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Mainstream, VOL LIX No 18, New Delhi, April 17, 2021

Response to the Qualms of the Ailing Body - Passive Euthanasia, Living Will and Right to Dying with Dignity: The Indian Standpoint | Minakshi Biswas

Friday 16 April 2021

by Minakshi Biswas *

Last month a landmark decision was taken by Parliament of Spain which went on to legalise euthanasia in the country, a move that would come into effect from this year in June. The decision has not been free of contention like any other debatable confrontation on the subject of euthanasia. This legislation makes Spain the fourth country to be approving euthanasia following three other countries, namely Belgium, Netherlands and Luxembourg. The Spanish legislation makes medically assisted euthanasia permissible on grounds of two consecutive requests made by a ‘conscious and aware patient’ within a gap of 15 days. Since a discussion on euthanasia sprung up with this landmark legislation it brings us into relooking at the Indian vantage point vis-à-vis issues and politics around considerations on the same subject. It also becomes imperative to highlight at the outset that India does not have a legal standpoint in form of legislation on the subject of euthanasia. Let us turn to how matters concerning euthanasia, dying with dignity and the associated component of living will are perceived in the Indian context.

The apex Court of India on 9th March, 2018 ruled in favour of Passive Euthanasia. It not only recognised the necessity of advanced medical directive but had also laid out detailed guidelines for its application. The judgment came as a response to a petition filed in 2005 by Prashant Bhushan on behalf of an NGO, Common Cause. Bhushan had made a case for terminally ill patients, whose illness is irreversible, be allowed to die with dignity and be spared the agony of an artificially prolonged life. The five judge bench headed by CJI, Deepak Mishra clearly pointed out that individual dignity is of utmost significance and should be read within Article 21- Right to Life and Personal Liberty of the Indian Constitution. This verdict brought back the discussion on euthanasia and living will, an area which otherwise does not receive considerable deliberation in the Indian context.

The term euthanasia is identified with physician assisted suicide in contemporary times, and was not considered relevant until the last few years in India. It caught attention in India only with the case of Aruna Shanbaug (Aruna Ramchandra Shanbaug vs. Union of India(UOI) and Ors.2011). The Supreme Court of India in the case after an extensive discussion and analysis based on the subject of euthanasia across the various countries came up with the view that passive euthanasia should be permitted in rarest of rare cases. It stated that this ruling would continue to be followed until a new law is formulated by the Indian Parliament on the subject of euthanasia. However, the judgment came under scrutiny and a constitutional bench had thereafter been constituted to examine its validity. In the absence of any legislation on the subject the Supreme Court had also requested the various states and the Union Territories to come up with their views on euthanasia. On January 16, 2016 the Supreme Court asked the government to provide its opinion on the plight of brain dead patients who are kept on life support systems in response to a petition filed by Prashant Bhushan, who sought for a decision on the medical care of terminally ill patients with irreversible medical condition on behalf of an NGO, Common Cause. Thus the debate around euthanasia remained inconclusive until the landmark verdict of the Supreme Court on March 9th, 2018. The SC in this ruling argued in favour of passive euthanasia for terminally ill patients, those in coma or brain dead, in a state where no medical intervention can cause recovery. It clearly spelt out how an adult in sound mind can formulate his living will in form of a written document indicating the circumstances under which his medical treatment can be withdrawn in case he is incompetent of decision-making in future regarding his healthcare. The living will gain validity when the executor signs it in the presence of two attesting witnesses and it is further countersigned by the Jurisdictional Judicial Magistrate of First Class. In case the executor falls terminally ill, with no hope of recovery, the treating physician when made aware of the patient’s living will resort to it and the hospital where the patient is admitted would constitute a medical board to further analyse the best option for the patient. Once the hospital medical board decides in consonance with the living will to withdraw treatment, the jurisdictional Collector would be informed who shall further constitute another medical board and decide after taking into account the views of the patient. In cases where the patient is incompetent of decision making his caregiver or appointed guardian would be consulted as per his advanced directive and the final call will be taken accordingly. If in a given situation, the medical board comes up with a decision opposed to the living will of the patient even after taking into account all aspects, the family of patient can then move the High Court for a final decision. In case of patients who have not executed a living will and is terminally ill, in a state where his medical condition is irreversible, in coma or brain dead then the treating physician may inform the hospital authorities and constitute a medical board. The hospital authorities then may inform the jurisdictional collector and a similar procedure thereafter as is in case of patients with living will shall be resorted to, keeping in account the best interests of the patient.

Therefore the judgment appeared to be a welcome move resolving the dilemma of the caregivers and the treating physicians alike. With this mechanism in place the caregiver and family members can be made aware of the best interests of the patient and the physicians can act accordingly in a legal manner. The patient’s right to a dignified that has been upheld stands at the heart of this judicial pronouncement. It may be argued that this judgment was based on the liberal notion which places the ‘individual’ i.e. the patient in cases concerning euthanasia at the centre-stage. The verdict discussed here decisively invoked the principles of autonomy and best interests of the patients. This clearly reveals the impact of liberal perspective on the decisions that were made by the judiciary. Nevertheless, one cannot fully ignore certain other significant considerations implicit in the judgments. The role of the state as a protector which aims at fostering and administering lives seems paramount in this judgment. Although it may appear that it is solely the liberal principles that have been respected, a deeper analysis would be suggestive of different factors that lie underneath. The court has argued in favour of passive euthanasia and living will. The five judge bench supported the idea of removing the patients from ventilation, artificial nutrition or hydration which were essentially of no curative benefit to the patients involved. It becomes important at this juncture to point out that the proponents of palliative care and many other do not regard passive euthanasia as a form of euthanasia at all. They believe that the idea of passive euthanasia is a misnomer. According to them it is only active euthanasia which is representative of the only form of euthanasia. Within this context one could contend that the court not only respected the liberal principles while pronouncing this verdict, but also promoted the very ideals the modern state is entrusted with.

The modern state, as mentioned earlier has emerged as an entity that primarily engages in betterment and the enhancing of the lives of its individuals. Therefore in such cases that involve the issue of euthanasia, it cannot rule in favour of active euthanasia which amounts to killing one by means of oral administration of lethal drugs. The court instead ventured towards the idea of passive euthanasia which in reality does not involve killing but letting one die. This is where the moral distinction between passive and active euthanasia becomes significant as the former implies letting one die while the latter amounts to killing. This also proves why in a country like India which is based on democratic ideals the apex court could make room for passive euthanasia and recognise living will but not active euthanasia as it cannot engage in actively killing someone.

(Author: Dr. Minakshi Biswas (PhD, JNU, New Delhi), Assistant Professor, Department of Political Science, Bamanpukur College, West Bengal State University.)

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