Column: An Overview of Passive Euthanasia ‘Living Will’ landmark Judgment by SC
Let me start my pen running by first and foremost pointing out explicitly that in a landmark judgment, the Supreme Court has upheld passive euthanasia and has paved the way for it by allowing withdrawal of life support to a patient if s/he slips into irreversible coma. Now what is passive euthanasia? Passive euthanasia refers to speeding up the process of dying by withholding life-prolonging measures and resources. This could be either at the express or implied request of the person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).
There are many countries that allow passive euthanasia. Let me mention here some of them. They are as follows: –
- Netherlands – Euthanasia in the Netherlands is regulated by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases and under very specific circumstances including the patient’s will and suffering a second opinion and the absence of alternatives.
- Belgium – Euthanasia was legalized in September 2002.The Belgian law sets out conditions under which the suicide can be practiced without giving doctors a licence to kill. Patients wishing to end their lives must be conscious when they make the demand and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain” resulting from an accidenmt of incurable illness.
- Italy – Italian lawmakers passed a law in 2017 allowing thereby adults to decide, in consultation with their doctors, their end-of-life medical care, including the terms under which they can refuse treatment. We thus see that the law permits Italians to write living wills and refuse medical treatment, artificial nutrition and hydration.
- USA – Active euthanasia is illegal in all US states but physician-assisted dying is legal in Oregon, Washington, and Montana. Most states allow passive euthanasia. It is a must for doctors to respect patients wishes as per advance directives.
- Switzerland – Assisted suicide is allowed in Switzerland as long as the motive isn’t profit. Active euthanasia is illegal.
- Germany – Active assisted suicide is illegal. But passive euthanasia is allowed. Doctors can stop life-prolonging measures on patient’s written wishes. It is also legal to administer painkillers to a dying patient.
- Canada – Quebec allows physician assisted dying but not in other parts of Canada.
As it turned out, the Supreme Court has also upheld the right to give advanced medical directives or “Living Wills” spelling out views and wishes pertaining to medical treatment in terminally ill conditions or those in persistent and incurable vegetative state (PVS) to smoothen the dying process as part of the fundamental right to live with dignity. It also allows the families of those in incurable coma to withdraw such measures to reduce the period of suffering and provide a dignified exit by refusing medical treatment or life support. On advance directive, CJI Dipak Misra said that though there was no legal framework in India, the Supreme Court was obliged to protect the right of the citizens enshrined under Article 21 of the Constitution. He also said that, “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.”
Simply put, while referring to the scope for gross misuse of advance directive, the Bench laid down guidelines on who could execute the advance directive and how, what should it contain, how should it be recorded and preserved, when and by whom can it be given effect to, what if permission is refused by the medical board, and also in the event of revocation or inapplicability. It also spelt out guidelines to be followed in cases of no advance directive, saying that such persons cannot be “alienated”. Let me be quick to add here that Justice Chandrachud rightly cautioned that advance directive needs periodic review and revision to ensure it is not utilized as a “subterfuge” for facilitating a succession to property!
While craving for the exclusive indulgence of my esteemed readers, let me inform them that a five-Judge Constitution Bench of the Supreme Court led by Chief Justice of India Dipak Misra along with Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan in four separate and concurring opinions ruled explicitly on March 9, 2018 that the fundamental right to life and dignity under Article 21 of the Constitution includes the “right to die with dignity”. It ruled that “smoothening” the process of death for terminally ill patients with no chance of recovery was integral to life with dignity. The ruling which runs into 538 pages, came on a petition filed by an NGO named “Common Cause” and was argued by eminent lawyer Prashant Bhushan.
For my esteemed readers exclusive indulgence, let me also inform them that until now, pulling the plug on a terminally-ill patient posed a grave moral and ethical dilemma to the family as also to the treating doctor and hospital who ran the risk of criminal prosecution for abetting murder. This alone explained why inspite of the terminally-ill patient suffering endlessly since a very long time had to bear everything quietly as there was no remedy earlier of “dignified end of life” that is now available to them, all credit to the five-Judge Bench of the Supreme Court led by the CJI Dipak Misra which delivered this landmark judgment. Prashant Bhushan while hailing this landmark judgment stated that, “This is an important, historic decision which clears the air. Everybody will breathe a sigh of relief because people were earlier apprehensive that if they withdrew life support, they could be prosecuted for culpable homicide.”
To be sure, the Bench of the Apex Court while rendering this landmark judgment made it amply clear that, “The ‘living will’ must be an informed consent by an adult while in a sound state of mind before a Judicial Magistrate of First Class and in the presence of two independent witnesses who will attest. The said instructions will unambiguously indicate when medical treatment is to be withdrawn and even name a guardian or close relative who will execute the said “will” in the event the patient slips into coma or persistent vegetative state (PVS). A copy of the will shall be restored in the office of the Judicial Magistrate and the local municipality or panchayat.”
Truly speaking, the Judges also stated that, “The right to live with dignity (a component of right to life and liberty under Article 21) 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. A failure to recognise advance medical directives (or living will) may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”
It would be pertinent to mention here that when the living will or medical directive is produced by the family to the treating doctor, the hospital shall constitute a Medical Board of three doctors of minimum 20 years standing to examine the patient and the feasibility of executing the “living will”. Their preliminary opinion will be forwarded to the District Collector who will constitute another Medical Board headed by Chief Medical Officer of the district and three other doctors. The Board will visit the patient and give its view on the opinion of the first medical board.
Needless to say, if both the boards concur, the Collector will communicate the decision to the Judicial Magistrate, who will issue orders to execute the living will. However, in case of difference of opinion or rejection by the Medical Board on account of ambiguity in the advanced directive, the family or the hospital can approach the High Court that will expeditiously hear and decide the case. It will be open to the High Court too to constitute a Medical Board of its own.
Let me also hasten to add here that the court also considered such cases where no living will or directive is left behind. The treating doctor, on the request of family members, may ask the hospital to form a Medical Board. Taking into account the above safeguards, the same process will be adopted. Here too, the final decision to withdraw life support will be that of the Judicial Magistrate of First Class. In cases where the matter come up before the High Court, the Magistrate will intimate withdrawal of life support and the said order shall be preserved in court records for three years after the patient’s death.
It must also be mentioned here that with the advancement in medical technology and the irrefutable fact that medical directive achieved lawful recognition in the US, Australia, Canada and other jurisdictions, the Bench felt that it was time for India to recognize this right as part of a citizen’s right of self-determination, dignity, autonomy and privacy as well by choosing not to suffer a painful death.
Truth be told, the Constitution Bench while interpreting Article 21 which deals with the right to life or personal liberty stated in unqualified terms that, “It has to be stated without any trace of doubt that the right to life with dignity has to 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.” The Judges also said that, “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 permanent vegetative state, 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”. Absolutely right!
It is noteworthy that CJI Dipak Misra and Justice AM Khanwilkar who authored the main judgment said that, “Our directions with regard to the advanced directive and the safeguards…shall remain in force till Parliament makes legislation on this subject.” It also must be noted here that Justices AK Sikri, DY Chandrachud and Ashok Bhushan wrote three separate judgments concurring with the main verdict.
It must be brought out here that the CJI’s judgment detailed what the court meant by “no cure”. It read as follows: “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.” It also said that, “The dignity of life is denied to such a person 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”.
It must also be brought out here that Justice Sikri, in his verdict, hoped that the legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that “there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia”. Concurring with the CJI’s verdict, Justice Sikri said that, “A dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity”. Making an interesting analysis of how passive euthanasia is opposed in the country both morally and religiously, the Judge voted in its favour citing human dignity and the cost benefit involved in opting for the same.
It also cannot be lost on us that Justice DY Chandrachud in his judgment wrote that, “Dignity is the core value of life and personal liberty which infuses every stage of human existence. Dignity in the process of dying as well as dignity in death reflect a long yearning through the ages that the passage away from life should be bereft of suffering”. He also said that, “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 providing dignity in death is protected by Article 21 and is enforceable against the state.”
Going forward, on the advance directive, Justice Chandrachud said that the reason for recognizing it is based on individual autonomy. He said that, “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 to receive medical treatment”. Concurring with him, Justice Ashok Bhushan too said that, “An adult human being having mental capacity to take an informed decision has the right to refuse medical treatment including withdrawal from life saving devices.”
It must be added here that Justice Chandrachud also made it clear that, “The principle of sanctity of life thus recognizes 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”. He also further stated that, “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. Advanced 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 sancity to it in future in the same manner as a decision in the present on whether or not to accept medical treatment”.
It may be recalled here that in 2011, the Supreme Court had recognized passive euthanasia in the Aruna Shanbaug case by which it had permitted withdrawal of life-sustaining treatment including withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. It was in this landmark case that Supreme Court for the first time laid down guidelines for euthanasia and also made a distinction between active and passive euthanasia. Aruna who was a nurse was brutally raped and beaten by a sweeper which made her as good as dead and she remained bed ridden for 42 long years and was in a permanent vegetative state! Her condition for such a long period was most gut wrenching and this was what compelled even the Supreme Court to sit up and take notice and recognize the passive euthanasia! Earlier in Gian Kaur v State of Punjab (1996), the Supreme Court said that Article 21 guaranteeing right to life did not include right to die or right to be killed. It said that an unnatural termination of life was incompatible with basic idea of right to life. In another case N Mukundan Pillai of Kollam, Kerala had petitioned for the right to die in 1999. The retired headmaster said he was sound in body and mind who had fulfilled his duties, obligations, was a contended person and had no further motivation to live. He contended that his only desire was to have an ‘honourable exit’ from life while he was mentally/physically fit. His petition was rejected. Very rightly so!
Be it noted, NGO Common Cause filed a PIL saying that safeguards were needed while taking a decision by medical boards to withdraw life support of a terminally ill patient. The Apex Court while recognizing the right of a person to execute an advance directive that would specify his/her choice of medical treatment in case of a terminal illness also laid down the procedure to be followed and elaborate safeguards lest the facility be misused. We have already dealt this in detail.
On January 15, 2016, the Centre said that the 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards and there was also a proposed law – Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill. The government has proposed to legalise passive euthanasia after two Law Commission reports of 2006 and 2012. The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill (2016) is yet to be tabled before the Parliament. Additional Solicitor General PS Narasimha who represented the government in the case said that the Bill was at initial stage. He also said that, “It’s a tentative Bill. The process of legislation will take into account the suggestions given by the court.”
If we read between the lines of this landmark judgment, we would find that Justice Chandrachud rightly weaved the right to privacy into the issue by saying that, “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 integrity recognized as a facet of privacy.” He further clarified that while active euthanasia is a crime, same is not the case with passive euthanasia as the element of good faith and objective assessment of the caregiver of the patient will protect doctors performing this task. More pertinently, the Supreme Court rightly asked that, “Can right to die be denied when right to health is not guaranteed”?
Of course, while drawing a link between the right to die and right to health in his separate 112-page concurring judgment approving passive euthanasia and living will, Justice Sikri remarked that, “Right to health is a part of Article 21 of the Constitution. At the same time, it is also a harsh reality that everybody is not able to enjoy that right because of poverty etc. The state is not in a position to translate into reality this right to health for all citizens. Thus, when citizens are not guaranteed the right to health, can they be denied right to die in dignity?” He further said that, “It is undisputed that doctors primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.” A valid point!
All said and done, it is a landmark judgment with far reaching consequences. It ensures that those whose recovery is not possible and who are medically unfit and want an end to their life can avail of the benefit of passive euthanasia. It has also been stipulated in this landmark judgment that it should be ensured that relatives do not misuse this provision to get rid of those who are not fit! For ensuring this, certain safeguards have been inserted and very rightly so! No doubt, India now joins a club of few elite countries where passive euthanasia has been made legal and this will inspire certainly many other countries also to follow suit! It is really a giant step in the right direction for which the Supreme Court certainly deserves full accolades!
Auhtor: Adv Sanjeev Sirohi
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