POV: THE RIGHT TO END LIFE
On March 9, 2018, the Supreme Court in a landmark judgment ruled that the right to die with dignity was a fundamental right. Ever since the Aruna Shanbaug case caught the imagination of the nation, debates about euthanasia, and the ethics of keeping people alive with assisted medical support, have raged fiercely. Although Shanbaug was nursed and cared for by the staff of King Edward Memorial Hospital in Mumbai for over four decades, public opinion had clearly veered away from keeping her alive in her vegetative state.
Against this backdrop, the complex 538page judgment by a five-judge Constitution bench is a welcome step. While we unpack its ramifications, understand the history of this debate and examine the current law in various countries, it may be germane to bear in mind that it is now well known that people in a medically compromised, unresponsive or vegetative state, with little or no hope of recovery, can be kept alive by medical means. The question is not whether this is a good idea: it’s widely recognised that it’s often not in the best interests of the individual or her family, and may actually be contrary to the wishes of the individual. The question rather is: if legislation is enacted to ‘pull the plug’, is there a possibility of either a miscarriage of justice or of misuse?
The judgment attempts to look at these issues and offer solutions. It invokes the instruments of ‘living will’ and ‘advance directive’, whereby an individual while still healthy decides what should happen when she is no longer capable of articulating her wishes. Advance directives grant autonomy and facilitate self-determination. Much has been written on implementation of advance directives in end-of-life situations, and while most people would agree that it is a well intentioned and desirable concept, there are many difficulties in both conceptualisation and implementation—even in countries where legal tools have been available for years.
In the present judgment, the Supreme Court offers the individual a means by which she might have an advance directive registered and enforced. One would have to approach a judicial magistrate and register an advance directive in a state of health. Then, if the need arose, the hospital would be approached, and a medical board set up to take a decision. Where no directive has been made, doctors or relatives could also follow the same procedure and ensure a medical board was set up. Some observers have been unhappy with the complicated nature of the process, but protection against misuse is perhaps warranted.
The judgment also makes a distinction between active and passive euthanasia, ruling against the concept of assisting death by affirmative action, but making it possible for a “withdrawal of life-support measures or withholding of medical treatment meant for artificially prolonging life”.
Interestingly, the judgment also clearly states that these “directive and guidelines shall remain in force till Parliament brings legislation in the field”, clearly placing it in the context of an ongoing societal dialogue, which is a very welcome step. The recognition that these are tricky questions that the courts, government, medical community and, importantly, civil society should actively discuss is indeed the learning here.
On another note, the concept of advance directive in terminal illness is considered relatively straightforward. Here, the person concerned is unable to express her wishes for reasons of ill health. In psychiatric illness, where the person sometimes expresses wishes contrary to those expressed in a state of health, the issues become significantly more complex. Interestingly, in the recently enacted Mental Health Care Act, provision has been made for the use of advance directives in the case of psychiatric illness, and it may perhaps be wise for civil society, even at this stage, to inform itself and discuss this.
The question to ask is: if legislation is enacted to ‘pull the plug’, is there a possibility of either a miscarriage of justice or of misuse?