CANH via PEG Is “Medical Treatment”: Best-Interests Framework and Operationalisation of Common Cause for Home-Based PVS Patients

3.1 Precedents Cited

A. Indian constitutional and euthanasia line

• Common Cause v. Union of India, reported in (2018) 5 SCC 1 (“Common Cause 2018”): The foundational precedent recognising (i) “right to die with dignity” within Article 21; (ii) permissibility of passive euthanasia (re-termed in this judgment as withdrawal/withholding of medical treatment); and (iii) legality of Advanced Medical Directives (AMD), alongside detailed procedural safeguards (Primary and Secondary Medical Boards, limited High Court role). This judgment treats Common Cause 2018 as the “definitive word” and builds operational clarifications on it.
• Common Cause v. Union of India, reported in (2023) 14 SCC 131 (“Common Cause 2023”): The streamlining modification—particularly time-bound expectations (“preferably within 48 hours”)—was repeatedly relied on to stress that delay defeats dignity. The 2026 judgment further operationalises this by requiring CMO-maintained panels to avoid nomination delays.
• Gian Kaur v. State of Punjab, reported in (1996) 2 SCC 648: Serves as constitutional hinge: Article 21 does not include a general “right to die” but does include dying with dignity where death is imminent and natural dying has commenced—used in Common Cause 2018 and reaffirmed as a basis for permitting withdrawal/withholding.
• Aruna Shanbaug: Used as historical milestone and as an example of court-crafted interim standards in legislative vacuum; also relevant to rebut the “terminal illness only” misunderstanding (PVS is also within the ambit).
• Parmanand Katara v. Union of India, reported in (1989) 4 SCC 286: Cited in the dignity–sanctity discourse, illustrating the high constitutional value attached to preservation of life, which nevertheless is not absolute when weighed against dignity in end-of-life contexts.
• Privacy/autonomy jurisprudence in Common Cause’s reasoning: K.S. Puttaswamy v. Union of India, and references to Maneka Gandhi, National Legal Services Authority v. Union of India, Anuj Garg v. Hotel Assn. of India, showing Article 21’s expansion to dignity, autonomy, and bodily integrity.

B. English common law: CANH as treatment; best interests; acts/omissions

• Airdale NHS Trust v. Bland, reported in (1993) All ER 821: Central to two holdings: (i) withdrawal of CANH is an omission (allowing underlying condition to take its course) rather than introducing an external agency of death; and (ii) CANH is part of the “whole regime” of medical treatment, not mere “basic care.” The Court heavily drew from Lords Keith, Goff, Browne-Wilkinson, and the Court of Appeal’s emphasis on “external agency of death” (including contrast with Reg. v. Cox).
• Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582: Referenced through Bland for deference to responsible medical opinion on benefit/futility.
• In re F. (Mental Patient: Sterilisation), reported in (1990) 2 AC 1: Anchors the best-interests justification for treating (or ceasing to treat) incompetent patients consistent with medical duty and absence of trespass.
• Best interests “balance sheet” evolution: Re A (Male Sterilisation), reported in [2000] 1 FLR 549 560 F-H; Re S (Adult Patient: Sterilisation), reported in [2001] Fam 15; Portsmouth NHS Trust v Wyatt, reported in [2005] 1 FLR 21; R (Burke) v GMC (Official Solicitor and others intervening), reported in [2005] EWCA Civ 1003. These support the proposition that best interests is not reducible to a single test and includes non-medical welfare dimensions.
• Post-MCA best interests (patient-centred; futility as “no benefit” not “no cure”): W v. M, reported in [2011] EWHC 2443 (Fam) (MCS cases require balance sheet and weight to wishes); Aintree University Hospitals NHS Foundation Trust v James, reported in [2013] UKSC 67 (futility = pointless; recovery = worthwhile life for that patient; reject “reasonable person” lens); M v. Mrs. N and Ors., reported in 2015 EWCOP 76; Lindsey Briggs v. Paul Briggs and Ors., reported in [2016] EWCOP 53; In re M (Incapacitated Person: Withdrawal of Treatment), reported in [2018] 1 WLR 465; An NHS Trust and others v. Y (Intensive Care Society and others intervening), reported in [2019] A.C. 978.
• Palliative implementation emphasis: Hillingdon Hospitals NHS Foundation Trust v. IN & Ors, reported in [2023] EWCOP 32 was invoked for the “step-by-step withdrawal plan” imperative.
• Contemporary CANH withdrawal in PDoC: 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).
• Additional UK cases cited by counsel (illustrative of UK trend): County Durham and Darlington NHS Foundation Trust v PP and Ors, reported in [2014] EWCOP 9; Cumbria NHS Clinical Commissioning Group v. Miss S, reported in [2016] EWCOP 32 (Fam); NHS Windsor And Maidenhead Clinical Commissioning Group v. SP, reported in [2018] EWCOP 11.

C. United States: substituted judgment and objective best interests

• In re Eichner on behalf of Fox, reported in 73 A.D.2d 431; Barber v Superior Court, reported in 147 Cal App 3d 1006; In re Conroy, reported in 98 N.J. 321; Rasmussen v. Fleming, reported in 154 Ariz. 207; Cruzan v Director, Missouri Department of Health, reported in 497 U.S. 261; In re Guardianship of Jane Doe, reported in 411 Mass. 512; In re Guardianship of L.W., reported in 167 Wis. 2d 53.
• These cases were used to demonstrate: (i) “substituted judgment” where wishes can be reconstructed; (ii) a shift to objective best-interest tests where wishes cannot be reliably ascertained; and (iii) the recurring analytical structure of benefits vs burdens, especially where cognition will not return.

D. Other jurisdictions and international law

• In the matter of a Ward of Court (No. 2), reported in [1996] 2 IR 79 (Ireland): best interests framed as whether life should be prolonged by abnormal artificial nourishment; with attention to likely wishes.
• Eluana Englaro, reported in Case No. 21748 of 2007 (Italy): dual threshold—irreversible PVS and clear reconstruction of patient’s will/values; otherwise life prevails.
• Re BWV; Ex parte Gardner, reported in 2003 VSC 173 (Australia, Victoria): PEG feeding is medical procedure even if delivered at home; requires medical protocols and supervision.
• Messiha v South East Health, reported in [2004] NSWSC 1061 and Australian Capital Territory v. JT, reported in [2009] ACTSC 105 (Australia): best interests guided by medical futility or, where treatment is beneficial and illness is not terminal, continued support may be required.
• Auckland Area Health Board v. Attorney-General reported in (1992) 8 CRNZ 634 and In Re G, reported in [1997] 2 NZLR 201 (New Zealand): no duty to continue life support with no medical function; best interests tied to good medical practice.
• Lambert v France, reported in (2016) 62 EHRR 2 (ECHR): collective decision-making, best interests, futility, and consultation structure.

E. Active vs passive euthanasia: intention/causation

• The “external agency of death” distinction (Bland; including contrast with Reg. v. Cox) and the intention/causation distinction (referenced via Rodriguez v. Attorney General of Canada and Vacco) were used to clarify why withdrawal/withholding (authorised omission) is constitutionally and criminally distinct from active euthanasia.

3.2 Legal Reasoning

A. Reframing “passive euthanasia” as “withdrawal/withholding of medical treatment”

The Court adopts a terminological clarification: “Euthanasia” is reserved for active euthanasia (impermissible absent legislation), while “passive euthanasia” is treated as an obsolete/confusing label and replaced with “withdrawing or withholding of medical treatment.” Substantively, this is not a change in law; it is a clarity move to reduce misclassification risks for clinicians.

B. CANH as “medical treatment” (including in home settings)

The Court’s key doctrinal holding is that CANH is not “basic care” but a technologically mediated clinical intervention: it requires medical indication, device placement (including surgical PEG), prescribed formulations and rates, monitoring, complication-management (aspiration, peritonitis, infection), and periodic review. Relying on Airdale NHS Trust v. Bland and Re BWV; Ex parte Gardner, the Court holds that even if routine administration occurs at home, it remains medical treatment because the regime is governed by medical protocols and supervision.

Why this matters: Under Common Cause 2018, only “medical treatment” can be lawfully withdrawn/withheld under the passive-euthanasia framework. Declaring CANH as treatment removes a major implementation obstacle and corrects the High Court’s misapprehension that absence of a ventilator equals absence of “life support.”

C. “Best interests of the patient”: content, method, and the “right question”

The Court places “best interests” at the centre for incompetent patients, synthesising Indian constitutional values (dignity, bodily integrity) with comparative method. It emphasises:

• The “right question”: not whether it is in the patient’s best interests to die, but whether it is in the patient’s best interests that life be prolonged by the continuation of the treatment (echoing Lord Goff in Airdale NHS Trust v. Bland).
• Holism: best interests is not a single rigid test; it includes medical, social, psychological, and welfare considerations (drawing from Re A (Male Sterilisation), Re S (Adult Patient: Sterilisation), Portsmouth NHS Trust v Wyatt, and Aintree University Hospitals NHS Foundation Trust v James).
• Presumption for life: anchored in sanctity of life but defeasible where treatment is futile, overly burdensome, or dignity-eroding.
• Substituted judgment as a strong element, not an override: the patient’s ascertainable wishes/values should inform the inquiry, but finality rests with best interests.
• Balance-sheet methodology: once relevant factors are identified, they must be weighed—benefits vs burdens—rather than assumed.

A significant doctrinal nuance is the Court’s insistence that substituted judgment in India should be read primarily through the lens of dignity and bodily integrity (not merely privacy/autonomy), ensuring that incompetent patients are not excluded from Article 21 protection merely because they cannot exercise choice contemporaneously.

D. Authorised omission and doctors’ duty of care

The Court reinforces that withdrawal/withholding, when done under Common Cause safeguards and in best interests, is an “authorised omission” and not an illegal omission. The duty of care does not require futile perpetuation of biological existence; it reorients from cure to palliation. This directly addresses clinicians’ fear of criminal liability and is intended to reduce defensive medicine.

E. Procedural operationalisation: bridging home-care gaps and administrative delays

The case exposed a real-world gap: Common Cause assumes a hospital setting that can constitute boards, but many PVS patients are managed at home. The Court clarifies that families may (i) admit the patient to a hospital of choice to trigger the process, or (ii) seek designation of a primary treating physician to initiate the protocol. Further, to reduce delays in constitution of Secondary Boards, the Court mandates that CMOs maintain an updated panel of eligible registered medical practitioners for nomination.

F. Implementation must be palliative, not abandonment

A critical normative development is the Court’s insistence that withdrawal is not a single abrupt act and must not translate into abandonment: it must be implemented through a structured palliative/EOL care plan. The Court’s strong disapproval of “discharge against medical advice” practices signals that “treatment limitation” cannot become “care cessation.”

3.3 Impact

• Clarifies CANH status nationwide: The declaration that CANH is “medical treatment” (including in home settings) is likely to be the most immediately operational part of this precedent. It forecloses arguments that PEG feeding is mere “basic care” immune from withdrawal protocols.
• Corrects “mechanical life support” misconceptions: The High Court’s error—equating “mechanical” with ventilators—will likely be cited in future to ensure feeding tubes are treated as life-sustaining medical interventions under Article 21 discourse.
• Best interests becomes more structured in India: By expressly adopting a balance-sheet approach and integrating substituted judgment as a strong element, the Court gives Indian clinicians and courts a more usable analytical toolkit than the earlier, more abstract formulations.
• System-building directions: Mandates to High Courts/JMFCs and CMO panels address known chokepoints in Common Cause implementation. If complied with, these directions reduce friction, delay, and clinician hesitation.
• Strengthens palliative care as a constitutional companion: By tying dignity in dying to robust palliative/EOL planning, the decision is likely to influence hospital protocols, medical education, and state health administration—especially against “DAMA” misuse.
• Legislative pressure: The judgment’s detailed account of Law Commission reports, private bills, and stalled draft guidelines sharpens the constitutional expectation that Parliament must enact an enduring framework.