Marte hin arzoo mein me ki Maut ati hai par nahin aati’
Euthanasia is simply to be able to die with dignity at a moment when life is devoid of it’. —— Marya Mannes.
Life is regarded as a gift of God and God alone can take it, which is indeed the most precious creation of God. With the advancement of science and technology and with the pace of modernization, the beauty of nature, the creation of life and the cause of death remains an unfolded mystery. Taking away of life has been made legally punishable across every civilized society, state and country as mankind is incapable of creation of life and therefore must not be allowed to take it. In spite of such legal obligations there arises certain circumstances where even the law finds itself in a dilemma over the issues relating to life and death. One of such circumstance is Euthanasia. Looking back at the arguments by the famous jurists; Thomas Hobbes argued over fundamental duty to self-preserve and how this is naturally a birth right. Hobbe’s social contract highlighted a theory which said that every individual hand over his rights to a person or a body they elect as their sovereign and relatively their actions are deemed to be authoritative. An exception that Hobbes pointed out was that, as the purpose of signing the contract was to preserve oneself, the Sovereign cannot order a subject to kill him or herself. For instance, according to Nazi philosophy, certain people have a right to die and, if they cannot make the choice themselves, the state and its appointed board of experts may have to exercise this right for them. Euthanasia is a word derived from two Greek letters Eu (good) and Thanatos (death), therefore, going with the meaning, euthanasia means good death. It is generally granted to a patient who is in a vegetative state and every possibility of his recovery has been exhausted or there is negligent possibility to recover. Euthanasia has been legalized in several countries like Netherlands, Belgium, Colombia, Luxembourg, Canada and many others, but the situation of Euthanasia is still equivocal in India as the parliament has not made any rules or enactments in this regard, though the Supreme Court of India has legalized passive euthanasia recently there are still a lot of fallacies related to it in the society. Euthanasia has been accepted in some forms by various groups or societies throughout history. In ancient Greece and Rome helping others die or putting them to death was considered permissible in some situations. For example, in Greek city of Sparta new-borns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. However, as Christianity developed and grew powerful in the West, euthanasia became morally and ethically abhorrent and was viewed as a violation of God’s gift to life. Following traditional religious principles, Western laws have generally treated the act of assisting someone in dying as a form of punishable homicide. However, in modern times laws have become more secular. Those who wish to legalise euthanasia have argued that, under principles of individual liberty, individuals have a legal right to die as they choose. Most countries however, have not fully adopted this position and retain restrictions on euthanasia.
A human being lives his or her life with dignity and must die with the same. There comes a certain point where after tremendous sufferings, grief, pain and agony, comes a situation where every possible chance of recovery of a patient gets exhausted and the patient is left to experience a painful living which is worse than death. In such kind of a situation, it is often found that the patient itself expresses his or her living will to choose death over life to find a way out of the irrecoverable sufferings. In such situations, the law and the judiciary falls into a dilemma as keeping the patient alive would do nothing more than increase the sufferings harming the status of living live with dignity, but on the other hand euthanasia is barred under law in India. There have been several attempts in legalizing euthanasia in India, with the recent legalization of passive euthanasia by the Supreme Court of India passive euthanasia is now legal, though there has not been any legislative enactments or amendments in this regard. Therefore, euthanasia can be part of good terminal care. Therefore, there is no point in discussing euthanasia in terms of being for or against it. The basic question is whether we accept the right of human beings to decide for themselves how their life will end. Euthanasia can be broadly classified into two wings i.e., Active Euthanasia and Passive Euthanasia. Active Euthanasia is a concept of deliberately ending a patient’s life, by prescribing him lethal drugs or injections, with a belief that he or she won’t recover from the state of illness they are currently lying in. Passive Euthanasia is a concept to indirectly ending a patient’s life by removing his or her life supporting equipment so that he can die naturally. The state of illness is as same as it is in case of Active Euthanasia.
INTERNATIONAL APPROACH TO EUTHANASIA:
In the present paper, we are dealing with passive euthanasia but it would be interesting to note about the world’s approach towards active and passive euthanasia.
Euthanasia in Netherlands is regulated by the ‘Termination of Life on Request and Assisted Suicide (Review Procedure) Act, 2002’. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee. The legal debate concerning euthanasia in the Netherlands took off with the “Postma case” in 1973, concerning a physician who has facilitated the death of her mother following repeated explicit requests for euthanasia. While the physician was convicted, the court’s judgement set out criteria when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria was formalised in the course of a number of court cases during the 1980s. Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalises euthanasia and physician assisted suicide in every specific case, under every specific circumstance. The law was proposed by Els Borst, the Minister of Health. The procedures codified in the law had been a convention of the Dutch medical community for every twenty years. In U.K., Spain, Austria, Italy, Germany, France, etc. none of these countries is euthanasia or physician assisted death legal. In January 2011, the French Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing physician assisted suicide, was blocked and never became law.
United States of America (USA):
Active Euthanasia is illegal in all states in the states of Oregon, Washington and Montana the difference between euthanasia and physician assisted suicide lies in who administers the lethal medication. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly, not giving lifesaving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia. Euthanasia can be both voluntary or non-voluntary. In voluntary passive euthanasia, a person who is capable of deciding for himself decides that he would prefer to die (which may be for various reasons e.g., that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take lifesaving medicines. In India, if a person consciously and voluntarily refuses to take lifesaving medical treatment it is not a crime. Whether not taking food consciously and voluntarily with the aim of ending one’s life is a crime under section 309 IPC (attempt to commit suicide) is a question which need not be decided in this case. Non-voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. In the present case where we have to consider non-voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent. There is a plethora of case law on the subject of the Courts all over the world relating to both active and passive euthanasia. It is not necessary to refer in detail to all the decisions of the Courts in the world on the subject of euthanasia or physically assisted dead.
U.K. Approach towards Euthanasia:
An important distinction in UK law exists between active euthanasia and passive euthanasia. Since the Bland ruling of 1993, ‘assisted suicides’, which involve ‘omissions’ that are principally the removal of life-saving care are not illegal. However, actively taking action to end another’s life is illegal, even with consent. In law, euthanasia has no special legal position in the UK. Instances described as euthanasia are treated as murder or manslaughter. However, the Suicide Act 1961 makes a specific offence of ‘criminal liability for complicity in another’s suicide’, while declaring suicide itself to be legal. In practice, however, the prosecution of euthanasia in the UK is distinct from other cases of unlawful killing – the consent of the Attorney General to prosecute is an explicit requirement of the Act, and sentencing is influenced by the often desperate and harrowing circumstances of individual cases. The law has been reviewed since 1961, but has not been substantially changed, despite regular attempts by backbenchers in Parliament. In England in May 2006 a bill allowing physician assisted suicide, was blocked, and never became law. Since the Human Rights Act 1998, however, campaigners have claimed that the denial of a right to release oneself from unbearable pain amounts to inhuman and degrading treatment (Article 3 of the European Convention on Human Rights), is a violation of privacy and family life (Article 8), amounts to discrimination given the legality of suicide itself, and that an individual’s inherent dignity and ‘right to die’ is violated by the current legislation. In the Airedale case decided by the House of Lords in the U.K., all the Judges of the House of Lords in the Airedale case (supra) were agreed that Anthony Bland should be allowed to die. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King.”
ANALYSIS OF PASSIVE EUTHANASIA WITH THE JUDGEMENTS OF SUPREME COURT OF INDIA:
The first step towards the legalization of euthanasia in India was taken up in the year 1985. A private bill was moved in the upper house of Maharashtra legislature whereby, the said bill contained provision regarding the legal protection by way of immunity from civil and criminal liability to all doctors who remove artificial life-prolonging measures at the request of terminally ill patient. The bill also contained a provision regarding the advanced directive to that effect if the patient has become incompetent to make such a request later on. Such a patient has demanded to be immune from any kind of liability for taking such a decision. A bill has been introduced in Lok Sabha in 2007 titled “The Euthanasia (Permission and Regulation) Bill, 2007 by C.K. Chandrappan, a member of Indian parliament to provide for compassionate, humane and painless termination of life of the individuals who have become completely or permanently invalid and/or bed-ridden due to suffering from incurable disease or such condition where every chance of recovery has been exhausted or any other reason or matters directly connected to in this regard. The bill defines euthanasia as the bringing about a gentle, painless and an easy death in the case of incurable and painful diseases making a person completely and permanently invalid or bed-ridden or who cannot carry out his daily chores without constant and regular assistance or who has become completely and permanently invalid due to any other reason. The statement of objects and reasons say that in such cases Euthanasia is necessary because the patient has the right to put his pain and agony to an end in a decent and dignified manner as there is no hope for recovery. It also says that before legalising Euthanasia, a sufficient check and balances should be there to avoid its misuse. The bill was a good step in this direction, but it could not become a law. In India Euthanasia is an offence covered under Section 309 of the Indian Penal Code, 1860 which says about attempt to suicide. If such attempt is caused by some other person, he will be guilty of the offence of murder or culpable homicide not amounting to murder if the consent of the person seeking euthanasia is obtained. In case euthanasia is discriminated and made permissible under the law, a sixth exception to section 300 of Indian Penal Code will have to be added stating that culpable homicide shall not be a crime if it is a case of euthanasia granted to a person under the rules framed by the State. In India, the sanctity of life has been placed at the highest pedestal. The Constitution of India not only guarantees the right to live but also provides that the state should provide health care to all citizens. Article 21 of the Constitution protects the Right to Life and Liberty. The article further guarantees the life of a person with due respect and dignity. The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses with its sphere of individual dignity. Therefore, right to die with dignity is a fundamental right under the Constitution of India. A question arises is how suicide differs from euthanasia in the Indian legal context. Now, suicide itself is not an offence but its attempt or abetment as right to suicide is an offence in India. It is punishable under sections 305, 309 of the Indian Penal Code, 1860. Sections 305 and 306 are related to the victim and the abettor. These two sections speak of suicide but in different spectrum sections 305 deals with the abetment to commit suicide to an insane, children or an idiot person. Section 306 of the Code provides for the punishment of an abettor to suicide. The cases decided under this section mainly relate to positive instigation to commit suicide. Section 309 of the Code operates entirely on a different situation. If the doer will be successful in his attempt he will be out of the reach of law but if he failed in his attempt he will be punished. Section 309 of the Indian Penal Code had been brought under the scanner with regard to its constitutionality under Article 21 of the Constitution of India. Article 21 of the constitution has received the widest possible interpretation under the able hands of the judiciary and the rights under the article is inalienable and is inherent to us. The Constitution of India guarantees ‘Right to Life’ to all its citizens. The constant, ever-lasting debate on whether ‘Right to Die’ can also be read into this provision still lingers in the air. On the other hand, with more and more emphasis being laid on the informed consent of the patients in the medical field, the concept of Euthanasia in India has received a mixed response. The Constitutional Bench of the Supreme Court of India in Gian Kaur vs. State of Punjab held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India . The court held that the right to life under Article 21 of the Constitution does not include the right to die. In Gian Kaur’s case the Supreme Court approved of the decision of the House of Lords in Airedale’s Case in 1993 where Antony Bland was allowed to die, and observed that euthanasia made lawful only by legislation the opinion that although Section 309 of the Indian Penal Code has been held constitutionally valid in Gian Kaur’s case, the time has come when it should be deleted by the parliament as it has become anachronistic. A person attempts suicide in a depression, and hence needs help, rather than punishment. We therefore, recommend to Parliament to consider the feasibility of deleting section 309 from the Indian Penal Code. It is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states: “Notwithstanding anything in article every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”. In Vikram Deo Singh Tomar vs. State of Bihar where it was observed by this Court: “We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen”. In P. Rathinam vs. Union of India and another in which a two- Judge bench of this Court quoted with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned that: “Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality”. The decision in Rathinam’s case (supra) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab.The 14th report of the Law Commission of India on euthanasia has not been accepted by the Government of India. In Aruna Ramchandra case, the Attorney-general of India said that the Indian society is emotional and care-oriented. We do not send our parents to old age homes, as it happens in the West. He stated that there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property. He further submitted that tomorrow there may be a cure to a medical state perceived as incurable today. In general, in common law, it is the right of every individual to have them control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient’s consent commits assault or battery. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. (In the United States this right is reinforced by a Constitutional right of privacy). This is known as the principle of self-determination or informed consent. The principle of self- determination applies when a patient of sound mind requires that life support should be discontinued. The same principle applies where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a ‘living will’ or by giving written authority to doctors in anticipation of his incompetent situation. Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in “the best interest” of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient. The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India. In such a situation, generally the wishes of the patient’s immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide. The Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur’s case (supra). The decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful. In U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who lack capacity and to determine what is in their best interests and the power to make declaration by a special Court of Protection as to the lawfulness of any act done in relation to a patient.
In Aruna Ramchandra Shanbaug vs. Union of India and Others, Justice Chandrachud said that; “Life and death are inseparable. Every moment our bodies undergo change…life is not disconnected from death. Dying is a part of the process of living.” In this case the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973, she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day, a cleaner found her in an unconscious condition lying on the floor with blood all over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. Thirty-six years had lapsed since the said incident. She had been surviving on mashed food and could not move her hands or legs. It was alleged that there is no possibility of any improvement in the condition and that she was entirely dependent on KEM Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let her die in peace. The respondents, KEM Hospital and Bombay Municipal Corporation filed a counter petition. Since, there were disparities in the petitions filed by the petitioner and respondents, the court decided to appoint a team of three eminent doctors to investigate and report on the exact physical and mental conditions of Aruna Shanbaug. They studied Aruna Shanbaug’s medical history in detail and opined that she is not brain dead. She reacts to certain situations in her own way. For example, she likes light, devotional music and prefers fish soups. She is uncomfortable if a lot of people are in the room and she gets distraught. She is calm when there are fewer people around her. The staff of KEM Hospital was taking sufficient care of her. She was kept clean all the time. Also, they did not find any suggestion from the body language of Aruna as to the willingness to terminate her life. Further, the nursing staff at KEM Hospital was more than willing to take care of her. Thus, the doctors opined that that euthanasia in the instant matter is not necessary. The Supreme Court dealt with the aspect of informed consent and right to the bodily integrity of the patient as followed by the US after the Nancy Cruzan case. Informed Consent is the kind of consent wherein the patient is fully aware of all the future courses of his treatment, his chances of recovery, and all the side effects of all of these alternative courses of treatment. If a person is in a position to give a completely informed consent and he is still not asked, the physician can be booked for assault, battery, or even culpable homicide. The concept of informed consent comes into question only when the patient is able to understand the consequences of her treatment or has earlier when in sound conditions made a declaration. In this case, the consent of Aruna could not be obtained and thus, the question as to who should decide on her behalf became more prominent. This was decided by beneficence. Beneficence is acting in the patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. Public interest and the interests of the state were also considered. The mere legalisation of euthanasia could lead to a wide spread misuse of the provision and thus, the court looked at various jurisprudences to evolve with the safeguards. Supreme Court of India has held that right to die with dignity is a fundamental right. The Bench also held that passive euthanasia and a living will also legally valid. The apex court said that, “The 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 component of right to life and liberty”. The Bench also held 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 Persistent vegetative state with no hope of recovery. “A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements. 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. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable. When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest”, said by the Chief Justice of India.
The Mechanism of the Application of Passive Euthanasia in India, as has been rightly enumerated by the Supreme Court of India in the Aruna Ramchandra Shanbaug Case has been discussed below.
1. Who can execute the Advance Directive and how?
The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
It should have characteristics of an informed consent given without any undue influence or constraint.
It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity
2. What should it contain?
It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
It should be in specific terms and the instructions must be absolutely clear and unambiguous.
It should mention that the executor may revoke the instructions/authority at any time.
It should disclose that the executor has understood the consequences of executing such a document.
It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient ‘s wishes and will be given effect to.
3. How should it be recorded and preserved?
The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.
A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.
4. When and by whom can it be given effect to?
In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.
The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian / close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has 176 cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. 177
In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, 178 they may endorse the certificate to carry out the instructions given in the Advance Directive.
The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.
The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving 179 effects to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorize the implementation of the decision of the Board.
It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
5. What if permission is refused by the Medical Board?
If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the 180 same. The High Court will be free to constitute an independent Committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.
The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
Needless to say, that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.
6. Revocation or in-applicability of Advance Directive
An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the 182 guidelines meant for patients without Advance Directive shall be made applicable.
Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed: –
In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.
In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient.
There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on the Collector nominated Medical Board may 185 not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent Committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.
Passive euthanasia therefore, is a massive step taken by the Apex Court in a country like India where corruption and mismanagement appears in every corner. In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient. The Supreme Court has also raised this issue in the recent judgement. ‘Mercy killing’ should not lead to ‘killing mercy’ in the hands of the noble medical professionals. Hence, to keep control over the medical professionals, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 discusses euthanasia briefly in Chapter 6, Section 6.7 and it is in accordance with the provisions of the Transplantation of Human Organ Act, 1994. Earlier majority of them died before they reached the hospital but now it is converse. Now sciences had advanced to the extent, life can be prolonged but not to that extent of bringing back the dead one. This phenomenon has raised a complex situation. Earlier diseases outcome was discussed in terms of ‘CURE’ but in the contemporary world of diseases such as cancer, Aids, diabetes, hypertension and mental illness are debated in terms best ‘CARE’, since cure is distant. The principle is to add life to years rather than years to life with a good quality palliative care. The intention is to provide care when cure is not possible by low cost methods. The expectation of society is, ‘cure’ from the health professionals, but the role of medical professionals is to provide ‘care’. Hence, euthanasia for no cure illness does not have a logical argument. Whenever, there is no cure, the society and medical professionals become frustrated and the fellow citizen take extreme measures such as suicide, euthanasia or substance use. In such situations, palliative and rehabilitative care comes to the rescue of the patient and the family. At times, doctors do suggest to the family members to have the patient discharged from the hospital wait for death to come, if the family or patient so desires. Various reasons are quoted for such decisions, such as poverty, non-availability of bed, futile intervention, resources can be utilised for other patients where cure is possible and unfortunately majority of our patient’s family do accordingly. Many of the terminally ill patients prefer to die at home, with or without any proper terminal health care. The societal perception needs to be altered and also the medical professionals need to focus on care rather in addition to just cure. The motive for many euthanasia requests is unawareness of alternatives. Patients hear from their doctors that ‘nothing can be done anymore’. However, when patients hear that a lot can be done through palliative care, that the symptoms can be controlled, now and in the future, many do not want euthanasia anymore. ‘Right-to-die’ supporters argue that people who have an incurable, degenerative, disabling or debilitating condition should be allowed to die in dignity. This argument is further defended for those, who have chronic debilitating illness even though it is not terminal such as severe mental illness. Majority of such petitions are filed by the sufferers or family members or their caretakers. The caregiver’s burden is huge and cuts across various domains such as financial, emotional, time, physical, mental and social. Hence, it is uncommon to hear requests from the family members of the person with psychiatric illness to give some poison either to patient or else to them. Coupled with the States inefficiency, apathy and no investment on health is mockery of the ‘Right to life’. Right to refuse medical treatment is well recognised in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through nasogastric tube. Recognition of right to refuse treatment gives a way for passive euthanasia. Many do argue that allowing medical termination of pregnancy before 16 weeks is also a form of active involuntary euthanasia. This issue of mercy killing of deformed babies has already been in discussion in Holland. Many patients in a persistent vegetative state or else in chronic illness, do not want to be a burden on their family members. Euthanasia can be considered as a way to upheld the ‘Right to life’ by honouring ‘Right to die’ with dignity. Therefore, standing at this juncture in the year 2018, the courts and the concerned authorities must keep a vigil upon the application of passive euthanasia and monitor them from time to time to check mala fide activities otherwise it will be nothing more than a murder backed by courts.
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