Dying with dignity

Print edition : April 13, 2018

An undated picture of Aruna Shanbaug, who spent 42 years in a vegetative state in a Mumbai hospital. The Aruna Shanbaug case triggered the debate in India on euthanasia laws. Photo: AFP

Nursing staff of KEM Hospital in Mumbai celebrate after the Supreme Court's verdict in the Aruna Shanbaug case, on March 7, 2011. Photo: VIVEK BENDRE

The Supreme Court paves the way for voluntary withdrawal of medical support by individuals to hasten their death in cases of terminal illness.

PASSIVE euthanasia, which involves withholding of medical treatment or life support system for the continuance of life, earned formal approval from the Supreme Court on March 9, with a five-judge Constitution Bench delivering its unanimous verdict in Common Cause vs Union of India. The bench, comprising the Chief Justice of India (CJI), Dipak Misra, Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, delivered four separate but concurring judgments.

In the main judgment authored by Chief Justice Misra, on behalf of himself and Justice Khanwilkar, it was reasoned that a patient, terminally ill or in a persistent vegetative state, exercising the right to refuse treatment may ardently wish to live but, at the same time, may wish to be free from any medical surgery, drugs or treatment of any kind so as to avoid protracted physical suffering. The two judges held that any such person who has come of age and is of sound mind has a right to refuse medical treatment. The other three judges agreed with this conclusion.

Chief Justice Misra distinguished this right as standing on a different pedestal compared with suicide, physician-assisted suicide, or euthanasia. In the case of suicide, there has to be a self-initiated positive action with a specific intention to cause one’s own death. On the other hand, a patient’s right to refuse treatment lacks his specific intention to die; rather, it protects the patient from unwanted medical treatment.

A patient refusing medical treatment merely allows the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self-initiated act, he elaborated.

The CJI, in his judgment, emphasised the significance of dignity in living. He asked: “When a patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait? Should she/he be cursed to die as life gradually ebbs out from her/his being? Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around him/her think that science in its progressive invention may bring about an innovative method of cure? To put it differently, should he/she be ‘guinea pig’ for some kind of experiment? The answer has to be emphatic ‘No’ because such futile waiting mars the pristine concept of life, corrodes the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.”

The reference to the right to live with dignity until the end of one’s life is significant because the Supreme Court’s Constitution Bench, in Gian Kaur vs State of Punjab in 1996, had held that the right to live under Article 21 of the Constitution did not include the right to die.

In Gian Kaur, the court was primarily concerned with the question of constitutional validity of Sections 306 (abetment of suicide) and 309 (attempt to commit suicide) of the Indian Penal Code (IPC). The court was conscious of the fact that the debate on euthanasia was not relevant for deciding the question before it. The court, however, in no uncertain terms, expounded that the word “life” in Article 21 has been construed as life with human dignity and that it takes within its ambit the “right to die with dignity” being part of the “right to live with dignity”. The “right to live with human dignity” would mean the existence of such a right up to the end of natural life, including the dignified procedure of death.

Relying on Gian Kaur, the court further held that when death due to the termination of natural life was certain and imminent, and the process of natural death had commenced, the right to die with dignity must be read as part of the right to live with dignity. The reason was that such a case must be construed as accelerating the conclusion of the process of natural death, which had already commenced, rather than extinguishing one’s life. The sequitur of this exposition, the CJI held, was that a dying person who was terminally ill or in a persistent vegetative state can make a choice of premature extinction of their life as being a facet of Article 21 of the Constitution.

If that choice is guaranteed being part of Article 21, there is no necessity of any legislation for effectuating that fundamental right and more so his natural human right, the CJI reasoned.

He made it clear that only passive euthanasia would come within the ambit of Article 21. As active euthanasia involves the taking of positive steps either by the treating physician or by some other person, it has to be distinguished from passive euthanasia, which would come within the sphere of informed consent and authorised omission. “The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards,” he suggested.

Living will

The CJI further reasoned that the right to life with dignity had to include the smoothening of the process of dying when the person was in a vegetative state or was living exclusively through the administration of artificial aid that prolonged life by arresting the dignified and inevitable process of dying.

The CJI, in his judgment, examined the common law and statutory rights of terminally ill persons in other jurisdictions and concluded that all adults with the capacity to consent had the common law right to refuse medical treatment and the right of self-determination.

He added a word of caution that doctors would be bound by the choice of self-determination made by the patient who was terminally ill and undergoing a prolonged medical treatment or was surviving on life support, subject to being satisfied that the illness of the patient was incurable. Any other consideration cannot pass off as being in the best interests of the patient, he clarified.

The CJI’s judgment distinguishes withdrawal of treatment in an irreversible situation from not treating or attending to a patient.

Secondly, he made it clear that once passive euthanasia was recognised in law, with regard to the right to die with dignity when life was ebbing away and when the prolongation was done sans purpose, neither social morality nor the doctors’ dilemma or fear would have any place.

The CJI explained passive euthanasia as connoting absence of any overt act by the patient, doctors or the family members of the patient. “It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life…. If a man is allowed to or, for that matter, forced to undergo pain, suffering and state of indignity because of unwarranted medical support, the meaning of dignity is lost and the search for meaning of life is in vain.”

He was categorical that on the plea of possibility of abuse, the dignity in the process of dying, being a facet of Article 21, should not be curbed.

Technology can prolong one’s life, but the question to be asked is whether such prolongation is in the interest of the patient. If it is tantamount to destruction of one’s dignity, which is the core value of one’s life, an individual’s interest has to be given priority over the state’s interest.

The CJI reasoned thus when certain States submitted before the Constitution Bench that it was obligatory on their behalf to provide treatment and to see that no one died because of lack of treatment.

Advance medical directives

The advance medical directive (AMD) is a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate. It aims to give effect to patient autonomy to incompetent patients by giving them an opportunity to communicate their choices while they are competent. It also helps to identify persons who will take decisions for an individual in the event he/she is unable to communicate his/her wishes to the doctor.

In the vast majority of the States in the United States, it is mandatory for doctors to give effect to the wishes of the patients as declared by them in their AMDs. In 1990, the U.S. Congress, with the objective of protecting the fundamental principles of self-autonomy and self-determination, enacted the Patient Self-Determination Act (PSDA), which acknowledges the rights of the patient to either refuse or accept treatment.

Following this, all 50 States enacted legislation adopting advance directives. Apart from this, several States also permit patients to appoint a health care proxy that becomes effective only when the patient is unable to make decisions.

Finding that there was no legal framework in India as regards AMDs, the Supreme Court felt it was obliged to protect the right of the citizens as enshrined under Article 21 of the Constitution. “It is our Constitutional obligation,” the CJI said in his judgment.

In the case of Aruna Shanbaug, a two-judge bench provided in 2011 for approaching the High Court under Article 226 of the Constitution for this purpose. In Common Cause, the Supreme Court laid down comprehensive directions and guidelines. The bench hoped that AMDs would strengthen the minds of the treating doctors as they would be in a position to ensure that they were acting in a lawful manner. First and foremost, AMDs, the Supreme Court held, could be executed only by an adult who was of sound and healthy state of mind and was in a position to communicate, relate and comprehend the purpose and consequences of executing the document.

Second, it had to be voluntarily executed without any coercion or inducement or compulsion and after having full knowledge or information.

Third, it should be in writing, clearly stating as to when medical treatment may be withdrawn or no specific medical treatment should be given that would only delay the process of death, which would otherwise cause pain, anguish and suffering to the patient, and put him/her in a state of indignity.

Fourth, the executor may revoke the instructions/authority at any time.

Fifth, the AMD should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking a decision at the relevant time, would be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the AMD.

Sixth, 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 district judge concerned. The witnesses and the jurisdictional JMFC should record their satisfaction that the document had been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.

Seventh, the instructions in the document must be given effect to only after the persons concerned had fully satisfied themselves that the executor was terminally ill and was undergoing prolonged treatment or was surviving on life support and that the illness of the executor was incurable or there was no hope of him/her being cured.

Eighth, the physician/hospital where the executor was admitted for treatment should 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 20 years who, in turn, should visit the patient in the presence of his/her guardian/close relative and form an opinion on certifying the carrying out of instructions of withdrawal or refusal of further medical treatment.

Ninth, in the event that the medical board certified that the instructions contained in the AMD ought to be carried out, the physician/hospital should forthwith inform the jurisdictional Collector about the proposal. The Collector should then immediately constitute another medical board comprising the Chief District Medical Officer concerned 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 20 years (who were not members of the previous medical board of the hospital). If the second board concurred with the decision of the first, they may endorse the certificate to carry out the instructions given in the AMD.

Tenth, the JMFC had to visit the patient at the earliest and after examining all aspects, authorise 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. If permission to withdraw medical treatment is refused by the medical board, it will be open to the executor of the AMD or his family members or even the treating doctor or the hospital staff to approach the High Court by way of a writ petition under Article 226 of the Constitution.

The Chief Justice of the High Court will then constitute a division bench to decide on granting approval or refusing the same. The High Court can 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 20 years.

Elaborate procedure

This elaborate procedure has come in for criticism because it is very cumbersome and unworkable. Perhaps realising this, the CJI’s judgment says 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”.

Justice Sikri, relying on the recent landmark judgment recognising privacy as a fundamental right, held that one of the facets of this right was an individual’s decision to refuse life-prolonging medical treatment or terminate his life. Justice Sikri cited Justice J. Chelameswar as having held in that case as follows:

“Concerns of privacy arise when the state seeks to intrude into the body of subjects. There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of dignity and personality and natural powers of a minority—even those who have been guilty of what the majority defines as crimes…. Forced feeding of certain persons by the state raises concerns of privacy. An individual’s rights to refuse life-prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right to privacy.”

Justice Sikri finds Clause 11 of the draft Treatment of Terminally-ill patients (Protection of Patients and Medical Practitioners) Bill, 2016, problematic. This provision states that advance directives or medical power of attorney shall be void and of no effect and shall not be binding on any medical practitioner. This blanket ban, including the failure even to give some weight to advance directives while making a decision about withholding or withdrawal of life-sustaining treatment, is disproportionate, he says. “It does not constitute a fair, just or reasonable procedure, which is a requirement for the imposition of a restriction on the right to life (in this case, expressed as the right to die with dignity) under Article 21.”

In view of Justice Sikri’s concerns, it is hoped that the Centre will rethink this provision before enacting the Bill. Section 5 of the Mental Healthcare Act, 2017, recognises the validity of advance directives for the treatment of mental illnesses. The draft Mental Healthcare Regulations prescribe the form in which advance directives may be made.

Chapter 1 of the Regulations allow a nominated representative to be named in the advance directive. Similarly, Section 3 of the Transplantation of Human Organs and Tissues Act, 1994, allows persons to authorise the removal of human organs and tissues from their bodies before death. The form in which this authorisation is to be made is prescribed in Form 7 of the Transplantation of Human Organs and Tissues Rules, 2014. This is to be in writing and in the presence of two witnesses.

Justice Chandrachud’s comparison

It is to the credit of Justice Chandrachud that he has made a lucid comparison of passive and active euthanasia. He acknowledges that the boundary between active and passive euthanasia is blurred, and that the omission to do an act can amount to a positive act. He also raises the issue of withholding or withdrawal of medical intervention leading to a condition of pain and suffering and often a lingering and cruel death. “The avoidance of suffering, which is the object and purpose of euthanasia, may hence not be the result of passive euthanasia, and the converse may result,” he says.

Justice Chandrachud agrees that the moral and legal status of not saving a life due to failure to provide treatment can be the same as actively taking that life. Therefore, he suggests that what is more important is the justifiability or otherwise of the clinical outcome rather than the perceived moral and legal distinction between omission and commission. He adds that while passive euthanasia can appear to save the dignity of medical practitioners, it can perhaps be at the expense of the patient’s dignity. He also finds merit in the criticism that in passive euthanasia, death may not be the only consequence and the suffering it entails such as suffocation to death or starvation until death may militate against the idea of death with dignity, the very basis of legalising euthanasia.

Treatment of the human body involves a continuous association between the giver and the receiver of care, and the doctor has to evaluate choices on the nature and extent of medical intervention, the wisdom about a course of action and about what should or should not be done, depending on the medical knowledge and the condition of the patient, he says. Passive euthanasia is not a simple panacea for an individual faced with the end of life suffering, he adds.

Justice Chandrachud should also be credited with his excellent critique of the two-judge bench decision in 2011 on the Aruna Shanbaug judgment, when the Supreme Court left the decision on whether life support to her should be withdrawn to the hospital staff, who had been taking care of her for 37 years. Aruna Shanbaug was in no position to communicate her wishes. But the 2011 judgment elevated the concerns of the caregiver on a high pedestal without focussing on the dignity and personhood of the individual in a permanent vegetative state, he says.

Withdrawal of life support to a patient, as opposed to the withholding of a medical intervention aimed at prolonging life, would also amount to active euthanasia, he suggests. In Aruna Shanbaug’s case, the hospital chose to continue medical support to her until her natural death. He held that voluntary passive euthanasia, where death results from selective non-treatment because consent was withheld, was therefore legally permissible while voluntary active euthanasia was prohibited. In the case of withdrawal of artificial support as well as in non-intervention, passive euthanasia allows for life to ebb away and end in the natural course. In contrast, active euthanasia results in the consequence of shortening life by a positive act of medical intervention. It is this distinction which necessitates legislative authorisation for active euthanasia, as differentiated from the passive, Justice Chandrachud reasons.

Law in other countries

Physician-assisted suicide has not been accepted by many countries. However, a few have accepted it and made necessary legislation to regulate it. Switzerland, The Netherlands, Belgium, Luxembourg, and the States of Oregon, Washington and Montana and the District of Columbia in the United States have permitted it with statutory regulations.

Justice Ashok Bhushan, in his judgment, notes that in the United Kingdom there has been large parliamentary opposition to the current law concerning assisted suicide, but there has been no fundamental change in the law so far.

As the Supreme Court’s Constitution Bench had upheld the constitutional validity of Section 306 of the IPC, which makes abetment of suicide an offence, no one, including a physician, is permitted to cause the death of another person by administering any lethal drug even if the objective is to give relief to the patient from pain and suffering, Justice Bhushan says.

Considering India’s lack of progress in ensuring affordable patient care, it is perhaps not the right time to consider active euthanasia or assisted suicide. As Justice Bhushan puts it, the act of withdrawal of life-saving devices puts the life on the natural track. It is not an act to cause good death of the person, but the decision to withdraw or not to initiate life-supporting measures is a decision when treatment becomes futile and unnecessary. But this right can lawfully be exercised only by informed decision, he says in his judgment.

Justice Bhushan also insists on, apart from other safeguards, a cooling period of one month, after competent medical experts decide to withdraw life-saving devices to a terminally ill patient, to enable aggrieved persons to approach the court of law in the case of AMDs. The court appears to be torn between the right to express one’s wish through the AMD, even without legislative support, and the need for effective safeguards to prevent its misuse.

It remains to be seen whether the mandatory safeguards make AMDs unworkable in practice, as some critics fear.

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