Business Accent

To put off or Not to put off the Ventilator is the Dilemma

As the Consumer Protection Act does not define the word 'death' or 'brain-stem death', Consumer Court judges will refer to the General Clauses Act for the definition of the word 'death' or 'brain-stem death'

Dr Gopinath N Shenoy

In the last 50 years, medical science has really advanced by leaps and bounds. Be it the invention of the CT scan or in-vitro fertilisation or cloning or the ability of stem cells to rejuvenate a failing organ. All these things were unimaginable once upon a time. Advancements have not always been used for the alleviation of human pain and suffering. Medical innovations have also been misused and whenever the law was unclear, the misuse was greater.

Keeping a person 'alive' on life support systems is also a great accomplishment that the medical science has achieved. This incidentally is also the place where the scientific knowledge possessed is manipulated to keep the 'dead' alive. At the end of the day, from the medical intensive care unit only the lucky few walk out. But the relatives of the unlucky ones only land up paying huge hospital bills for the use of life support systems, which should have been disconnected long time back or never ought to have been used.

The question is simple— When should the life support systems be put off? And the answer to this simple question is even simpler— when the patient is dead. So when is a patient to be declared dead? The answer to this question is far from simple!

The Registration of Births and Deaths Act, 1969 provides for the regulation of registration of births and deaths and for matters connected therewith. Section 2(1)(b) defines death. It states: death means the permanent disappearance of all evidence of life at any time after live-birth has taken place.

Section 2(e) of the Transplantation of Human Organs Act - 1994, defines a deceased person thus: 'deceased person' means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.

In simple terms, a person is to be declared dead when all evidence of life permanently disappear because of brain-stem death or because of cardio-pulmonary failure.

In spite of this, the intensivists in the ICUs still hesitate to disconnect the life support system in brain-stem dead patients. They feel that the concepts of brain-stem death are applicable only in those patients from whom organ are to be harvested under the Transplantation of Human Organs Act - 1994. In those patients, who are not organ donors, the concepts of brain-stem death cannot and should not be considered. In short, brain-stem dead patients who are not willing for organ donations are to be maintained on life support systems until they die of cardio-pulmonary failure.

Legally speaking, it would be wrong to say that the legal definition of a word (brain-stem death) mentioned in the Transplantation of Human Organs Act 1994 should be applicable only to the said Act and cannot be considered outside the said Act. Principles laid down under the 'Interpretation of Statutes' settles this unnecessarily raked up controversy.

The principles of interpretation, lay down that when any dispute is adjudicated under the provisions of a particular Act, then any word in question must be interpreted as per the definition of that word as given in that Act. If the said Act does not define the said word, then the definition present in the General Clauses Act must be considered when it comes to defining that word.

If the General Clauses Act does not define the said word, then the definition of the said word can be imported from any other law for the time being in force. If the word cannot still be defined, then the dictionary meaning of the word can be used for legal purposes.

Let me cite an example. Suppose a brain-stem dead patient's life support system is disconnected and the relatives sue the doctor and the hospital to the Consumer Court under the Consumer Protection Act. The complaint will be that the doctors and the hospital killed their patient inasmuch as they disconnected the life support systems even when the heart and lungs of the patient were still functioning. The defense, of course, is going to be that the patient is brain-stem dead. How will the Consumer Court proceed in this matter revolving on the issue of death?

The Consumer Protection Act does not define the word 'death' or 'brain-stem death' for the Consumer Court judges to rely upon. Under the circumstances, the judges will refer to the General Clauses Act for the definition of the word 'death' or 'brain-stem death'. As things stand today, the General Clauses Act does not define the word 'death'. The judges will therefore have to rely on the definition of the word 'death' or 'brain-stem death' from any other law for the time being in force.

Thus, the judges are free to rely on the Transplantation of Human Organs Act - 1994 which states that death is said to be present when there is disappearance of life either due to brain-stem death or due to cardio pulmonary failure.

The above example has been cited to drive home the point that the definition of the word 'deceased person' is not restricted only to those who want to give their organs in donation. The interpretation of the word 'deceased person' or the concepts of 'brain-stem death' can be routinely applied in our day to day practice.

At this point, it is worth while to mention about another un-necessary controversy. It is believed that a person can be certified as brain-stem dead by none other than a team of medical experts comprising (i) the registered medical practitioner (RMP) in charge of the hospital in which brain-stem death has occurred; (ii) an independent RMP, being a specialist to be nominated by the RMP specified in clause (i), from the panel of the names approved by the Appropriate Authority; (iii) a neurologist or a neurosurgeon to be nominated by the RMP specified in clause (i) from the panel of names approved by the Appropriate Authority; and (iv) the RMP treating the person whose brain-stem death has occurred.

The point to be noted here is that such a team is required to certify brain-stem death only when organ donation is contemplated. If no organs are to be harvested, then brain-stem death can be certified by any registered medical practitioner. Can a person be certified brain-stem dead in hospitals not registered under the Transplantation of Human Organs Act? The answer to this question is that brain-stem death can be diagnosed and certified in any hospital as it only signifies the way the death has occurred and brain-stem death can occur even in hospitals which are not registered under the Transplantation of Human Organs Act. A registered hospital is required only for the purpose of harvesting and transplantation of human organs.

Finally, can disconnecting the expensive life support mechanisms in a brain-stem dead patient amount to killing him? The answer is no because one cannot kill a patient who is already dead. A dead patient cannot die again and therefore cannot be killed.

So, the take home message: Keeping 'alive' a brain-stem dead patient on life support systems when organs are not to be donated amounts to deficiencies in services and is actionable.

The writer is a Medico Legal Consultant & a Former Member of Consumer Court Mumbai
E-mail: drgnshenoy@yahoo.com