Saloni Khaitan

Abstract:

Legal developments for the right to end life picked up pace in the year 2011, which brought about the judgment of the Division Bench of Supreme Court in Aruna Shanbaug v Union of India. India has introduced the concept of ‘passive euthanasia, also known as withholding or withdrawal of life-sustaining treatment, in the common understanding of the Aruna Shanbaug case and the definition of “patient rights” that is rooted within the overall human rights perspective. On March 7, 2011, India’s Supreme Court issued a progressive judgment with potential long-term implications for end-of-life care and medical practice stating “…Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned”. Since justice dictates that the right to receive appropriate treatment as a patient is universal, the lack of active euthanasia should strengthen the patient-centric legal approach that Indian jurisprudence takes regarding the right to end life. While it remains the parliament’s duty to legislate laws on euthanasia, it is ultimately the patient’s right and the withdrawal or withholding of life-sustaining treatment that is in question. 

Background context of Euthanasia in India :

In the Aruna Shanbaug v Union of India case, a Writ Petition was filed by journalist Pinki Virani as “next friend” under Article 32 of the Constitution of India. The case involved Aruna Ramachandra Shanbaug, a nurse in King Edward Memorial Hospital who was sexually assaulted and strangulated by the assailant. As a consequence of the injury, she had become a ‘persistent vegetative state for the rest of her life. The Writ Petition to the Supreme Court stated that the Respondent (hospital) stopped feeding her to free her from suffering. In this particular case, the persons authorised to take this decision, in the absence of any close relatives, were the staff of the king Edward hospital for whom she had worked and where she was being cared for. Due to the staff’s disapproval of Aruna Shanbaug being not permitted to continue living, the relief that Pinki Virani asked for had not been granted. However, the ruling was a ground-breaking one because, for the first time in some cases, it gave legal sanction to the withholding of the removal of life-sustaining care and brought about the question of under which circumstances, if any are these patient rights violated.

The most recent judgement over euthanasia was in 2018 when NGO Common Cause filed a petition to the Constitutional Bench of the Supreme Court. Reconsideration of the Aruna Shanbaug legal sanction of withholding or withdrawal of life-sustaining treatment engaged in various aspects such as the ability to give legal approval to advance medical directives, mechanisms by which a person may indicate the care they received or did not want to receive at the end of life when they might not be able to exercise the capacity to make decisions. The Court held that the right to refuse life-sustaining medical treatment is, in fact, an exercise of the rights to ‘autonomy, dignity, and privacy that come under Article 21 of the right to life.  According to the judgement made by the constitutional bench, Act 21 of the Indian Constitution, the fundamental “right of life” was also inclusive of the “right to live with dignity” This indicates the right to live a dignified life up to death which also includes death with dignity.

Patient rights; the root cause: 

Under the human rights law, states are duty-bound to protect human rights that include patient rights. From the perspective of an individual exercising the freedom of a patient ingrained in euthanasia, they become subjected to risk of abuse or violation of their rights. It is desirable to limit such abuse to the minimum by providing legal safeguards. However, a mere risk of abuse is no reason to deny an individual of the right itself. The fear (regarding legalisation) stems from the “discretionary power” which would be placed in the hands of doctors to decide whether or not to administer euthanasia once the patient consents to it. 

In the present scenario of India, the Ministry of Health and Family Welfare, Government of India has put forth a ‘Charter of Patient Rights’ to be implemented by state governments. India, legal provisions for the protection of patient’s rights are under The Constitution of India, Article 21, Indian Medical Council Regulations 2002, The Consumer Protection Act 1986, Drugs and Cosmetic Act 1940, Clinical Establishment Act 2010, etc. Since India does not have strict independent regulations, there exists some kind of flexibility. States are allowed to adopt the national Clinical Establishments Act 2010 or implement their own state-level legislation like Nursing Homes Act in order to regulate hospitals. One major concern regarding euthanasia’s patient-centric approach in India is the Right to Informed Consent. The doctor’s rights in the general sense are limited up to the point where a patient’s consent has been given in writing form, which is explained under the Drugs and Cosmetic Act Rules 2016 on informed consent. 

In case of euthanasia, a PTI report has stated that a living will is a document that is to be formulated by an individual in the course of his lifetime, where they have the ability to consent to explicit instructions prior to the process of medical treatment, which is to be administered when they are terminally ill and no longer able to express informed consent. Consent would require taking the consent of a person competent to give consent legally on behalf of the patient if the patient is incompetent or incapacitated and therefore unable to give valid consent. Under the supreme court guidelines for euthanasia, the Hospital Medical Board has to visit the patient in the presence of a guardian or a close relative to certify whether or not to carry out the instructions and if consent in writing is provided by the family members, Board is to certify whether or not to withhold or withdraw the treatment.

Current legal framework: 

In 2007, a bill proposing the legalisation of euthanasia was introduced in the Lok Sabha as “The Euthanasia (Permission and Regulation) Bill, 2007” which stated that persons with “no hope of recovery,” who cannot carry out their daily chores without regular assistance, can either himself or through persons authorised by him have the option to file an application for active euthanasia or the Chief Medical Officer (CMO) of the district government hospital. However, the bill had soon lapsed due to the authority that could lead to murder it gave to the physician. On a recent note, in an amendment bill called “The Euthanasia (Regulation) Bill, 2019” proposing the legalisation of euthanasia, it was introduced in the Lok Sabha “to regulate termination of the life of persons who are in a permanent vegetative state or terminally ill and facing unbearable suffering and for matters connected therewith or incidental thereto.” The bill remains pending. 

The resolution:

The lapsed bill is only strengthening the argument of a weak healthcare system and inconsistency observed in exercising patients’ rights. There is a need for a dogmatic system of healthcare before there is any progress towards adopting active euthanasia in a country like India. All the pending bills on this issue need to be addressed with utmost caution and importance. The direction of euthanasia at this point is forming a better legal framework; perhaps, the relationship of morality with the law should not be an obstacle of judgements but rather catalytic to the legislations and the society forming opinions. 

A model of euthanasia should be adapted, which firstly recognises the autonomy of patients, and secondly alleviates the legal ambiguity surrounding the withholding or withdrawal of life-sustaining treatment, and lastly ensures the proper provision of service and equipment to patient’s end of life care decision. General masses need adequate education on this issue to make informed decisions. This model should also not be misconceived as an instrument to promote end-of-life decisions on vegetative patients; often the ‘weaker’ family member due to the financial issues which might deprive an individual of a proper treatment since this model is emphasising on a greater healthcare system in any case. 

Patient rights as a form of healthcare should embody the risks that a patient faces as a recipient of services. It is extremely crucial to also recognise the financial deficiency that a common man in India faces in intensive care and that the public health care system cannot possibly support and provide sufficient service to all individuals, weakening their individual decision to end life. Thus, the end goal of euthanasia would be to facilitate proper care to vegetative patients, allow a ‘dignified’ death, bolster patients to make decisions with no impediments, and to give both the parties, the healthcare professionals and the common man, that the care delivered is ethical as well as in accordance with the law.

References-

• http://ijme.in/articles/life-and-death-after-aruna-shanbaug/?galley=html
• https://nhrc.nic.in/press-release/important-judgment-supreme-court-india-1
• https://academic.oup.com/medlaw/article-abstract/19/4/646/1075627?redirectedFrom=fulltext
• https://www.indiatoday.in/education-today/gk-current-affairs/story/rights-of-patients-drafted-by-government-india-1334339-2018-09-07
• https://www.indiatoday.in/education-today/gk-current-affairs/story/supreme-court-perceives-living-will-of-critically-ill-patients-allows-passive-euthanasia-1185469-2018-03-09
• https://www.hindustantimes.com/india-news/passive-euthanasia-how-a-living-will-or-advance-medical-directive-can-be-implemented/story-cJuTTBeq14DKWyCUMH3FcI.html

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