After years of doubt whether Right to live with dignity enshrined in Article 21 of the Indian Constitution encapsulates Right to Die with Dignity, the recent verdict of Supreme Court of India in Common Cause vs. Union of India and others (2018) has raised the Right to Die with dignity to the status of a Fundamental Right by allowing Passive Euthanasia and issuing guidelines for it.
What is Euthanasia?
Euthanasia is etymologically means good death. Euthanasia as defined by oxford dictionary means the painless killing of a patient suffering from an incurable disease or in an irreversible coma. It is called as mercy killing or Physician Assisted Suicide (PAS) and it can be described as bringing about of the gentle death of a patient suffering from painful, chronic and incurable disease. Chronic, painful and incurable disease can be discriminated in the following way, a painful disease is described as one in which the patient suffers unbearable and excruciating pain a chronic disease is described to be a long lasting one and an incurable disease is one whose cure has not been found till date.
Active Euthanasia: Death caused by lethal injection or drugs, includes physician-assisted suicide. The practice is illegal in most countries.
Passive Euthanasia: When doctors don’t provide, or remove patients from, life-sustaining treatment. Includes:
*Disconnecting life-support machines, feeding tubes, not carrying out life-saving operations, not providing life-extending drugs
*Non-treatment not seen as the cause of death; patient understood to have died because of an underlying condition
The difference between ‘active’ and passive’ euthanasia is that in active euthanasia something is done to end the patient’s life while in passive euthanasia, something is not done that would have preserved the patient’s life.
P. Rathinam v Union of India (1994): Suicide was adjudged to be permissible and acceptable. The Supreme Court held that suicide is not a crime. A person going through immense pain needs sympathy and not punishment
Gian Kaur v. State of Punjab (1996): The Supreme Court held both euthanasia and assisted suicide not lawful in India. It was also argued that if suicide was not a crime then abetment to suicide should also not be a crime. Therefore, the Supreme Court reverted to the original situation where suicide is a crime.
Aruna ramchandra Shanbaug v. Union of India (2011): Passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the court.
The decision raised more questions:
1. if passive euthanasia is allowed, why not active euthanasia, when the purpose of both remains the same.
2. what does the term "physical ailments" mean? The term has subjective interpretations.
3. why only for physical ailments, what about emotional and psychological trauma?
4. what about "miracles" in the medical field?
5. The judgement was progressive, but at the same time, there emerge situations when it might be misused in malafide intention.
Common Cause v Union of India (2018): Every individual has right to die with dignity. The Supreme Court upheld the practice of passive euthanasia. The court also issued guidelines to facilitate this process. These include "advance directives" and "living wills", which are instructions issued by a person specified what should be done to her in the event of a terminal illness and who will decide if she is incapacitated from giving or withholding consent. The court also addressed situations where the person has not issued an advance directive. In such situations, it held that the consent of the patient's close family, subject to the supervision of and concurrence by trained medical personnel would substitute for the advance directive.
What are living wills:
Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.
* Where individuals can express their wish at a prior point in time, when capable of making informed decisions, regarding their medical treatment in the future, when they may not be able to make an informed decision.
*Exercise of the right to refuse treatment and the right to die with dignity
So who can make a living will (Advanced Directive)?:
The Advance Directive can be issued only by an adult who is of sound mind 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 full knowledge or information.
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.
How should it be preserved?
It should be signed in presence of 2 attesting witnesses, preferably independent, and counter-signed by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of signing the document.
Safeguards that some other countries that allow living wills, specify
Netherlands: Patients aged 16 or above may make advance directives
Hungary: Pregnant women can’t refuse treatment if they’re able to carry through the pregnancy
Germany: Court authorisation required to stop treatment of a minor
Switzerland: Persons with mental illnesses cannot discontinue treatment if it is expression or symptom of their mental illness
Countries that allow active euthanasia shown on the map.
Australia: Living wills to be signed in presence of two witnesses, with rules on who can be witness: Not if he/ she 1) is a substitute decision-maker in the living will, 2) stands to profit, directly or indirectly, from the person’s estate or 3) is a health practitioner for the person writing the living will
UK: Person can alter/ withdraw an advance decision at any time he has the capacity to do so
Oregon, US: Person can change his/ her mind at any time and as many times, quash a written request for medication regardless of mental state
FACT FOR PRELIMS:
Suicide tourism, or euthanasia tourism, is the practice of potential suicide candidates travelling to a jurisdiction to commit assisted suicide or suicide. In some jurisdictions, assisted suicide is legal.