The medical profession is often criticized over various issues; sometimes justifiably, sometimes not. But the elephant in the room is always the question: – have the judiciary and legislature done justice to the many issues that plague the profession? Let us look at just two of these issues.
The first is the question of euthanasia and turning off life support systems. On 9th March 2018, a five-judge constitution bench of the SC delivered a judgment dealing with various aspects of passive euthanasia in “Common Cause vs. UOI”. It laid down guidelines and the procedure to be followed. In January this year, in response to a petition, a five-judge bench of the SC, reviewed these guidelines, found them unworkable and issued new guidelines with substantial modifications.
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It was the SCs fifth attempt at providing direction in euthanasia. In 1994, came “Rathinam vs UOI”, where the court ruled the Right to Life implied the right to die. In 1996, a two-judge constitutional bench overturned this in “Guan Kaur vs. State of Punjab”. This bench ruled that the constitution did not give you the right to die, but introduced the concept of “Right to life with dignity and therefore to die with dignity”. In 2011, the “Aruna Shanbaug” judgement reinforced dying with dignity, in a “judgmental law” and directed the legislature to frame an appropriate act, recognizing passive euthanasia as permissible and distinct from active euthanasia. Nothing happened. The legislature passed the ball back to the judiciary. A PIL filed in 2005 by the NGO “Common Cause” related to this subject came up for hearing in 2014 before a three-judge bench. This bench found fault with the Aruna Shanbaug judgment and referred the matter to the five-judge constitutional bench which disposed of the PIL in March 2018. Guidelines were laid down in this judgement, again directing the legislature to draft an act. These guidelines were so complicated that in the four years thereafter, there was not a single case where these guidelines were implemented. Finally, in January this year, in response to a petition, and in view of legislative inaction, the SC reviewed the 2018 guidelines and “simplified” the procedure for withholding/withdrawing life-support systems. The government involvement is now limited, and the two committees required can be appointed by the hospital itself, to deliver a decision within 48 hours. The outcome needs to be merely conveyed to the judicial magistrate. Members on the boards are required to have 5 rather than 20 years’ experience. The process of a “Living Will” has also been simplified, and need only be attested by a notary. Experts hold that even this 5th attempt is still impractical and needs review. Which raises the issue: why is there such legislative neglect on such an important medico-legal issue? And how is it that the highest judicial body of this country is unable to provide clarity and a workable solution on such a fundamental and vital matter? It is a simple question of making things easier for the honest citizen, and reducing the risk of misuse.
The concept of euthanasia has evolved from the fundamental “Right to Life” as guaranteed by the constitution, through the denial of the right to die (active euthanasia) to reiterating the “Right to die with dignity” (passive euthanasia). There has also evolved in tandem, the “Right to Healthcare”. The Constitution of India does not expressly recognize Right to Health as a fundamental right. However, through judicial interpretation, this has been read into the fundamental right to life (Article 21) and is now considered an inseparable part of the “Right to Life”. But the main challenge is, to define the “Right to Health” explicitly and the capacity of the state to fulfil the commitment. Because once declared a fundamental right, the economics become irrelevant. Additionally, the WHO constitution reinforces “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”. The SC, in Parmanand Katara v Union of India, introduced a further dimension to the issue. It held that every doctor has a professional obligation to attend to a patient in an emergency, to save life. This is an eminently laudable directive; after all the medical profession has one sole purpose which is to ensure the health of patients. But this needs a closer look. When the Rajasthan government tried to introduce a bill “Right to Healthcare Act” it is reported that the medical profession raised objections. The contentious issue is: – In some cases, trauma in particular, emergency care can involve considerable expense to a hospital. I.V fluids, blood transfusions, splints and plasters can run into thousands of rupees. The SC does not assign the responsibility of meeting such costs to any government body. Suggestions by professional bodies to create a special fund nationally, to meet such contingencies and reimburse emergency care givers at standardised rates as agreed upon, has fallen on deaf ears. Unless this issue is resolved, there will always be attempts to side-step this obligation to the detriment of the patient’s well-being. It is not enough to glibly state “they can afford to provide free care”. Two other equally contentious issues are, that private practitioners are not involved in framing health policies and there is no provision for appeals in courts of law for grievance redressal. Both are without merit.
The “Right to Healthcare” is here to stay and quite rightly so. What is required urgently is a workable means for implementation at ground level; otherwise, we risk reducing it to yet another “law” with little impact.
(The writer is a founder member of VHAG)
