The concept of euthanasia has historically been difficult to legislate on. Various hypotheticals are trotted out to make the case for and against it and the end result is rarely satisfactory.
India has taken the stance of not allowing active euthanasia (where a life ends through the administration of lethal substances). However, it does allow "passive euthanasia" where life support is withdrawn for patients in permanently vegetative state.
A living will is a concept associated with passive euthanasia. It is a legal document which allows you to express your wishes to doctors in case you become incapacitated. In a living will, you can outline whether or not you want your life to be artificially prolonged in the event of a devastating illness or injury.
Present case scenario
On Tuesday, the government expressed its opposition to the concept of living will. It told the Supreme Court that a living will could be misused and may not be viable as a part of public policy.
Arguing before a five-judge constitution bench of the apex court, Additional Solicitor General PS Narasimha said that that a draft bill based on the guidelines for passive euthanasia in the Aruna Shanbaug case and the recommendations of the Law Commission was under its consideration. However, he added that "if a person is not of sound mind, then he is a not a competent person to make a living will and in that case, it is a medical board which will have to look into the affairs and not the individual. Safeguards have to be there and nothing more could be done."
Narasimha further said that the the Centre had already accepted the court's Aruna Shanbaug ruling where a specific category of relatives were allowed to move the high court to seek permission for passive euthanasia, reported The Times of India. Such a request would be vetted by a board of medical experts and thereafter the high court would grant or refuse permission for passive euthanasia.
At least one of the judges, Justice Chandrachud, seemed inclined to the government's stance as he said that a living will could be misused in the case of elderly people. He said that in the case of a rich elderly person, the chance of misuse is real.
On the other side of the debate, Prashant Bhushan, appearing for NGO 'Common Cause', said that in India, where resources are so limited, living wills should be legally acceptable in order to avoid creating a hopeless situation for the middle-class. "Under Article 21 of Constitution, a person has the right to die peacefully without any suffering and therefore he has right to create a living will that when he can't recover from illness, his life should not be prolonged," Bhushan said.
Bhushan went as far as to justify even active euthanasia as he said that a person facing the only option of leading a life with suffering and pain, should have the right decide that he wanted to put an end to life without dignity.
He said it is contradictory that the court allows passive euthanasia but does not recognise execution of a living will.
The Times of India report also quoted the court as saying, "To die peacefully without suffering is a right under Article 21. But one cannot commit suicide. However, one has a right to say while dying let me not suffer." Chief Justice Dipak Misra further added that a living will would relieve the relatives of taking the painful decision of advising doctors to withdraw life support from the patient.
The present case has sought the enactment of a law along the lines of the Patient Autonomy and Self-determination Act of the USA, which allow the practice of a living will, according to LiveLaw. When it was first listed in 2014, the Supreme Court did not pronounce any order but referred the matter to a Constitutional bench. This was to resolve the inconsistencies between the Aruna Shanbaug case (which allowed passive euthanasia under certain safeguards), and the Gian Kaur case (which held that the right to life does not include the right to die).
Euthanasia and assisted suicide are acceptable in 10 nations across the world, including US, Canada, Germany, Switzerland and Belgium, according to NDTV. When the patient decides to end life and is assisted by a doctor, it is assisted suicide. Euthanasia on the other hand is when the call is taken by the patient's family and friends.
The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill
The government's bill was accessed by News18. The bill recognises the concept of living will but does not make it binding on medical practitioners and says that i cannot be executed by any patient since it would be considered void.
However the bill does recognise the difference between a competent and an incompetent patient and states that if a person above 16 years of age understands the consequences of their decision and makes an informed call about the denial of medical treatment, then such a decision would be binding on the doctor. If the patient is above 16 years of age, then consent with regard to such a decision has to also be obtained from their parents or major spouse.
With inputs from PTI
Updated Date: Oct 11, 2017 15:05:32 IST