Supreme Court orders AIIMS panel to review brain death certification methods

A bench comprising Justices Vikram Nath and Sandeep Mehta issued the directive while hearing a petition filed by Kerala-based Dr S Ganapathy, who raised concerns about current brain death certification practices, alleging that in some cases, doctors declare patients brain dead without conducting a direct physical examination.

During the hearing, S Ganapathy cited an instance in which a hospital reportedly did not conduct any physical examination before declaring a patient brain dead, and even agreed to waive off a hefty bill to transfer the body home on the condition that the family agreed to donate his organs.

According to LiveLaw, the petitioner pointed out that instead of relying on an apnea test, verifiable material should be considered while declaring a patient brain dead before transplanting their organs. He further provided suggestions of better methods, like a brain angiogram and EEG, and stated that there would be no supply of blood to the brain and the brain's cells to confirm that it is non-functional.

When Justice Mehta pointed out that the law requires an apnea test to be conducted by a committee and videographed before a person can be declared brain dead, Dr. Ganapathy responded that doctors do not carry out any videography. In response, Justice Mehta remarked, "There's a procedure in place. It's not being complied with is a completely different aspect".

Explaining the whole process, Dr Ganapathy alleged that in reality, the form that declares a patient brain dead, Form 10, is delivered to doctors' rooms for signature, and doctors often sign the form without even physically meeting the patient. He also pointed out the mounting cases of brain-dead patients since he filed the petition. Counsel for the Centre referred to Section 13 of the Transplantation of Human Organs Act (as amended in 2011) and Rule 5 of the relevant Rules, arguing that the law provides for the constitution of Boards by the States.

After hearing her submissions, Justice Mehta observed that the petitioner’s concern relates to the procedure for declaring a person brain dead. "What should be the appropriate test before you can reach a certain conclusion regarding the patient being brain dead? On that, your affidavit would obviously be silent, because you have just laid down a procedure and who is to follow it?", the judge said.

Dr. Ganapathy informed the Court that the apnea test is scientifically recognized as risky. On being asked if there was data backing the two tests he recommended, he replied yes. He added that while the respondents objected to angiography, citing potential kidney damage, evidence shows it does not harm healthy kidneys. When queried, he stated the proposed tests were inexpensive and widely available. The Bench then asked Dr. Ganapathy to file his suggestions in writing. It further said it would direct AIIMS’s Neurology Department Head to form a 3–5 member expert committee to evaluate the safety and practicability of the tests. The case was adjourned to July, with instructions that the committee’s report be submitted in a sealed cover, reports The Daily.

Medical Dialogues had earlier reported that the Supreme Court expressed its reservations about entertaining a plea by a doctor who challenged the validity of the definition of brain-dead in the Transplantation of Organs and Tissues Act (THOTA), 1994. Dr S Ganapathy advanced a theory that 'brain death' was a fictitious concept, devised by doctors to facilitate organ trade. Taking note of the fact that the case raised more of an ethical issue, Justice Kant suggested that the petitioner go to AIIMS and meet Dr Srinivasan, to see if the institute could recommend something to the government.