Dying with dignity a right
SC RULES Fivejudge bench upholds right to make a ‘living will’ and opt for passive euthanasia
NEWDELHI: In a landmark verdict, the Supreme Court ruled on Friday that under specific circumstances, a person has the right to decide against artificial life support by creating a living will. The apex court held that the right to life and liberty, enshrined under Article 21 of the Indian Constitution, also includes the right to die peacefully and with dignity.
A five-judge constitutional bench led by Chief Justice of India Dipak Misra upheld a person’s right to choose passive euthanasia by creating an Advance Medical Directive — commonly referred to as a living will — in the eventuality of a terminal illness with no hope of recovery, an irreversible coma or a permanent vegetative state.
By contrast, active euthanasia, in which death is medically administered using a lethal injection, continues to be illegal in India.
The central government, the respondent in this matter, opposed recognition of a living will and said patients may not be aware of medical advancements that could cure them.
The judgment was delivered on a public interest litigation filed by Delhi-based non-governmental organisation Common Cause in 2005, pleading for an individual’s right to make a living will document for passive euthanasia. “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,” said Supreme Court lawyer Prashant Bhushan, who argued on behalf of Common Cause.
The apex court found that refusal to take treatment and allowing disease to take its natural course is not suicide. It addressed the concerns of doctors who find it difficult to take a decision to withdraw life support in terminal cases, as it goes against their Hippocratic Oath. “When the sanctity of life is destroyed should we not allow them to cross the door and meet death with dignity? For some, even their death could be a moment of celebration,” Justice Misra’s judgment stated. The bench laid down strict conditions for creating and executing a living will. For one, it must be made by an adult “in his normal state of health and mind”.
The document should indicate the circumstances when treatment which will “only delay the process of death that may otherwise cause him or her pain, anguish and suffering and leave the executor in a state of indignity” may be withdrawn. Unclear and ambiguous living wills would not be executed, the bench said.
The living will should also name a guardian, who can be a relative or a friend, to give consent for stopping the treatment. It should be ratified by a judicial magistrate.
The bench also stipulated strict conditions for the execution of the living will, which includes the setting up of two medical boards and certification by the judicial magistrate. It also directed high courts to maintain a record of all living will documents prepared within the state.
The bench comprising justi- ces AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan said that its guidelines shall remain in force till a law is enacted to regulate passive euthanasia. The government has proposed a bill to legalize 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) however, 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.
“It’s a tentative bill. The process of legislation will take into account the suggestions given by the court.”
The national debate over the legalization of passive euthanasia was sparked by a favourable 2011 Supreme Court judgment in the case of 66-year-old Mumbai nurse Aruna Shanbaug, who was in a permanent vegetative state for more than 40 years after being sexually assaulted.
The right of an individual to refuse medical treatment is unconditional. Neither the law nor the constitution can compel an individual to disclose reasons for refusing treatment. JUSTICE DY CHANDRACHUD
DELHI/MUMBAI: The Supreme Court in a landmark judgment on Friday allowed passive euthanasia and recognised “living will” or an “advance medical directive”, which lets patients decide whether they would like to withdraw life support if they have terminal illness. Here’s how doctors view the nuances and practical aspects of the euthanasia debate.
“Making a decision like this is extremely difficult for the family, especially when the patient is not conscious, because they have to consider what the patient would want. The advance directive gives their thoughts a direction,” said Dr Smitha Deshpande, head of the department of psychiatry at Dr Ram Manohar Lohia hospital.
Welcoming the judgment, Dr Anupam Sibal, group medical director, Apollo Hospitals Group, said every citizen should enjoy this right.
“This judgment will allow people to make a decision well in advance without any pressure, by weighing the pros and the cons. Most developed countries have provisions for a living will,” he said .
The term passive euthanasia is a misnomer, said Dr Sushma Bhatnagar, head of the palliative care department of the All India Institute of Medical Sciences (AIIMS).
“When we say euthanasia, people think that we are assisting people in dying. What it actually means is not performing procedures to prolong the life of patients we know will die soon. We do not do anything to hasten death,” she said. “What we focus on is good palliative and end-oflife care.”
THE LEGAL STANDING
Many public hospitals discuss realistic outcomes to help fami- lies choose whether they want to provide life-support to terminally ill patients with no hope of surviving.
“You don’t see people living on ventilators for years at most public hospitals. There is a huge shortage of resources, especially ventilator beds, and each bed can be used to save many other lives,” said a doctor from Safdarjung hospital, on the condition of anonymity.
The Supreme Court judgment will give hospitals and doctors the much-needed legal support. “Most patients in public hospitals support the decision not to use life-support systems when we explain the prognosis. But private hospitals face the threat of legal action and need some legal standing before even discussing such as step,” said Dr Bhatnagar.
On average, 5-10% of the ventilators and life-support systems of hospitals treat patients for an average of one to two months even after multiple clinical judgments show no signs of recovery.
THE GUILT
Even when the outcome is known and death is inevitable, it’s a tough call for not just the family but also the doctors. Having an advanced directive helps both the family and the doctors accept the decision without prolonged guilt.
“It becomes a moral battle for the doctors and the families. It was first in the case of Aruna Shanbaug that we actually started discussing the pros and cons of passive euthanasia,” said Dr Avinash Supe, dean of KEM Hospital where Shanbaug, a nurse spent over 42 years in a vegetative state following assault and rape in the hospital.
“As for doctors, it is very difficult to let a life go because they have been trained to save every life, so letting it go is very difficult. So, the directive will help the doctor in understanding that it was the patient’s wish,” said Dr Deshpande.
The judgment concurred, saying, “The primacy of the right of an individual in this regard has to be kept on a high pedestal.”