The supreme court’s recent ruling on the right of a person to make a ‘living will’ has underlined the inevitable. The petition, filed by registered society Common Cause, was about the right of a person to decide on the chain of events that would determine the future course of treatment should that person become incapable of making such a decision. In the unanimous judgment by a constitution bench headed by chief justice Dipak Misra, the court upheld the constitutional values of liberty, dignity, autonomy and privacy while laying down procedural guidelines governing the advance directive of a living will, which will operate till a legislation is put in place. This judgment spells out perhaps the most logical stand on an issue that should have been legislated upon long back.

READ: The will to die, writes Dr Nagraj G Huilgol,  the chief radiation oncologist at Dr Balabhai Nanavati Hospital, Mumbai

The issue of euthanasia is a touchy one. Besides the legal implications of the irreversibility of euthanasia, there are other serious matters to be settled upon before one can legislate on the subject. While, on the face of it, the judgment upholds a personal right, it will be construed as bordering on infringing upon personal law. Civil codes in India, diverse and hugely polarised, are vehemently protected. Any attempt to amend or initiate change in matters perceived as divinely decreed could be considered an affront – both on the social and the personal front. Law is but one aspect of the issue, which is far from being settled. After the supreme court had a while earlier referred the matter to a constitution bench for an authoritative opinion to “resolve the inconsistencies regarding euthanasia and physician-assisted-suicide in India”, the bench transferred the burden of coming up with a draft law on end-of-life care to the central government.

The health ministry had proposed the Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill (draft bill), a model law as proposed under the 241st report of the Law Commission of India, and put it up for public consultation. The bill, in its present form, seems inconclusive and looks like it would fail to address issues affecting patients, families and doctors. The risks of the entire euthanasia matter resulting in the legislature enacting a toothless act seemed high, given that the very tricky problems of misuse or manipulation has to be addressed. Now, all of that will change.
With the judiciary clearly laying down the way ahead for the legislature on the issue, creating a legal distinction between a law on living will and euthanasia, a law detailing the same, and covering every pertinent aspect, is imminent. After all, it may be recalled that the mental healthcare bill that came through had cross-party support and was cleared without any hitches. The UPA and NDA had jointly supported the bill.

“The right of an individual to refuse medical treatment is unconditional. Neither the law nor the constitution can compel an individual who is competent and able to take decisions to disclose reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity,” said justice DY Chandrachud, bringing the focus back on the individual’s right as guaranteed by the Constitution of India.

In the 538-page judgment on euthanasia, the supreme court elaborated its earlier positions and their validity in the present-day context. In the Gian Kaur case, the constitution bench, while affirming the constitutional validity of Section 306 of the Indian Penal Code (abetment of suicide), had then held that the right to life does not include the right to die and did not conclusively rule on the validity of passive euthanasia. Proceeding on the flawed perception of the Gian Kaur case, the two-judge bench decision in the Aruna Shanbaug case suffered from incongruities of a jurisprudential nature. The underlying basis of the decision in the Aruna Shanbaug case was flawed, elaborated the supreme court now, saying that it was “necessary in the present reference to revisit the issues raised and to independently arrive at a conclusion based on the constitutional position”.

The supreme court, in the Common Cause judgement, has rightly identified the “need to have a law to protect patients who are terminally ill, when they take decisions to refuse medical treatment, including artificial nutrition and hydration, so that they may not be considered guilty of the offence of attempt to commit suicide under Sec 309 of the Indian Penal Code, 1860”.

The court also observed that “it is necessary to protect doctors, and those acting under their directions, who obey the competent patient’s informed decision or who, in the case of i) incompetent patients or ii) competent patients whose decisions are not informed decisions, decide that in the best interest of such patients, the medical treatment needs to be withheld or withdrawn as it is not likely to serve any purpose”.

The court continued: “Such actions of doctors must be declared by statute to be ‘lawful’ in order to protect them or those who act under their directions if they are hauled up for the offence of ‘abetment of suicide’ under Sections 305, 306 of the Indian Penal Code, 1860, or for the offence of culpable homicide not amounting to murder under Section 299 read with Section 304 of the Penal Code, 1860, or in actions under civil law. And so, the supreme court has suggested that the parliament, competent to make such a law under Entry 26 of List III of the Seventh Schedule of the Constitution of India regarding patients and medical practitioners, make one. The proposed law, said the Supreme Court, should be called the Medical Treatment of Terminally Ill Patients (Protection of Patients, Medical Practitioners) Act. ”

The right of a person to passive euthanasia had been discussed by the supreme court in the Aruna Shanbaug case. Then, a writ petition was filed by a  friend of the petitioner, pleading inter alia that the petitioner was suffering immensely because of an incident that took place 36 years back (in 1973) and was in a persistent vegetative state (PVS) and in no state of awareness and her brain was virtually dead. The prayer of the friend was that the respondent be directed to stop feeding the petitioner and to allow her to die peacefully.

The court had then observed it was not the function of the court to evaluate the situation and form an opinion on its own. It noted that in England, the parens patriae jurisdiction over adult mentally incompetent persons was abolished by the statue and the court has no power now to give its consent and that in such a situation, the court only gives a declaration that the proposed omission by the doctors was not unlawful.

Today, the law in India permits passive euthanasia in which the family members or the next friend of the person may approach the court and seek permission for passive euthanasia. The court then constitutes an expert panel of doctors, and based on the doctors’ report, grants permission on a case-by-case basis. Active euthanasia, causing death by using medical intervention to ease suffering, is illegal.

A living will, as laid down by the Common Cause judgment, permits a person to determine in advance the course of treatment doctors should undertake in case they reach a stage where prolonged treatment/life support would result in suffering. In arguing against a living will, the  centre insisted the concept of allowing people to make a will to withdraw life support in advance may not work as there could be future medical advancements that could cure the disease the patient was currently suffering from. The concept of a living will could be misused by people in cases involving the elderly, informed the centre. Concurrently, it may be imperative to examine the Mental Healthcare Act, 2017, which introduces a concept of advance medical directives that can be made by mentally ill persons.

Accordingly, the directives may, after certification by a medical professional, be registered with the medical board. It may prescribe the wishes of patients with regards to their treatment, should they be in a state where they are of unsound mind and incapable of taking informed decisions. The relatives of the patient may also apply to the medical board to set aside a directive and, if the board feels the course set out in the directive is not in the interest of the patient, endorse the setting aside. That said, an advance medical directive applies to conditions related to mental illness and is not the same as a living will. It does, however, provide a skeletal framework with abstract guidelines that may be put in place for a living will in the pertinent Act.

One could refer to Section 5 of the Mental Healthcare Act that details the processes for an advance directive. Accordingly:

(1) Every person, who is not a minor, shall have a right to make an advance directive in writing, specifying any or all of the following, namely:

a) the way the person wishes to be cared for and treated for a mental illness;

(b) the way the person wishes not to be cared for and treated for a mental illness;

(c) the individual or individuals, in order of precedence, he wants to appoint as his nominated representative as provided under Section 14.

(2) An advance directive under sub-section (1) may be made by a person irrespective of his past mental illness or treatment for the same.

(3) An advance directive made under sub-section (1), shall be invoked only when such person ceases to have capacity to make mental healthcare or treatment decisions and shall remain effective until such person regains capacity to make mental healthcare or treatment decisions.

(4) Any decision made by a person while he has the capacity to make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such person.

(5) Any advance directive made contrary to any law for the time being in force shall be ab initio void.

(6) An advance directive shall be made in the manner as may be specified by the regulations made by the central authority.

(7) Subject to the provisions contained in clause (a) of sub-section (1) of section 91, every board shall maintain an online register of all advance directives registered with it and make them available to the concerned mental health professionals as and when required.

(9)   

(1) An advance directive made under section 6 may be revoked, amended or cancelled by the person who made it at any time.

(2) The procedure for revoking, amending or cancelling an advance directive shall be the same as for making an advance directive under section 6.

10) The advance directive shall not apply to the emergency treatment given under section 103 to a person who made the advance directive.

The supreme court also mentioned  the introductory note on the subject put up by the Law Commission of India in its 196th Report on ‘Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners)’, which read: “The title to this report immediately suggests to one that we are dealing with ‘euthanasia’ or ‘assisted suicide’. But we make it clear at the outset that euthanasia and assisted suicide continue to be unlawful and we are dealing with a different matter – withholding life support measures to patients who are terminally ill and, universally, in all countries, such withdrawal is treated as lawful.”

It may further be noted that, recently, in a nine-judge verdict in the KS Puttaswamy and Another Vs. Union of India and Others (2017) case, justice J Chelameswar elaborated the concept of right to life as enshrined in Article 21 under the Constitution of India and had observed: “An individual’s right to refuse the life­ prolonging medical treatment or terminate life is another freedom which falls within the zone of right of privacy.”

Also, with regard to cases such as that of Shanbaug, where the patient is not incompetent and cannot take an informed decision, the supreme court ruled that, “We are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.

The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill requires the Medical Council of India to formulate guidelines for medical practitioners on withdrawal/withholding of support to terminally ill patients. The centre also told the supreme court that an expert committee had recommended legislation on passive euthanasia and several meetings were held on the matter. Issues of ethics, consent, coercion and undue influence will now have to be tackled by medical practitioners and law enforcement agencies should the will be contested legally.

It may be recalled that it was in the Aruna Ramchandra Shanbaug Vs Union of India and Others (March 7, 2011) judgment that the court had first broached upon the distinction between active and passive euthanasia. It said, “Active euthanasia entails the use of lethal substances or forces to kill a person, for example, a lethal injection. Passive euthanasia entails withholding of medical treatment for continuance of life, for example, withholding of antibiotics where without giving it, a patient is likely to die.”

It was a petition to stop nutrition to Shanbaug that laid the foundation for the living will verdict three years later. The supreme court had then said, “If the doctor acts on such consent [expressed at an earlier date before the patient became unconscious or otherwise incapable of communicating it, as by a living will or by giving written authority to doctors in anticipation of his/her incompetent situation] there is no question of the patient committing suicide... It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patients’ wishes.”

And then followed another judgment that bolstered the concept of right to life with dignity. On August 24, 2017, when the supreme court delivered the right to privacy judgment, it said: “To live is to live with dignity.” India has already incorporated the concept of advance directive in the Mental Healthcare Act and it’s only a matter of time before the concept of a living will is laid down in legislation. This time, in letter and in spirit.

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(The column appears in the April 15, 2018 issue)