On 18 May 2015, Aruna finally attained the peace that eluded her for forty-two years. She departed from this world; and left behind a society heatedly debating many aspects of her life (and death). It would be repetitive and redundant to recount the sordid details of the attack which left her in a permanent vegetative state. However the extensive media coverage following her death raised more questions than answers. Now that the heat and dust have settled, it would be useful to give the issues a second look “in the cold light of day”.
As a result of a PIL in 2009, the Supreme Court appointed a team of three experts, an anaesthetist, a neurologist, and a psychiatrist to examine the patient and submit a detailed report. They did so, declaring the patient to be in a “Permanent Vegetative State” (PVS). The court erroneously used the terms “Persistent Vegetative State” and “Permanent Vegetative State” in an interchangeable sense. The term “Vegetative State” was first coined by Bryan Jennet and Fred Plum in an article in the Lancet in 1972. The current accepted definition of the “Vegetative State” is “a clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable circulation, and shows cycles of eye closure and opening which may simulate sleep and waking”. It may follow trauma, as in this case, where the oxygen supply to the brain is cut off for prolonged periods or non-traumatic incidents like a massive stroke or cerebral haemorrhage; and is distinct from conditions like brain death, coma, unconsciousness or the minimally conscious state.
The code of practice describes three stages of the “vegetative state”. The first follows immediately after the precipitating incident. No prognosis can or should be ventured at this stage, and treatment is usually aggressive and vigorous in an attempt to resuscitate the patient. The second, the “Persistent Vegetative State” may extend from 3-6 months. The “Permanent Vegetative State” (PVS) is usually taken as that persisting beyond six months to one year. The point being that “persistent vegetative state” describes a diagnosis whereas “permanent vegetative state” adds a prognosis of irreversibility. These finer issues assume great significance in view of a BMJ paper of June 1996 which reported “Of the 40 patients referred to a specialist unit as being in the vegetative state, 17 (43%) were considered as having been misdiagnosed; seven of these had been presumed to be vegetative for longer than one year, including three for over four years.” It is therefore of utmost importance to legally and medically define the parameters by which a patients’ condition is described as a “Permanent Vegetative State”; because this judgment, directs that in cases of PVS, withdrawal of feeding and hydration is lawful, permissible, and gives it legal sanctity by labeling it “passive euthanasia”.
The court has drawn a distinction between active and passive euthanasia. The difference being, that in active euthanasia, something is done to end the ‘patient’s life’ while in passive euthanasia, something is not done that would have preserved the ‘patient’s life’. The question immediately arises: where does medical negligence end and passive euthanasia begin? Bearing in mind that “medical negligence” is defined as doing something that ought not to be done or not doing something that ought to be done.
The procedure to be followed was described. The court felt this was necessary in view of “the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.” It directed that following an application by the parents, spouse, relatives or “next friend”, the High Court consisting of at least a two judge bench, shall obtain the opinion of three medical experts, a neurologist, a psychiatrist and a physician. For this purpose every city should have a panel of such doctors appointed by the High Court in consultation with the State Government. The Court “shall give its decision speedily at the earliest”. The judgment directs that “The above procedure should be followed all over India until Parliament enacts legislation on this subject.” Thereafter, the matter was examined in consultation with the Ministry of Law and Justice and it was decided that since the SC had already laid down the guidelines, these should be followed and treated as law in such cases and would be binding on all. This was Health Minister J P Nadda’s written reply in the Rajya Sabha.
On 25 February 2014, while hearing a PIL filed by NGO Common Cause, a three-judge bench of the Supreme Court of India observed that the judgment in Aruna Shanbaug case was based on a wrong interpretation of the constitution bench judgment in Gian Kaur v. State of Punjab 1996 (which observed that the constitutional right to life does not impart the right to die). It observed that the judgment on the one hand stated that euthanasia can be allowed only by legislature yet it proceeded to lay down guidelines on the same. Therefore court has referred the issue to a constitution bench which shall be heard by at least five judges. Court observed: “In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole.”
The media celebration of “Aruna’s legacy of passive euthanasia” is therefore rather premature.
The same judgement also recommended removing suicide from section 309, of the IPC which penalizes those who survive suicide-attempts. In December 2014, Government of India declared its intention to do so. However the matter is still stuck in the “legislative pipeline” and both the IPC and the mental health act are yet to be appropriately amended. Once again there is no legacy to celebrate.
There were observations in the press that the charge sheet only mentioned attempted murder and remained silent on the sexual attack. Aruna was due to get married to a doctor across caste lines, which met the usual objections. The sexual aspect of the assault was withheld to protect her from any additional future social stigma. As a result, the perpetrator got away with a seven year sentence for attempted murder. When finally located and interviewed after Aruna’s death, he expressed remorse, stating he had never stopped regretting the incident. At the same time, he denied any sexual assault.
Whatever the final outcome of her “legacy”, may Aruna Shanbaug’s soul rest in eternal peace.
(Dr Gladstone D’Costa is the Chairman, Accreditation Committee and member, Executive Committee, Goa Medical Council).
