Excerpts from supreme court verdict on passive euthanasia

The apex court has allowed passive euthanasia

GN Bureau | March 10, 2018

#Supreme Court   #Euthanasia  

The supreme court on Friday allowed passive euthanasia and living will.

Here are the highlights of the judgment by a bench headed by Chief Justice Dipak Misra.

Chief Justice Dipak Misra and Justice A.M. Khanwilkar:

Life and death as concepts have invited many a thinker, philosopher, writer and physician to define or describe them. Sometimes attempts have been made or efforts have been undertaken to gloriously paint the pictures of both in many a colour and shade.

Swami Vivekananda expects one to understand that life is the lamp that is constantly burning out and further suggests that if one wants to have life, one has to die every moment for it.

John Dryden, an illustrious English author, considers life a cheat and says that men favour the deceit. No one considers that the goal of life is the grave. Léon Montenaeken would like to describe life as short, a little hoping, a little dreaming and then good night.

The famous poet Dylan Thomas would state ―do not go gentle into that good night. One may like to compare life with constant restless moment spent in fear of extinction of a valued vapour; and another may sincerely believe that it is beyond any conceivable metaphor.

The perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word ‗life‘ which one calls a dance in space and time becomes still and blurred and the inevitable death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ―shall rise up never.

The question that emerges is whether a person should be allowed to remain in such a stage of incurable passivity suffering from pain and anguish in the name of Hippocratic oath or, for that matter, regarding the suffering as only a state of mind and a relative perception or treating the utterance of death as a ―word infinitely terrible to be a rhetoric without any meaning.

It is asserted that every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away. It is contended that each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution. That apart, it is set forth that right to die sans pain and suffering is fundamental to one‘s bodily autonomy and such integrity does not remotely accept any effort that puts the individual on life support without any ray of hope and on the contrary, the whole regime of treatment continues in spite of all being aware that it is a Sisyphean endeavour, an effort to light a bulb without the filament or to expect a situation to be in an apple pie order when it is actually in a state of chaos.

The Distinction between Active and Passive Euthanasia: As a first step, it is imperative to understand the concept of euthanasia before we enter into the arena of analysis of the expanded right of Article 21 in Gian Kaur and the understanding of the same. Euthanasia is basically an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).

Aruna Shanbaug has discussed about two categories of euthanasia - active and passive. While dealing with active euthanasia, also known as ―positive euthanasia or ―aggressive euthanasia, it has been stated that the said type of euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional  death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia, on the other hand, also called ―negative euthanasia or ―non-aggressive euthanasia, entails withdrawing of life support measures or withholding of medical treatment for continuance of life, e.g., withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart lung machine from a patient in coma.

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. The said directive, we think, will dispel many a doubt at the relevant time of need  during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out.

In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in 183 the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.

An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse 189 medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger.

Justice AK Sikri

Some of the apprehensions expressed in ethical debates about euthanasia can be answered when the ethical debate about euthanasia is not divorced from an economic consideration of cost and benefits of euthanasia to society. P.R. Ward66 argues that ethics is concerned with individuals and, therefore, does not take into account the societal perspective. On the other hand, economics is sought to be concerned with relative costs and benefits to society and can help to determine if euthanasia is of benefit to the majority in society. According to him, the net benefit to the individual (from ethical considerations) can be compared with the net benefit to society (from economics), and that both can be included in an overall decision rule for whether or not to legalise euthanasia.

The Law Commission of India was asked to consider on the feasibility of making legislation on euthanasia, taking into account the earlier 196th Report of the Law Commission as well as the judgment of this Court in Aruna Ramachandra Shanbaug. In August, 2012, Law Commission came out with a detailed 241st Report on the issue of passive euthanasia, wherein it approved the concept of Right to Self Determination also.

The possibility of misuse cannot be held to be a valid ground for rejecting advance directive, as opined by the Law Commission of India as well in its 196th and 241st Report. Instead, attempt can be made to provide safeguards for exercise of such advance directive. For example, Section 5 of the Mental Healthcare Act, 2017 recognises the validity of advance directives for the treatment of mental illness under the Mental Healthcare Act, 2017. The draft Mental Healthcare Regulations have recently been made available for public comment by the Ministry of Health and Family Welfare.

Justice DY Chandrachud

The constitutionally recognised right to life is subject to the procedure established by law. The procedure for regulation or deprivation must, it is PART K 132 well-settled, be fair, just and reasonable. Criminal law imposes restraints and penal exactions which regulate the deprivation of life, or as the case may be, personal liberty. The intentional taking away of the life of another is made culpable by the Penal Code. Active euthanasia falls within the express prohibitions of the law and is unlawful;

An individual who is in a sound and competent state of mind is entitled by means of an advance directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such an advance directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment abides by an advance directive is protected against the burden of criminal liability;

The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision;

Justice Ashok Bhushan

It   is   submitted   that   the citizens who are suffering from chronic diseases and/or are at the end of their natural life span and are likely to   go   into   a   state   of   terminal   illness   or   permanent vegetative state are deprived of their rights to refuse cruel   and   unwanted   medical   treatment,   like   feeding 6 through   hydration   tubes,   being   kept   on   ventilator   and other life supporting machines in order to artificially prolong their natural life span. This sometimes leads to extension   of   pain   and   agony   both   physical   and   mental which they desperately seek to end by making an informed choice and clearly expressing their wishes in advance, (called a living will) in the event of they going into a state when it will not be possible for them to express their wishes.

The petitioner further  pleads that  it is a common law  right  of   the  people,   of  any  civilised  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. It is submitted that to initiate a medical treatment to a person who has reached at an end of his life and the process of his/her death has already commenced against the wishes of that person   will   be   violative   of   his/her   right   to   liberty. The   right   to   be   free   from   unwanted   life-sustaining medical   treatment   is   a   right   protected   by   Article   21. Even the right to privacy which has also been held to be 7 a part of right to life is being violated as the people are not being given any right to make an informed choice and a personal decision about withholding or withdrawing life sustaining medical treatment.

In view of our conclusions, the writ petition is allowed in the following manner:

(a) The right to die with dignity as fundamental right has   already   been   declared   by   the   Constitution   Bench judgment of this Court in  Gian Kaur case (supra)  which we reiterate.

(b) We declare that an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.

(c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.

Read: The full judgement of the Supreme Court on passive euthanasia



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