On Friday March 9, in a landmark judgment, the Supreme Court of India permitted the removal of life-support systems for the terminally ill or those in incurable comas. The Court also permitted the creation of a living will that allows individuals to decide against artificial life support.
The case of Chandraveer Singh
Chandraveer Singh, 25, fractured his hip as he sat down in bed last January. He was stunned when the diagnosis showed he had a rare cancer: giant cell tumour of the bone, which in most cases is usually benign. The doctors said that there was a very slim chance, less than 1%, that chemotherapy would help. Based on this, Chandraveer decided he would not pursue chemotherapy treatment, which was also making him sick.
He said no (to chemotherapy) in December last year. When Chandraveer started having breathing difficulties, his doctors found that the cancer had spread to the lungs. “A day before he died, he went into deep sleep. The doctors told us that they could put him on ventilator, but we took the decision not to. We thought that if he was not going to recover from this, what was the point of prolonging his pain?” said his sister Rohini Singh, a lawyer based in New Delhi.
The family decided to let him go and Chandraveer breathed his last on 22 February. “That is what he would have wanted. He also wanted to do something for the patients at AIIMS and since we couldn’t donate other organs, we donated his eyes,” said Singh.
These decisions would have been easier for the family if there were a provision to make a living will. “In this case, the family understood that there was no point in stalling the inevitable. But it is difficult for the family of every patient to understand this. The role of good palliative care is to help patients and their families understand which treatment will or won’t help,” said a resident doctor at AIIMS.
Considerations of the court
- There is an inherent difference between active and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment which has acclaimed universal recognition.
- Right to life and liberty, as envisaged under Article 21 of the Constitution, is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this court has expanded the spectrum of Article 21 to include within it the right to live with dignity as a component of the right to life and liberty.
- It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS (permanently vegetative state) with no hope of recovery.
- A failure to legally recognise advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.
- A study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several other jurisdictions by way of legislation and in certain countries through judicial pronouncements.
Practical implications of the verdict
- 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.”
- Where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he does not wish to be treated, then such directive has to be given effect to.
- When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest. Though the sanctity of life has to be kept on the high pedestal, yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
- Conclusion: passive euthanasia, under those circumstances where a patient is in PVS and he is terminally ill, where the condition is irreversible or where he is brain dead, can be permitted.
The right to life and liberty – a right to die?
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 question that arises at this juncture is as to whether right to life enshrined in Article 21 of the Constitution includes right to die. If such a right is recognised, that would provide immediate answer to the issue involved, which is pertaining to voluntary or passive euthanasia. However, the judgments of this court, as discussed hereinafter, would demonstrate that no straightforward answer is discernible and, as observed above, the position regarding euthanasia is somewhat complex in the process.
The legal position which stands as of today is that right to life does not include right to die. It is in this background we have to determine the legality of passive euthanasia. I may add that the issue is not purely a legal one. It has moral and philosophical overtones. It has even religious overtones. Life is mortal. It is transitory. It is as fragile as any other object. It is a harsh reality that no human being, or for that matter, no living being, can live forever. Nobody knows how long he/she will be able to live.
This court acknowledges its awareness of the sensitive and emotional nature of euthanasia controversy, and the vigours of opposing views, even within the medical fraternity, and seemingly absolute convictions that the subject inspires. This is so demonstrated above while discussing philosophical, moral, ethical and religious overtones of the subject involved. These valid aspects, coupled with one’s attitude towards life and family and their values, are likely to influence and to colour one’s thinking and conclusions about euthanasia. Notwithstanding the same, these aspects make the case as ‘hard case’. However, at the end of the day, the court is to resolve the issue by constitutional measurements, free of emotion and of predilection.
A living will
The bench laid down strict conditions for creating and executing a living will.
For the creating of a living will, 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.
As regards the execution of the living will, this 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.
Justice AK Sikri: “My last remarks are a pious hope that the legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.”
In the absence of a legal Advance Directive, the procedure provided for the said category hereinbefore shall be applicable. The directive and guidelines shall remain in force till the Parliament brings a legislation in the field.
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.”
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