This topic has gained significance with recent news of registration of Living Will by sitting judge of Hon’ble Bombay High Court Shri Justice M.S. Sonak.
The Black's Law Dictionary defines Living Will as an advance medical directive "a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate”.
What is Euthanasia?
According to oxford dictionary it means practice of killing somebody without pain who wants to die because he/she is suffering from a disease that cannot be cured.
Types of Euthanasia
Active Euthanasia | Passive Euthanasia |
Act of killing terminally ill patient actively by administering lethal injection. | Intentionally letting a terminally ill patient die by withdrawing life ventilator or feeding tube. |
Legal position of euthanasia in various countries
Whilst active euthanasia is illegal in most countries, in India passive euthanasia received legal sanctity in 2018 (Hon’ble Supreme Court in Common Cause Judgment).
Foreign Countries
Euthanasia is legal in Belgium, Canada, Colombia, Ecuador, Luxemburg, Netherlands (first country to legalize euthanasia), New Zealand, Portugal, Spain, and the Australian States of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia.
Time line of cases filed in various Indian Hon’ble Courts dealing with issue of euthanasia
Smt. Gian Kaur Versus State of Punjab, 21st March, 1996 (1996 AIR 946)
Facts
Appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306 of IPC for abetting the commission of suicide by Kalwant Kaur. The conviction of the Appellants was assailed on the ground that Section 306 of IPC is unconstitutional. The issue was referred to constitutional bench.
Arguments urged on behalf of the Appellant
· Right to die was a fundamental right included in Article 21 of the constitution.
· Any person abetting the commission of suicide was merely assisting in the enforcement of the fundamental right under Article 21 of Constitution.
Held: The Hon’ble Supreme Court of India held Section 306 of Indian Penal Code as constitutionally valid. The Court held that the "right to live with human dignity" cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of the process of certain natural death.
Eventually, the Court in Gian Kaur (supra), apart from overruling P. Rathinam (supra), upheld the constitutional validity of Section 306 IPC.
Aruna Shanbaug V/s. Union of India, 7th March, 2011
Facts
Aruna Ramchandra Shanbaug used to work as a nurse at King Edward Memorial Hospital in Mumbai on 27th November 1973. She was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rope her but finding that she was menstruating he sodomized her. The next day on 28th November, 1973 at 7.45 am a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. The petition was filed alleging that she was in persistent vegetative state and virtually a dead person and has no state of awareness and her brain is virtually dead. The Petitioner Pinky Virani who claimed to be next friend of Aruna Shanbaug prayed that the respondents be directed to stop feeding Aruna and let her die peacefully.
Held: The Hon’ble Apex Court after going through detailed medical examination reports conducted by team of doctors appointed by it the Hon’ble Court concluded that it cannot be said that Aruna Shanbaug is dead whatever the condition of her cortex her brain stem is certainly alive. She does not need a heart lung machine. She breathes as her without the help of a respirator.
The Hon’ble Apex Court though agreed that there is no statutory provisions for withdrawing life support and that passive euthanasia should be permitted in our country in certain situations. However the Hon’ble Apex Court also cautioned against possible misuse and reiterated that the decision to withdraw life support should be taken bonafide in the best interest of the patient. It also observed that Hon’ble High Court can grant approval for withdrawing life support to an incompetent person under Article 226 of Constitution of India as Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctor/hospital staff praying for permission to withdraw the life support of an incompetent person. Dealing with the procedure to be adopted by the High Court when such application is filed, the Hon’ble Court ruled that when such an application is filed, the Chief Justice of High Court should forthwith constitute a bench of atleast 2 judges who should decide to grant approval or not and before doing so, the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practioner, as it may deem fit. Amongst three doctors as directed one should be a Neurologist one should be psychiatrist and third a physician.
Common Cause Versus Union of India
Facts: The Writ Petition preferred under Article 32 of the Constitution of India by the petitioner, a registered society, sought to declare ―right to die with dignity as a fundamental right within the fold of ―right to live with dignity guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled "My Living Will" and Attorney Authorisation which can be presented to the hospital for appropriate action in the event of the executants being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the Living Wills; and to issue such further appropriate directions and guidelines as may be necessary.
It was contended that each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution. That apart, it is set forth that right to die sans pain and suffering is fundamental to one‘s bodily autonomy and such integrity does not remotely accept any effort that puts the individual on life support without any ray of hope and on the contrary, the whole regime of treatment continues in spite of all being aware that it is a Sisyphean endeavour, an effort to light a bulb without the filament or to expect a situation to be in an apple pie order when it is actually in a state of chaos.
Held: The Hon’ble Court whilst observing that there is no legal framework in our country as regards the Advance Medical Directive (Living Will) observed that the same would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The Hon’ble Apex Court also clarified that the Advance Medical Directive has to have following requirements.
(a). Who can execute the Advance Medical Directive?
(i). It can be executed only by an adult who is of sound & healthy state of mind and in a position to communicate, relate and comprehend the purpose of consequences of executing the document.
(ii). It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
(iii). It should have characteristics of an informed consent given without any undue influence or constraint.
(iv). It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
(b) What should it contain?
(i) It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
(ii) It should be in specific terms and the instructions must be absolutely clear and unambiguous.
(iii) It should mention that the executor may revoke the instructions/authority at any time.
(iv) It should disclose that the executor has understood the consequences of executing such a document.
(v) It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
(vi) In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be given effect to.
(c) How should it be recorded and preserved?
(i) 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 concerned District Judge.
(ii) The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
(iii) The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
(iv) The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
(v) The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.
(vi) A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
(vii) The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.
(d) When and by whom can it be given effect to?
(i) In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.
(ii) The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
(iii) If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian / close relative, as the case may be, about the nature of
illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
(iv) The physician/hospital where the executor has been admitted for medical treatment shall then 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 twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
(v) In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district 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 twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
(vi) The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event, the executor is incapable of taking decision or develops impaired decision making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.
(vii) The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
(viii) It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
(e) What if permission is refused by the Medical Board?
(i) If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to 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 twenty years.
(ii) The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
(iii) Needless to say 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".
(f) Revocation or inapplicability of Advance Directive
(i) An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
(ii) An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
(iii) If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
(iv) Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
Conclusion: Slowly and steadily there is increasing awareness amongst Indians about Euthanasia and their rights pertaining to make a living will. However I personally feel that there is still a long way to go until Indian legislature comes up with legislation governing this important issue.
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