India embracing choices as passive euthanasia and living wills on their way to being legalised

By Anushree Jois

Passive euthanasia received legal recognition in India by virtue of the landmark judgment passed by the Supreme Court in ‘Aruna Shanbaug versus Union of India’ case in March 2011. Almost half a decade later, a bill on the subject was drafted in 2016. Recently, the Centre stated that it is in the process of redrafting the 2016 bill for tabling it before the Parliament. This brings India a step closer to having a legislation on the much debated ‘euthanasia’.

Role of the judiciary

In 2006, the Law Commission in its 196th Report recommended for the introduction of a law on euthanasia, which was rejected by the Health Ministry. A petition for mercy killing by active euthanasia of a nurse, Aruna Shanbaug, was filed in 2009. The petitioner was in a permanent vegetative state for 36 years after enduring a sexual assault by a ward boy. The Supreme Court noted that active euthanasia required a positive action that causes the death. On the other hand, passive euthanasia only withdraws or withholds treatment or support that prolongs a patient’s life. The Supreme Court rejected the petition and laid down guidelines for implementation of passive euthanasia. The guidelines were to be followed until a law was enacted.

Once again in August 2012, the 241st Report of the Law Commission suggested a legislation on passive euthanasia, which was once again ignored. In February 2014, a five-judge bench of the Supreme Court was constituted to look into the issue of legalising ‘living will’ raised in a petition filed by Common Cause, an NGO. A living will is an advance directive to medical practitioners regarding end-of-life medical care including the decision to withdraw life support. The Court issued notices to the Central and State governments for their responses. They vehemently opposed such legalisation.

Introduction of the bill

During May 2016, the government surprised everyone by introducing ‘The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners), 2016 Bill’. The bill was based on the recommendations of the Law Commission in its 241st Report and on the guidelines laid down by the Supreme Court. The Health Ministry invited public comments on it. The bill, however, declared a living will or advance medical directive as void.

In the pending public interest litigation (PIL), the Centre continued to oppose legalising living will. It submitted that such legalisation is against the natural instinct of a person to live and also raised concerns about misuse of the law. The Court, on the other hand, pointed out that such documents would relieve the grief-stricken relatives of the moral burden of deciding whether life support should be withdrawn. It would also spare the medical practitioners and the family of accusations of negligence and foul play. The Court, however, conceded that the law can be misused and adequate safeguards have to be provided for. During the hearing in October 2017, the Centre informed the Court that the bill is being redrafted. The apex court has presently reserved its orders on the issue of living wills.

The law on passive euthanasia

The bill legalised only passive euthanasia. It empowered competent patients above sixteen years to take a decision to withdraw or withhold treatment or support. A competent patient is one who is terminally ill with no chance of recovery. The decision was binding on the medical practitioner. The practitioner, however, had to be satisfied with the patient’s competency and free will. He was also required to inform the patient and the family about the consequences of such a decision.

In case of an incompetent patient, a terminally ill patient not in a position to take a decision on passive euthanasia, the family members could approach High Court for permission. A panel of medical experts was to be formed in every state for the purposes of the bill. The bill also sought to protect patients and medical practitioners from any liability for withholding or withdrawing treatment or support. It, however, declared all advance medical directives or living wills and medical power of attorneys that permitted initiation of passive euthanasia void.

Improvements to the bill

As evident in its submissions to the Supreme Court, the Centre was redrafting the bill. It is now renamed as ‘The Management of Patients with Terminal Illness—Withdrawal of Medical Life Support Bill’. Under this, the hospitals have to set up approval committees for considering cases of passive euthanasia. The committees have to also look into applications for living wills. In cases of incompetent patients, the redrafted bill requires an unanimous consent of all family members to seek for passive euthanasia. The new bill also mandates palliative care to patients even after withdrawal of life support. Also, death from passive euthanasia is termed as a natural death.

To deter misuse of the law, punishments of imprisonment and fine have been introduced. Any distortion of facts before the panel will lead to a punishment of maximum ten years in jail and fine up to one crore rupees. The bill also imposes a punishment of imprisonment for five to ten years and a fine of ?20 lakhs to one crore rupees for misrepresentation of facts or placing forged documents before the committees.

Public opinions

The introduction of the bill is seen as a positive change. Families of terminally ill patients see it as a silver lining as it makes way to put an end to the suffering and pain of their dear ones who have no chance of recovery. Though an emotional and sensitive issue, the families are left financially burdened. The patients themselves are mostly in a permanent vegetative state with no chance of recovery and can now take a decision about their lives.

Several provisions of the bill, however, have been debated upon. Many were left disappointed that living wills were declared void under the earlier bill. It was felt that the whole purpose of introducing the law itself stood defeated. It was highlighted that ‘right to life’ included ‘right to die with dignity’ and that an individual should have the right to decide on his death by passive euthanasia. With the introduction of the redrafted bill, it is possible that government’s earlier approach to living wills has changed as the approval committees are now required to look into such applications.

Child rights activists were shocked that the law was made applicable to even minors. It was felt that in India when people aged below eighteen years were not considered mature enough to decide on their marriage or voting, to assume that they could take a decision on passive euthanasia is preposterous. However, currently, the Indian juvenile system permits a minor to be tried as a major in heinous crimes. This being the case, it cannot be advocated that minors are not mature enough. Also, in countries like Belgium, euthanasia (both active and passive) is made applicable to all age groups. Similarly, in the Netherlands, it is applicable to those above twelve years.

Providing palliative care to the patients will ensure that the patients ‘die with dignity’ in the natural course while experiencing minimum pain and suffering. This should also be a directive for the government to ensure that sufficient infrastructure is in place for providing such care. According to the Economist Intelligence Unit Report on the quality of death experience published in 2015, India ranks at a lowly 67th position out of 80 countries in providing access to end-of-life care. This clearly indicates that India does not have sufficient infrastructure to take care of its terminally ill patients.

A long road ahead

With the pending decision of the Supreme Court on its legality and also the impending enactment of the law in this regard, the living will is on the verge of finding a foothold in India. Advance medical directive is enforceable in United States, Canada, Australia, and many countries across Europe. It is also endorsed by the United Nations Convention on the rights of persons with disabilities.

Active euthanasia, on the other hand, has a long way to go before finding legalisation in India. It is declared unconstitutional by the Supreme Court in the Aruna Shanbaug’s case. Active euthanasia required something positive to be done that causes the death of the patient, while passive euthanasia only withdraws or withholds treatment or support that would have preserved patient’s life. In fact, the term ‘passive euthanasia’ itself is considered a misnomer today.

The central focus in this area of law should always remain the patients, their pain and suffering, emotions, and what is best for them in the most human way possible. While Aruna Shanbaug’s case led to a historic decision of introducing euthanasia in its passive form in India, she herself died in May 2015 in the intensive care unit after spending 42 years in a vegetative state.

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