Open Access Research Article
DNAR AND CONSENT IN CONTEXT OF MEDICAL NEGLIGENCE
Published Paper
Article Details
DNAR AND CONSENT IN CONTEXT OF MEDICAL NEGLIGENCE
AUTHORED BY
- SHREYA SHETTY
ABSTRACT
The act of taking a life is only
permissible under the law. The application of "due process of law"
extends beyond the context of the death penalty. The concept of "due
process of law" refers to the requirement that any law which infringes
upon the rights of individuals must undergo a set of procedural safeguards to
verify its compliance with the constitution. In certain instances, the
entitlement to a life of dignity encompasses the entitlement to end one's life.
The act of "mercy killing" or euthanasia, which involves
intentionally ending the life of an individual to protect their interests, can
manifest in various ways. The practise of euthanasia and other forms of
"mercy killing" exhibit significant variation across different
nations. Euthanasia is a medical practise that is legally permitted in certain
countries, while in others it remains illegal. This research aims to delineate
the various manifestations of euthanasia. The phrase "Do not attempt to
resuscitate" is a commonly used medical term, however, it remains an
unregulated form of assisted suicide. Prior to the decriminalisation of passive
euthanasia, India had implemented a Do Not Resuscitate (DNR) policy. The
legislation lacks regulation. Such arrangements fail to adhere to legal
protocols. The present study explores the concept of DNAR as a form of legally
sanctioned euthanasia or assisted suicide. The research investigates the
validity of DNR. The text examines the interconnections among the patient's
entitlement to life, the ethical principles of the medical profession, and
their obligation to this matter.
Keywords: Euthanasia, DNR, due process of law, Right to die
INTRODUCTION
The state is obligated to fulfil
certain negative responsibilities when it comes to fundamental rights;
nevertheless, the ever-evolving concept of justice has necessitated that these
responsibilities be interpreted in a proactive manner in order to protect the
interests of citizens. A fairly strict reading of Section 21 of the Indian
constitution was accepted by the constituent assembly. This interpretation
stipulated that no one's life would be taken away from them unless it was in
accordance with the proper legal procedure. The term "due process of
law" does not just apply to carrying out the judicial equivalent of the
death penalty. The phrase "due process of law" means that if there is
a law that infringes on the rights of citizens, such law will be preceded by a
system of acts and checks in order to ensure that it is constitutional. In a
few different situations, the right to life with dignity has been expansively
interpreted to encompass the right to end one's life. This introduces the idea
of "mercy killing" into the conversation. There are varying degrees
and types of what are collectively referred to as "mercy killing,"
which refers to the act of causing a person's death in order to protect their
interests. However, the legality of euthanasia and other forms of "mercy
killing" varies greatly from country to country. Some nations have made
mercy killing lawful by classifying it as a valid medical practice, while
others have recognised it as an acceptable exception, while yet others continue
to maintain that it is contrary to the law. In this article, we will attempt to
trace the history of mercy killing and its many different manifestations. The
phrase "do not attempt to resuscitate" is commonly used in the
medical field; yet, it continues to be an unregulated kind of assisted suicide
that is not precisely defined by legislation. Do Not Attempt Resuscitation,
often known as DNAR, is a procedure that is commonly used in specific
circumstances to prevent ineffectual CPR and to protect the dignity of the patient.
After discussing the matter with the patient or with the patient's surrogate,
the treating physician, who is familiar with the patient's medical state,
should decide whether or not DNAR should be performed. While ordering DNAR on
the patient's medical case record, every effort should be made to treat the
underlying condition and the patient should continue to get the highest quality
medical care that is currently available. Before the decriminalisation of
passive euthanasia in India, the DNR practise had been been in place there for
some time. Despite this, there is no regulation of the act. In such
arrangements, there is no respect for the law's prescribed procedures. This
paper is an exploratory attempt to identify the validity of DNAR as a kind of legal
euthanasia or any other form of assisted suicide or killing. The study has been
written as an exploratory attempt to find the validity of DNAR. In addition to
this, it makes an effort to address the intersectionalities that exist between
the right to life of the patient, the code of ethics that the medical community
is required to adhere to, and their responsibility to a cause of this nature.
The purpose of this study is to investigate whether DNAR is a type of mercy or
a technique that should be prohibited.
Indian cultural context
Joseph Fletcher, a well-known
philosopher, has been a proponent of euthanasia ever since the early 1930s,
according to a piece that he wrote in which he argues that any reasonable
society would want to exert logical control over the act of ending human life.
Every individual should have the
right to die with dignity, which includes the option to choose when they will
pass away and the right to get medical and pharmaceutical assistance to die
painlessly. This right should be given to everyone. Doctors, nurses, and
pharmacists cannot be held criminally or civilly liable if they assist a
patient in exercising their rights to free speech and assembly without
interference.
A clause of the European Convention
for the Protection of Human Rights and Fundamental Freedoms safeguards
individuals against intentional deprivation of life. The quality of life is not
addressed, and it is clear that ending a person's life at his or her own
request is unacceptable. The phrase "right to life" can also mean
"right not to be killed" in the context of medicine, with the
emphasis on survival rather than medically assisted death. Many, however,
understand this to mean that patients always have the right to cardiopulmonary
resuscitation, regardless of clinical circumstances.[1]
Extending this to all conceivable interventions at the life-death interface
could have catastrophic repercussions for the medical profession.
Katherine Young, in her investigation
of the traditional Hindu perspective on euthanasia, makes the observation that,
if one were to take today's emergent definition of euthanasia with its
technical insistence on medically defined cases of terminal illness and its
circumscribed meaning of a doctor actively killing a patient on compassionate grounds,
given due process of decision making, then, by definition, he would be hard
pressed to find equivalent situations in the past and in other pre-moderator
societies.[2] Young employs the antiquated definition of
euthanasia as "freedom to leave," which allowed the terminally ill
and those with a hopeless outlook to end their life, in order to make it easier
to conduct a historical and comparative analysis. Her research sheds light on
how voluntarily ending one's life in specific circumstances, such as old age or
illness, was common in India for a significant portion of its history, but was
finally eradicated in the early modern period. In comparison, euthanasia, in
the sense of the freedom to leave, was rarely found in the western world after
the Greco-Roman period. However, the merits of euthanasia are becoming
increasingly debated in today's society, as the practise of withdrawing
treatment from patients in hospitals becomes more common and as the discussion
over compassionate murder continues. It is believed that Jainism was the first
religion to approve of the practice of a religiously sanctioned, self-willed
death. This practise, which was known as sallekhana and involves fasting to
death, was practised by Jainists. While it is true that suicide is unequivocally
wrong, it is becoming more acceptable to die a heroic death in battle, to die a
self-imposed death because one is enlightened or has the desire to become
enlightened, or to die a self-willed death due to severe old age or poor
health.
Although the Buddha made an effort to
avoid accepting the heroic (self-willed) dying that was so prevalent in Ksatja
circles, he did allow self-willed death for the exceedingly ill as an act of
compassion; in other words, he approved of euthanasia for those who were
suffering from a terminal illness. It is possible that the Brahamanical
willingness to ritualize the withdrawal of the king (and his wife) into the
forest as a manner of abdicating the kingdom in old age may have set the stage
for religious self-sacrifice and self-willed death as a way to enter heaven in
Hinduism. Aside from this, euthanasia is permitted when a person is no longer
able to execute daily dharmic responsibilities for themselves, such as
purifying the body. This can be accomplished by jumping from a cliff into
water, jumping into fire, or walking oneself to death, among other methods. 1
Within the framework of Hinduism, euthanasia was classified as a form of
religiously motivated self-directed dying. As a result, it was never considered
a case of one person showing compassion for another by taking their life.
Therefore, the ability of the I to bring about his death was normative for the
acceptance of eut in Hinduism; nevertheless, it may be argued that contemporary
western civilizations do not share the same r worldview as Hinduism.
There is a growing consensus in the
west that the term euthanasia should refer to the concept of compassionate
murder in medically defined cases of illness. This involves the medical
profession in the active killing of the given due process of decision making.
While the process of legal definition making is not yet complete, there is a
growing consensus that the term euthanasia should refer to this. It has been
suggested that euthanasia should be differentiated, on the one hand, from
homicide (culpable or inculpable), and, on the other hand, from situations in
which the withdrawal of treatment, pain relief that may result in death, aiding
suicide, and euthanasia itself.
Right to die in India
In India, where euthanasia and
physician-assisted suicide are both strictly prohibited, the legislation is a
sleeping giant, despite being active in other nations. A physician who provides
a patient with lethal medications so that he might terminate his life is liable
as an aider in suicide. In India, both suicide aid (section 306 of the Indian
Penal Code) and suicide attempt (section 309 of the Indian Penal Code) are
criminal offences. In many nations, including the United States and the United
Kingdom, attempted suicide is not a crime. However, a physician who attempts to
kill a patient at the patient's request will fall under exception 5 to section
300 of the Indian Penal Code and will be held accountable under section 304 of
the Indian Penal Code for culpable homicide not amounting to murder. Instances
of non-voluntary and involuntary euthanasia would be omitted by the first
proviso to section 92 of the IPC, rendering them illegal. In its 42nd report,
the Law Commission of India suggested the repeal of the rule as early as 1971.[3]The section
had been deemed harsh and unjustified by the commission.
In Gian Kaur v. State of Punjab 41,
the constitution bench of the Supreme Court ruled that neither euthanasia nor
assisted suicide are legal in India. In P. Rathinam v. Union of India, an
earlier two-judge bench ruling of the same court was overturned by this
judgement. 42 In Gian Kaur's case, the court determined that article 21 of the
Constitution's right to life did not include the right to die. In this
instance, a corollary was drawn between euthanasia and suicide (in legal
terminology and obiter dicta). In this instance, the Supreme Court upheld the
House of Lords' decision in the Airedale case43 and noted that euthanasia could
only be made legal by legislation. Although it is against the law to engage in
active euthanasia in India, passive euthanasia is permitted there. Aruna
Ramchandra Shanbaug v. Union of India,44 which was heard by the Supreme Court
of India on March 7, 2011, resulted in the legalisation of passive euthanasia, also
known as the removal of life-sustaining treatment to people who are in a
vegetative state permanently on life support.
Assisted Sucide or mercy killing
The two most important cases ever
heard in the United States to consider the question of whether or not a person
has a constitutional right to aided suicide originated as challenges to state
laws that prohibited physician-assisted suicide and were brought by
individual patients who were nearing the
end of their lives and the doctors caring for them In the case of Washington v.
Glucksberg , the court Vacco v. Quill Two state supreme courts declined to
invalidate state statutes as a result of the case. prohibiting assisted suicide
on the basis that such practises breach privacy laws in their respective legal
systemsthe constitutions of the individual states. In the case of Glucksberg,
the court determined that the claimed It is not a fundamental liberty interest
to have the right to receive assistance in committing suicide , it is not
safeguarded by the Constitution's Fourteenth Amendment's Due Process Clause. In
the case of Vatco, the court decided that the state of New York's prohibition
on providing assistance to suicidal individuals violated the equal protection
clause of the United States Constitution. The court in Gluck made the
distinction between refusing to take medication that could save your life and
taking medication that could kill you. "with the SECO submission that
stopping or refusing life-saving medical treatment more nor less than assist"
was not accepted by the court.[4]
The Indian Penal Code (IPC) is where
the issues of PAS, active and passive euthanasia, and euthanasia in general are
addressed. This is where the legal status of PAS and euthanasia in India can be
found. At the very least, active euthanasia is considered a violation of
Section 304 of the Penal Code 1860, which states that the conduct constitutes a
punishment for murder under Section 302. (punishment for culpable homicide not
amounting to murder). Whoever administers the lethal dose is what
differentiates euthanasia from physician-assisted suicide; in euthanasia, this
is done by a doctor or by a third person, whereas in physician-assisted
suicide, this is done by the patient himself. Euthanasia and physician-assisted
suicide are two different forms of the same practise. In India, the PAS would
be considered an act of abetment of suicide, which would fall under Section 306
of the Indian Penal Code (abetment of suicide). Therefore, anyone who is
prepared to explore euthanasia or PAS in India needs to go via the courts of
law, and the courts have absolutely not reached a clear verdict on this topic
that would allow a PAS to go ahead.
Arguments between those who embrace
the concept of euthanasia and PAS and those who oppose the concept have always
existed and will continue to exist in the future. Some people believe that
hospitals do not take into consideration the patients' preferences,
particularly when the patients are suffering from life-threatening,
debilitating, or conditions that do not respond to treatment.[5] The new
legislation that could be enacted in the event that PAS is authorised will
almost certainly result in a shift in the prevalent medical culture. Because
psychiatrists always have to deal with concerns concerning patients' mental
capacities, this topic is becoming an increasingly pressing concern for them.
It is necessary to do empirical study on the issues of perceptions and
attitudes concerning euthanasia and PAS in India among large numbers of experts
and the general public in order to arrive at relevant findings on whether or
not euthanasia and PAS should be legalised.
Consent
Throughout the entire ordeal of
holding the doctor liable for any form of action or omission done by him under
the Indian penal code, question arises as to whether the consent of the patient
falls under inspection while determining the liability attached to the
consequences of the act. It's possible that consent is the only premise that
unites all of today's health care provisions, but it's certainly one of them.
It also stands for the ethical and legal embodiment of the fundamental right to
have one's own autonomy and to determine one's own course of action. If a
medical practitioner attempts to treat a patient without the patient's proper
consent, then the practitioner will be held accountable under tort law as well
as criminal law. A civil wrong known as a tort can result in a party being
entitled to seek compensation from the person who caused the harm. Both
financial restitution (in the form of a civil fine) and even jail time are
possible outcomes (in criminal). To get started, the patient has the option of
bringing a tort claim against the medical practitioner for trespass to person.
There is also the option of bringing a negligence claim against the medical
expert. There is a theoretical chance that criminal charges could be brought
against an individual for assault or battery in certain extreme instances. The
act of directly and either intentionally or negligently causing some physical
contact with another person without that person's consent is often understood
to be the definition of the crime known as battery. If a person has either
explicitly or implicitly given their permission to be touched, then there is no
such thing as battery. If there is a flagrant disregard for the patient's
bodily autonomy—for example, if a patient's organs are removed without his
consent—then a doctor might be held accountable for a criminal violation, but
this is an extremely unusual occurrence.
There are two more important facets
that need to be taken into consideration: first, valid consent can only be
gained from a patient who is competent to assent, and second, such consent must
also be informed consent. This is the only way that valid consent can be
obtained from a patient. The patient must be endowed with the ability to
balance the risks and benefits of the therapy that is being recommended to him
in order for him to be considered competent to give a consent that is legally
effective. The law operates under the presumption that one attains such a
capability upon reaching the age of full maturity in the general population.
Due to the fact that the law presupposes that the medical practitioner is in a
dominant position in relation to the patient, it is his responsibility to
ensure that adequate permission is obtained by giving the patient with all of
the relevant information. A consent that is lacking the required information is
not a valid consent at all. Unfortunately, the phrase "informed
consent" is frequently employed without the appropriate level of
specificity.
What is DNAR?
DNR orders, also known as do not
resuscitate orders, are instructions that are placed into a patient's medical
chart by a physician with the consent of the patient or the patient's
surrogate. As was covered in Chapter 2, terminally ill patients suffering from
a wide variety of conditions are susceptible to experiencing cardiac or
respiratory arrests. The phrase "code" designates the customary
response to this circumstance. DNRs, which are often commonly referred to as
"no-codes," instruct hospital staff and other caregivers not to
attempt resuscitation in the event that the patient experiences cardiac arrest.
Even when performed, the chances of successfully resuscitating a patient with
cardiopulmonary resuscitation are normally quite low, particularly for elderly
people (Murphy et al., 1989). Therefore, "Do Not Attempt
Resuscitation" instructions are sometimes known as "DNRs," which
stands for "Do Not Attempt Resuscitation."
Due to the fact that DNRs are orders
given by physicians, their origins can be traced back to the clinical tradition
rather than the legal history. Therefore, they are more comparable to orders
for lab work and medications than they are to legal documents such as wills and
powers of attorney that are durable. In addition, many hospitals began
providing alternatives for DNR orders long before the legislation required them
to do so. However, if the courts take DNRs into consideration when determining
whether or not a patient's wishes have been honoured, they could have some
bearing on the law. Because the choice to place a DNR in the patient's chart
must be made in conjunction with the patient and must reflect the patient's
decision to forgo certain life-prolonging procedures, DNRs play a role in
advance care planning along with living wills and durable powers of attorney.
This is because the choice to place a DNR in the patient's chart must be made
in order to reflect the patient's decision to forgo his right to treatment.
Patients consent
Patients should be involved in the
determination of DNR orders, challenging the norm of familial determination in
the Asian context, according to oncology and palliative care healthcare
professionals who believe patients should be involved in at least the discussion
of DNR orders, if not in the determination itself. The myriad of responses
exemplify the difficulty of making choices regarding matters that are
associated with the end of one's life. Consequently, it is necessary to take
into consideration the countless biopsychosocial, practical, and ethical
considerations that are associated with such deliberations.[6]
Patients and their families may have
a difficult time making a decision that is actually in the patient's best
interest because DNR orders are highly emotive and may be associated with
negative connotations of failure. Concurrently, conversations on a pointless
treatment with the false aim of gaining family support for this endeavour may
in fact violate the nonmaleficence principle, which states that one should not
act in a way that causes harm to another. In addition, if the patient or their
family votes against a DNR order, the provision of a futile therapy may in
reality be a breach of the physician's overriding duty of care to the patient
and their family. This is because the physician's primary responsibility is to
the patient and their family. It would be a violation of a physician's
fundamental commitment to act in the patient's best interests for the physician
to agree to trade patient autonomy for a therapy that would be more detrimental
to the patient than it would be beneficial to the patient.
Medical Negligence
Question arises as to whether lack of
consent of the patient to determine his access will create liability over the
doctor ? Would this result in medical negligence? The appropriate treatment and
pharmaceutical process according to the standards that should be taken into
account by a physician when delivering treatment to his patients are specified
in a standard of care. A standard of care is sometimes referred to as a care
standard. The level of care provided should neither be extremely high nor
extremely low.
In this context, the degree refers to
the level of treatment that an average health care worker who has received the
same education and experience would provide in conditions that are analogous
and located within the same community. This is the most important issue that
needs to be answered in situations of medical negligence, and if the answer is
"no," and you were injured as a result of the bad care, you have the
right to bring a lawsuit for medical malpractice.
In the case of Dr. Laxman Balkrishna
Joshi vs. Dr. Trimbak Bapu Godbole and Anr.[7]The
Supreme Court ruled that a doctor is obligated to perform certain duties, and
that if he breaches even one of those duties, he may be held legally
responsible for medical negligence. The Supreme Court's decision can be found
here. A doctor is obligated to practise a level of care that is commensurate
with the standards established for this profession.
The fundamental aspects of Medical
Negligence
(I) there is a responsibility toward
patients; (ii) there is a deficiency in duty for patients; (iii) this
immediately leads in; and (iv) the patient or their families suffer some kind
of damage as a direct consequence of this; the damage could be physical,
mental, or financial.
In the framework of DNAR, the act of
omission is seen to be an example of a passive action that yet carries
responsibility. In the event that the patient is not given the opportunity to
participate in the decision-making process regarding his or her medical
treatment, the physician has breached the duty of care that he or she owes to
the patient and the patient will experience a decrease in the quality of
service that is provided to them. It is necessary for the physician to be held
liable for the loss that was incurred as a result of the lack of care and
treatment provided on his behalf. There is an insufficient amount of
documentation used in the Indian hotel industry, which makes the DNAR procedure
more difficult. A loss is incurred for both the patient and his interests as a
result of the absence of recorded consent and the opportunity to consent.
Conclusion
Hospital directives that do not
include CPR or advanced cardiac life support (ACLS) are unusual in and of
themselves. A patient is required to give their informed permission prior to
any medical procedures. Patients need to be informed of both the benefits and
risks of the proposed intervention before they may give their consent for it.
Under the law, it is possible to be charged with assault and battery for doing
something to a patient without first obtaining their agreement. Even if it
could save the patient's life, an intervention such as a cancer resection should
never be performed on a patient against their will without first obtaining
their agreement. However, CPR flips the script on the concept of informed
consent. Because an emergency situation arises when the patient is unable to
grant consent and there is no time to ask surrogates, medical professionals
make the assumption that patients accept resuscitation attempts unless they
have previously determined that patients do not want these attempts. As
advocated by the American Heart Association (AHA), Boozang proposes doing away
with the implied consent method and replacing it with one in which explicit
conversations are held with each patient upon admission to the hospital. The
idea of consent attached to DNAR is nascent and ever evolving , with the expansion
of right to life with dignity and the trend to legalise assisted suicides the
idea od consent in death is imminet . The area of law remains unspoken about
due to the legal recognition of the right to death under the current legal
system. However evolving times need evolving approaches to law and anticipation
of probable issues,
Sources:
-
https://www.ncbi.nlm.nih.gov/books/NBK233596/
-
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3701348/
-
https://www.mondaq.com/india/human-rights/682770/supreme-court-upholds-passive-euthanasia-issues-guidelines-on-advance-directives-in-landmark-judgement
-
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4441884/
-
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7371064/
-
https://www.mondaq.com/india/human-rights/682770/supreme-court-upholds-passive-euthanasia-issues-guidelines-on-advance-directives-in-landmark-judgement
-
Donald
L. Levin & Nancy R. Levin, DNR: An Objectionable Form of Euthenasia, 49 U.
CIN. L. REV. 567 (1980).
-
Scott
R. Cox, The Qualified Right to Refuse Medical Treatment and Its Application in
a Trust for the Terminally Ill, 13 J. FAM. L. 153 (1973).
[1] BMJ: British Medical Journal , Jun. 11, 2005, Vol.
330, No. 7504 (Jun. 11, 2005), pp. 1388-1389
[2] 0. Harold G. Coward, "Introduction" in
Harold G Coward et al. (eds.), Hindu Ethics, id. at 5.
[3] 37 Richard Miniter, The Dutch Way of Death, Opinion
Journal from The Wall St
[4] Journal of the Indian Law Institute , APRIL-JUNE
2012, Vol. 54, No. 2 (APRILJUNE 2012), pp. 196-231
[7] Dr. Laxman
Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Anr.1969 AIR 128
Article Information
DNAR AND CONSENT IN CONTEXT OF MEDICAL NEGLIGENCE
Authors: SHREYA SHETTY
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.