A constitution bench is now hearing a petition filed by NGO Common Cause on the issue of Living Will in relation with Passive Euthanasia. Earlier, in 2011 in the Aruna Shanbaug case, Supreme Court, in a landmark verdict, ruled out Active Euthanasia but laid down legal frameworks for Passive Euthanasia. Aruna, who was an Indian nurse, spent nearly 42 years in a vegetative state as a result of sexual assault. But given the social, legal, medical and constitutional complexities involved, clear enunciation of a law is a utmost priority.

Government drafted the Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill in 2016, which definitely a great start.

What is the Draft Bill says –

According to the draft Bill, 2016, a terminally ill patient above the age of 16 years can decide on whether to continue further treatment or allow nature to take its own course. The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue. When a patient communicates her or his decision to the medical practitioner, such decision is binding on the medical practitioner. However, the draft also notes that the medical practitioner must be “satisfied” that the patient is “competent” and that the decision has been taken on free will. There will be a panel of medical experts to decide on case by case basis. The draft also lays down the process for seeking euthanasia, right from the composition of the medical team to moving the high court for permission. The Bill only augurs to legalise passive euthanasia and ruled out Active Euthanasia as it is likely to be used by unscrupulous individuals to attain their ulterior motives – respecting SC judgement.

So as of now, Active or Assisted Euthanasia would constitute attempts to commit or abet suicide under the Indian Penal Code, 1860. Therefore, assisted suicide could be legalised if legislation was passed by Parliament to that effect. But the draft bill has some implicit flaws.

Some Perceived Flaws :

Like the draft Bill, it defines “terminal illness” as a persistent and irreversible vegetative condition under which it is not possible for the patient to lead a “meaningful life”. The use of this subjective phrase would require second parties to decide whether a person in a permanent vegetative state is living a meaningful life. Persons with disabilities, in particular, are likely to be disadvantaged by such an understanding of “terminal illness”. In the case of incompetent patients, or competent patients who have not taken an informed decision about their medical treatment, the Bill lays down a lengthy and cumbersome process like asking permission from High Court and getting clearance from MCI, before any action can be taken for the cessation of life. However, it would be a violation of patient autonomy if it were applied to instances of merely withholding or withdrawing medical treatment. Further, given that the MCI has been plagued by corruption and incompetence, it is not advisable to place complete reliance on it.

While the Passive Euthanasia Bill is ready, Supreme Court is going to examine “Living Will” – which is an advance written directive of the concerned person to physicians for end-of-life medical care i.e. not to provide life support. Supreme Court has indicated that it may lay down comprehensive guidelines on operationalising the idea but Government has opposed the very idea of “Living Will”.

Complications with “Living Will” :

Legal – An earlier verdict from the judiciary has noted that right to life under Article 21 does not include the right to die. Allowing making a living will would contravene this legal stand. Allowing it would also acknowledge the patient’s autonomy and self-determination

to the point of legalising a wish to die – which could have moral implications and might support the incidents of suicides. Social -There are chances of misusing the provision and leading to the abuse and neglect of the elderly.

On the other hand, allowing it would relieve the close family members, of a

terminally ill patient, of the moral burden of making a life-ending decision.

As of now, Passive Euthanasia is legal in Spain, France, UK, Norway, Finland, Austria, Hungary, Greece; Germany, Switzerland, Sweden and Japan allowed Assisted Suicide and Netherlands, Belgium, Canada, Colombia and Luxembourg legalised Active Euthanasia. Euthanasia Laws vary state-wise in US and it is illegal in Australia.

Based on a true story, according to a Dutch physician who did euthanasia, referred terminally ill patients, but not not dying quickly, as “bed blockers” and also few years ago, Dr. Virginia Soares de Souza has been charged with 7 counts of murder and may have killed 300 patients in order to, reportedly, “free-up” beds.

So, it remains to be seen how this is worked out in India where elderly and gender-based harassment grab headlines almost everyday.

Source:

1. Wikipedia

2. The Hindu

3. Indian Express

4. Hindustan TImes

5. Reuters