There is constitutional mandate under Article 21 that ‘no person shall be deprived of his life and personal liberty except according to the procedure established by law. The Supreme Court has held in many landmark judgments that ‘Right to life’ means and includes ‘Right to live’ with dignity.
Very recently, the Supreme Court in an epoch-making judgment of the five-judge constitution Bench has paved the way for ‘passive euthanasia’ or in other words ‘mercy killing’ by permitting the hospital authority or the treating doctor to withdraw life support to a terminally ill patient if he slips into irreversible coma where there is no chance of revival and there is no ray of hope of life.
Even, the Supreme Court has spelt out clearly guidelines to be observed by the treating doctor where there is absence of a ‘living will’ by the patient and in that case the family member of the patient can request the treating doctor or the medical board of the concerned hospital to allow the patient for a dignified end of his life.
‘living will’ has been explained by the court to be an ‘informed consent’ by an adult patient while in a sound state of mind before a judicial magistrate of first class and in presence of independent witnesses who will attest the consent memo.
The ‘living will’ speaks out when medical treatment is to be withdrawn and even name a guardian or close relative who will execute the said will in the event of the patient going into deep comatose stage or persistent vegetative state (PVS). The court has directed that the copy of the ‘living will’ shall be kept in the office of the judicial magistrate and the local municipal or panchayat authority. However, the final decision to withdraw life support to a terminally ill patient who sits at the door-way of death will be the decision of judicial magistrate on the basis of medical board findings and opinion.
In cases where the matter would come before the High Court, the magistrate will intimate regarding withdrawal of the life support and the order of the magistrate shall be preserved in the court for three years after the patient’s death. The treating doctor on the request of the family member may ask the hospital authority to form a medical board for withdrawal of the life support on the patient and to allow him to die peacefully.
In this backdrop, significantly so far withdrawal of the life support to a terminally ill patient by the treating doctor or the hospital authority was a grave moral and ethical dilemma facing the medical fraternity and they were afraid of possibility of criminal prosecution by the family of the patient on the charge of abetting murder of the patient. To steer clear of the conflict, the Supreme Court held that the ‘living will’ for ending the life of a terminally ill patient must be an informed consent by an adult patient while in a sound and healthy state of mind before a judicial magistrate first class and the court has emphasized that the ‘living will’ would instruct when medical treatment will be withdrawn and the court has even named a guardian or close relative who will execute the ‘living will’ if the patient would sleep into deep coma or PVS.
Therefore, the recent ruling of the apex court on ‘mercy killing’ is a much awaited judgment which has opened a new vista for ‘dignified death’ of terminally ill patient who has no ray of hope for life or for survival.
‘Euthanasia’ although was a very controversial and debatable issue over the years regarding ending of life of terminally ill patient by withdrawal of medical support, as medical community was always hesitant to take the lead in this regard, now the road is clear for dignified death of terminally ill patient with due regard to the wishes of the patient and that of his family members. It is gratifying that ‘Right to live with dignity’ is a significant component of ‘Right to life and liberty’ under Article – 21 of the Constitution.
Therefore, when there is no chance of recovery of a terminally ill patient, the process can be smoothened by withdrawal of the life support, thereby allowing the patient to die peacefully and with all dignity. All said and done, for ‘mercy killing’ of terminally ill patient, the views and opinion and decision of the medical board is of paramount importance and the judicial magistrate will only issue orders to execute the ‘living will’ accordingly basing on the opinion of the medical board. However, in case of differences of opinion or rejection by the medical board on account of ambiguity in the ‘living will’, the family member or the hospital can approach the High Court that will expeditiously hear and decide the case. It will be open to the High Court to constitute a medical board of its own.
Concluding, when in India, basic medical facilities are absolutely inadequate and is in a deplorable state and ‘Right to health’ although a guaranteed right and part of Article – 21 of the Constitution is not available to teeming millions of our country men, why a terminally ill patient will be denied his right to die in dignityIJ Therefore, the judgment of the apex court is certainly path-breaking on the subject of mercy killing or ‘passive euthanasia’ which has great relevance, as this practice already has been adopted since long in other European countries.
(Prof Das is an ex-Special Judge, CBI. Mob: 9437022723)