A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.
What is Living Will?
- A living will is a legal document detailing the type and level of medical care one wants to receive if they are unable to make decisions or communicate their wishes when care is needed.
- A living will addresses many life-threatening treatments and procedures, such as resuscitation, ventilation, and dialysis.
- A person can appoint a healthcare proxy to make decisions regarding care when they are unable to do so.
- A living trust is a legal document that addresses how the assets of the incapacitated person should be managed.
- People can enlist the services of an estate planner or an attorney to help draft or review a living will.
Living Will in India
- It was first laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
- It was in response to the Aruna Shanbaug Case where protagonists were arguing in favor of mercy killing to Aruna.
- The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board.
- It declared that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.
What is Euthanasia?
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What is the legal history of this matter?
- Passive euthanasia was legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’.
- It must be a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
- In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.
What did the SC rule in 2018?
- The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state.
- It was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
- The court issued guidelines regulating this procedure until Parliament passed legislation on this.
- However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.
What was the situation before 2018?
- P Rathinam vs Union Of India, 1994: In a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision”.
- Gian Kaur vs The State Of Punjab, 1996: Two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
- Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”.
Key observations by Law Commission
- Earlier, in 2006, the Law Commission of India in its 196th Report’ had said that a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.
- It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
- Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.
What was the old cumbersome process?
- The treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience.
- They would decide whether to carry out the living will or not.
- If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
- The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
- Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
- This cumbersome process will now become easier.
Recent changes after the SC’s order this week
- Medical board: Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
- 5 year experienced doctor: The requirement of 20 years of experience for the doctors has been relaxed to five years.
- Magistrate approval not required: The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
- No witness required: The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
- HC for appeal: In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.
Different countries, different laws
- NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
- SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.
- CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.
- UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
- UNITED KINGDOM considers it illegal and equivalent to manslaughter.
Justification for Euthanasia/Assisted Suicide
- It provides a way to relieve extreme pain.
- Euthanasia can save life of many other people by donation of vital organs.
Conclusion
- India officially recognizes that- “every single citizen is entitled to and reserves the right to die with dignity.”
- Hon’ble Supreme Courts’ recent updated guidelines are a major move in this direction.
