life with dignity must include the
smoothening of the process of dying when the person is in a
vegetative state or is living exclusively by the administration of
artificial aid that prolongs life by arresting the dignified and
inevitable process of dying. In a similar fashion, A.K. Sikri, J., also
observed that the indefinite continuation of futile physical life is
regarded as undignified.
Miscellaneous Application No. 2238 of 2025 Page 224 of 286
(ii) Non-medical considerations under the best interest principle
225. At this juncture, it is also pertinent to note that, as per Para 199.2
of the Common Cause Guidelines , the primary medical board is
required to discuss with the patient's next of kin/next
friend/guardian, the pros and cons of withdrawal or withholding
and also obtain their consent in writing before certifying or opposing
such withdrawal or withholding. It is in this process of obtaining
consent that the non-medical considerations, alongside the relevant
medical considerations as described above, form the basis for
determining whether or not medical treatment should be withdrawn
or withheld.
226. It is also pertinent to mention that this Court in Common Cause
2018 (supra) had looked into the observations made in Aruna
Shanbaug (supra), wherein it was held that the autonomy of the
patient means his right to self-determination and that, therefore, a
competent patient, equipped with informed decision-making, has
the right to choose the manner of his treatment. In the event that
he is incompetent to make such choices, his wishes expressed in
advance, in the form of a living will, or the wishes of the surrogates
acting on his behalf under the substituted judgment standard, are
to be respected. In such a case, the surrogate is expected to
represent what the patient may have decided had he/she been
competent. This court was of the further view that a surrogate
acting in the patient's best interest must follow a particular course
of action because it is the best course of action for the patient, and
Miscellaneous Application No. 2238 of 2025 Page 225 of 286
must not be influenced by their personal convictions, motives or
other considerations.
227. Under the guidelines, with respect to cases where there exists no
AMD, though the process generally commences with the treating
physician evaluating the threshold conditions/medical parameters
of Para 199.1 and informing the hospital to constitute the primary
medical board, there comes a point where, without obtaining the
consent of the patient's next of kin/next friend/guardian, the
primary medical board may not be able to move ahead and certify
or oppose their opinion. This requirement of obtaining the consent
of the patient's next of kin/next friend/guardian in writing before
the primary medical board has the opportunity to certify or oppose
the withdrawal or refusal of medical treatment comes with an
inherent objective to save the derailment of the entire exercise that
lies ahead. The objective of taking such consent is to allow the
patient’s next of kin/next friend/guardian to bring forth the non-
medical considerations after being informed of the medical
considerations put forth by the primary medical board.
228. At this moment, it is important to adhere to two notes of caution:
first, while giving their consent, the patient’s next of kin/next
friend/guardian should not simply base their consent solely on
non-medical considerations. Rather, they must weigh and take into
account both medical and non -medical considerations before
reaching a decision. Secondly, it has to be ensured that the patient’s
next of kin/next friend/guardian evaluates such medical and non-
medical considerations by factoring in not their personal wishes,
Miscellaneous Application No. 2238 of 2025 Page 226 of 286
feelings, beliefs, values, etc., but the wishes, feelings, beliefs,
values, and other circumstances that the patient would have
evaluated for himself if he had capacity to do so. Here, the patient's
next of kin/next friend/guardian does not go into the enquiry from
a caregiver’s standard, as to what a reasonable person in such
circumstances would have done. Rather, they must portray, as far
as ascertainable, the beliefs and values of the patient that would
have been likely to influence his decision if he had capacity. Thus,
the patient's next of kin/next friend/guardian must keep this
exercise as a patient-centric exercise, not a parent-centric one. This
is essentially how the substituted judgment standard must be
construed as factoring into the Indian position.
229. Moreover, the courts in various jurisdictions, as more particularly
discussed above, have considered the substituted judgment
standard to be an element of the best interest of the patient
principle and have always endeavoured to strike a balance between
the two, on a case to case basis. We agree that such a balancing
between the two standards/principles must exist in our jurisdiction
as well. On the substituted judgment standard, D.Y. Chandrachud,
J., in his opinion, had observed that it seeks to determine what the
individual would have decided. He also acknowledged that there is
an evident tension between these two standards. What an
individual would decide as an autonomous entity is a matter of
subjective perception. What is in the best interest of the patient is
an objective standard. Thus, D.Y Chandrachud, J., was of the view
that a balance between the application of the substituted judgment
Miscellaneous Application No. 2238 of 2025 Page 227 of 286
standard and the best interest principle is necessary as a matter of
public interest. The relevant observation is as under:
“486. The substituted judgment standard basically seeks to
determine what the individual would have decided. This
gives primacy to the autonomy of the individual. On the other
hand, as seen earlier, the best interest standard is based on
the principle of beneficence. There is an evident tension
between these two standards. What an individual would
decide as an autonomous entity is a matter of subjective
perception. What is in the best interest of the patient is an
objective standard: objective, with the limitation that even
experts differ […]
xxx xxx xxx
488. The view which this judgment puts forth is that the
recognition of Advance Directives as part of a regime of
constitutional jurisprudence is an essential attribute of the
right to life and personal liberty under Article 21. That right
comprehends dignity as its essential foundation. Quality of
life is integral to dignity. As an essential aspect of dignity
and the preservation of autonomy of choice and decision-
making, each individual must have the right on whether or
not to accept medical intervention. Such a choice expressed
at a point in time when the individual is in a sound and
competent state of mind should have sanctity in the future if
the individual were to cease to have the mental capability to
take decisions and make choices. Yet, a balance between
the application of the substituted judgment standard and
the best interest standard is necessary as a matter of public
interest. This can be achieved by allowing a supervisory role
to an expert body with whom shall rest oversight in regard
to whether a patient in the terminal stage of an illness or in
a permanent vegetative state should be withheld or
withdrawn from artificial life support.”
(Emphasis Supplied)
Miscellaneous Application No. 2238 of 2025 Page 228 of 286
(i) Application of the best interest principle
230. From the above discussion, it is evident that this Court in Common
Cause 2018 (supra) has unequivocally held that when deciding
whether medical treatment ought to be withdrawn or withheld, both
medical as well as non-medical considerations ought to be given
due weightage and be considered as a part of the governing principle
of best interest.
231. Thus, we are of the view that the patient’s next of kin/next
friend/guardian, the medical boards, or the courts (if involved),
while determining what constitutes the best interests of the patient,
are required to undertake a holistic assessment of all relevant
circumstances, both medical and non-medical, including but not
limited to, the patient’s wishes, feelings, beliefs, values, and any
other factor that would be likely to influence the patient’s decision,
or which the patient himself would have taken into account, had he
retained the capacity to decide. While saying so, we understand that
athough the substituted judgment standard would be a component
of the best interest principle, yet it is the latter that would still
remain as a governing test to decide the questions concerning
withdrawal or withholding of medical treatment.
232. Once the relevant medical and non -medical considerations are
discernible, the next step would be to undertake a weighing exercise
of both these considerations as per the balance sheet approach.
This approach was developed in the case of Re A (Male
Sterilisation), by following the opinions of the law lords in
Miscellaneous Application No. 2238 of 2025 Page 229 of 286
Airedale (supra), which was later adopted in W v. M (supra),
Aintree (supra), Lindsey Briggs (supra), and so on. This balance
sheet approach involves weighing the potential benefits of
continued treatment against its burdens, including physical
suffering, invasiveness, indignity, psychological distress, wishes
and welfare of the patient, the impact upon the patient’s lived
experience and family life, and similar considerations. For the sake
of reiteration, the reference to a patient’s family life does not entail
an assessment of the lives, interests, or emotional needs of the
family members themselves, rather, it requires a consideration of
the life of the patient as lived in and through his or her relationship
with the family, and the value that such family life holds for the
patient.
233. As discussed earlier, the best interest principle cannot be defined
by a single, straight-jacketed test that would fit across all facts and
circumstances. Therefore, we have endeavoured to cull out the
contours of this principle as far as possible from across the
jurisdictions as examined above. From our discussion, we are of the
opinion that the principle of “best interest of the patient” may
include, but not be limited to, the following considerations:
1. While deciding upon the withdrawal or withholding of medical
treatment, the correct question should be whether it is in the
patient’s best interests that life should be prolonged by the
continuance of the particular medical treatment in question.
Miscellaneous Application No. 2238 of 2025 Page 230 of 286
2. While answering such a question, the best interest principle
cannot be construed in a narrow, rigid, straight-jacketed single
test. The determination of the same requires due evaluation of
all relevant circumstances and considerations, both medical
and non-medical.
3. At the foundational level, the best interests inquiry is anchored
in a strong presumption in favour of preserving life, reflecting
the sanctity of life. This presumption is not absolute and may
be displaced where continuation of medical treatment ceases
to serve any therapeutic purpose, i.e., becomes futile, merely
prolongs the suffering without the hope of recovery or causes
indignity to the life of the patient.
4. The assessment of best interests must, therefore, necessarily
encompass an evaluation of the futility of treatment, the
absence of therapeutic purpose, the invasive and burdensome
nature of continued medical intervention, and the indignity
attendant upon artificially prolonging life in a state devoid of
awareness, autonomy, or human interaction.
5. Further, while considering the best interests of the patient,
decision-makers such as the patient’s next of kin/next
friend/guardian, the treating physician, the members of the
medical boards, or the courts (if involved), as the case may be,
must look at the patient’s welfare in the widest sense, not just
medical but also social and psychological.
Miscellaneous Application No. 2238 of 2025 Page 231 of 286
6. Decision-makers must try to put themselves in the place of the
individual patient and ask what his wishes and attitude to the
treatment is or would be likely to be; and they must consult
others who are looking after him or interested in his welfare, in
particular for their view of what the patient would have wanted.
7. The best interests principle shall incorporate a strong element
of the substituted judgment standard, requiring the decision-
maker to place himself, so far as possible, in the position of the
patient and to consider in a patient-centric manner what that
patient would have wanted if he had capacity to do so. However,
substituted judgment would not operate as an autonomous or
overriding standard. The ultimate inquiry remains what course
of action serves the patient’s best interest.
8. The decision-makers, after identifying and collating necessary
and ascertainable considerations, both medical or non -
medical, must engage in the balance sheet exercise, which
would involve weighing the potential benefits of continued
treatment against its burdens, including physical suffering,
invasiveness, indignity, psychological distress, wishes and
welfare of the patient, the impact upon the patient’s lived
experience and family life, and other like considerations.
(3) WHETHER IT IS IN THE BEST INTEREST OF THE APPLICANT THAT HIS LIFE
BE PROLONGED BY CONTINUATION OF MEDICAL TREATMENT ?
Miscellaneous Application No. 2238 of 2025 Page 232 of 286
234. Now, adverting to the facts of the present case, the medical history
of the applicant shows that due to a severe traumatic brain injury
(diffuse axonal injury), he slipped into a PVS.
235. Further, the opinion of the primary medical board reported the
following conditions:
(a) The applicant has been bedridden in a vegetative state for the
last 13 years;
(b) He requires external aid for his feeding, bladder, bowel and
back;
(c) He has recurring bed sores and infections;
(d) He is emaciated and contractures are present in both lower and
upper limbs;
(e) He has spasticity all over the body;
(f) The prospects of the patient’s recovery from this state are
negligible.
236. The opinion of the secondary medical board reported the following
conditions:
(a) He is bedbound and cachexic with evident muscle wasting; He
maintains a generalized flexed posture;
(b) His body is lean with a tracheostomy tube, urinary catheter
and PEG in situ;
(c) He is afebrile to touch;
Miscellaneous Application No. 2238 of 2025 Page 233 of 286
(d) Pulse rate of 90/minute, regular and normovolemic. Blood
pressure was noted at 130/80 mm Hg and respiratory rate at
16/minute;
(e) Shows no signs of respiratory distress;
(f) Although the skin is normal, there was a healing bed sore over
the lower back;
(g) He has contractures in both upper and lower limbs;
(h) His eyes were open with normal blinks with no purposeful
movement or response to auditory, verbal, tactile, or painful
stimulus;
(i) The pupils were bilaterally normal and reacting. There were no
eye tracking movement to light or auditory stimuli;
(j) There were flexion contractures of all limbs and attempts for
passive movement did not elicit any facial grimace or voluntary
resistance;
(k) Spontaneous, but non-purposive eye opening;
(l) No vocalization (or attempt thereof, since the patient is
tracheostomised);
(m) No auditory awareness as reflected by no response to sudden
noise or meaningful noise stimuli;
(n) Pupils reacting to bright light indicates intact anterior visual
pathway, but no eye tracking to moving object or response to
visual threat indicates that the primary visual pathway may be
affected;
(o) No spontaneous or responsive response to stimuli, indicates
higher level moto pathways affected;
(p) Fulfils the diagnostic criteria of PVS;
Miscellaneous Application No. 2238 of 2025 Page 234 of 286
(q) He has non-progressive, irreversible brain damage, and he has
been in PVS for the last 13 years;
(r) The continued administration of CANH is required for the
sustenance of his survival. However, the same may not aid in
improving his condition or repairing his underlying brain
damage.
237. The patient’s next of kins/next friends/guardians, after being
informed of medical considerations by the doctors, have stated the
following:
(a) The applicant was extremely energetic, physically active, and
deeply interested in gymming and playing football;
(b) They have done everything with the hope that their son may
recover but there has been no improvement in his condition;
(c) Their son no longer has a voice of his own and therefore, they
feel it is their moral responsibility to speak for him in his best
interest;
(d) Their decision to initiate the process under Common Cause
Guidelines has been taken not out of despair or pressure but
after prolonged thought, years of care, and acceptance that in
medical consensus, there is hope of recovery of their son;
(e) That continuing the medical treatment no longer serves any
meaningful purpose for the applicant and only prolongs his
agony, which is causing an undignified life for the applicant;
(f) The applicant has bed sores, and his position has to be
changed every two hours;
Miscellaneous Application No. 2238 of 2025 Page 235 of 286
(g) That in such circumstances a decision has to be taken in the
best interest and dignity of the applicant.
238. Further, the patient’s next of kin/next friend/guardian, the primary
medical board and the secondary medical board after considering
medical as well as non-medical considerations as mentioned above
are of the opinion that the medical treatment should be
discontinued as the continuation of the same is not in the best
interest of the applicant, and that, in the given circumstances,
nature should be allowed to take its own course. They are also of
the opinion that the applicant would remain in PVS for years to
come, with the tubes inserted all over his body. However, he would
never be able to recover from such a condition.
239. The medical considerations in the present case admit of no
ambiguity. The treatment being administered to the applicant has
become prolonged, futile, and offers no hope of recovery. The
applicant has remained in a PVS for over 13 years, with irreversible
and non-progressive brain damage, and the continuation of CANH
serves only to sustain biological existence without any prospect of
cognitive recovery or improvement in condition. While there is no
material on record evidencing any prior expressed wishes of the
applicant, the non-medical considerations placed before us, such
as the applicant’s life prior to the injury, where he was physically
active, energetic, and deeply engaged in activities such as gymming
and football, provide a relevant lens through which his likely values
and preferences may be assessed. In conjunction with the
unanimous medical opinion and the considered stand of the
Miscellaneous Application No. 2238 of 2025 Page 236 of 286
applicant’s next of kin/next friend/guardian, who have cared for
him for years and have taken this decision after prolonged
reflection, we acknowledge that had the applicant been competent
today, he would not have chosen to continue CANH in these
circumstances. The conclusion reached by the medical boards that
withdrawal of CANH is in the applicant’s best interests is, therefore,
both medically sound and consistent with a patient -centric
assessment of dignity, values, and welfare.
240. However, in order to obviate any confusion, we wish to emphatically
clarify that our discussion demonstrating how the best interest
principle applies to the facts of the present matter should not be
misconstrued to mean that a court must always be the final arbiter
of what is in the best interest of the patient according to the
guidelines as laid down in Common Cause (supra). In the present
matter, the decision to withdraw or withhold medical treatment to
the applicant could have been put into effect immediately upon the
submission of the secondary medical board’s opinion, since the
same was in concurrence with the opinion of the primary medical
board. Both the primary medical board and the secondary medical
board have unequivocally certified that the withdrawal of CANH
from the applicant would be in his best interest. In other words, we
would like to reiterate that if both the primary medical board and
secondary medical board certify the withdrawal or withholding of
medical treatment, there is no further requirement for any court
intervention, except in the very limited circumstances as explained
in our detailed discussion hereinabove.
Miscellaneous Application No. 2238 of 2025 Page 237 of 286
241. Given that this is the first case that has reached this Court wherein
the Common Cause Guidelines are being applied in their full
measure, we considered it necessary, in the larger public interest,
to explain and clarify certain legal and procedural aspects that arise
in the application of these guidelines. Such an exposition, in our
view, was required not solely for the resolution of the present case
but to provide some guidance to treating physicians, medical
boards, families, and courts in similar cases that could arise in the
future.
(4) WHAT ARE THE FURTHER STEPS TO BE UNDERTAKEN IN THE EVENT THAT
A DECISION TO WITHDRAW OR WITHHOLD MEDICAL TREATMENT IS
ARRIVED AT?
242. In the aforesaid discussion, we have addressed when, how and in
what manner the decision to withdraw or withhold a medical
treatment, including CANH, could be arrived at. However, there is
a crucial need to address the stage that follows any decision to
withdraw or withhold medical treatment as well. As the decision to
withdraw or withhold a medical treatment is made keeping the best
interests of the patient in mind, we deem it necessary to underscore
that the same must be carried out in a manner that is humane and
reflects a responsible and sensitive extension of the doctors’ duty of
care towards their patient. The resultant effect of the withdrawal or
withholding of medical treatment must not be the abandonment of
the patient. Due focus must be given to the comfort of the patient
through pain and symptom management. It is in this regard that
the branch of medical science known as Palliative Medicine,
Miscellaneous Application No. 2238 of 2025 Page 238 of 286
including End of Life Care (“EOL Care”), becomes significant in
governing protocols regarding the withdrawal or withholding of a
medical treatment, in which the goals of medical treatment shift
from cure to care.
243. It is essential to understand that the withholding of withdrawal of
a medical treatment is not a single, abrupt act. Once the decision
has been taken to withdraw or withhold a medical treatment in
accordance with the law, the obligation of medically caring for the
patient does not stop. In other words, the withdrawal or withholding
of a medical treatment is not the termination of the doctor-patient
relationship altogether, but merely a purposeful reorientation of
medical goals. The withdrawal or withholding of a medical
treatment cannot result in a vacuum of care or medical supervision.
The process of withdrawal or withholding of a medical treatment
necessarily entails a structured, step-wise process, anchored in a
clearly articulated withdrawal plan as part of an appropriate
palliative and EOL care framework. The importance of such a plan
lies in ensuring that the decision to withdraw or withhold a medical
treatment, which has been taken in the best interests of the patient,
gets translated into clinical practice in a manner that minimises
pain, distress, and affords him maximum dignity.
244. In this context, we express our strong disapproval of the practice of
“discharge against medical advice” (also known as “leaving against
medical advice” or “discharge at own risk”) that is routinely misused
in cases where the medical treatment of a patient stands
discontinued. Such a course of action, when resorted to in
Miscellaneous Application No. 2238 of 2025 Page 239 of 286
substitution of a structured palliative and EOL care plan, risks
amounting to an abdication of the doctor’s responsibility and
undermines the very rationale of treatment limitation being founded
on the patient’s best interest. The choice to withdraw or withhold a
medical treatment cannot amount to a forfeiture of the patient’s
right to a medically supervised care. We would like to clarify that it
is not always mandatory that palliative and EOL care is provided in
a hospital or any other institutional setting. It is permissible that
the palliative care is given at home or at any place of choice of the
patient or his/her family, as long as a palliative and EOL care plan
has been prescribed at the time of discharge, so that the patient is
not deprived of structured medical support in the most vulnerable
phase of life.
245. As emphasised by the Court of Protection, United Kingdom, in
Hillingdon Hospitals (supra), the withdrawal of CANH must be
carried out strictly in accordance with a step-by-step withdrawal
plan, so that the burdens of a medical treatment are not merely
discontinued in principle, but are meted out in practice. The same
principle applies with equal force to the withdrawal of all forms of
medical treatment and medical devices, i.e. such withdrawal or
withholding can only be undertaken pursuant to a carefully
calibrated palliative and EOL care plan. The following extract from
the observations of Poole J., in Hillingdon Hospitals (supra),
underscores that the law does not merely permit the withdrawal of
a medical treatment, but mandates that it be carried out through a
plan that balances the cessation of burdensome interventions with
the assurance that the patient will not be subjected to further
Miscellaneous Application No. 2238 of 2025 Page 240 of 286
avoidable pain or distress, and will continue to receive palliative and
EOL care for as long as life continues:
“42. I have sought to step back and to consider IN’s best
interests in the widest sense. In doing so I conclude that
it is not in his best interests to continue to receive CANH.
Accordingly, the withdrawal of CANH in accordance with
the step by step withdrawal of care plan is in his best
interests and is lawful. Putting it plainly, he has no
prospect of recovery and the provision of CANH will only
prolong his burdens and give him no benefit. Even though
his life expectancy with continued CANH is relatively
short, for so long as he is given CANH, his burdens are
continued.
43. The current plan is to leave IN’s tracheostomy in situ.
Although that may have the effect of prolonging his life by
some days, I do think it is in his best interests to keep the
tracheostomy in place – IN’s values are such that he
would not have wanted his family or staff to witness his
struggling for breath for a period that might last for a
week or more were the tracheostomy removed. That is
what I believe would have been in accordance with his
values as relayed to the court by his family. Whilst he will
continue to suffer the burdens of his condition and
interventions including the tracheostomy for as long as he
is alive, he will receive palliative care and so the Court
can be as sure as it is possible to be, that IN will not
experience pain or distress whilst the plan is
implemented. On balance I consider that the plan to
maintain his tracheostomy is in his best interests.”
(Emphasis Supplied)
246. Having thus emphasised that the withdrawal or withholding of
medical treatment must be effected through a structured and
humane process, accompanied by a palliative and EOL care plan, it
becomes necessary to examine the contours of palliative care as
Miscellaneous Application No. 2238 of 2025 Page 241 of 286
recognised within the Indian medical and regulatory framework.
Such an examination is essential not only to demonstrate that the
obligation to provide palliative and EOL care is grounded in
established medical ethics and policy, but also to ensure that the
transition from curative treatment to pain-relieving symptom
management care is informed by nationally accepted standards and
guidance. It is in this context that reference to the guidance issued
by expert medical bodies in India assumes significance.
247. The Indian Council of Medical Research (ICMR) document titled
“Definition of terms used in limitation of treatment and providing
palliative care at end of life” (“ICMR Palliative & EOL Care
Primer”), published under the authority of the Secretary,
Department of Health Research (DHR), MoHFW, Government of
India provides a cursory guidance on the duty of a health care
provider to mitigate suffering and improve the quality of life
throughout one’s life, including the dying phase.
52 Although the
Palliative & EOL Care Primer is a document that predates this
Court’s decision in Common Cause 2018 (supra), the primary
discussion in the document is not in conflict with it, and we find it
apposite to refer to the same. It pragmatically addresses how the
inevitability of death must be recognised as a natural culmination
of life, and that in this phase, curative intent would have to give way
52
Indian Council of Medical Research, Definition of Terms used in Limitation of Treatment and Providing
Palliative Care at End of Life , published in March, 2018, available at:
https://www.icmr.gov.in/icmrobject/custom_data/pdf/downloadable-
books/Definition_of_terms_used_in_limitation_of_treatment_and_providing_palliative_care_at_end_of_l
ife.pdf, (Last accessed on 06.02.2026)
Miscellaneous Application No. 2238 of 2025 Page 242 of 286
to pain relief and symptom management, so as to improve the
patient’s quality of life for the remaining duration of his life.
248. The ICMR Palliative & EOL Care Primer defines the term ‘Palliative
Care’ as “a holistic approach to treatment that improves the quality
of life of patients and their families facing the problems associated
with life-threatening illness, through the prevention and relief of
suffering.” Palliative care affirms life by supporting the patient and
the family’s goals for the future, as well as their hopes for peace and
dignity throughout the course of illness, the dying process, and
death. It creates an environment in which the needs of the patients
and their families are comprehensively assessed, so that the
physical, psychological, social, practical, and spiritual needs of
patients and their families are endeavoured to be met, and the
patient is afforded the maximum dignity possible. Endeavours in
palliative care must ensure that the medical palliative care team
collaborates with professional and informal caregivers to ensure
coordination, communication, and continuity of palliative care
across hospital and home settings. The ICMR Palliative and EOL
Care Document defines ‘End of Life Care’ as ‘an approach to a
terminally ill patient that shifts the focus of care to symptom
control, comfort, dignity, quality of life and quality of dying rather
than treatments aimed at cure or prolongation of life.”
249. According to the Operational Guidelines, 2017 (“Palliative Care
Operational Guidelines 2017”) issued under the National
Programme for Palliative Care, by the Directorate General of Health
Sciences (DGHS), MoHFW, Government of India, ‘Palliative Care is
Miscellaneous Application No. 2238 of 2025 Page 243 of 286
an approach that improves the quality of life of patients and families
who face life-threatening illness by providing pain and symptom
relief, spiritual and psychosocial support from diagnosis to end of life
and bereavement.” The Palliative Care Operational Guidelines 2017
identify the goals of palliative care as providing relief from pain and
other distressing symptoms, but it does not intend to hasten or
postpone death. The Palliative Care Operational Guidelines 2017
stresses the ethical responsibility of the health system and the
health care professionals respectively, to alleviate pain and
suffering, whether physical, psychological or spiritual, irrespective
of whether the disease or condition can be cured. It states that
palliative care integrates the psychological and spiritual aspects of
patient care and offers a support system to help the patients’
families cope during the patients’ illness and their own bereavement
through spiritual support and bereavement counselling.
250. The position statement by the Indian Society of Critical Care
Medicine and the Indian Association of Palliative Care, published in
February, 2024 (“ISCCM & IAPC Position Statement” ), identifies
that in India, barriers to EOL Care include a lack of attention to the
needs of the dying, reluctance to discuss anticipated death or make
ethically challenging decisions, physician and organizational
concerns over the legality of withdrawal or withholding of a medical
treatment, families’ inability to pay and lack of integration of
palliative care and Intensive Care Units (ICUs).
53 It would be
53
Raj K Mani, Sushma Bhatnagar, et. al., Indian Society of Critical Care Medicine and Indian Association
of Palliative Care Expert Consensus and Position Statements for End-of-life and Palliative Care in the
Intensive Care Unit, published on 29.02.2024, available at: https://www.ijccm.org/doi/pdf/10.5005/jp-
journals-10071-24661, (Last visited on 05.02.2026)
Miscellaneous Application No. 2238 of 2025 Page 244 of 286
incorrect to suggest that palliative care is limited to only ICUs. As
the National Program for Palliative Care under the National Health
Mission of the MoHFW notes that, effective palliative care requires
a broad multidisciplinary approach that includes the family and
makes use of available community resources, and can be provided
in tertiary care facilities, in community health centres and even in
patients’ homes. However, when it comes to implementation of
decisions regarding withdrawal or withholding of a medical
treatment, there should be a palliative care plan in place. As the
ISCCM & IAPC Position Statement notes, a stepwise approach to
the same must be taken depending on the goals of care.
251. We find that the Guidelines for End of Life Care issued by AIIMS,
New Delhi (“AIIMS Guidelines”) in March 2020, can provide some
guidance to doctors in navigating the documentation required
during the palliative and EOL care phase of treatment.
54 The AIIMS
Guidelines provide that there should be a guidance and care plan
for the dying, which should be explained to the patient before
initiation of the EOL care. Moreover, a crucial step in the guidelines
is the continuous assessment of the daily supportive plan. The
continuous assessment of the daily supportive care plan takes into
account the assessment of physical symptoms (such as pain,
agitation, nausea, vomiting, dyspnoea, ability to swallow,
continence, catheterization, consciousness, respiratory tract
secretions, etc. and others). The AIIMS guidelines also provide that
54
All India Institute of Medical Sciences, New Delhi, Guidelines for End of Life Care, Last updated on:
24.02.2021, available at:
https://www.aiims.edu/images/pdf/notice/Final_EOLC%20Final%20AIIMS%20(1).pdf, (last visited on:
05.02.2026)
Miscellaneous Application No. 2238 of 2025 Page 245 of 286
while conducting such EOL care, a team review of the daily
supportive care plan must be undertaken if there is an improvement
in the consciousness level, functional ability, oral intake, mobility,
or ability to perform self-care or if concerns have been expressed
regarding the management plan from either the person, carer or
team. Even otherwise, the AIIMS guidelines mandate that the
supportive care plan must be reviewed daily by a doctor trained in
EOL care. The outcomes of the assessment must also be
documented on a daily basis, along with explanations/comments
where relevant. The last step of the AIIMS guidelines requires
feedback from the doctor, nursing staff, primary caregiver and the
family, in the form of a simple questionnaire on whether the
prognosis was informed, whether the symptoms anticipated in the
last few days/hours were informed, whether the change of goals of
treatment from cure to care were explained and whether it was a
‘good and peaceful death’. We believe these documents provide
necessary guidance on palliative and EOL care, ensuring that the
patient receives medical supervision even at a stage when medical
treatment is to be withdrawn or withheld.
252. One another aspect that we would wish to clarify is that it is legally
permissible for hospitals to admit patients who are currently
undergoing medical treatments at a home setting, but where a ‘best
interest’ assessment of their ongoing medical treatments is sought.
In such circumstances, the medical practitioners and healthcare
institutions ought not to feel constrained or hesitant to admit such
patients, since such admission would, in turn, enable an
institutionalized process to ensure that the decisions relating to the
Miscellaneous Application No. 2238 of 2025 Page 246 of 286
continuation, withholding, or withdrawal of medical treatment are
taken in compliance with the procedural safeguards recognized in
law. Upon the admission of such a patient, the treating physician
is authorised, and indeed expected, to initiate the structured
process of medical evaluation as per the guidelines as laid down in
Common Cause (supra) to determine whether the continuation of
any ongoing medical treatment serves the best interests of the
patient. It would further the goal of ensuring the patient’s right to
dignity and a legitimate re-determination of the goals of medical
treatment, and would allow the patient to receive the relief of
palliative care and EOL care, whenever necessary, in accordance
with the law.
253. In the present matter before us, the primary medical board and the
secondary medical board, in due accordance with the Common
Cause guidelines, have certified that the withdrawal or withholding
of medical treatment is in the best interest of the applicant. For the
implementation of the same, it has to be ensured that there is a
step-by-step withdrawal or withholding of CANH through a clearly
articulated and medically supervised palliative and EOL care plan
that will be directed towards the alleviation of pain and distress,
management of symptoms, and preservation of the applicant’s
dignity. In view of the facts and circumstances of the present
matter, it is necessary that the respondent no. 2/AIIMS grant
admission to the applicant in its Palliative Care department so that
the withdrawal or withholding of the applicant’s medical treatment
can be given effect to. The palliative and EOL care plan must be
robust and specifically tailored to manage symptoms without
Miscellaneous Application No. 2238 of 2025 Page 247 of 286
causing any discomfort to the applicant, ensuring that his dignity
is preserved to the highest degree.
254. Furthermore, we are of the opinion that two other aspects are
required to be addressed at this stage: (i) streamlining of the
Common Cause Guidelines; and (ii) the need for a subject-specific
legislation. These aspects are explained in detail in the following
sections.
(5) STREAMLINING AND CONTEXTUALI SING THE COMMON CAUSE GUIDELINES
255. This litigation presents the first substantive application of the
Common Cause Guidelines. At the same time, it starkly illustrates
the practical complexities, difficulties, and dilemmas encountered
by all stakeholders in their implementation, most acutely by the
patient’s next of kin/next friend/guardian and by treating
physicians or medical practitioners. Even when the threshold
conditions/medical parameters, as more particularly discussed
above, are fulfilled, the initiation of the process contemplated under
the Common Cause Guidelines remains fraught with hesitation and
apprehension amongst doctors. In paragraph 110 of our judgment,
we have already reproduced the procedure envisaged by the
Common Cause Guidelines in a scenario where no AMD exists. To
avoid further repetition, we have concisely illustrated the same
hereinbelow:
Miscellaneous Application No. 2238 of 2025 Page 248 of 286
Miscellaneous Application No. 2238 of 2025 Page 249 of 286
256. A bare reading of Para 199.1 of the Common Cause Guidelines
clearly indicates that the treating physician, upon being satisfied
that the threshold conditions/medical parameters are fulfilled, sets
the process into motion by informing the hospital to constitute the
primary medical board. The treating physician has been entrusted
with this responsibility as he is best positioned to know, assess, and
evaluate the antecedents and present health condition of the
patient at the threshold stage. It is for this reason that the treating
physician is also required to be a member of the primary medical
board along with at least two subject experts of the concerned
speciality, each having a minimum of five years’ experience.
I. Safeguarding Checkpoints that remove any hesitation amongst
doctors
257. The practical difficulties in implementing the Common Cause
Guidelines, more particularly, the potential hesitation of doctor(s)
to initiate and carry forward the process, could not be said to have
escaped the attention of the Constitution Bench in Common Cause
2018 (supra). It is for this reason that they have inserted some
safeguarding checkpoints, which exist at each stage of the
implementation process.
258. At the very first stage, it is required that (i) the pros and cons of
withdrawal or withholding of medical treatment be discussed by the
primary medical board with the patient’s next of kin/next
friend/guardian and that (ii) their consent in writing is obtained
prior to certifying or opposing such withdrawal or withholding.
Miscellaneous Application No. 2238 of 2025 Page 250 of 286
259. At the second stage, in the event of the primary medical board
opposes the withdrawal or withholding of medical treatment, even
after receiving such consent in writing, (i) the nominee of the
patient, or the family member and/or the patient’s next of kin/next
friend/guardian, or treating physician, or the hospital staff would
have the option to approach the High Court under Article 226 of the
Constitution. Conversely, in the event the primary medical board
certifies the withdrawal or withholding of medical treatment after
receiving the written consent of the patient’s next of kin/next
friend/guardian, (ii) the constitution of a secondary medical board
consisting of one registered medical practitioner nominated by the
Chief Medical Officer of the district (hereinafter referred to as
“CMO”) and at least two subject experts of the concerned speciality,
each having a minimum of five years’ experience, is triggered. Here,
it is ensured that no member of the primary medical board forms
part of the secondary medical board. The inclusion of a registered
medical practitioner nominated by the CMO in the secondary
medical board also serves to infuse some neutrality into the
decision-making process.
260. At the third final stage, in the event that the secondary medical
board does not concur with the opinion of the primary medical
board, (i) the patient’s next of kin/next friend/guardian, the
treating physician, or the hospital staff again have the option to
approach the High Court under Article 226 of the Constitution of
India. Where the secondary medical board concurs with the
decision to withdraw or withhold medical treatment, an additional
Miscellaneous Application No. 2238 of 2025 Page 251 of 286
safeguard comes into operation, in the form of a (ii) ‘Reconsideration
period’, which we shall discuss below under a separate heading.
261. In short, all that we are trying to convey is that these safeguards
have been designed keeping in mind the various permutations and
combinations of circumstances that may arise in decisions
concerning withdrawal or withholding of medical treatment.
Doctors must, therefore, not conduct themselves with hesitation,
fear, or dilemma in initiating such a process. Each step and stage
involves sufficient consultation, neutrality and oversight. It is not
just the decision of the treating physician that is individually
crystallised into the final decision. The process is collaborative and
multi-tiered. Therefore, where the medical and factual
circumstances of the patient clearly warrant consideration of
withdrawal or withholding of medical treatment in the patient’s best
interests, the process must commence without any delay.
II. Role of the patient’s next of kin/next friend/guardian
262. As illustrated above, once the primary medical board is constituted,
the patient’s next kin/next friend/guardian remains an integral
part of the envisaged procedure. Upon its constitution, the primary
medical board would have to visit the patient in the presence of the
patient’s next of kin/next friend/guardian. The board would also
have to holistically and comprehensively identify, as far as
practicable, the caregivers of the patient who may be considered as
the patient's next of kin/next friend/guardian. They must apprise
the patient's next of kin/next friend/guardian of the pros and cons
of withdrawal or withholding of medical treatment and record the
Miscellaneous Application No. 2238 of 2025 Page 252 of 286
minutes of their discussion in writing. A crucial step that follows is
the necessity for the primary medical board to obtain the consent of
such patient's next of kin/next friend/guardian before certifying or
opposing the withdrawal or withholding of medical treatment. Thus,
without the consent of the patient's next of kin/next
friend/guardian in writing, the process would come to a stall and
would eventually collapse.
263. The patient's next of kin/next friend/guardian and primary medical
board must also make sure that such consent in writing embodies
the notion of what the patient would have wanted had he possessed
decision-making capacity and not what the patient's next of
kin/next friend/guardian would want in their personal opinion,
motive or conviction. They must ensure that the exercise of
determining what is in the best interest of the patient is done in a
patient-centric manner and not in a parent-centric manner.
264. Obtaining such consent is also critical for the reason that any
further step which is undertaken in pursuance of the procedure
envisaged is not fraught with allegations that the patient's next of
kin/next friend/guardian was not duly consulted. Moreover, it also
prevents the potential derailment of the entire process due to any
undue retraction of consent already given by the patient's next of
kin/next friend/guardian.
III. Bridging the procedural gap for patients who are undertaking
medical treatment in a home-setting
Miscellaneous Application No. 2238 of 2025 Page 253 of 286
265. In a lot of cases such as the present one, there might be patients
who are undertaking prolonged medical treatment in a home -
setting. The guidelines as laid down in Common Cause (supra)
must not be read in a pedantic manner that unreasonably excludes
such patients from taking recourse to the procedure that it has
delineated for the withdrawal or withholding of medical treatment.
However, if some careful attention is paid to the guidelines as laid
down in Common Cause (supra), it can be seen that the duty to
constitute the primary medical board is fastened on the hospital in
which the patient is admitted.
266. Therefore, we clarify that, in such a scenario, the next of kin/next
friend/guardian of the patient who is undertaking medical
treatment predominantly in a home setting would have the option
to admit the patient in any hospital of their choice. It would then be
the mandatory duty of this hospital and the primary treating
physician therein to perform the responsibilities laid down under
the guidelines as laid down in Common Cause (supra). In cases
where it is not feasible for the patient's next of kin/next
friend/guardian to facilitate such an institutionalised admission,
they may choose to approach any hospital for the limited purpose
of designating a primary treating physician, who would then fully
apprise himself of the patient’s medical condition and initiate the
process.
267. In both scenarios, we would strongly urge that the medical
practitioners and the hospitals, respectively, do not hesitate to cater
to the needs of such patients. Any such behaviour would further
Miscellaneous Application No. 2238 of 2025 Page 254 of 286
defeat the very right to die with dignity which Common Cause 2018
(supra) has set out to secure.
IV. Nomination of registered medical practitioner by CMO
268. Para 199.2 of the guidelines provides that in the event the primary
medical board certifies the option of withdrawal or withholding of
further medical treatment, the hospital shall then constitute a
secondary medical board. The details of the composition of the
secondary medical board is given under Para 198.4.5 of the
guidelines, which states that the secondary medical board shall be
comprised of one registered medical practitioner nominated by the
CMO.
269. We have been apprised that this requirement of nomination of a
registered medical practitioner by the CMO infuses extensive delay
in the process of constitution of the secondary medical board owing
directly to the failure of the CMOs of various districts to timely make
such nominations. Expediency is one of the cornerstones of the
procedure envisaged by the guidelines as laid down in Common
Cause (supra) because the absence of same would prolong the
suffering and indignity of the patient, thereby directly infringing the
rights of the patient guaranteed under Article 21 of the Constitution
of India.
270. It is for this reason that this Court, in Common Cause 2023 (supra)
modified the original guidelines by incorporating a requirement that
both the primary medical board and the secondary medical board
Miscellaneous Application No. 2238 of 2025 Page 255 of 286
certify the further course of action, “preferably within a period of 48
hours” from the referral of the case to them. This Court further
envisioned that upon the primary medical board certifying the
withdrawal or withholding of medical treatment, the hospital would
“immediately” proceed to constitute the secondary medical board.
271. We wish to clarify one other aspect. Any interpretation that permits
the hospital to retain discretion over the choice of the CMO -
nominated practitioner would defeat the very object underlying the
introduction of an external and neutral layer of scrutiny, which this
Court had consciously embedded into the decision-making process
governing withdrawal or withholding of medical treatment. This
would strictly imply that the authority to nominate one registered
medical practitioner vests exclusively with the CMO, while the role
of the hospital would be to perform the administrative act of forming
the secondary medical board in accordance with such nomination.
This, however, does not curtail the hospital’s discretion in placing
the remaining members of the seconda ry medical board, as
contemplated under the guidelines as laid down in Common Cause
(supra).
272. Accordingly, we are of the view that the CMOs of all concerned
districts across the country must prepare and maintain a panel
consisting of registered medical practitioners possessing
qualifications in accordance with the guidelines as laid down in
Common Cause (supra), for the purpose of nomination to the
secondary medical board. Upon receipt of a request from a hospital
seeking nomination of one registered medical practitioner for the
Miscellaneous Application No. 2238 of 2025 Page 256 of 286
constitution of the secondary medical board, the CMO also shall,
preferably within a period of 48 hours from the receipt of the
request, nominate one such practitioner from the said panel on a
case to case basis. The panel so prepared must also be periodically
reviewed and updated by the CMO at intervals not exceeding twelve
months, so as to ensure availability, suitability, and continued
compliance with the requirements under the guidelines as laid
down in Common Cause (supra).
V. Reconsideration Period
273. We have already noted that the role of the patient’s next of kin/next
friend/guardian has been given due importance in the envisaged
procedure. A duty is placed upon the primary medical board to also
reasonably ensure that all the caregivers are identified and their
concurrence is secured before it certifies the withdrawal or
withholding of medical treatment. However, we cannot discount the
possibility of any third person claiming to be the patient’s next of
kin/next friend/guardian assailing the legitimacy of the whole
process once it has been completed, alleging that they were not
consulted with. We are cognisant that this would occur in the rarest
of rare occasions.
274. Moreover, there may also arise situations wherein one of the
persons forming the group of the patient’s next of kin/next
friend/guardian revisits their initial consent due to some validly
changed or pressing circumstances. It would not be possible for us
to exhaustively outline what reasons could underlie such a change
Miscellaneous Application No. 2238 of 2025 Page 257 of 286
of stance. However, we are sure that there must be something
cogent that reveals that the retraction of consent is grounded on
what the patient would have wanted for himself and not merely
reflect the altered morals/motivations of the patient’s next of
kin/next friend/guardian. Having said so, some recourse must
exist to address scenarios like these as well. It is keeping such
outliers in mind that that Ashok Bhushan, J., in his opinion,
observed that in cases of incompetent patients who are unable to
take an informed decision, the decision to withdraw or withhold
medical treatment should be taken by competent medical experts
applying the principle of best interest and should be implemented
only after providing a period of 30 days (hereinafter referred to as
the “Reconsideration Period”), so as to enable an aggrieved person
to approach a court of law. The relevant observation is as follows:
“629.9. We are also of the opinion that in cases of
incompetent patients who are unable to take an informed
decision, "the best interests principle" be applied and such
decision be taken by specified competent medical experts
and be implemented after providing a cooling period to
enable aggrieved person to approach the court of law.
xxx xxx xxx
612. Various learned counsel appearing before us have
submitted that seeking declaration from the High Court in
cases where medical treatment is needed to be withdrawn
is time taking and does not advance the object nor is in the
interest of terminally-ill patient. It is submitted that to keep
check on such decisions, the State should constitute
competent authorities consisting of predominantly
experienced medical practitioners whose decision may be
followed by all concerned with a rider that after taking of
decision by competent body a cooling period should be
provided to enable anyone aggrieved from the decision to
Miscellaneous Application No. 2238 of 2025 Page 258 of 286
approach a court of law. We also are of the opinion that in
cases of incompetent patients who are unable to take an
informed decision, it is in the best interests of the patient
that the decision be taken by the competent medical experts
and that such decision be implemented after providing a
cooling period at least of one month to enable aggrieved
person to approach the court of law […]”
(Emphasis Supplied)
275. We resonate with the above view delivered by Ashok Bhushan, J.
However, it must be strictly borne in mind that in such cases, the
aggrieved person shall be sufficiently required to establish his or
her locus. The court must also tread with caution and not be quick
to upend the entire process that has already been culminated,
especially a process wherein due and careful attention to the best
interest of the patient was paid.
VI. Court Intervention
276. The Constitution Bench in Common Cause 2023 (supra) had
modified the guidelines with a view to ensuring minimal judicial
intervention in the process. Under the Common Cause Guidelines,
there are two circumstances in which court intervention has been
envisaged. First, in cases where the primary medical board opposes
the withdrawal or withholding of medical treatment and secondly,
in cases where the secondary medical board does not concur with
the opinion of the primary medical board to withdraw or withhold
medical treatment. In such circumstances, Para 199.4 of the
guidelines provides that the nominee of the patient, the family
Miscellaneous Application No. 2238 of 2025 Page 259 of 286
member, the treating physician, or the hospital staff may approach
the High Court under Article 226 of the Constitution of India.
277. While the provision permitting recourse to the High Court under
Article 226 of the Constitution of India under limited circumstances
has been retained and extended to provide an overarching
safeguard, the guidelines nevertheless envision that, in the ordinary
course, court intervention shall be minimal, and that the process
contemplated under the guidelines be initiated by the treating
physician only and medical boards are to be constituted by the
hospitals only.
278. However, in cases where the treating physician himself or the
hospital, upon receiving information from the treating physician,
fails to initiate the process or constitute the respective medical
boards contemplated under the guidelines (as has happened in the
present case), despite the patient having fulfilled the requisite
threshold conditions/medical parameters, the patient’s next of
kin/next friend/guardian cannot be left remediless. In such
circumstances, the patient’s next of kin/next friend/guardian may
also have the opportunity to approach the High Court under Article
226 of the Constitution of India seeking appropriate directions to be
made to the treating physician and/or the hospital to directly
constitute the primary medical board, who may then act in
accordance with the Common Cause Guidelines.
(6) LEGISLATIVE INACTION AND THE NEED FOR LEGISLATION
Miscellaneous Application No. 2238 of 2025 Page 260 of 286
279. There are moments when legislative inaction speaks more loudly
than legislative action, and the absence of regulation with regard to
the issue at hand presents one such instance. Despite the profound
constitutional, ethical, and medical dimensions involved, the field
continues to remain largely unregulated by legislation in India. Due
to this legislative vacuum, this Court has, from time to time, been
constrained to step in and frame guidelines, not as a matter of
institutional preference, but as a matter of constitutional necessity,
in order to safeguard the sanctity of fundamental rights, more
particularly the right to life with dignity. We underscore that judicial
intervention in this domain has never been intended to supplant
legislative wisdom, but only to operate as a temporary
constitutional bridge until Parliament discharges its role.
280. On more than one occasion, this Court has expressly invited
legislative attention to the issue and urged Parliament to consider
enacting a comprehensive legislation addressing the practice of
euthanasia and/or the withdrawal or withholding of medical
treatment. It is pertinent to mention that although two Law
Commission Reports
55 have examined the subject in depth, and
several private members’ bi lls
56 have been introduced in
Parliament, yet these have not generated sustained legislative
deliberation. It is, therefore, necessary to advert to these efforts, to
55
Law Commission of India, 196
th
Report titled “Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners” submitted in year 2006; Law Commission of
India, 241
st
report titled ‘Passive Euthanasia – A Relook’ submitted in year 2012.
56
Shri Uttam Rao Dhikale, “Introduction of The Euthanasia (Regulation) Bill, 2002” in Lok Sabha
on 21.02.2002; Shri C. K. Chandrappan, “Introduction of The Euthanasia (Permission and
Regulation) Bill, 2007” in Lok Sabha on 24.07.2007; Shri Bhartruhari Mahtab, “Introduction of
The Euthanasia (Regulation) Bill, 2014” in Lok Sabha on 12.12.2014 and reintroduced on
26.07.2019.
Miscellaneous Application No. 2238 of 2025 Page 261 of 286
demonstrate both the extent of engagement already undertaken and
the need for further legislative rigour on the subject.
I. The 196
th Law Commission Report
281. After undertaking an exhaustive survey of comparative
jurisprudence across various countries, the Law Commission had
concluded that a terminally ill patient’s decision to discontinue
medical treatment does not attract criminal liability and that such
withdrawal ought to be permissible when it accords with the
patient’s best interests. Through this 196
th Report, the Law
Commission specifically traced the legislative competence of the
Parliament to enact a law on the subject under Entry 26 of List III
of the Seventh Schedule to the Constitution of India. To facilitate
concrete action, the Law Commission also appended a draft bill to
its report for the consideration of the Union Government.
II. The decision of Aruna Shanbaug
282. Five years later, this Court in Aruna Shanbaug (supra) was
confronted with the same issues and was forced to deal with them
in an acute legislative vacuum. This Court drew guidance from
comparative jurisprudence and foreign legal frameworks and laid
down guidelines permitting the withdrawal or withholding of
medical treatment in cases of patients with terminal illness
undergoing prolonged and futile treatment, causing indignity to the
life of the patient. At the same time, the Court, being conscious of
its limits, expressly clarified that the guidelines framed therein were
Miscellaneous Application No. 2238 of 2025 Page 262 of 286
intended as an interim arrangement to bridge the legislative
vacuum, and not as a substitute for legislation made by Parliament.
The responsibility was ultimately left with the Parliament to exercise
its legislative wisdom and enact a comprehensive statutory
framework.
III. The 241
st Law Commission Report
283. In the wake of the guidelines enunciated by this Court in Aruna
Shanbaug (supra), the Law Commission undertook a relook of the
subject matter. In its 241
st report, the Law Commission, found no
reason to differ from the view taken by this Court or by the earlier
Law Commission Report of 2006. However, a revised bill was
appended to the 241
st Report, incorporating certain variations with
respect to the preparation and composition of the panel of medical
experts. No concrete subsequent action was taken, and the
recommendations mentioned therein failed to be converted into a
tangible statutory framework.
284. Further, a question was put by a member of the Rajya Sabha
seeking information from the MoHFW regarding the steps taken by
the Government pursuant to the guidelines laid down in Aruna
Shanbaug (supra) to enact a comprehensive law on end-of-life care.
In reply to the aforesaid question, the Minister of Health and Family
Welfare stated that since the Constitutional Bench of this Court has
already laid down the guidelines, the same should be followed and
treated as law. The Minister stated that “at present, there is no
Miscellaneous Application No. 2238 of 2025 Page 263 of 286
proposal to enact a legislation on this subject and the judgment of the
Hon’ble Supreme Court is binding on all”.
285. Nevertheless, in 2016, the MoHFW published a draft bill, namely,
the Medical Treatment of Terminally-Ill Patients (Protection of
Patients and Medical Practitioners Bill, 2016, inviting public
comments. However, following the consultative stage, no further
steps were taken. The bill was neither finalised nor introduced for
deliberation before the Parliament.
IV. The decision of Common Cause 2018
286. In Common Cause 2018 (supra), this Court formulated fresh
guidelines on this issue by exercising its powers under Article 142
of the Constitution of India. However, the need to lay down such
guidelines arose solely because there was no law in place. It is in
this context that Dipak Misra, CJ., clarified that the Court was not
seeking to supplant the legislature, but was merely enabling the
exercise of the recognised rights until legislation regarding the same
was enacted. Further, in his concluding remarks, A.K. Sikri, J.,
expressed a “pious hope” that the legislature would intervene and
enact an appropriate law to establish a coherent and comprehensive
regulatory framework governing the subject.
287. In our view, this “pious hope” has now become an imminent
necessity as nearly eight years have passed since the decision of
this Court in Common Cause 2018 (supra), yet the legislative void
remains.
Miscellaneous Application No. 2238 of 2025 Page 264 of 286
V. Draft Guidelines of 2024
288. Post Common Cause 2023 (supra), the Directorate General of
Health Services, MoHFW, released Draft Guidelines (namely
Guidelines for Withdrawal of Life Support in Terminally Ill Patients,
2024) for public consultation in June 2024. However, no fruitful
conclusion has been reached to date, even on these guidelines.
289. It must be emphasised that the cumulative effect of prolonged
legislative inaction is leaving citizens, particularly those situated at
the most vulnerable threshold of life, exposed to serious and
systemic risk. In the absence of a clear and comprehensive
legislation, end-of-life decisions stand imperilled by the possibility
that considerations wholly extraneous to medical science or the
patient’s autonomy, most notably financial distress, lack of
insurance coverage, or socio-economic vulnerability, may
imperceptibly shape outcomes. Such a vacuum creates the danger
that decisions ostensibly grounded in compassion or clinical futility
may, in reality, be driven by the inability of families to sustain
prolonged and expensive medical intervention, thereby blurring the
line between a genuine best-interest determination and an act
compelled by economic exhaustion.
290. It is required to be understood that guidelines framed by
constitutional courts are intended only to bridge a temporary
legislative vacuum arising out of imminent necessity. They are not
designed to operate as a permanent substitute for legislative
Miscellaneous Application No. 2238 of 2025 Page 265 of 286
enactment. It must be reiterated that the directions issued by this
Court were never envisaged as a self-contained or exhaustive code.
The responsibility for enacting a comprehensive, coherent, and
enduring statutory framework continues to rest exclusively within
Parliament's legislative domain. It must be emphasised that any
guidelines this Court formulates are bound to be limited in their
scope and efficacy. A legislative exercise is inherently more robust
as it necessarily involves the engagement of a mu ltitude of
stakeholders from various fields, allowing for a broader range of
issues to be considered, anticipated, and thereby addressed.
291. Therefore, we urge the Union Government to consider enacting a
comprehensive legislation on the subject in line with the vision of
the Bench in Common Cause (supra). Such legislation would
provide clarity, coherence, and certainty in matters that are deeply
practical and emotionally sensitive.
(G). CONCLUSION
I. Summary of our discussion
292. A conspectus of our entire discussion is as follows:
(a) Understanding Common Cause 2018
293. The Constitution Bench in Common Cause 2018 (supra)
characterised active euthanasia as a positive overt act, such as the
administration of a lethal injection, designed to directly cause or
Miscellaneous Application No. 2238 of 2025 Page 266 of 286
accelerate death. In contrast, passive euthanasia was defined by the
absence of such an act, primarily encompassing the withdrawal or
withholding of medical treatment(s) that serve to sustain life.
However, reliance cannot be placed solely on the binary of ‘acts’ and
‘omissions’ to distinguish the two.
(a) A more robust distinction between active and passive
euthanasia lies in the source of the harm. Active euthanasia
introduces a new, external agency of harm that disrupts the
natural trajectory of life, effectively “causing death”. Passive
euthanasia, on the other hand, merely involves the withdrawal
or withholding of medical treatment that sustained life and
thus, can be effectively characterised as “allowing death to
occur” on account of the underlying fatal condition and
permitting the trajectory of life to resume its natural course.
(b) When viewed through this broader lens of “causing death”
versus “allowing death to occur”, the role of acts and omissions
becomes more intelligible. While the physical mechanics of
withdrawing life support may technically involve an ‘act’, its
legal and substantive effect is that of an omission, i.e., an
omission to treat. Thus, even when a p hysical action is
required to stop a machine, the essence of the conduct remains
an omission to continue life-prolonging measures.
294. This Court in Common Cause 2018 (supra) unequivocally held that
the withdrawing or withholding of medical treatment is
constitutionally permissible under Article 21 of the Constitution of
Miscellaneous Application No. 2238 of 2025 Page 267 of 286
India, provided it is exercised in the best interests of the patient.
The rationale of this Court in arriving at this conclusion can be
summarised as follows:
(a) The fundamental right to live with dignity envisages and
encompasses dignity until death, including a dignified dying
process. Consequently, the right to live with dignity under
Article 21 includes a right to die with dignity. This Court
reasoned that the withdrawal or withholding of medical
treatment merely allows the natural path of life to run its
inevitable course and therefore cannot be termed as the
extinguishment of life or an unnatural termination of life.
Consequently, the same was held not to fall foul of Article 21.
(b) For competent patients, this permissibility is clearly rooted in
the common law and constitutional right to refuse medical
treatment. This refusal is a manifestation of dignity
intersecting with privacy, autonomy, and self-determination.
Crucially, for a competent individual, this right to refuse
medical treatment is unencumbered, i.e., they possess the
absolute authority to reject treatment when it is the outcome
of informed decision-making. This choice requires no
justification to the State and is not subject to the supervisory
control of any outside entity.
(c) This Court recognised that the withdrawal or withholding of
medical treatment is equally permissible for incompetent
patients, though the legal basis may slightly shift. Here, it is
Miscellaneous Application No. 2238 of 2025 Page 268 of 286
rooted on the standalone basis of dignity and also dignity
viewed through the lens of bodily integrity. Subjecting a patient
to treatment that is futile, which only artificially prolongs the
dying process and the accompanying pain, is an affront to their
dignity and bodily integrity. Consent to treatment cannot be
presumed to continue forever when the intervention yields no
result. However, unlike the unencumbered right of competent
patients to refuse treatment, this exercise for incompetent
patients is conditional and can only occur when specific
threshold conditions/medical parameters, as discussed above,
are met.
(d) Withdrawal or withholding of medical treatment, when carried
out in the patient's best interests, does not constitute a breach
of the doctor's duty of care. The medical duty to care does not
include an obligation to continue treatment ad infinitum. In
fact, when the best interests of the patient dictate such
withdrawal or withholding, such action is taken in furtherance
and is a manifestation of the doctor’s duty of care.
295. Further, this Court in Common Cause 2018 (supra) held that since
active euthanasia involves a positive act designed to extinguish life,
it falls foul of Article 21 of the Constitution of India, which prohibits
deprivation of life except according to a procedure established by
law. Consequently, in the absence of an explicit legislative
enactment authorising such an act, active euthanasia remains a
penal offence under our existing laws. This Court has firmly held
Miscellaneous Application No. 2238 of 2025 Page 269 of 286
that the prerogative to validate such a practice lies exclusively with
the Parliament.
296. This Court in Common Cause 2018 (supra) held that AMDs are
legally valid documents. AMDs serve as instruments that enable
individuals to exercise the right to self-determination and autonomy
even when they have lost the capacity to communicate. However,
this Court was conscious of the potential for abuse and thus,
restricted the enforcement of AMDs to strictly those scenarios in
which the specific threshold conditions/medical parameters were
met and in accordance with the procedural safeguards laid down
therein.
297. In giving effect to the recognition of the right to die with dignity, this
Court also laid down a detailed procedure which is to be followed
for the withdrawal or withholding of medical treatment for
incompetent patients, both in scenarios where an AMD exists and
where it is absent.
298. On a cumulative reading of Common Cause 2018 (supra), any
decision to withdraw or withhold medical treatment must withstand
scrutiny on two primary grounds: first, the intervention in question
must qualify as “medical treatment”, and second, its withdrawal
must strictly be in the patient's “best interests”. Consequently, the
inquiry in the present matter also broadly revolved around two
inquiries: (i) whether the CANH being administered to the applicant
can be termed as ‘medical treatment’; and (ii) whether withdrawing
or withholding of such medical treatment would be in the
applicant’s best interest.
Miscellaneous Application No. 2238 of 2025 Page 270 of 286
(b) CANH is a medical treatment
299. In the present matter before us, the applicant has sustained non-
progressive, irreversible brain damage having suffered severe
traumatic brain injury with diffuse axonal injury at the time of the
fateful incident. Following his discharge from the hospital in the
immediate aftermath of the incident, his fragile health condition
necessitated frequent hospital admissions for the treatment of his
head injury, seizures, pneumonia and bedsores. However, his
medical condition has been such that it did not warrant continuous
hospitalisation all the time and, therefore, he has largely been cared
for at home, albeit with a tracheostomy tube, urinary catheter, and
PEG tube in situ. He retains intact brainstem function and breathes
spontaneously with the tracheostomy tube in place. Nonetheless,
due to his PVS condition, his survival is dependent upon the
continued administration of CANH. Since the applicant is being
sustained through the provision of CANH, through a PEG tube, it is
only in the event that CANH is recognised as a medical treatment,
as opposed to being regarded as basic primary care , that the
withdrawal or withholding of such treatment would be permissible
and amenable to the same principles governing the withdrawal or
withholding of any other form of medical treatment.
300. The prescription and administration of CANH involves careful
consideration of a multitude of clinical factors, ranging from
installation of the CANH device (placed surgically or otherwise),
precise assessment of the patient’s nutritional requirements, the
Miscellaneous Application No. 2238 of 2025 Page 271 of 286
underlying clinical condition of the patient, gastrointestinal
tolerance, potential metabolic instability, assessment of the
anticipated duration of CANH support, and the potential risks of
complications that are associated with CANH such as the risk of
aspiration pneumonia, peritonitis, wound/stoma site infection.
Administration of CANH also requires a periodic medical review of
its indications, route of administration, risks, benefits and
therapeutic goals.
301. The clinical and procedural characteristics of CANH, therefore,
indicate, without an iota of doubt, that CANH cannot be regarded
as a mere means of basic sustenance or primary care, but should
be recognised as a technologically mediated medical intervention
that is prescribed, supervised and periodically reviewed by trained
healthcare professionals in accordance with established medical
standards.
302. When comparing CANH with normal feeding, it is incorrect to direct
exclusive attention to the fact that nourishment is being provided.
Rather, regard should be had for the whole regime of artificial
feeding, which involves the use of catheters and enemas and the
constant combating of potentially deadly infection(s).
303. Merely because routine feeding in the form of CANH can be
administered at home, by an informed lay person, it cannot be
relegated to a non-medical status. CANH, even when administered
at home, remains a medical procedure because such administration
of nutrition and hydration must necessarily be performed under
regular medical and nursing supervision, involving skills and
Miscellaneous Application No. 2238 of 2025 Page 272 of 286
protocols which the lay person would need to specifically obtain by
drawing upon medical knowledge.
304. In the present matter before us, the applicant is sustained through
the CANH in medically prescribed quantities of certain prescribed
feed, via a surgically installed PEG tube. The continuation of such
CANH requires an ongoing clinical decision -making process,
through routine medical supervision, periodic evaluation, and
emergency medical management in case of infection or dislodgment
of the CANH device. Consequently, it is beyond question that
administration of CANH in this case is to be considered as medical
treatment. Further, as we have already explained hereinabove, the
fact that the applicant is administered CANH at home does not
displace the status of such CANH as being considered as a medical
treatment.
305. Therefore, in line with our considered view that CANH constitutes
medical treatment, it is permissible for the primary medical board
and secondary medical board to exercise their clinical judgment
with regard to the continuation or withdrawal or withholding of the
CANH, like any other form of medical treatment, in accordance with
the guidelines as laid down in Common Cause (supra).
(c) Best Interest Principle
306. In addition to the above, it is also abundantly clear that decisions
concerning the withdrawal or withholding of medical treatment, in
cases of incompetent patients, are required to be taken in
accordance with the best interest principle. We have endeavoured
Miscellaneous Application No. 2238 of 2025 Page 273 of 286
to explain when the “best interest of the patient” principle comes into
application; who applies it; why it is applied; and what the contours
of the best interest principle are. We have attempted to answer these
questions by undertaking an exhaustive examination of (i) a series
of decisions across various jurisdictions, (ii) the deliberations of the
Law Commission under its 196
th and 241
st Reports, and (iii) the
concurring opinions of the Constitution Bench of this Court in
Common Cause 2018 (supra). Our analysis addresses the above
four questions in the following manner:
When does the best interest of the patient principle come into play?
307. The best interest principle comes into play when the withdrawal or
withholding of medical treatment is contemplated for an
incompetent patient who is unable to make an informed decision
for himself.
Who applies the best interest principle?
308. During the entire process as envisaged under the guidelines as laid
down in Common Cause (supra), there is a need to adhere to the
best interest principle at every stage while determining whether
withdrawal or withholding of medical treatment must be
undertaken, by all stakeholders and decision-makers, including the
medical boards, the patient’s next of kin/next friend/guardian, and
the courts (if involved).
Why is the best interest of the patient principle applied?
309. The answer to this question lies somewhere between the realms of
a doctor’s continuing duty to provide treatment and the lawful
Miscellaneous Application No. 2238 of 2025 Page 274 of 286
discharge of that duty, once the threshold conditions/medical
parameters under the guidelines as laid down in Common Cause
(supra) are satisfied. In this context, a doctor’s duty to continue
treatment to a patient obliges until such treatment is capable of
conferring some therapeutic benefit upon the patient. However,
where the patient is diagnosed with a terminal illness or is in PVS,
with no hope of recovery, and the continuation of treatment merely
prolongs his biological existence without any therapeutic benefit,
that duty no longer mandates continuing with the medical
treatment. In determining whether or not such a stage has been
reached, the best interests principle is to be applied.
What are the contours of the best interest principle?
310. Our analysis shows that the correct inquiry is not whether it is in
the best interests of the patient that he should die, but rather
whether it is in the best interests of the patient that his life should
be prolonged by the continuance of such form s of medical
treatment.
311. While answering this inquiry, the best interest principle cannot be
construed as a narrow, rigid, formulaic and straight-jacketed single
test. A true and holistic application of this principle would require
the evaluation of all relevant circumstances and considerations,
both medical and non-medical.
312. Further, at an initial and foundational level, the best interest of any
patient would be anchored upon a strong presumption in favour of
preserving his life. However, this presumption is not absolute, and
Miscellaneous Application No. 2238 of 2025 Page 275 of 286
the same may be displaced where both medical and non -medical
considerations warrant the discontinuation of a particular medical
treatment.
313. The medical considerations may entail a determination of whether
a particular treatment has ceased to serve any therapeutic purpose,
i.e., becomes futile, merely prolongs the suffering without the hope
of recovery or causes indignity to the life of the patient.
314. The non-medical considerations may entail a determination of what
the patient would have wanted for himself had he possessed the
decision making capacity. In this context, decision-makers must try
to put themselves in the place of the individual patient and ask what
his wishes and attitude to the treatment are or would be likely to
be. They must not factor in their own wishes, feelings, beliefs,
values etc.; and they must consult others who are looking after him
or are interested in his well-being, in particular for their view of
what the patient would have wanted. It is to be borne in mind that
this does not entail the application of the caregiver’s standard which
is centred on what a reasonable person would do in such
circumstances. Rather, it involves the application of the substituted
judgment standard wherein the determination is based upon what
decision the patient himself would have made had he possessed the
competence to do so.
315. The best interests principle must incorporate a strong element of
the non-medical considerations under the substituted judgment
standard as aforesaid, requiring the decision-maker to consider, in
Miscellaneous Application No. 2238 of 2025 Page 276 of 286
a patient-centric manner, what that patient would have wanted if
he possessed the requisite capacity. However, this substituted
judgment standard would not operate autonomous ly or in an
overriding manner. The ultimate governing test or question would,
nevertheless, be - what course of action serves the patient’s best
interest.
316. Lastly, after ascertaining both medical and non -medical
considerations, the decision-makers must draw a balance sheet
which would involve weighing the potential benefits of continued
treatment against its burdens. The decision-makers must make
entries of medical and non-medical considerations on such a
balance sheet.
317. In facts of the present case, the patient’s next of kin/next
friend/guardian, the primary medical board and the secondary
medical board respectively, after considering the medical as well as
non-medical considerations, have reached the opinion that the
CANH being administered to the applicant, should be discontinued
as the continuation of the same is not in his best interests. In the
given circumstances, they are of the view that nature should be
allowed to take its own course.
318. In the present matter, the decision to withdraw or withhold medical
treatment of the applicant could have been put into effect
automatically upon the submission of the secondary medical
board’s opinion, since it was in concurrence with the primary
medical board’s opinion. Both the primary medical board and the
Miscellaneous Application No. 2238 of 2025 Page 277 of 286
secondary medical board have unequivocally certified that the
withdrawal of CANH from the applicant would be in his best
interest. In other words, we would like to reiterate that if both the
primary medical board and secondary medical board certify the
withdrawal or withholding of medical treatment, there is no further
requirement for Court intervention. However, given that this is the
first case that has reached this Court wherein the Common Cause
Guidelines are being applied in their full measure, we deemed it
necessary to further delve and expound on issues relating to the
legal framework surrounding the withdrawal and withholding of
medical treatment.
(d) Palliative and EOL Care
319. Once a decision to withdraw or withhold medical treatment is taken
in accordance with the guidelines as laid down in Common Cause
(supra), its implementation must be humane and reflective of a
responsible and sensitive discharge of the doctor’s continuing duty
of care towards the patient. The withdrawal or withholding of
treatment must not, in effect or execution, result in the
abandonment of the patient. Rather, it must signify a transition
from curative intervention to a carefully structured and medically
supervised palliative and EOL care plan, directed towards the
alleviation of pain and distress, management of symptoms, and
preservation of the patient’s dignity. The palliative and EOL care
plan must ensure that a decision taken in the patient’s best
interests is translated into clinical practice in a manner that
minimises suffering and upholds dignity.
Miscellaneous Application No. 2238 of 2025 Page 278 of 286
320. In this regard, we strongly disapprove of the routine practice of
“discharge against medical advice” (also known as “leaving against
medical advice” or “discharge at own risk”) which is misused in
situations where medical treatment stands discontinued. Resorting
to such a course of action in substitution of a structured palliative
and end-of-life care plan, risks amounting to an abdication of
medical responsibility and undermines the very rationale of
treatment limitation, which is founded upon the patient’s best
interests. The choice to withdraw or withhold treatment does not
entail a forfeiture of the patient’s right to medically supervised care.
321. We deem it necessary to further clarify that it is legally permissible
for hospitals to admit patients who are undergoing treatment in
home settings, where a reassessment of the patient’s best interests
is sought. Healthcare institutions and practitioners ought not to
hesitate in admitting such patients, as institutional admission
facilitates compliance with the procedural safeguards recognised in
law. Upon admission, the treating physician is authorised to initiate
the structured evaluative process to dete rmine whether the
continuation, withholding, or withdrawal of treatment serves the
patient’s best interests. Such an approach furthers the patient’s
right to dignity, enables a legitimate re-determination of treatment
goals, and ensures access to appropriate palliative and end-of-life
care, in accordance with law.
(e) Streamlining of the Common Cause Guidelines
Miscellaneous Application No. 2238 of 2025 Page 279 of 286
322. Further, in view of the practical uncertainty, difficulties, and
dilemmas faced by all stakeholders, we have endeavoured to explain
and streamline the Common Cause Guidelines so that the
constitutional principles recognised by this Court in Common
Cause 2018 (supra) are translated into a workable, humane, and
practically secure process. In essence, we have clarified that:
(i) The Constitution Bench consciously embedded multiple
safeguarding checkpoints in the Guidelines to address the
hesitation and apprehension amongst doctors in initiating the
envisaged process;
(ii) The role of the patient’s next of kin/next friend/guardian
remains integral, as their written consent embodies, as far as
possible, the patient’s own wishes had he possessed decision-
making capacity, without which consent the process may be
stalled;
(iii) Where medical care is predominantly provided at home, the
patient’s next of kin/next friend/guardian may admit the
patient to a hospital of their choice, or alternatively approach a
hospital for the limited purpose of designating a primary
treating physician, who shall thereafter initiate the process in
accordance with the Common Cause Guidelines;
(iv) To prevent administrative delays in constituting the secondary
medical board, CMOs of all concerned districts would be
required to maintain a panel of qualified registered medical
practitioners and nominate one, preferably within 48 hours of
a hospital’s request, on a case to case basis;
Miscellaneous Application No. 2238 of 2025 Page 280 of 286
(v) Where the treating physician or hospital fails to commence the
process despite satisfaction of the threshold
conditions/medical parameters, the patient’s next of kin/next
friend/guardian may seek appropriate directions from the High
Court under Article 226 of the Constitution of India; and
(vi) Once both the medical boards have concurred in their decision
to withdraw or withhold medical treatment, such decision shall
be implemented only after a reconsideration period of 30 days,
during which an aggrieved person may approach the
appropriate court of law, subject to establishing locus, for the
purpose of challenging the concurring opinions of the medical
boards. It is to be borne in mind that courts must exercise
restraint and due caution in unsettling the process that has
already culminated after a due and careful consideration of the
patient’s best interests.
(f) Need for a comprehensive statutory framework
323. The prolonged absence of a comprehensive legislation on end-of-life
care has compelled this Court, time and again, to step in to fill the
vacuum, out of constitutional necessity rather than institutional
choice. While the guidelines as laid down in Common Cause (supra)
have served as an important interim safeguard to protect the right
to live and die with dignity, they were never intended to operate as
a permanent substitute for legislation. Therefore, we urge the Union
Government to consider enacting a comprehensive legislation on
the subject in consonance with the vision of the Constitution Bench
in Common Cause 2018 (supra). Such a legislation would provide
Miscellaneous Application No. 2238 of 2025 Page 281 of 286
more clarity, coherence, and certainty to these pertinent, practical
and emotionally charged issues.
II. The Final Order
324. In the facts and circumstances of the present case, we record our
satisfaction that the twin legal requirements for the withdrawal and
withholding of medical treatment have been unequivocally met.
First, it is established that the CANH currently being administered
to the applicant constitutes “medical treatment”. Secondly, it has
been conclusively determined that the continued administration of
the same is no longer in the “best interests” of the applicant. In light
of the unanimous consensus arrived at by the parents/next of kin
and the constituted medical boards respectively, we are of the
opinion that the medical treatment ought not to be prolonged any
further.
325. The right to die with dignity is inseparable from the right to receive
quality palliative and EOL care. It is imperative to ensure that the
withdrawal process is not marred by pain, agony, or suffering.
Therefore, we deem it necessary to issue certain directions to the
respondent no. 2/AIIMS as regards the further steps to be
undertaken for giving effect to the withdrawal or withholding of the
applicant’s medical treatment.
326. Further, as discussed above, the nomination of a registered medical
practitioner by the CMO may also cause administrative delays in
the process of constitution of the secondary medical board, largely
Miscellaneous Application No. 2238 of 2025 Page 282 of 286
owing to the failure of the CMOs to make such nominations in a
timely manner. Therefore, we are also of the opinion that certain
directions are required to be made to the CMOs of all concerned
districts across the country for the purpose of maintaining a panel
of registered medical practitioners.
327. For the reasons stated hereinabove and in the concurring opinion,
we hereby dispose of the present MA with the following directions:
(a) The medical treatment, including CANH, being administered to
the applicant shall be withdrawn and/or withheld.
(b) In the peculiar facts and circumstances of the present matter,
the reconsideration period of 30 days stands waived, as all
stakeholders are unanimous in their opinion that the medical
treatment being administered to the applicant be withdrawn
and/or withheld.
(c) The respondent no. 2/AIIMS shall grant admission to the
applicant in its Palliative Care department so that the
withdrawal and/or withholding of the applicant’s medical
treatment, including CANH, can be given effect to. For this
purpose, respondent no. 2/AIIMS shall provide all necessary
facilities for shifting the applicant from his residence to the said
Palliative Care department.
(d) The respondent no. 2/AIIMS shall ensure that such withdrawal
and/or withholding is carried out through a robust palliative
Miscellaneous Application No. 2238 of 2025 Page 283 of 286
and EOL care plan, which is specifically tailored to manage
symptoms without causing any discomfort to the applicant,
and ensuring that his dignity is preserved to the highest degree.
(e) The High Courts of all States shall issue appropriate directions
to all Judicial Magistrates of First Class (JMFC) within their
jurisdiction to receive intimation from the hospital, in
accordance with the guidelines as laid down in Common Cause
(supra), in the event the primary medical board and secondary
medical board are unanimous in their decision to withdraw
and/or withhold the medical treatment of any patient.
(f) The respondent no.1/Union of India in coordination with the
respective Secretaries of Health & Family Welfare of all
States/UTs, shall ensure that the CMOs of all concerned
districts across the country, forthwith prepare and maintain a
panel consisting of registered medical practitioners possessing
qualifications in accordance with the guidelines as laid down
in Common Cause (supra), for the purpose of nomination to
the secondary medical board. The panel so prepared shall be
periodically reviewed and updated by the CMOs at regular
intervals not exceeding twelve months, so as to ensure
availability, suitability, and continued compliance with the
requirements under the guidelines as laid down in Common
Cause (supra). It shall be the duty of the Secretaries of Health
& Family Welfare of each State/UT to make sure that such
periodic review and updation at regular intervals is undertaken
Miscellaneous Application No. 2238 of 2025 Page 284 of 286
by the CMOs of all districts falling within their respective
State/UT.
328. The Registry shall notify this matter once again before this very
bench after a period of 1 month for the purpose of reporting
compliance with the directions (a) to (e) as above-mentioned.
329. For the purpose of reporting compliance with direction (f) as above-
mentioned, the Registry shall notify this matter once again before
this very bench sometime in August 2026.
330. Throughout the adjudication of this matter, we have been gripped
by profound sadness. The issues in this matter have once again
brought to the fore the fragility and transient nature of the life we
live, and how swiftly the tide can turn for the worse. For the past
thirteen years, the applicant has lived a life defined by pain and
suffering. A suffering made all the more cruel by the fact that, unlike
most of us, he was stripped of the ability to even give voice to his
anguish. However, while this case highlights how unforgiving life
can be, it is easy to lose sight of another vital fact. We note with
immense respect that the applicant’s parents and siblings have
stood as unyielding pillars of support. They have exhausted every
effort to care for him and continue to do so with unwavering
dedication. We can only place on record our deepest appreciation
for their boundless love, endurance, and kindness in the face of
such adversity.
Miscellaneous Application No. 2238 of 2025 Page 285 of 286
331. Among the manifold truths about human existence that this case
reveals, the most enduring is the resilience of love. In our
considered opinion, the greatest tragedy in life is not death, but
abandonment. Despite the catastrophic tragedy that struck the
applicant, his family never left his side. He has been cared for,
protected, and cherished at every moment. To us, this unwavering
vigil is a testament to the true meaning of love. To love someone is
to care for them not just in times of joy, but in their saddest and
darkest hours. It is to care for them even when the horizon is devoid
of hope. It is to stand by them as they prepare to cross the threshold
into the beyond. Ultimately, to love is nothing but to care deeply,
softly, and endlessly.
332. Our decision today does not neatly fit within logic and reason alone.
It sits in a space between love, loss, medicine and mercy. This
decision is not about choosing death, but is rather one of not
artificially prolonging life. It is the decision to withdraw life-
sustaining treatment when that treatment no longer heals, restores,
or meaningfully improves life. It is allowing nature to take its course
when medicine can only delay the inevitable because survival is not
always the same as living.
333. To Harish’s family, we want to acknowledge the deep emotional
weight this decision carries. This decision can feel like an act of
surrender, but we believe it is, in truth, an act of profound
compassion and courage. You are not giving up on your son. You
are allowing him to leave with dignity. It reflects the depth of your
selfless love and devotion towards him.
Miscellaneous Application No. 2238 of 2025 Page 286 of 286
334. We direct the Registry to send one copy each of our judgments to
all the High Courts.
....................................... J.
(J.B. Pardiwala)
....................................... J.
(K.V. Viswanathan)
New Delhi;
11
th March, 2026.
Page 1 of 51
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 2238 of 2025
IN
SPECIAL LEAVE PETITION (C) NO. 18225 of 2024
Harish Rana … Petitioner/
Applicant
Versus
Union of India & Ors. … Respondents
J U D G M E N T
K. V. Viswanathan, J.
BRIEF FACTS ................................................ 3
WRIT PETITION BEFORE THE HIGH COURT ....... 6
PROCEEDINGS BEFORE THIS COURT ON SPECIAL
LEAVE ......................................................... 7
EVENTS SUBSEQUENT TO THIS COURT’S ORDER
OF 08.11.2024 ............................................... 9
SALIENT FEATURES OF COMMON CAUSE (2018) 5
SCC 1 ........................................................ 13
Page 2 of 51
CONSTITUENTS OF THE PRIMARY MEDICAL
BOARD AND SECONDARY MEDICAL BOARD ...... 14
CONSTITUTION OF THE PRIMARY AND
SECONDARY MEDICAL BOARD ....................... 17
QUESTION FOR CONSIDERATION ................... 24
ANALYSIS AND CONCLUSION ......................... 26
DIFFERENCE BETWEEN “ACTIVE AND PASSIVE
EUTHANASIA” ............................................. 26
ADVANCE DIRECTIVE AND CASES WITH NO
ADVANCE DIRECTIVE ................................... 29
ESSENTIAL PREREQUISITES FOR CONSTITUION
OF THE PRIMARY MEDICAL BOARD AND
CONSEQUENTLY THE SECONDARY MEDICAL
BOARD ....................................................... 30
CLINICALLY ASSISTED NUTRITION AND
HYDRATION (CANH) – DOES IT QUALIFY AS
MEDICAL TREATMENT? ................................ 35
BEST INTEREST OF THE PATIENT - SCOPE ........ 38
APPLICATION TO THE FACTS OF THE PRESENT
CASE .......................................................... 46
CONCLUSION .............................................. 49
POSTSCRIPT ............................................... 50
Page 3 of 51
“The best interest of the patient is the only interest to
be considered.” Dr. William J.Mayo
1. I have had the benefit of reading the erudite judgment
of my esteemed Brother J.B. Pardiwala, J. While concurring
with the said judgment, considering the importance of the
issue involved, I am penning my thoughts and views
independently.
BRIEF FACTS: -
2. A and N, deponents to this Application are parents of the
petitioner-Harish Rana (‘Harish’ for short). Harish was
pursuing his B.Tech from Punjab University when he,
unfortunately, fell down from the fourth floor of his paying
guest accommodation on 20.08.2013. He is in a permanent
vegetative state and has been suffering from quadriplegia for
the last more than 12 years. In these proceedings, primarily
the relief prayed for, as set out in the application read with
the written submissions, is as follows: -
“It is respectfully prayed that in view of the settled legal
position laid down by this Hon'ble Court in Common
Cause v. Union of India (2018) as modified in 2023, the
Page 4 of 51
unanimous medical opinion of both the Primary and
Secondary Medical Boards confirming the Petitioner's
irreversible permanent vegetative state, the absence of
any benefit from the continued provision of clinically
assisted nutrition and hydration, and the considered,
consistent and voluntary wishes of the Petitioner's parents
and siblings acting in his best interest, this Hon’ble Court
may be pleased to permit the withdrawal of clinically
assisted nutrition and hydration to the Petitioner, in
accordance with an appropriate palliative care protocol
and under medical supervision at the Institute of Human
Behaviour and Allied Sciences (IHBAS), New Delhi, (Govt.
of NCT of Delhi).”
Certain other reliefs consequential to the direction in
Common Cause vs. Union of India
1 have also been sought.
3. After the unfortunate fall, Harish was treated at the
Postgraduate Institute of Medical Education and Research,
Chandigarh, from 21
st
to 27
th
August, 2013, where he was
managed conservatively, provided respiratory support and
underwent a tracheostomy (a surgically created hole through
the front of the neck and into the windpipe, through which a
tube is placed to provide a direct airway to the windpipe).
He was advised feeding through a Ryle’s tube (nasogastric
tube). Later, he received treatment at the Jai Prakash
1
(2023) 14 SCC 131
Page 5 of 51
Narayan Trauma Centre at the All India Institute of Medical
Sciences, New Delhi, as well as at the Dr. Ram Manohar Lohia
Hospital, New Delhi and Safdarjung Hospital, New Delhi
between 2014 and 2017. For better nutrition, a Percutaneous
Endoscopic Gastrostomy tube (for short the “PEG tube”) was
also inserted.
4. It is undisputed that the petitioner suffered diffuse
axonal injury resulting in quadriplegia and is in a permanent
vegetative state with 100% permanent disability with
complete sensorimotor dysfunction. The Application states
that Harish’s condition is irreversible and incurable.
5. Harish has been entirely bedridden for the past over 12
years and has undergone numerous hospitalizations
including the last one being in May, 2025. He is unable to
carry out any bodily functions on his own, is catheterized and
diapered.
6. Harish is artificially fed through a PEG tube, which is
being replaced at a hospital every two months. He suffers
from bedsores which bleed occasionally. Harish’s hands
Page 6 of 51
make reflexive thrashing movements and, hence, his hands
have to be bound so that the PEG tube is not involuntarily
removed. He receives multiple medications, including anti-
seizure drugs, on a regular basis. Harish has no awareness
of his surroundings.
WRIT PETITION BEFORE THE HIGH COURT : -
7. On 03.04.2024, on behalf of Harish, a Writ Petition was
filed before the High Court of Delhi, in substance, seeking a
direction to constitute a Medical Board to examine whether
life support/life-sustaining treatment in the form of PEG tube
could be withdrawn. The prayer was based on the judgment
of Common Cause (supra), as modified by the judgment of
this Court dated 24.01.2023 in Miscellaneous Application
No.1699 of 2019 in W.P (C) No. 215 of 2005.
8. On 02.07.2024, a learned Single Judge of the High Court
declined to refer Harish to the Medical Board holding that the
petitioner is not being kept alive mechanically and is able to
sustain himself without any extra external aid. The High
Page 7 of 51
Court held that active euthanasia was legally impermissible
and as such the High Court observed that no directions could
be given.
PROCEEDINGS BEFORE THIS COURT ON SPECIAL
LEAVE: -
9. Aggrieved, a Special Leave Petition was filed before this
Court. At that stage, this Court, by an order of 20.08.2024,
requested the Union of India to explore alternative solutions
to provide adequate care to the petitioner. A Status Report
was filed. Taking on record the Status Report, this Court
disposed of the Special Leave Petition on 08.11.2024 in the
following terms:-
“1. A petition under Article 226 of the Constitution was
instituted before the Delhi High Court seeking a direction
to constitute a Medical Board to examine the health
condition of the petitioner who is in a permanent
vegetative state and to facilitate the administration of
passive euthanasia. The petitioner is stated to suffer from
100% disability with Quadriplegia.
2. On 20 August 2024, while issuing notice to the Union of
India, this Court had requested Ms Aishwarya Bhati,
Additional Solicitor General to explore alternative
solutions for providing adequate care to the petitioner.
Page 8 of 51
3. A status report has been submitted before this Court by
the Under Secretary to the Government of India in the
Ministry of Health and Family Welfare. Anneuxre R-3 of
the status report contains a report of the Central
Government in the matter. The solutions which have been
provided in the report are in the following terms:
“Consequent upon all the efforts made by the Central
Government in compliance with the instructions given
by the Hon’ble Supreme Court of India on 20 August,
2024, the following viable solutions have emerged for
consideration of the Hon’ble Supreme Court of India:
(i) Home care of Shri Harish Rana with assistance from
the Government of Uttar Pradesh as under:
a. Regular Physiotherapist’s visit
b. Regular Dietician’s visit
c. Medical Officer on call
d. Nursing care provision at home
e. Availability of all required medicines and
consumables free of cost.
(ii) If home care is not feasible, shifting of Shri Harish
Rana to District Hospital, Noida, Sector-39 for ensuring
availability of proper medical care considering his
health condition.
(iii) Support from NGOs, if deemed fit, may also be
considered.”
4. Mr Manish Jain, counsel appearing on behalf of the
petitioner, who is represented by his mother in these
proceedings, states that the matter has been resolved
satisfactorily and both the parents are agreeable to
accepting the course as suggested in the above extracts.
5. The Special Leave Petition is accordingly disposed of
taking the arrangement on the record. However, liberty
is granted to either of the parents of the petitioner to
move the Court in future should it become necessary
to obtain further directions.”
Page 9 of 51
EVENTS SUBSEQUENT TO THIS COURT’S ORDER OF
08.11.2024: -
10. Pursuant to the order of this Court dated 08.11.2024,
Harish was under home care with assistance. Harish was
hospitalized from 17.05.2025 to 24.05.2025 at the District
Hospital, Ghaziabad for treatment of coughing and bedsores.
During the said period , another tracheostomy was
performed. The Application avers that at that point
considerable distress was caused to the deponent-parents
and it was clear that it was futile to prolong medical
intervention. The present Application, for the relief set out
above, was filed on 21.10.2025, pursuant to the liberty given
in the order dated 08.11.2024.
11. It is averred in the Application that Common Cause
(supra) recognizes that life-sustaining treatment can be
withdrawn in circumstances where there is no hope of cure
or recovery. It is averred that the High Court of Delhi erred
in holding that Harish is able to sustain himself without any
external aid. It is submitted that Harish requires Clinically
Page 10 of 51
Assisted Nutrition and Hydration (for short “CANH”) in the
form of a PEG tube, which constitutes external aid. It is
averred that Harish is in a permanent vegetative state, which
is irreversible and incurable, and is receiving life-sustaining
treatment through the PEG tube. It was prayed that
determination must be made in accordance with the
Common Cause (supra) guidelines to decide whether the
continued provision of CANH is in the petitioner’s best
interest. It is stated in the Application that Harish’s continued
existence in his present state is a violation of his fundamental
right to dignity, protected under Article 21 of the
Constitution of India.
12. It is made clear that the Application does not pray
assisted dying, namely “active euthanasia”. The scope of the
Application was confined to seeking a referral to the Primary
Medical Board in accordance with the procedure laid down
in Common Cause (supra). It was averred that the purpose
of such referral was to obtain an expert medical opinion on
the advisability of continuing CANH, which constitutes a form
Page 11 of 51
of life sustaining treatment. It was stated that such a
determination was imperative to safeguard the dignity of the
petitioner, which is an integral facet of the right to life under
Article 21 of the Constitution of India. It was submitted in the
Application that Harish receives artificial nutrition and
hydration through a PEG tube and that a PEG tube is a form
of a mechanical life support – CANH. It is averred in the
application that it is widely recognized, both medically and
legally, as a form of life-sustaining treatment. It is also
submitted that in Common Cause (supra), the Constitution
Bench has recognized that feeding tubes constitute a form of
life support.
13. Reference was made to the 241
st
Report of the Law
Commission of India on passive euthanasia which recognized
artificial feeding as a means of life support. Reference was
also made to the guidance for decision making on CANH
issued by the Royal College of Physicians in the United
Kingdom to reinforce the submission.
Page 12 of 51
14. It is submitted that the High Court erred in reading the
Common Cause (supra) to hold that withdrawal of life
sustaining treatment applied only to terminally ill patients.
Reference was made to Common Cause (supra) to contend
that the principle in Common Cause (supra) applies to
individuals, like Harish, who are in a permanent vegetative
state. Reference was made to the guidelines in Common
Cause (supra), as modified in 2023, and the procedure laid
down for withholding and withdrawal of life-sustaining
treatment. Grievance was made that Primary and Secondary
Medical Boards in accordance with Common Cause (supra)
guidelines have not been implemented across most States.
The requirement to nominate a medical practitioner to the
Secondary Medical Boards by the Chief Medical Officer has
not been complied with. It is averred that the Common
Cause (supra) guidelines required hospitals to intimate the
Judicial Magistrate of the First Class regarding the
withholding and withdrawal of the life-sustaining treatment
but the Judicial Magistrates are not aware since no directions
Page 13 of 51
have been received from the respective High Courts. It is in
this background that primarily a prayer for referring the
petitioner for a Primary Medical Board was made.
SALIENT FEATURES OF COMMON CAUSE (2018) 5 SCC 1 :-
15. In Common Cause (supra), the Constitution Bench dealt
with two categories of cases – i) cases where an advance
medical directive is left by the patient; and ii) cases where
there is no advance directive.
16. Admittedly, the case of Harish is a case where there is
no advance directive. It will be useful to extract the modified
guidelines laid down in Common Cause (supra) with regard
to the category of cases where there is no advance
directive:-
Cases where there is No Advance Directive
Para
199.1
In cases where the patient is terminally ill and
undergoing prolonged treatment in respect of
ailment which is incurable or where there is
no hope of being cured, the physician may
inform the hospital, which, in turn, shall
constitute a Primary Medical Board in the
manner indicated earlier. The Primary
Medical Board shall discuss with the family
physician, if any, and the patient's next of
kin/next friend/guardian and record the
Page 14 of 51
minutes of the discussion in writing. During
the discussion, the patient's next of kin/next
friend/guardian shall be apprised of the pros
and cons of withdrawal or refusal of further
medical treatment to the patient and if they
give consent in writing, then the Primary
Medical Board may certify the course of
action to be taken preferably within 48 hours of
the case being referred to it.
Their decision will be regarded as a
preliminary opinion.
Para
199.2
In the event the Primary Medical Board
certifies the option of withdrawal or refusal of
further medical treatment, the hospital shall
then constitute a Secondary Medical Board
comprising in the manner indicated
hereinbefore. The Secondary Medical Board
shall visit the hospital for physical
examination of the patient and, after studying
the medical papers, may concur with the
opinion of the Primary Medical Board. In that
event, intimation shall be given by the
hospital to the JMFC and the next of kin/next
friend/guardian of the patient preferably
within 48 hours of the case being referred to
it.
CONSTITUENTS OF THE PRIMARY MEDICAL BOARD
AND SECONDARY MEDICAL BOARD : -
17. It is essential to set out the constituents of the Primary
and Secondary Medical Board. Para 198.4.4 and 198.4.5 of
the Common Cause (supra), as modified, read as under:-
Page 15 of 51
Para
198.4.4
The hospital where the executor has been
admitted for medical treatment shall then
constitute a Primary Medical Board consisting
of the treating physician and at least two
subject experts of the specialty concerned with
at least five years' experience, who, in turn,
shall visit the patient in the presence of his
guardian/close relative and form an opinion
preferably within 48 hours of the case being
referred to it whether to certify or not to
certify carrying out the instructions of
withdrawal or refusal of further medical
treatment. This decision shall be regarded as
a preliminary opinion.
Para
198.4.5
In the event the Primary Medical Board
certifies that the instructions contained in the
Advance Directive ought to be carried out,
the hospital shall then immediately constitute
a Secondary Medical Board comprising one
registered medical practitioner nominated by
the Chief Medical Officer of the district and at
least two subject experts with at least five
years' experience of the specialty concerned
who were not part of the Primary Medical
Board. They shall visit the hospital where the
patient is admitted and if they concur with the
initial decision of the Primary Medical Board
of the hospital, they may endorse the
certificate to carry out the instructions given
in the Advance Directive. The Secondary
Medical Board shall provide its opinion
preferably within 48 hours of the case being
referred to it.
18. The case of Harish had certain peculiarities. As set out
earlier, since 2013 when Harish had the fall from the fourth
floor, he has been treated at several hospitals. He was first
Page 16 of 51
treated at Postgraduate Institute of Medical Education and
Research, Chandigarh and then at the All India Institute of
Medical Sciences, Dr. Ram Manohar Lohia Hospital and
Safdarjung Hospital, all at New Delhi, between 2014 and
2017. Apart from this, the petitioner over the past 12 years
has indisputably undergone numerous hospitalisations and
the last one was in May, 2025.
19. Pursuant to the Status Report of the Union of India and
the order of this Court dated 08.11.2024, Harish was under
home care. Between 17.05.2025 to 24.05.2025, the petitioner
was hospitalized at District Hospital, Ghaziabad for palliative
care, and treatment for cough and bedsores. Thereafter,
under the suggestions made in the Status Report , the
homecare of the petitioner continued. A perusal of the Status
Report and the suggestions indicate that the homecare
offered to the petitioner which the petitioner accepted with
support of physiotherapist, dietician, medical officer on call,
nursing care at home and supply of all medicines, virtually
treated the home as an extension of the hospital.
Page 17 of 51
CONSTITUTION OF THE PRIMARY AND SECONDARY
MEDICAL BOARD : -
20. It was in this scenario that when the matter came up, by
order dated 26.11.2025, after recording the fact that Harish’s
condition has gone from bad to worse and that he is in a
persistent vegetative state suffering from 100% disability
with quadriplegia and not responding to any treatment and is
being artificially kept alive, this Court directed the
constitution of a Primary Medical Board of doctors in terms of
Common Cause (supra), to give a report as to whether the
life sustaining treatment can be withdrawn. Pursuant to this
order, the Primary Medical Board submitted the following
report:-
“This is to say that after consulting with CMO Ghaziabad
we have visited residential place of Mr. Harish Rana S/O
Mr. A R/O- AM-1314, Raj Empire, Rajnagar Extention,
Ghaziabad for evaluation of his health condition. The team
included a neuro surgeon, a neurologist, a plastic surgeon
and a critical care expert. Attendants Mr. AR (brother)
and Ms. BR (sister) were present during evaluation. Harish
Rana suffered injuries about 13yrs back since that time he
is under medical care under many centers. At present
Patient was lying in bed with tracheostomy tube for
respiration and gastrostomy for feeding. Patient was
Page 18 of 51
opening eyes spontaneously. His breathing was
spontaneous with treacheostomy tube. He was emasciated
and contractures were present in both lower limb and
upper limb at shoulder, elbow, wrist, fingers, knee, ankle
and toes. His pupils were normal in size but sluggish in
reaction with no movement restriction. No facial
asymmetry present. Gag reflex present. He was having
spasticity all over both upper limb and lower limb with
deep tendon exaggerated at bicep, triceps, supinator,
knee, ankle. Sensory and cerebellar examination could
not be accurately assessed due to his state. He had intact
brainstem function but due to his vegetative state he
requires external support for his feeding, bladder
bowel and back. He needs constant physiotherapy and
tracheostomy tube care. The chances of his recovery
from this state is negligible.
Sd/- Sd/- Sd/- Sd/-
Neurologist Plastic Surgeon Anaesthesiologist Neuro Surgeon”
[Emphasis supplied]
21. When the matter came up for hearing on 11.12.2025,
after noticing report of the Primary Medical Board, this Court
in accordance with the judgment in Common Cause (supra),
directed that a Secondary Medical Board be constituted for
the purpose of examination of Harish. In this regard, a
request was made to the Director, All India Institute of
Medical Sciences, New Delhi, to constitute a Secondary
Page 19 of 51
Medical Board, as referred to above, and report by
17.12.2025.
22. At the hearing on 18.12.2025, after directing the report
of the Secondary Medical Board which had arrived since then
to be given to the counsel for the parties, this Court
expressed a desire that the counsel for the parties speak to
the parents and other family members of Harish and give a
report. This Court also recorded that the Court would like to
speak to the parents personally.
23. In the Secondary Medical Report, the following
conclusions were recorded:-
“Based on the history and examination findings, the
medical board is of the following opinion: -
“a. Mr. Harish Rana has non-progressive, irreversible
brain damage following severe traumatic brain injury
with diffuse axonal injury. He fulfills the criteria of
permanent vegetative state (PVS) and has been in this
state for the past 13 years.
b. The continued administration of clinically assisted
nutrition and hydration is required for the sustenance
of his survival. However, it may not aid in improving
his medical condition or repairing his underlying
brain damage.”
[Emphasis supplied]
Page 20 of 51
24. Pursuant to the order dated 18.12.2025, Ms. Aishwarya
Bhati, learned Additional Solicitor General, Ms. Rashmi
Nandakumar, learned counsel for Harish, met with the
parents, brother, sister and brother-in-law of Harish. They
submitted a Report. The relevant parts of the Report which
are comprehensive is set out hereinbelow: -
“3. At the beginning of our interaction, we requested the
parents to share their thoughts, wishes, and concerns in
their own words. Mr. A, the father of Mr. Harish Rana, told
us that the family has been caring for their son
continuously for more than thirteen years and that they
have done everything within their human capacity during
this period. He said that their son no longer has a voice of
his own, and therefore they feel it is their moral
responsibility to speak for him. He also expressed
gratitude that their concerns have been heard by this
Hon’ble Court.
4. He told us that his son:
• Cannot speak, hear, see, recognise anyone, or eat
on his own;
• Is entirely dependent on artificial life support,
including a feeding tube.
5. He shared his deep worry that both parents are now
ageing, and asked, with visible concern, who would take
care of Mr. Harish if anything were to happen to either of
them. Mr. A expressed that their family’s earnest request
is that the feeding tube / life sustaining medical support
may be withdrawn under proper medical supervision.
Page 21 of 51
6. Mr. A also shared that while the Government authorities
have extended assistance over the years, the family has
continuously faced practical difficulties in day-to-day
medical care, availability of skilled personnel, and
emergency medical support, despite their best efforts.
7. Mrs. N, the mother of Mr. Harish Rana, told us that they
have tried everything within their means for the last many
years in the hope that their son may recover, but there has
been no improvement. She stated that her son has not
responded to touch or affection for the past 13 years.
8. She expressed that watching her son in this condition
day and night has become extremely painful, and that his
continued existence in the present condition causes him
suffering which they are unable to alleviate. She was
clear in telling us that the decision being expressed is
not out of despair or pressure, but after prolonged
thought, years of care, and acceptance that there is no
medical hope of recovery of their son.
9. Upon being specifically asked whether she would
feel regret or emotional distress if her son were to
pass away, she replied that the greater distress is
watching him suffer continuously in his present state,
and that she believes the family has done everything
possible.
Views of the Siblings of Mr. Harish Rana
10. The brother of Mr. Harish Rana - Mr. AR, told us that
the family has given more than their full capacity over the
last 13 years, emotionally, physically and financially. He
shared that after exhaustive efforts and consultations, the
family has reached this decision with great difficulty,
believing that continued medical intervention no longer
Page 22 of 51
serves any meaningful purpose for his brother and only
prolongs his agony.
11. Ms. BP, the sister of Mr. Harish Rana, told us that at the
time of the incident they were children, and today she
herself is a mother. She shared that the family has lived
through years of hardship and that the decision being
taken is, in their belief, in the dignity and best
interests of their brother.
Observations
15. It is humbly submitted that throughout the interaction:
• The parents and family members appeared fully
conscious, coherent, and consistent in their
statements;
• Their views were expressed calmly, repeatedly, and
without any sign of coercion, confusion, or external
pressure;
• The decision articulated by them appears to be the
result of long contemplation over many years, and
not a momentary or impulsive reaction.”
[Emphasis supplied]
25. Further, as has been set out in the written submissions of
Ms. Aishwarya Bhati, learned Additional Solicitor General, a
video conference was conducted on 08.01.2026 and the
meeting apart from the learned ASG was attended by
representatives of the Ministry of Health and Family Welfare,
the doctors who constituted the Secondary Medical Board
Page 23 of 51
Prof. (Dr.) DV, Prof. (Dr.) NG, along with the concerned
officials. During the course of the meeting, the following
points were deliberated upon:-
“(a) Present Medical Status of the Petitioner as per
Clinical Findings
(i) The petitioner has been in an irreversible
permanent vegetative state for the last 13 years;
(ii) There is no chance of improvement or repair of
the medical condition, rendering continued
treatment futile;
(iii) There exists a clear, unequivocal and well-
considered view of the parents of the petitioner,
who are also the primary caregivers, arrived at
after informed interaction and deliberation.”
26. In the order dated 13.01.2026, after interacting with the
parents and younger brother of Harish, the following
observations were recorded :-
“6. All the three, i.e., the father, mother and younger
brother, in one voice and with lot of pain in their hearts,
made a fervent appeal before us to take necessary steps
to ensure that Harish does not suffer any more. What they
tried to convey, in their own way, was that the medical
treatment imparted over a period of almost 12 years be
discontinued and nature be allowed to take its own
course. According to them if the medical treatment is not
making any difference, then there is no point in
continuing with such medical treatment and making
Harish suffer for no good reason.
Page 24 of 51
7. They believe that Harish is suffering like anything, and
he should be relieved of all further pain and suffering.
8. They may not be aware of the legal nuances involved in
this litigation. However, they are very clear that in view of
the two reports filed by the Primary Board and the
Secondary Board, respectively, there is no sign, or rather
no hope, for Harish to recover.
9. Ms. Bhati submitted that she had a talk with the team of
doctors, i.e., the members of the Primary Board as well as
the members of the Secondary Board, and the doctors are
of the opinion that the medical treatment should be
discontinued as the continuation of the same is not in the
best interest of Harish Rana, and that in the given
circumstances, nature should be allowed to take its own
course. The doctors are also of the opinion that Harish
would remain in this permanent vegetative state (PVS) for
years to come, with the tubes inserted all over his body.
However, he would never be able to recover and live a
normal life.
10. In such circumstances, referred to above, we should
now hear the matter further in the Court. We request the
learned counsel appearing for both parties to assist us on
all issues.
11. Post the matter on Thursday, i.e., 15.1.2026, as the first
item on the Board.”
QUESTION FOR CONSIDERATION :
27. In view of the unanimous opinion of the Primary and
Secondary Medical Boards confirming Harish’s irreversible
Page 25 of 51
permanent vegetative state; the absence of any benefit from
continued provision of CANH and keeping in mind the non-
medical considerations and after consultations with the
family members, what are the consequential directions that
deserve to be made? In answering this question, several
incidental questions do arise which have been discussed in
the course of the judgment.
28. Heard Ms. Rashmi Nandakumar and Ms. Dhvani Mehta,
ably assisted by Ms. Shivani Mody, Ms. Anindita Mitra, Ms.
Yashmita Pandey, Mr. Manish Jain, Mr. Vikash Kumar Verma
and Mr. Jugal Kishore Gupta, learned counsels for the
petitioner. Ms. Rashmi Nandakumar and her team, while
reiterating the averments in the application, have very ably
presented the case for the petitioner and filed detailed
written submissions covering all aspects and have referred
to a large number of judgments, including judgments from
other countries.
29. Equally, Ms. Aishwarya Bhati, learned Additional
Solicitor General, conducted the case in a non-adversarial
Page 26 of 51
manner keeping in line with the highest traditions of the
office of the Additional Solicitor General. She was ably
assisted by Ms. Sushma Verma, Ms. Shreya Jain, Ms. Shivika
Mehra, Mr. B.L. Narasamma Shivani, Mr. Arun Kanwa, Mr.
Sudarshan Lamba and Mr. Amrish Kumar, learned counsels
for the respondent.
ANALYSIS AND CONCLUSION :
Difference between “Active and Passive Euthanasia”
30. Common Cause (supra) has clearly set out that active
euthanasia also known as “positive euthanasia ” or
“aggressive euthanasia” is a type of euthanasia that entails
the positive act causing intentional death of a person by
direct intervention. The present case is not of this category.
31. Passive euthanasia also known as “negative euthanasia”
or “non-aggressive euthanasia” entails withdrawing of life
support measures or withholding of medical treatment for
continuance of life. Common Cause (supra) relying on
Page 27 of 51
Vacco vs. Quill
2 observed that when the death of a patient
occurs due to removal of life-supporting measures, the
patient dies due to an underlying fatal disease without any
intervening act on the part of the doctor or medical
practitioner.
32. Active euthanasia would be illegal unless there is valid
legislation permitting it. [Dipak Misra, CJ in Common Cause
(supra)]
33. Further, in Common Cause (supra), it was set out
relying on Smt. Gian Kaur vs. State of Punjab
3 that the word
“life” under Article 21 has to be construed as “life with
human dignity” and that it takes within its ambit the “right to
die with dignity” being part of the “right to live with dignity”.
It was also observed that the “right to live with human
dignity” would mean existence of such a right up to the end
of natural life which would include the right to live a
dignified life up to the point of death including the dignified
2
138 L.Ed. 2d 834
3
(1996) 2 SCC 648
Page 28 of 51
procedure of death. This Court in Common Cause (supra)
observed that the sequitur of this exposition was that there
was little doubt that a dying man who is terminally ill or in a
persistent vegetative state can make a choice to accelerate
the process of natural death as being a facet of Article 21 of
the Constitution of India. This Court further observed that if
that choice is guaranteed as being part of Article 21, there
was no necessity of any legislation for effectuating that
fundamental right which was his natural human right.
34. Further, this Court in Common Cause (supra),
reinforcing the aspect of dignity as an inseparable part of the
right to life which engulfs the dignified process of dying,
observed as follows:-
“178. It is to be borne in mind that passive euthanasia
fundamentally connotes absence of any overt act either by
the patient or by the doctors. It also does not involve any
kind of overt act on the part of the family members. It is
avoidance of unnecessary intrusion in the physical frame
of a person, for the inaction is meant for smooth exit from
life. It is paramount for an individual to protect his dignity
as an inseparable part of the right to life which engulfs the
Page 29 of 51
dignified process of dying sans pain, sans suffering and,
most importantly, sans indignity.”
ADVANCE DIRECTIVE AND CASES WITH NO ADVANCE
DIRECTIVE:-
35. This Court in Common Cause (supra) dealt with cases
where patients had made an advance medical directive and
cases where there was no advance medical directive. The
present is a case where there is no advance medical
directive. Elaborate procedures were laid down , the
essential parts of which have been tabulated in the earlier
part of this judgment. Para 198-199 of Common Cause
(supra) which are crucial are set out herein below: -
“198. In our considered opinion, Advance Medical
Directive would serve as a fruitful means to facilitate the
fructification of the sacrosanct right to life with dignity.
The said directive, we think, will dispel many a doubt at
the relevant time of need during the course of treatment
of the patient. That apart, it will strengthen the mind of the
treating doctors as they will be in a position to ensure,
after being satisfied, that they are acting in a lawful
manner. We may hasten to add that Advance Medical
Directive cannot operate in abstraction. There has to be
safeguards… …”
Page 30 of 51
Safeguards and directions with regard to 1) Who can execute the
Advance Directive and how? 2) What should it contain? 3) Manner of
recording and preservation; 4) Persons who can give effect to? 5)
Position when permission is refused by the Medical Board; and 6)
When Revocable and inapplicable were all provided for.
“199. It is necessary to make it clear that there will be
cases where there is no Advance Directive. The said
class of persons cannot be alienated. In cases where
there is no Advance Directive, the procedure and
safeguards are to be same as applied to cases where
Advance Directives are in existence and in addition
there to, the following procedure shall be followed…”
[Emphasis supplied]
The procedure set out has already been extracted hereinabove.
ESSENTIAL PREREQUISITES FOR CONSTITUION OF
THE PRIMARY MEDICAL BOARD AND CONSEQUENTLY
THE SECONDARY MEDICAL BOARD :-
36. The High Court, while dismissing the writ petition,
clearly erred in holding that Harish was not terminally ill and
hence his case was not covered by the four corners of the
Common Cause (supra) judgment. Harish has been in a
vegetative state for the last more than 12 years and clinically
assisted nutrition and hydration is required for the
Page 31 of 51
sustenance of his survival. Even the said life support/life-
sustaining treatment would not aid in improving his medical
condition. This aspect now stands confirmed by the opinion
of both the Medical Boards.
37. Even though the case of Harish is a case of no advance
medical directive, however, while considering the
correctness of the High Court finding about the necessity of
the patient being terminally ill, it will be useful to refer to the
relevant paragraphs from Common Cause (supra) which is
said in the context of persons with advance medical
directive. Para 198.4.2 and 201.10 of Common Cause
(supra) read as under:-
“198.4.2. The instructions in the document must be given
due weight by the doctors. However, it should be given
effect to only after being fully satisfied that the executor is
terminally ill and is undergoing prolonged treatment or
is surviving on life support and that the illness of the
executor is incurable or there is no hope of him/her
being cured.
202.10. It has to be stated without any trace of doubt that
the right to live with dignity also includes the smoothening
of the process of dying in case of a terminally-ill patient
or a person in PVS with no hope of recovery.”
[Emphasis supplied]
Page 32 of 51
38. Ms. Rashmi Nandakumar learned Counsel also drew our
attention to Para 197 where this Court observed as under: -
“197. …. The directions and guidelines to be given in this
judgment would be comprehensive and would also cover
the situation dealt with in Aruna Shanbaug case.”
39. Learned Counsel contended that Aruna Ramachandra
Shanbaug v. Union of India
4
, did not concern a terminally ill
person but an individual in a permanent vegetative state
which is the same condition Harish is in. The direction in
Aruna Ramachandra Shanbaug (supra) in not granting relief
to discontinue life support was not on the ground that Aruna
Ramachandra Shanbaug was not terminally ill. In fact, a
reading of para 17 read with para 124 of the judgment
reveals that this Court considered KEM Hospital staff as the
next friend and not Ms. P, who had moved the petition.
According to the learned counsel, but for the issue of locus
standi, Aruna Shanbaug (supra) was a case where the patient
was in a permanent vegetative state, and would have
4
(2011) 4 SCC 454
Page 33 of 51
qualified the pre-requisites for constitution of Medical
Boards.
40. Hence, the conclusion in para 199.1 and 199.2 of
Common Cause (supra) read in the entire context of the
judgment in Common Cause (supra) would indicate that for
constitution of Primary Medical Board and consequently
Secondary Medical Board, the patient need not necessarily
be terminally ill. If the patient is in a permanent vegetative
state or in any other like condition and is undergoing
prolonged treatment in respect of ailment which is incurable
or where there is no hope of being cured, the essential pre-
requisites would be satisfied.
41. On reference to the Primary Medical Board, the Primary
Medical Board shall discuss with the family physician, if any,
and the patient’s next of kin/ next friend/guardian and
record the minutes of the discussion in writing. During the
discussion, patient’s next of kin/ next friend/guardian shall
be apprised of the – i) pros and cons of withdrawal or refusal
of further medical treatment to the patient and, ii) if they give
Page 34 of 51
consent in writing, the Primary Medical Board may certify the
course of action to be taken preferably within 48 hours of the
case being referred to it.
42. Common Cause (supra) read with the modification
order dated 24.01.2023, further holds that in the event the
Primary Medical Board certifies the option of withdrawal or
refusal of further medical treatment, the hospital shall then
constitute a Secondary Medical Board. The Secondary
Medical Board should visit the hospital for physical
examination of the patient and after studying the medical
papers may concur with the opinion of the Primary Medical
Board. In that event, intimation shall be given by the hospital
to the Judicial Magistrate First Class and the next of kin/ next
friend/guard of the patient preferably within 48 hours of case
being referred to it. In the case of Harish, the Primary and
the Secondary Medical Board have concurred with each
other.
43. Separate procedure has been set out where the Primary
Medical Board does not take a decision to the effect of
Page 35 of 51
withdrawing of medical treatment. That aspect does not
arise herein.
44. The High Court erred in rejecting the case of Harish on
the ground that he was not terminally ill without considering
the alternative criterion, which he clearly fulfilled.
Clinically Assisted Nutrition and Hydration (CANH) –
Does it qualify as medical treatment?
45. Common Cause (supra) has put this issue beyond any
controversy. Justice Sikri J. in his opinion while elucidating
on the aspect of passive Euthanasia had the following to
observe.
“219. …..Passive euthanasia occurs when medical
practitioners do not provide life-sustaining treatment
(i.e. treatment necessary to keep a patient alive) or
remove patients from life-sustaining treatment. This
could include disconnecting life support machines or
feeding tubes or not carrying out lifesaving operations
or providing life-extending drugs. In such cases, that
omission by the medical practitioner is not treated as the
cause of death; instead, the patient is understood to have
died because of is underlying condition.”
[Emphasis supplied]
Page 36 of 51
46. Equally, Justice D. Y. Chandrachud (as the learned Chief
Justice then was), in his concurring opinion, observed as
under.
“359. Individuals who suffer from chronic disease or
approach the end of the span of natural life often lapse into
terminal illness or a permanent vegetative state. When a
medical emergency leads to hospitalisation, individuals in
that condition are sometimes deprived of their right to
refuse unwanted medical treatment such as feeding
through hydration tubes or being kept on a ventilator
and other life support equipment. Life is prolonged
artificially resulting in human suffering. The petition is
founded on the right of each individual to make an
informed choice. Documenting a wish in advance, not to be
subjected to artificial means of prolonging life, should the
individual not be in a position later to comprehend or
decline treatment, is a manifestation of individual choice
and autonomy. The process of ageing is marked by a sense
of helplessness. Human faculties decline as we grow older.
Social aspects of ageing, such as the loss of friendships and
associations combine with the personal and intimate to
enhance a sense of isolation. The boundaries and even the
limits of constitutional law will be tested as the needs of the
ageing and their concerns confront issues of ethics,
morality and of dignity in death.”
[Emphasis supplied]
47. The above two passages make it abundantly clear that
administration of feeding tubes constitute medical treatment.
The case of Harish falls within the contours of Common
Page 37 of 51
Cause (supra) judgment. The issue is well settled here. This
is also the position in other jurisdictions.
48. In Airedale NHS Trust v. Bland
5
, a judgment of the
House of Lords, Lord Keith of Kinkel observed in this regard
as under: -
“… … As regards this latter argument, I am of opinion that
regard should be had to the whole regime, including the
artificial feeding, which at present keeps Anthony Bland
alive. That regime amounts to medical treatment and care,
and it is incorrect to direct attention exclusively to the fact
that nourishment is being provided. In any event, the
administration of nourishment by the means adopted
involves the application of a medical technique. But it
is, of course, true that in general it would not be lawful
for a medical practitioner who assumed responsibility
for the care of an unconscious patient simply to give up
treatment in circumstances where continuance of it
would confer some benefit on the patient. On the other
hand a medical practitioner is under no duty to continue to
treat such a patient where a large body of informed and
responsible medical opinion is to the effect that no benefit
at all would be conferred by continuance. Existence in a
vegetative stage with no prospect of recovery is by that
opinion regarded as not being a benefit, and that, if not
unarguably correct, at least forms a proper basis for the
decision to discontinue treatment and care: Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582.”
In the same judgment, Lord Goff of Chieveley, observed:
“… … Anthony is not merely incapable of feeding himself.
He is incapable of swallowing, and therefore of eating or
drinking in the normal sense of those words. There is
5
1993 AC 799
Page 38 of 51
overwhelming evidence that, in the medical profession,
artificial feeding is regarded as a form of medical treatment;
and even if it is not strictly medical treatment, it must form
part of the medical care of the patient. Indeed, the function
of artificial feeding in the case of Anthony, by means of a
nasogastric tube, is to provide a form of life support
analogous to that provided by a ventilator which artificially
breathes air in and out of the lungs of a patient incapable of
breathing normally, thereby enabling oxygen to reach the
bloodstream. The same principles must apply in either case
when the question is asked whether the doctor in charge
may lawfully discontinue the life-sustaining treatment or
care; and if in either case the treatment is futile in the sense I
have described, it can properly be concluded that it is no
longer in the best interests of the patient to continue it. … ”
49. Hence, there is no iota of doubt that the case of Harish is
covered by the four corners of Common Cause (supra)
since clinically assisted nutrition and hydration will constitute
medical treatment.
BEST INTEREST OF THE PATIENT - SCOPE: -
50. Dealing as we are with a case of individual for whom
withdrawal or refusal of medical treatment is under
consideration, it is implicit that all those involved in the
decision-making process act in the “best interest of the
patient”. This phrase in the context of passive euthanasia was
highlighted in Common Cause (supra) while discussing the
Page 39 of 51
241
st
report of the Law Commission of India on passive
euthanasia. The Law Commission report referred to opinion
of Lord Keith in Airedale NHS Trust (supra).
51. Adverting to the report, Chief Justice Dipak Misra, in
Common Cause (supra), observed as under.
129. The Report rightly points out that a rational and
humanitarian outlook should have primacy in such a
complex matter. Recognising that passive euthanasia,
both in the case of competent and incompetent patients,
is being allowed in most of the countries subject to the
doctor acting in the best interests of the patient, the
Report summarised the broad principles of medical
ethics which shall be observed by the doctor in
taking the decision. The said principles as obtained in
the Report are the patient's autonomy (or the right to self-
determination) and beneficence which means following
a course of action that is best for the patient uninfluenced
by personal convictions, motives or other
considerations. The Report also refers to the
observations made by Lord Keith in Airedale case
providing for a course to safeguard the patient's best
interest. As per the said course, which has also been
approved by this Court, the hospital/medical
practitioner should apply to the Family Division of the
High Court for endorsing or reversing the decision taken
by the medical practitioners in charge to discontinue the
treatment of a PVS patient. With respect to the ongoing
debates on "legalising euthanasia", the Report reiterates
the observations made in Airedale that euthanasia (other
than passive euthanasia) can be legalised by means of
legislation only.
[Emphasis supplied]
Page 40 of 51
52. Hence, it is very clear that the fulcrum on which the
decision of the Primary Medical Board and the Secondary
Medical Board as well as the other functionaries wherever
they are involved would be that, all decisions in this regard
are to be taken keeping in mind “the best interests of the
patient”.
53. However, in considering as to what factors would
constitute “best interest”, courts have in the process of
deciding individual cases laid down certain essential factors,
while cautioning that no single factor can be determinative.
54. Lord Goff in Airedale NHS Trust (supra) while
determining as to what the right question to ask would be in
this scenario observed as under: -
“The correct formulation of the question is of particular
importance in a case such as the present, where the
patient is totally unconscious and where there is no hope
whatsoever of any amelioration of his condition. In
circumstances such as these, it may be difficult to say
that it is in his best interest that the treatment should be
ended. But if the question is asked, as in my opinion
it should be, whether it is in his best interest that
treatment which has the effect of artificially
prolonging his life should be continued, that question
Page 41 of 51
can sensibly be answered to the effect that his best
interest no longer required that it should be.”
[Emphasis supplied]
55. In Aintree University Hospitals NHS Foundation Trust
v. James
6
, Lady Hale J. observed as under: -
“39. The most that can be said, therefore, is that in
considering the best interests of this particular
patient at this particular time, decision-makers must
look at his welfare in the widest sense, not just
medical but social and psychological; they must
consider the nature of the medical treatment in
question, what it involves and its prospects of
success; they must consider what the outcome of that
treatment for the patient is likely to be; they must try
and put themselves in the place of the individual
patient and ask what his attitude to the treatment is
or would be likely to be; and they must consult others
who are looking after him or interested in his
welfare, in particular for their view of what his
attitude would be.”
56. In NHS Windsor and Maidenhead Clinical
Commissioning Group v. SP
7
, Lord Justice Williams of the
Court of Protection quoting with approval the judgment In Re
A (A Child) 2016 EWCA 759 of the Court of Appeal [which, in
turn, relied on NHS Trust vs. MB and Others, [2006] EWHC
507 (Fam)] said: -
6
2013 UKSC 67
7
2018 EWCOP 11
Page 42 of 51
“In considering the balancing exercise to be conducted:
"1. The decision must be objective; not what the judge
might make for him or herself, for themselves or a
child;
2. Best interest considerations cannot be
mathematically weighed and include all
considerations, which include (non-exhaustively),
medical, emotional, sensory (pleasure, pain and
suffering) and instinctive (the human instinct to
survive) considerations;
3. There is considerable weight or a strong
presumption for the prolongation of life but it is not
absolute;
4. ….account must be taken of the pain and suffering
and quality of life, and the pain and suffering involved
in proposed treatment against a recognition that even
very severely handicapped people find a quality of life
rewarding.
5. Cases are all fact specific.”
33. Therefore, a host of matters must all go into the balance
when the judge seeks to arrive at his objective assessment
of whether this treatment is in this patient's best interests.
In particular I must consider the values and beliefs of SP as
well as any views she expressed when she had capacity
that shed light on the likely choice she would make if she
were able to and what she would have considered relevant
or important. Where those views can be ascertained with
sufficient certainty they should carry great weight and
usually should be followed; as they would be for a person
with capacity who did express such views.”
57. In NHS South East London Integrated Care Board v. JP
8
the Court of Protection in para 11 and 15 observed as under:-
8
[2025] EWCOP 4 (T3)
Page 43 of 51
“11. Both Professor Turner-Stokes and Dr Hanrahan have
concluded that clinically-assisted nutrition and hydration
(CANH) is a 'futile' treatment for JP. This requires to be
understood. CANH will preserve JP in his present
condition. With CANH and good nursing care, Dr
Hanrahan is of the view that JP's actuarial life expectancy
could be between 5 and 10 years. However, CANH will
not reverse his profound brain injury, nor restore him
beyond his presently disordered consciousness, which
has persisted for 9 years. It will most decidedly not
restore him either to the person he was or to the life he
enjoyed, with such vigour, prior to his brain injury.
Alongside this, it is necessary to balance the obvious
burdens of continuing treatment, which include the
difficulty in managing his PEG and tracheostomy site. JP
requires 24/7 care to keep him stable which is
burdensome for him. In addition, JP requires care for the
ongoing challenges of his cardiac condition and any
acquired infection.
15. In resolving a 'best interests' decision, the judge must
always consider the broader evidential canvas and the
imperative to determine, to the extent that it may be
possible, what the protected party (P) would want for
themselves. JP did not make any advanced decision, and
so it is his family who must be the conduit by which his
views are understood and articulated in the courtroom.”
58. A survey of the precedents on “Best Interest of the
patient” lead to the irresistible conclusion that the test is fact
specific and will depend on the facts and circumstances of
each case. A holistic assessment of all relevant circumstances
should be undertaken since no single factor can be
Page 44 of 51
determinative. Without being exhaustive some of the factors
which would play a role are :
i) There is a strong presumption in favour of
preservation of life grounded in the sanctity of life
principle.
ii) The presumption in favour of life can be displaced
when continuation of treatment would no longer serve
the patient’s overall welfare.
iii) A careful weighing and balancing among a range of
different and competing considerations have to be
undertaken.
iv) The starting point of the enquiry should not be
whether it will be in the best interest of the patient
that the treatment should be ended, but the question
should be whether it is in the best interest if the
treatment that has the effect of artificially prolonging
the life be continued.
v) Whether at all any benefit would accrue by the
continuance of the treatment to the patient.
Page 45 of 51
vi) Whether the continuation of treatment serves any
therapeutic purpose;
vii) The indignity the patient is subjected to by
prolongation of the treatment.
viii) Futility of the treatment;
ix) The opinion of the responsible body of the medical
experts who have arrived at a reasonable conclusion.
x) The consideration of the medical and non-medical
aspects like emotional and welfare issues.
xi) Consultation with the family members of the patient.
It is reiterated that the above factors are illustrative and are
in no manner bound to be exhaustive.
59. In Portsmouth NHS Trust v. Wyatt and Wyatt,
Southampton NHS Trust Intervening,
9 Hedley J. pertinently
pointed out as under:
“… … The infinite variety of the human condition
never ceases to surprise and it is that fact that defeats
any attempt to be more precise in a definition of best
interests. That said, helpful attempts have been made
9
[2004] EWHC 2247 (Fam)
Page 46 of 51
to tease out this concept but they always have to be
viewed as no more than attempts at illumination.”
(Emphasis supplied)
APPLICATION TO THE FACTS OF THE PRESENT CASE : -
60. I) The Primary Medical Report and the Secondary
Medical Report are unanimous that: -
a) Harish is in a vegetative state and has been in that
situation for the last more than 12 years.
b) He requires external support for his feeding, bladder,
bowel and back.
c) The continued administration of CANH is required for
sustenance and survival, though it may not aid in
improving his medical condition or repairing his
underlying damage.
d) He fulfils all the parameters for permanent vegetative
state.
II) The general examination from the Secondary Medical
Board as well as the parameters for permanent vegetative
state are as under:-
Page 47 of 51
“General examination:
He is bedbound and cachexic with evident muscle
wasting. He maintains a generalized flexed posture. His
body is lean with a tracheostomy tube, urinary catheter
and PEG in situ.
He was afebrile to touch, pulse rate of 90/minute, regular
and normovolemic. His blood pressure shown in the
monitor was 130/80 mm Hg and his respiratory rate was
16/minute. There were no signs of respiratory distress.
On general examination, there was mild pallor, no
jaundice, and nails and teeth were normal.
Although the skin was normal, there was a healing bed
sore over the lower back. In addition, there were
contractures in both upper and lower limbs.
Neurological examination:
His eyes were open with normal blinks with no purposeful
movement or response to auditory, verbal, tactile or
painful stimulus (supraorbital pressure).
The pupils were bilaterally normal and reacting. There
were no eye tracking movements to light or auditory
stimuli.
There were flexion contractures of all limbs and attempts
for passive movement did not elicit any facial grimace or
voluntary resistance.
To summarize, there was spontaneous, but non-purposive
eye opening, no vocalization (or attempt thereof, since the
patient was tracheostomized), and flexion of limbs on
stimulus.
No visual, cognitive or communication abilities could be
ascertained. His deep tendon reflexes were elicitable.
Sensory and cerebellar functions could not be examined.
Page 48 of 51
Other observations made and diagnostic criteria that
were applied:
There were secretions from the tracheotomy tube
requiring periodic suctioning.
The patient did not show any evidence of contact with the
surroundings, and while his family members were called
to the meeting room, he remained in the same state.
Table 2: Diagnostic criteria of Permanent Vegetative State
1. Exhibits no evidence of awareness of themselves or their
environment; they are incapable of interacting with others.
Yes
2. Exhibits no evidence of sustained, reproducible,
purposeful, or voluntary behavioral response to visual,
auditory, tactile, or noxious stimuli.
Yes
3. Exhibits no evidence of language comprehension or
expression.
Yes
4. Exhibits intermittent wakefulness manifested by the
presence of sleep-wake cycles.
Yes
5. Have sufficiently preserved autonomic functions of the
hypothalamus and brain stem that enable them to survive
given medical and nursing care.
Yes
6. Exhibit bowel and bladder incontinence. Yes
7. Have some preserved cranial nerve reflexes (pupillary,
oculocephalic, corneal, vestibulo-ocular, gag) and spinal
reflexes.
Yes
III) As is clear from the joint report filed by the learned
counsel and also the Court’s interaction with the parents
and siblings, the parents and siblings firmly believe that
the medical treatment is not making any difference and
Page 49 of 51
that there was no point in continuing with such treatment
and making Harish suffer for no good reason.
IV) The treatment is, according to the medical board,
offering no benefit to Harish.
V) It serves no therapeutic purpose.
VI) Harish is subjected to a lot of indignity.
VII) The futility of the treatment, the medical, emotional and
welfare aspects all point to only one direction, namely,
withdrawal of medical treatment.
VIII) There is no benefit much less continuing benefit from
the treatment.
61. All the above factors cumulatively lead to the sole
irresistible conclusion that it will not be in Harish’s best
interest to continue with the treatment and artificially prolong
his life.
CONCLUSION : -
62. In view of what has been held hereinabove, a direction
ought to be issued that in view of the concurrence of the
Primary Medical Board and the Secondary Medical Board,
Page 50 of 51
the consequences provided in Common Cause (supra)
should operate.
63. The Miscellaneous Application is allowed in terms of the
directions contained in the judgment authored by my
esteemed brother J.B.Pardiwala, J.
POSTSCRIPT: -
64. Now that the legal aspect of the matter is concluded, a
mention needs to be made of the love and affection by which
the parents and the siblings have nursed Harish for the last
more than 12 years. Harish has been in a vegetative state but
the parents and siblings have left no stone unturned in
ensuring best treatment for Harish. It is only when the matter
reached a point of no return, that to relieve Harish from what
he is undergoing they have resorted to this legal course of
action. One can only imagine the agony they would have
undergone during this period. As the ancient Shubashristha
in Sanskrit goes –
Chita Chinta Dwayoormadhya,
Page 51 of 51
Chinta Tatra Gariyasi.
Chita Dahati Nirjivam,
Chinta Dahati Sajeevakam
“Between the funeral fire and the mental worry,
it is the mental worry which is more devastating.
While the funeral fire burns only the dead body,
the mental worry burns the living one.”
65. On the implementation of this order, it is not as if their
agony will be entirely wiped off. However, the distress that
they experience due to what Harish is undergoing will at
least be over. Though the judgment is not based on this
aspect and has proceeded on the applicable legal
principles by keeping the best interest of Harish, it will
be very naive to ignore this harsh reality.
……….........................J.
[K. V. VISWANATHAN]
New Delhi;
11
th
March, 2026
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