In a landmark judgment, the Supreme Court has recognised as well as given sanction to passive euthanasia and “living will”, seven years after it first grappled with the complicated issue in the Aruna Shanbaug case.
Those in favour of euthanasia argue in favour of having a ‘living will’ in the draft Euthanasia Bill. The clause would allow a patient to dictate what forms of medical treatment should not be administered if a patient is incapable of saying so.
But does the inclusion of “a living will” clause in the draft Euthanasia Bill really expand the rights of a patient, or does it leave room for abuse by relatives? We bring sharp perspectives.
A living will is undoubtedly a tangible expression of the right to privacy that the Supreme Court declared to be an unalienable fundamental right in a recent momentous decision. It would ensure that this right is not denied in the context of loss of capacity towards the end of life.
An advance will is an instrument executed at a time when the person has his/her capacity intact, and would be invoked only when that capacity is lost. If retained, the person’s opinion on the manner of his/her treatment is sought directly as per law and ethics. The right to autonomy is presently only weakly recognised in India, when in most modern societies, it is only getting stronger. This must necessarily change with the new privacy judgment.
The fear of abuse of the provision is valid but over-emphasised. The state is duty-bound to protect the right, since a statute or executive order cannot dilute it. If relatives were to deliberately hasten the death of the patient, it can easily be done through not providing access, or through taking the patient away against medical advice for continued treatment, the so-called LAMA (Left Against Medical Advice).
Case laws of fabricated living wills or those done under coercion are extremely few over the last 40 years in the United States amongst millions executed. Living will is neither perfect nor complete in itself. Doctors, the world over, are obliged ethically to give weight to the patient’s autonomy. This principle will now be given the necessary legal teeth. It is one essential input in end-of-life decisions taken jointly by a medical board and the patient’s family/caregivers. That gives it the balance and a thoughtful process for the best outcomes.
It is a settled law that no one can be forced to take medical treatment against one’s wishes. Thus, a cancer patient can refuse to take chemotherapy and the state cannot direct her to subject herself to medical intervention. Any force used by the state would amount to an “assault”, as many international judgments have held.
But what happens when a person is not in a position to give consent for withdrawal of treatment? A person who is brought to a hospital may be unconscious or in a coma. The question before a constitution bench of the Supreme Court currently pending is: does an individual have a right to express her will in advance (maybe several decades in advance), when one is in a healthy state of mind, that should she suffer from terminal illness, she should not be put on life support systems in case a team of doctors certify that she cannot be revived?
The petitioners argued that after the Supreme Court allowed passive euthanasia in the Aruna Shanbaug case in 2011, the logical second step is a ‘living will’. The government, however, argued that it has reservations over allowing a ‘living will’ since it is likely to be misused. Ironically, in the Aruna Shanbaug case, the government had made similar arguments against allowing passive euthanasia.
Chances of misuse of either passive euthanasia or a ‘living will’ by self-serving relatives is unlikely because of an inbuilt safeguard, i.e. a team of doctors has to first certify that the patient has no chance of revival or recovery. Since, right to “die with dignity” is already recognised as a fundamental right, the relief sought by the petitioners makes eminent sense. Several major countries have recognised the concept of a ‘living will’. India would do well to follow their lead.
The Supreme Court of India has categorically held that the right to life guaranteed under Article 21 of the Constitution of India includes the right to die with dignity (Gian Kaur v State of Punjab). A dignified death necessarily includes one where a person is not forcibly subjected to artificial life-sustaining treatment against his/her wishes. When patients are conscious, their right to refuse medical treatment is absolute (barring things like universal immunisation or treatment during epidemics, where there might be public health interests involved).
There is no rational basis for not extending this right to patients who have made ‘living wills’ that express their refusal of medical treatment at a point when they may not be conscious or capable of taking an informed decision. Refusal to recognise advance directives discriminates against such patients.
The argument citing potential misuse is a weak one. The world over, governments have enacted legislation that provides for safeguards. These relate to the form in which the directive must be made, the kinds of witnesses that are permitted to witness its execution, the possibility of revoking the directive at any point, allowing its validity to be challenged in court, or even specifying that the directive must be only one of the factors to be taken into account by doctors while making a decision in the patient’s best interests.
The government’s draft Bill makes no attempt to create such safeguards and imposes a blanket ban. This is not fair, just, or reasonable, all of which are requirements that a law must satisfy if it is to deprive persons of their right to life and liberty under Article 21.
What is a dignified death and how is it contrary to an “artificial” prolongation of life? The court has emphasised on the need for medical practitioners to be certain about the irreversibility of a patient’s comatose state before deciding to not delay his/her death. It is, however, still a “competent” individual who gets to express their wishes about what must be done if ever such a medical condition were to affect him/her.
This presumption of knowledge is exactly what makes the grounds for a living will unstable.
What death means has had to be legally defined, because it is now understood not as an event but as a process. The matter comes down to drawing a line at an apparent point-of-no-return, and medicine, as well as the law, have for a long time been scuffling to find some exactness to this.
The court is, therefore, absolutely right in insisting on an extensive review of the situation by medical practitioners before any action is taken.
For an individual drafting a living will, it is a hope for death with dignity which will inform his/her decision. The shape this understanding of dignity takes could end up being drawn from culturally reproduced images in media, film, and literature of what a comatose state looks like or feels like. If dignity is understood as autonomy over one’s own body, then what is to prevent dignity from excluding a life of disability too? Even advanced old age can come to be considered an affront to individual dignity by some.
It is hard to qualify this complex idea of a good death. Only a nuanced, scientific understanding must motivate an individual’s decision to draft a living will, and not the vague idea of dignity.
Euthanasia raises a number of philosophical, medical, legal, and theological questions. It is obvious to the rational mind that the agony of a distressed patient should be eased – exercising all possible options to provide relief.
Keeping this rationale in mind, euthanasia seems to be a viable safeguard against all future physical/psychological pain. No doubt, legalising euthanasia would help assuage suffering of terminally ill patients. In case of individuals suffering from incurable diseases or in conditions where effective treatment does not seem to be affecting their quality of life in a positive way, the liberty to choose induced death should ideally be made available.
However, it is not as simple as it sounds. Taking care of a terminally ill person is not easy. It has its own share of negative emotions such as depression, frustration, and anxiety. A long-drawn pattern of such a problem can make the caregiver feel fed up after a point and he/she may transfer these emotions on to the patient unconsciously, making him/her feel as if they are of “nuisance value” and everybody shall be better off if they are gone.
This fact puts the compassionate viewpoint of legalising euthanasia in a dilemma. We need to focus not only on the attitude of the person seeking euthanasia, but should also consider the attitude of the doctors and relatives providing care.
It seems that the unfavourable consequences of assisted suicide legislation incline towards moral and social disequilibrium rather than social good. The risks of such a “right” appear to be great.
A better solution would be to elevate the quality of palliative care with increase in widespread knowledge of such care among doctors and respective families to relieve suffering of the terminally ill.
While following the guidelines laid down for passive euthanasia by the Supreme Court in 2011, the government has opposed the inclusion of a ‘living will’ in its draft euthanasia Bill on the grounds that it is susceptible to misuse by malicious relatives.
The 2011 guidelines laid down by the court permitting euthanasia for a patient on life support required that a family member of the patient make a plea in the High Court, which would then constitute a bench on the basis of the plea. The bench in turn would appoint a committee of at least three renowned doctors to advise on the matter. This lengthy procedure was to be followed until the formulation of parliamentary legislation.
The government’s argument overlooks the positives of seeking greater clarity in this complex matter that offers multiple benefits and relief to the parties involved.
For one, the inclusion of a ‘living will’ in the draft Bill reduces the time a family must spend in seeking court approvals. It also lightens the family’s enormous psychological burden, allowing the individuals to process their grief free of guilt or doubt. Doctors too would be unburdened of medico-legal repercussions, allowing them to focus on counselling patients and their families – even in KEM Hospital where euthanasia was first practiced, doctors largely refrained from ‘pulling the plug’ on patients.
Legitimising a living will go a long way in better understanding the multifaceted nature of patient care as well as serve as a tool to improve it. It would be more productive for the government to build in safeguards rather than reject this proposition all together.
I have been close to death, pain, and panic a couple of times in my life, been at a threshold where I wished I were dead. I would have said so in writing. The pain abated, treatments were effective. One lives on. In emergency beds next to mine, men, women, children, faceless unknown ones have died. Some, with tubes inserted into their throats and attached to oxygen pumps give signs of life to the extent that their chests heave. I do not know if they recovered after I had been discharged. Their caregivers expressed hope. Many would not have, looking at their condition.
But who is to tell? Doctors are sworn to try their best. Most do. Corporate hospitals with billions of rupees invested in properties, infrastructure, equipment and star personnel assure the best treatment money can buy. But there are too many dark stories. Treatment is linked to the spending capacity.
Lawyers and judges too have stories of capricious and covetous progeny and siblings. Many have killed.
During incurable illnesses, or treatments just too expensive to continue, human nature is bared in its most raw. The abortion discourse, buttressed perhaps correctly on gender rights, now has court appeals to end pregnancies well past the 26-week mark, fearing the baby will be malformed.
The boundaries between euthanasia, eugenics, and patience seem to merge.
Humans, alas, just cannot be permitted to sit in judgement on whether another can live or must die – to end pain, or to bring closure to a life no longer of quality.
Pope Francis said that “the growing acceptance of euthanasia does not indicate increased compassion, but highlights the rise of a selfish ‘throwaway culture’ that casts aside the sick, the dying, and those who do not satisfy the perceived requirements of a healthy life.”
Impossible to improve on that. #KhabarLive
