A five-judge constitutional bench set up by the Chief Justice of India Hon.Shri Dipak Mishra was hearing a petition of NGO by name Independent thought to legalize euthanasia and also the concept of Advance directive or living will.
The Supreme Court after hearing the petitioner has reserved the case for judgment. It has also assured the petitioner that it would lay the guidelines for drafting living wills and the conditions for their authentication.
The word Euthanasia or mercy killing was a term unknown to Indian public before the case of Aruna Shanbaug came up before the Courts in 2011 , a nurse at KEM hospital , Mumbai who was reduced to a vegetative state and remained like that for around 42 years following a horrific sodomy and strangulation by a fellow employee at the hospital Sohanlal a ward boy in 1973.
A plea before the Supreme court was placed by activist Pinky Virani demanding a mercy killing in 2011. Thus the term came into Indian conscious.
Here in this article, we will delve into the various aspects of Euthanasia and its travails with laws of the land
What is Euthanasia?
The intentional act of causing death to a patient to relieve him of pain and suffering. It is also termed as assisted suicide or physician-assisted suicide (by giving him the prescription of drugs instead of giving the injection directly) or mercy killing.
It is of two types
- Active Euthanasia – Where a physician ends a patient’s life who is a state of coma/ brain dead himself by giving an injection or a drug overdose or by switching off the ventilator
- Passive Euthanasia – withdrawal of medical treatment or food to a patient in a vegetative state to hasten a patient’s death by consent of Patient’s relative or a directive from Court as the case may be.
Is Euthanasia Legal?
Euthanasia has been legal in The Netherlands and Belgium. In the US, Switzerland and Germany Physician-assisted suicide is permitted.
The Supreme Court in a landmark verdict in 2011 the famous Aruna Shanbaug case, implicitly permitted Passive euthanasia laid down a broad legal framework for adequate safeguards and fair procedure- It had given the right to a patient living in a vegetative state to have treatment or food withdrawn.
The safeguards include getting clearance from a designated medical board and state Government under the aegis of the concerned high court.
However, the Supreme Court had vehemently denied any support for Active Euthanasia by dismissing the petition.
The Concept oF Living Will
A living will is a legal document in which a patient can decide if or not his life can be artificially prolonged in case of incapacitation.
Though the concept is new in India, It has been a long-standing right under the second amendment of the US constitution. In the USA the patient has complete autonomy to declare his living will and also nominate a person who can take decisions on his behalf in case of his incapacitation.
A living will usually consist of the below
- It should be signed by the individual when he is competent and must have two witnesses who should not stand to gain from his death.
- They have a DNR (Do Not Resuscitate) clause directed towards the physician.
- Almost all the states and Doctors practising in the USA honour these living wills.
India’s Stand on the Issue
- The Government represented by its legal representative, the additional solicitor general said that any move to legalize the concept of an advance directive or living would be in direct conflict with the Right to life under Article 21 enshrined under the constitution of India.
- It has also objected to the concept of Living will become a part of public policy and said that the primary role of the state is to protect the life of the individual and not in enforcing these living wills (which is implied consent for a person’s wish to die).
- The government also reminded the supreme court of its earlier verdict that passive euthanasia since 2011 had been the law of the land based on informed consent of the patient’s close relatives and if the present concept of a living will is allowed by the court then it may result in neglect or abuse of the elderly population by their kith or kin who stand to gain by the will.
The Dilemma before the court
- The court which itself legalized Passive Euthanasia in 2011 with stringent safeguards has now put itself in a quandary as the question of living wills has not only legal but also moral implications as it had indicated earlier verdict that under Article 21 –Right to live does not include Right to Die and it is set to be surpassed if the operative of advance directive is given the nod to go ahead by the Constitution bench.
- The Supreme Court also combined the PIL filed by NGO named Common Cause to declare the right to die with dignity as a fundamental right under wider scope of Article 21 of the right to life with dignity along with the complex case of living wills/ advance directive.
- The court while reserving the verdict on both the cases has said that there is a need for laying down comprehensive guidelines to operationalize the concept of living wills.
Indicative Guidelines Given by the bench
- The bench suggested that every district must have a medical board and it should be a statutory body, this board is a certifying agency that the patient’s condition is serious and irreversible and will lead to loss of life in such a condition the living will become operative.
- If the board certifies that the patient can be revived, then the will becomes inoperative.
- If prolonging the patient’s life is fraught with pain and suffering the board will certify so then the will would come into effect.
But for this to come into effect, the final judgment is awaited.
- The court and the Government need to tread carefully in this regard to balance both the rights of the individuals along with adequate safeguards while framing the law to avoid potential misuse.
- The Government on its part is in the process of finalizing a draft law on passive euthanasia titled “Management of Patients with terminal illness-Withdrawal of Medical life support bill 2018”.
- The court also has to lay down the exact stage at which the living will become applicable which is a huge responsibility and onus on the medical board.
- The concept of advance directives is not a new thing in Indian law it has already been in vogue in the new mental illness law so as an island of Democracy amongst unstable neighbors which is a model to the world the onus is on both the executive and the judiciary to frame a forward-looking law with humanitarian considerations and robust safeguards.