Dr. MC Gupta, a former Dean and professor of Medicine and now a  practicing lawyer, writes about a landmark judgement passed in 2018 concerning living will and passive euthanasia.

Law is never static or etched in stone. It is always evolving as per the needs of the society. It may be said that law is nothing but common sense wrapped in layers of legalese. And however much the common man may make fun of such legalese, it is essential to ensure that there is a meeting of minds and everybody concerned gets the same, clear, unadulterated message.

The aim of this article is to bring out the essence of the three judgments by Indian courts, deemed to be the most important during the year 2018. An effort will be made to avoid legalese but yet convey the message in a legally correct form. In this part will be described one such landmark judgment on living will.

The Judgement of Euthanasia/Living Will/Advance Directive

On 9-3-2018, a Constitution Bench of the Supreme Court headed by Chief Justice Dipak Misra delivered the 538 page judgment titled as Common Cause (A Regd. Society) vs Union of India. This judgment can be viewed online*.

The main points of the judgment were as follows:

1. The Supreme Court gave legal sanction to passive euthanasia and execution of living will of persons suffering from chronic terminal diseases and likely to go into a permanent vegetative state. The Supreme Court accorded primacy to the constitutional values of liberty, dignity, autonomy and privacy as it laid down procedural guidelines governing the advance directive of a living will. The guidelines will operate till a legislation is put in place.

The court’s ruling was pronounced on a petition by the NGO Common Cause that sought recognition of a living will so that an individual could exercise the right to refuse medical treatment at a terminally-ill stage of life. Appearing for the NGO, Advocate Prashant Bhushan, said that under Article 21 (right to life) a person had the right to die peacefully without any suffering and must be allowed to create a living will for a time when he cannot recover from an illness. The petition was opposed by the Centre.

2. It was held, as per Justice D.Y. Chandrachud, that “The right of an individual to refuse medical treatment is unconditional. Neither the law nor the constitution can compel an individual who is competent and able to take decisions to disclose reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity”.
3. A living will is a document prepared by persons in their healthy/sound state of mind under which they can specify in advance whether or not they would like to opt for artificial life support if he/she is in a vegetative state due to an irreversible terminal illness in the future.

Notes

1. Living will

A ‘living will’ is a concept where a patient can give consent that allows withdrawal of life support systems if the individual is reduced to a permanent vegetative state with no real chance of survival. It is a type of advance directive that may be used by a person before incapacitation to outline a full range of treatment preferences or, most often, to reject treatment. A living will can detail a person’s preferences for tube-feeding, artificial hydration, and pain medication when an individual cannot communicate his/her choices.

Euthanasia and physician-assisted suicide have been legal in The Netherlands and Belgium since 2001 and 2002. In the US, Switzerland and Germany, euthanasia is illegal but physician-assisted suicide is legal. Euthanasia remains illegal in the UK, France, Canada and Australia. The US, UK, Germany and Netherlands have advance medical directive laws that allow people to create a ‘living will’.

In cases where there is no “advance directive”, the patient, family, friends and legal guardians can’t take the decision on their own, but can approach a high court for stopping treatment.

2. Active and passive euthanasia

Active euthanasia is the intentional act of causing the death of a patient in great suffering. It is akin to physician-assisted suicide and is illegal in India. It entails deliberately causing the patient’s death through injections or overdose.

Passive euthanasia entails a patient being allowed to die by limiting medical intervention, not escalating already aggressive treatment, withholding or withdrawing artificial life support in cases that are judged to be medically futile. In the literal sense, passive euthanasia means withholding treatment or supportive measures which would have otherwise saved the patient’s life The Supreme Court has given legal sanction to passive euthanasia.

Related past judgments

1. In P. Rathinam case decided by the Supreme Court in 1994, it was held that the “right to die” is a right enshrined under Article 21 of the Constitution and hence Section 309 of Indian Penal Code was unconstitutional.
2. In Gian Kaur v. State of Punjab decided by a Five-Judge Bench the Supreme Court in 1996, the Supreme Court overruled P. Rathinam. The Supreme Court held that both euthanasia and assisted suicide were not valid in law in India.
3. In Aruna Shanbaug v. Union of India, a Two-Judge Bench the Supreme Court allowed passive euthanasia subject to certain conditions and subject to the approval of the High Court after following the due procedure as laid down by the Court in the case.

*Check the judgement on https://indiankanoon.org/doc/184449972/

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.