17 Nov 2017 04:44am IST
Though commonly referred to as the “Euthanasia Bill” it is actually entitled “The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016”. The first draft was presented by the Law Commission in its 196th report in 2006. It collected dust till it was revived by the 241st report in 2012 as a result of the SC judgment in “Aruna Shanbaug vs Union of India” in 2011.
Briefly, Aruna Shanbaug, a nurse, was brutally attacked in KEM hospital in 1973. The chain the assailant wrapped around her neck during the assault left her in a Permanent Vegetative State (PVS) till she died in April 2015. During this time, Pinki Virani, a social activist wrote a book on her and filed a petition in the SC requesting that she should be allowed to die in a dignified manner, by switching off all life support measures. The SC recognising her as the “next friend”, took cognizance of the far-reaching social and medical implications of the case and admitted the petition, resulting in its landmark judgment in 2011
This judgment distinguished between active and passive euthanasia and declared that whilst the constitution guaranteed the right to life, it did not guarantee the right to die and hence active euthanasia could not be permitted. However it did recognise the right to dignity in death, permitted passive euthanasia and laid down guidelines for its practice. These guidelines were declared a “judgmental law” in the Rajya Sabha by the then Health Minister in response to a question in parliament in 2012. The matter was handed over to the Law Commission and as a result we now have the draft bill ready to be passed into law. Reassuringly, concern for the safety of the patient as well as the doctor is enshrined in the very title. It protects against any allegation of medical negligence (which includes “a failure to do something that should normally be done”). Neither the patient nor the doctor shall be considered at fault under the provisions of this bill.
This draft goes well beyond the purview of the guidelines of the judgment which dealt only with the situation of the PVS. The SC did not distinguish between the Immediate (often temporary), Persistent and Permanent Vegetative States as outlined in medical literature. Only in the third stage is the clinical situation considered “permanent”.
The bill defines “terminal illness” as i) any illness “which will inevitably cause untimely death” or ii) PVS. In practice terminal illness is usually an illness beyond cure, where life expectancy is less than six months. PVS is hardly a terminal illness (Aruna Shanbaug lived for 42yrs). The draft creates further issues which have provoked intense debate. In the introduction, in “Definitions,” the bill defines “incompetent patient” as one “who is a minor below the age of sixteen years”. Therefore a person above the age of 16yrs can refuse treatment. The legal definition of an adult being 18 years and above, how does a 16 year old become competent to refuse treatment? In Section 30, the bill states “Provided further that in the case of minor above sixteen years of age, the consent has also been given by the parents, or legal guardian or any next friends”. There is total confusion on the question of age in relation to competence.
The concept of a “living will” is not accepted by this draft which states that it “shall be taken into consideration in matter of withholding or withdrawing of medical treatment but it shall not be binding on any medical practitioner.” A living will is defined as "a document in which a person states his/her desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from his/her terminal condition''. The government argued in the SC that a living will was prone to misuse; an unjustifiable view given that the US has had living wills in place for 40 years, with only 10 cases of suspected misuse. Furthermore, in view of the fact that a competent person has the right to refuse treatment; the fact that if the patient does not have the capacity to make a decision, the relatives can always exercise their right to “Leave Against Medical Advice” (LAMA), refusing to recognize a “living will” does not make sense. A five-judge constitution bench headed by Chief Justice Dipak Misra reserved its verdict on a plea seeking recognition of 'living will'.The bench was hearing a PIL filed in 2005 by the NGO, Common Cause, which said when a medical expert opines that a person afflicted with a terminal disease has reached a point of no return, he should be given the right to refuse life support."One cannot say that you have a right to die, but you have a right to dignified death. If we recognise the right to dignity in death, then why not dignity in dying," the bench observed, adding that life must be preserved but not prolonged in suffering.
The medical practitioner on receiving a request from a competent person to discontinue treatment, must wait for three days. The matter will then be handed to a division bench of the HC and thence to a panel of experts, to be disposed of within 30 days. If the application is contested, the contesting application must be filed and disposed of within 30 days. Compliance is required within 30 days. The question arises: who pays for the care during this interim period? In one case, a delay of 13 days cost the relatives 6Lakhs.
The bill concludes “Our Constitution acknowledges the right to life of every person which includes in it the right to live this life with dignity.” The Economic Intelligence Units’ 2015 Quality of Death Index, ranks palliative care globally; India ranks 67th out of 80 countries. Surely we can do better than that.
(The writer is a founder member of the Voluntary Health Association of Goa).