Recently, the Constitution Bench of the Supreme Court of India (SC) asked if a single committee of doctors, judicial officers and government officers, as well as the next of kin of a terminally ill person, can sit together and decide the “genuineness and authenticity” of a Living Will.
- The Constitution Bench is considering a plea to modify the 2018 ruling that upheld passive euthanasia and “Living Wills.”
- According to the petitioner, the 2018 judgement had laid down a cumbersome procedure validating a Living Will.
- The 2018 ruling delegated the task of determining the authenticity of the documents to multiple committees of doctors, Magistrates and the District Collector, effectively rendering the ruling obsolete and unworkable.
- The court had placed a huge onus on the treating hospital and physicians to take the initiative to form a committee and activate the Living Will or advance directive.
- According to the SC Bench, one committee can be formed to take a decision and suppose the patient is not able to take a decision at the time, his or her next of kin can do so.
- The court agreed to hear the case and held that care should be taken to avoid any “forced departures” of persons.
- Representing the central government in the court, the Solicitor General Tushar was sceptical about trusting the next of kin of a dying person. There have been cases where relatives refuse to put a patient on a ventilator, but the person survives after it is done.
What is active and passive euthanasia?
- In the Aruna Shanbaug case (2011) and while legalising passive euthanasia in 2018, the SC stated that active euthanasia entails the use of lethal substances or forces to kill a person, such as a lethal injection.
- This means that a terminally ill patient is intentionally given a lethal drug or substance in order for them to die peacefully, in the event of terminal illness.
- The apex court, on the other hand, defined passive or negative or non-aggressive euthanasia as the withholding of medical treatment for the continuation of life, such as the withholding of antibiotics where the patient is likely to die if it is not given.
- This means that if a patient has been kept alive by the use of life-saving medical equipment, such as a ventilator or drugs or food administered through a pipe or medicines, these will be discontinued and the patient will be allowed to die naturally.
About the ‘Living Will’ –
- The SC accepted the concept of a living will in its landmark 2018 decision, ruling that the right to die with dignity is a fundamental right under the contours of the Indian constitution.
- Every adult human with the mental capacity to make an informed decision has the right to refuse medical treatment, including the withdrawal of life-sustaining devices.
- Thus, living will is a person’s right to make an advance directive on the course of his or her treatment, including the withdrawal of life support, if such a situation arises.
- A living will provision, on the other hand, cannot be made foolproof, requiring no intervention from the doctor or immediate decision makers around a person.
- Procedure for execution of the Living Will —
- Such a Will should be signed by the person making the Will in the presence of two witnesses and the concerned Judicial Magistrate of First Class (JMFC).
- The JMFC should also countersign this Living Will.
- Further, the JMFC shall ensure that the Living Will is enforced once the writer of the instrument becomes incapacitated.
- The treating physician shall confirm the authenticity of the Living Will with the JMFC before acting upon it.
- The central government informed the SC that it is assessing the draft of a bill that would allow passive euthanasia.
- The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, based on the Law Commission of India’s Report, was released by the Union Health Ministry in 2016. However, the government has stated that it does not support granting people the right to make “Living Wills”
- In 2018, the SC, in a landmark judgment (in Common Cause vs Union of India case) decided that passive euthanasia will be legally allowed henceforth in India.
- The apex court also laid down guidelines for “living will” made by terminally ill patients who are aware of their chances of going into a permanent vegetative state.
- These guidelines specify who will have the authority to decide whether or not to administer passive euthanasia to a patient, as well as how the respective medical board will make this decision.
- These guidelines will be in force till legislation is passed by the Parliament of India to deal with the issue.
- The SC clarified in S. Puttaswamy vs Union of India (2017), popularly known as the Right to Privacy case, that —
- Article 21 includes the concept of individual dignity and allowing a terminally ill person to wait for death while not knowing whether or not they are still alive corrodes the essence of dignity.
- Hence, Article 21 allows passive euthanasia so that the rules for its regulation can be established.
- The 2018 ruling also draws from the Aruna Ramchandra Shanbaug vs Union of India (2011) case.
- In this case, the petitioner requested that former nurse Aruna Shanbaug, who had been brutally sexually assaulted in Mumbai’s KEM hospital in 1973 and had slipped into a permanent vegetative state as a result, be allowed to die peacefully.
- This case would typically fall under the passive euthanasia category.
- The SC allowed passive euthanasia for the nurse lying in vegetative state (for 36 years) at a hospital in Mumbai.