On March 9, 2018, a five judge constitution bench of the SC delivered a significant judgment dealing with various aspects of passive euthanasia in “Common Cause vs UOI”. It was the SC’s fourth judgment on the subject in the past 24 years. In 1994, came “Rathinam vs UOI”, where the court ruled that the constitutional guarantee of the right to life implied the right to die, justifying suicide. This was based on the “reasoning” that a positive privilege implied the negative also. For example, the right to free speech by implication gave you the right not to speak. 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 right to life with dignity and therefore to die with dignity. In 2011 the “Aruna Shanbaug” judgment reinforced dying with dignity, in a “judgmental law”, recognising passive euthanasia as permissible and distinct from active euthanasia.
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. Alongside these developments, the Law Commission in its efforts to replace the judgmental laws of the SC verdicts with parliamentary legislation, placed in public domain, a draft bill “Medical Treatment of Terminally Ill Patients (protection of patients and medical practitioners) Bill”.
This bill dealt with the procedure for withdrawing life support for patients with terminal illness or in the permanent vegetative state. The March judgment extended the scope from withdrawing to withholding life support, to permit a dignified death.
This draft was riddled with inconsistencies, some of which have been addressed in the March 2018 judgment. “Terminal” was defined as an illness “leading to untimely death”. This definition unfortunately remains inadequate even in the March judgment. The closest we have to a definition is the US insurance rule of thumb of an expected life span of two years. In India by common practice “terminal” usually implies life expectancy in months, not years. The draft appears to confuse a “competent person” as anyone over 16 years as opposed to the legal age of adulthood being 18 yrs. The judgment has now specified the legal interpretation of “adult”.
The principal bone of contention was that the draft bill did not recognise the validity of a “Living Will” by stating that 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”. A procedure was laid down to deal with stopping treatment either at the behest of the treating physician, the patient or the relatives. The procedure in the draft bill could drag out to 93 days and the question arose over who would pay for the treatment during this period. Interestingly, the Aruna Shanbaug judgment also prescribed a procedure which, though simpler, was not implemented in any state in seven years. Unfortunately, the March judgment has complicated the issue further.
The SC judgment now directs a “Living Will” or “Advanced Directive” (AD) can be executed by an adult “of sound mind, voluntarily, and in writing. It shall clearly state when medical treatment may be withdrawn or no specific treatment given which will delay the process of death or otherwise cause pain and suffering”. It should also specify the person who will be authorised to give appropriate consent in the event of the executor being incapable of taking a decision. The document must be signed by the executor in the presence of two witnesses and a JMFC who shall verify the authenticity of the declaration, keep a copy in his office and forward one copy to the jurisdictional district court.
In the event of the executor being terminally ill, the treating physician shall ascertain the authenticity of the document with the JMFC. If satisfied that the clinical situation and documentation can be acted upon, the executor and/or the family shall be informed about the nature of the illness and all its ramifications in terms of possible treatment and outcomes. To go ahead with withdrawal of treatment, the hospital shall constitute a Medical Board consisting of three specialists (from a range of seven specialities) with at least 20 years’ experience who will visit the patient and record their opinion. If the opinion concurs, the hospital shall inform the Collector who shall constitute another medical board of the Chief District Medical Officer and three other experts. If this board also concurs, they shall inform the JMFC who shall visit the patient, review all aspects and give the go ahead. If at any stage there is a disagreement, the matter may be referred to the HC.
In the face of the patients’ unassailable right to refuse treatment and/or leave the hospital against medical advice, this procedure makes little sense. It will mean nothing to the poor, making compliance highly unlikely; just as it was following the Aruna Shanbaug judgment.
The SC judgment concluded by observing that “India is one of the worst countries to die in; especially for those suffering from terminal illnesses.” In 2015, the Economist Intelligence Unit brought out a Quality of Death Index, which ranked India 67th out of the 80 countries it had surveyed. In December 2017, a joint report published by the World Health Organisation and the World Bank revealed that 49 million Indians are pushed into poverty every year due to out-of-pocket expenditure on healthcare, accounting for half of the 100 million who meet such a fate worldwide”.
Regrettably, the SC judgment does not contribute anything towards correcting this disgraceful position.
(The author is a founder member of the Voluntary Health Association of Goa)
