The debate on whether a person has the right to seek dignified death has picked up again with the Supreme Court’s landmark ruling stating that human beings have the right to die with dignity and allowing a living will. However, it has also set strict guidelines to govern when it can be permitted. Experts tell SHAlINI SAKSENA that even though the nod is a welcome move, there is need to tread with caution and examine each case on its merit
In a landmark ruling recently, the Supreme Court explained at length that “we need to understand that euthanasia is basically an intentional premature termination of another person’s life either by direct intervention (active euthanasia) or by withholding life prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).
The SC discussed that in the Aruna Shanbaug case, the two-Judge Bench had observed that the legal position across the world seemed to be that while active euthanasia is illegal unless there is a legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are maintained.
“let us understand what the law of the land says. As it exists today, it does not permit anybody to cause death of another person, including a physician by administering any lethal drugs even if the objective is to relieve the patient from severe pain and acute sufferings. However, an adult human being of conscious mind is fully entitled to refuse medical treatment and embrace the death in a natural way. Article 21 of the Constitution gives protection of life and personal liberty, which means no person, shall be deprived of his life or personal liberty except according to procedure established by law,” BS Nagar, an SC advocate, tells you.
Even though Shanbaug was denied euthanasia and died a natural death in 2015, human rights activist and national award winning author Pinki Virani’s PIl in 2009, as the “next friend” of Shanbaug, resulted in the landmark 2011 two-judge ruling granting passive euthanasia to all Indians in similar persistent vegetative state, brain-dead or irreversibly-ill ventilator conditions. It had sparked off a nationwide debate with the Supreme Court legalising passive euthanasia. The latest ruling adds to that.
In the recent judgement, it has stated that human beings have the right to die with dignity, allowing a living will. However, it has also set out strict guidelines that will govern when and how it is permitted. In a nation where relatives go to any lengths to save a patient’s life whatever the cost, the fact that the apex court ruled for passive euthanasia is remarkable.
“There’s no denying that legal literacy takes its own time to grow. In 2011, a section of the media focussed so much on Aruna being denied passive euthanasia that, ironically, there was less mention of the fact that she had brought this very law for everyone else. A few years later, a three-judge bench referred the judgement — which stood from 2011 as “law until revoked or ratified by Parliament” — to a five-judge Constitution Bench. It examined all aspects, disagreed with the two judges’ opinion on an earlier case which formed part of their rationale but the Constitutional Bench upheld the judgement-law of 2011. The matter of passive euthanasia as law — until Parliament revokes or ratifies — stands as solidly settled,” Virani says, adding that all doctors are not against euthanasia. “Some as strongly support passive euthanasia and find active euthanasia abhorrent. Then there are those who do not support even passive euthanasia perhaps because they feel a loss of control. Certainly in an increasingly corporatised hospital economy, it can represent loss of revenue,” she says.
Therefore, doctors who oppose it say that every plea needs to be looked at on a case-to-case basis and say that there is a huge difference between passive and active euthanasia.
Dr Aggarwal, president Heart Care Foundation of India, says that in passive euthanasia, the life support system of a terminally ill patient who is in a vegetative state is withdrawn. “In active euthanasia, a patient is put to death through a lethal injection. Active euthanasia has more likelihood of being misused by unscrupulous individuals to attain their ulterior motives and therefore, may not be approved,” he explains.
But what of people who are terminally illIJ There are cases where the person can’t even drink water on his own. He is totally dependent on others. At night, if he wants to turn on his side, he can’t. In such cases, euthanasia is a way out. But the very idea of letting a person die before his time is up is difficult for us to understand, let alone talk about it.
Religions like Hinduism, Buddhism and Jainism have no discomfort with people wanting to kill themselves voluntarily as there is a belief in rebirth. In some districts of Tamil Nadu, for decades, the young have been relieving their elders of life if they are in pain or have been ill for a long time. Though the custom usually applies to those 60 and above, sometimes even the young in continual pain are “relieved” of life.
“The subject is debatable not only for academic purposes but more because of the apprehensions of misuse and risks to the life and property of senior citizens. This concept is dependent on the ‘will’ of persons who may be incompetent to take decisions, may be so dependent not only on the medical professionals but also on friends and relatives and/or children,” Nagar, says. He opines that it will lead to lot of misuse of this law to snatch property.
“The law does not deal with the situation of misdiagnoses in ascertaining a vegetative state which is not uncommon as per the medical studies. Every person has a different body and medical history. law does not deal with the situation where one body may recover spontaneously whereas other may not. Also, what if a particular disease or medical condition, though incurable at present, becomes totally curable in futureIJ The law also does not deal with this situation. Therefore, there is going to be gross misuse of this law, he asserts.
But if there is a section which says that if one has the right to live with dignity, should one not also have the right to die with dignityIJ
Agrees Dr Surendra Dhelia, secretary of Society for the Right to Die with Dignity. “If a person is suffering and every day is a living nightmare, instead of forcing him to live, one should allow him to take a decision on whether he wants to live. If the person so desires, he should have the freedom to choose — whether he wants to live a semi-vegetative life or if he wants to die peacefully,” Dhelia says.
Seconds Dr Aggarwal and says: “Just as every person has the right to life, the person also has the right to die with dignity. It is inhuman to force them to live on life support: Not only is it a torture for the person and the family but also increases the cost of stay at the hospital. Thus, this decision by the SC needs to be applauded. There are some other facts that need to be considered. Advance Directives (ADs) talk about whether the documents a person completes while still in possession of decisional capacity. It is important to remember that ADs are only acted upon when the patient has lost the ability to make decisions for himself and can be revoked orally or in writing by the patient at any time. Second is the Durable Power of Attorney for Healthcare and third is the living Will.”
Dr Swarupa Mitra, senior consultant and chief of Gastrointestinal and Genitourinary and Radiation Oncology, Rajiv Gandhi Cancer Hospital tells you that while treating oncology patients she sees a lot of suffering both in the patients and the family members and therefore, in such a situation the SC judgment is a step in the right direction.
“To ease the suffering and mental trauma of the patient and to reduce the burden of the cost in treating such patients when the family can’t afford it, it is a good move. It is not as if it is active euthanasia. One is just withdrawing support system and letting the patient go. But the down side too. First, there will be cases where the elderly himself may want to end his life since he is a burden on the family and hence think of ending his life despite the best of care. Second, the misuse could stem from how a son may call an unscrupulous and small-time doctor and given him a lethal injection. Now that the SC has given a judgment, it gives them a leverage. Third, who will declare that this is patient who we let go,” Dr Mitra says and cites Stephen Hawking cases who passed away recently.
“Back then, he would have been an ideal case for passive euthanasia. But we had, we would never have had a Stephen Hawking,” So the question arises: Who decides — the family or the doctorIJ” Mitra says.
Dhelia says that there is no way that the misuse can be prevented. “There are probably many cases where the son is poisoning the father and none is wiser. I can use a knife to murder a healthy person. In the hands of a surgeon, the same knife can save a dying man’s life. But that doesn’t mean that use of knife should be made illegal. Just because a law can be misused doesn’t mean that it should not come into force. One should have strictest of guidelines, appropriate safeguards and strict punishment in case of infringement,” Dhelia says and questions other aspects as well like how does one explain the situation where the family pulls the plugs on a member who is on ventilator. Does it amount to murder, assisted suicide or will one call it euthanasiaIJ
“Private medical care in India is expensive and often unaffordable. Not everyone can take the expense of keeping a person on artificial life support system for a long period. In any case, the person is already dead if it were not for the machines that are working on him. In such cases, if one takes the decision to remove the artificial life support on doctor’s advice does this not fall into a grey areaIJ” Dhelia asks.
There is a reason for growing demand for euthanasia in the country. It is directly linked to changing social milieu. There are too many old and sick people. lack of money, time and interest in caring for them, increasing nuclear families and the use-and-throw mentality of the new generation are some reasons.
Hence, some doctors are against euthanasia because they are afraid it will be an escape route for people who do not wish to care for the ailing old.
“With doctors having the final word in passing the decision on a patient’s passive euthanasia, the responsibility on them is huge. Considering few past cases of distrust on the doctors and hospitals, it is understandable for some doctors to feel worried. But this hurdle can be overcome by spreading awareness around the subject. Passive euthanasia does not imply assisting people in dying. Instead, it means discontinuation of life prolonging procedures on patients who will certainly die soon without machine assistance. It is important that correct knowledge of passive euthanasia and the options related to it should reach all sectors of the society,” Dr Gaurav Thukral, COO at Health Care at Home, tells you.
So if dying with dignity is now as much a right to life, why put such strict guidelines. Is that not contradictoryIJ
“All rights come with responsibilities. I remember when I was deeply conflicted about whether I should approach the SC or not in 2009. There being no precedent in independent-India I researched the earlier period and found that the first instance of when euthanasia even came to be debated was in the early-40s, when Mahatma Gandhi asked for a very sick, profusely bleeding lamb to be put to sleep by injection. A furor followed, on Gandhiji’s “lack of morality”. Thereafter he wrote several pieces dwelling on the right to die with dignity — even though he did not use those words — and he made the distinction between himsa and ahimsa. What we would wish for as ahimsa for ourselves and our loved ones, can just as easily be turned — in cases of the most vulnerable, like the elderly, widows, girl-children — into himsa. And so there must be strict guidelines,” Virani says
However, it can most certainly be argued that while the philosophy is sound, the practicalities on-ground are daunting, be it for passive euthanasia or for the passive euthanasia advanced directive. A Parliamentary-passable draft Bill will need to find that balance between patient-protection and hyper-legislation which may wind up being violative of the very principal the law has been set up for.
“All this will take time. Meanwhile, I would suggest that people use this and future opportunities to have conversations around death and the quality of dying. It’s a difficult dialogue, especially one to be had over a dining table with family or over drinks with friends. But just talk, maybe about a — DND (Do not Disturb’ when dying, ‘Do not Destroy) — what’s left of dignity when dying. As Justice BN Srikrishna — who guided me on whom to contact to file the 2009-PIl — said after the 2011 landmark judgement-law: “This is as much about the human condition as it is about individual human psyche. This is also about religion. It’s as much about specific family-culture. This passive euthanasia law is the choice for Indians to arrive at the choice in a way they choose fit.”
All you need to know about living Will
A living Will is a document prescribing a person’s wishes regarding the medical treatment; the person would want if he was unable to share his wishes with the healthcare provider. The Supreme Court in the recent judgement has termed living Will as Advance Directive/Advance Care directive/Advance Medical Directive and has provided certain safeguards.
Who can execute the advance directive and howIJ
Only an adult, who has a sound and healthy mind
It must be voluntary without any coercion and inducement
It shall be in writing
What should it containIJ
How should it be recordedIJ
When and by whom it can be given effect toIJ
What if permission is refused by the Medical BoardIJ
If permission to withdraw medical treatment is refused by the Medical Board, it would be open to doctor or family members to approach the High Court which shall render decision at the earliest possible.
Revocation or inapplicability of Advance Directive.