ACTIVE AND PASSIVE EUTHANASIA: RIGHT TO DIE WITH DIGNITY

This article is written by Komal Prabhakar, an intern under Legal Vidhiya

Death a friend that alone can bring the peace his treasures cannot purchase, and remove the pain his physicians cannot cure.

                                                                                                —Mortimer Collin[1]

INTRODUCTION

The idea that a man should be able to spend his life according to his own terms is the foundation of the concept of euthanasia. Most often, euthanasia is used to end the lives of those who have terminal illnesses or are about to become disabled and have no wish to live any longer. A person who is severely crippled or on the verge of death should have the choice to live or die. The objective is for the person to pass away with dignity, ending their terrible suffering and distress. It is ideal for the patient if they are not in chronic pain or suffering. The practice of euthanasia has generated controversy around the globe. Choosing between humanity and empathy is essentially the only option. The Indian Constitution guarantees a number of fundamental rights, including the right to life, without which no other rights can be exercised. The term “right to life” describes a person’s fundamental right to live. The million-dollar question is, though, whether or not someone who has the right to life also has the right to not live, or to die.

MEANING

The word “euthanasia” comes from the Greek roots “eu” and “thanatos,” where “eu” stands for “well or good” and “thanatos” signifies “death” or “good death.” The term “euthanasia” is defined under many statutes or definitions: –

 1. The medical definition is “the act or practise of causing or permitting the death of hopelessly sick or injured individuals in a relatively painless way for reasons of mercy”.

2. Euthanasia is described as “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering” by the British House of Lords Select Committee on Medical Ethics.

3. In the Netherlands and Belgium, euthanasia is defined as “the termination of life by a physician at a patient’s request.”

4. The Dutch law, however, does not specifically mention “euthanasia” but it contains assisted suicide and termination of life on request.

5. “The term euthanasia typically relates to an intentional taking of life by one person at the express request of the other. The act of putting an incurably ill person to death out of sympathy and concern for their suffering is known as euthanasia. Although it is occasionally referred to as “mercy killing”. However, there isn’t enough evidence to draw a firm conclusion regarding how to bring about death with dignity and without pain in society.

TYPES OF EUTHANASIA

 1. Passive euthanasia – Passive euthanasia is described as accelerating death by turning off life support and allowing the body to expire naturally. The aforementioned technique is used exclusively to allow for a natural death when the patient’s chances of recovery are doubtful. Thus, this strategy entails refraining from performing extraordinary actions like turning off a person’s life support system, cutting off their access to food and water, letting them to die naturally from dehydration, or disabling CPR.

2. Active euthanasia – This is an act of kindness to put an end to suffering or a torturous and pointless life. The aforementioned technique involves giving the patient a deadly injection of an external substance to hasten their death.

GLOBAL POSITION

1. Australia – In 1996, the Rights of the Terminally Ill Act was passed in Australia’s Northern Territory, making it the first nation to permit euthanasia. In Wake v. Northern Territory of Australia[2], the Supreme Court of the Northern Territory of Australia decided that it was acceptable. It became legal in 1997 due to the Euthanasia Laws Act. Although assisting euthanasia is criminal in most Australian states, the conviction has been rare. In Tasmania in 2005, a nurse was found guilty of contributing to the passing of her parents, who both had terminal diseases. She was given a sentence of two and a half years in prison, but the judge ultimately decided to postpone the decision because he felt the community did not want the woman to be locked up.
2. Albania – In 1999, Albania legalised euthanasia, claiming that the Terminally Ill Act of 1995 permitted all forms of voluntary euthanasia. Passive euthanasia is permitted with the agreement of three or more family members.

• Belgium: In 2002, euthanasia was become legal. The ‘Belgium Act on Euthanasia,’ passed by the Belgian Parliament in September 2002, defines euthanasia as “the intentional termination of life by someone other than the person concerned at the latter’s request.” According to the criteria for approving euthanasia, the patient must be major, have made the request voluntarily, thoughtfully, and repeatedly, be in a position of consent, and be experiencing severe physical or mental distress that can be relieved.

• Canada– Patients in Canada are free to refuse treatments that prolong life, but they are not allowed to ask for euthanasia or assisted suicide. The Supreme Court of Canada ruled in Rodriguez v. Attorney General for British Columbia that in cases involving assisted suicide, the state’s interests will take precedence over the person’s interests.

• USA – Passive and active euthanasia differ from one another. Although active euthanasia is forbidden, doctors who decline or discontinue life-sustaining treatment at the patient’s request or the request of the patient’s authorised representative are not held liable. In the decisions of Washington v. Glucksberg and Vacco v. Quill, the United States Supreme Court determined euthanasia to be absolutely unconstitutional. Under the Death and Dignity Act of 1994, physician-assisted suicide was only legal in the American state of Oregon. California became the second state to legalise assisted suicide after the state legislative committee there approved a bill in April 2005.

POSITION IN INDIA – CONSTITUTIONAL VALIDITY

The Indian Constitution’s Article 21 states, “No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law[3].”  Article 21’s right to life does not include the right to death. The right to life is a fundamental right. The Bombay High Court in the State of Maharashtra v. Maruty Sripati Dubal addressed the questions regarding the right to die for the first time. And in this instance, the court rules that Section 309 of the Indian Penal Code, 1860, which designates suicide attempt as a crime, is unconstitutional since it violates the right to life and the right to die.  However, the Supreme Court ruled in Gian Kaur v. State of Punjab[4] that the “right to life” does not include the “right to die” or the “right to be killed”.  As a result, attempting suicide is a crime punished by section 309 of the Indian Penal Code, 1860, and it is not against Art. 21 of the Constitution. No one has the right to end their life in an unnatural fashion. The right to life is a natural right, while the right to die is not. Even if a petition for euthanasia was submitted, The Supreme Court of India ruled in Aruna Ramchandra Shanbaug v. Union of India that only passive euthanasia is permitted in India; in other words, a patient may only be withdrawn from the ventilator in such situation.

LAW COMMISSION OF INDIA TAKE ON RIGHT TO DIE WITH DIGNITY

The Law Commission suggested that section 309 of the India Penal Code be repealed in its 42nd Report. The Rajya Sabha’s approval of the Indian Penal Code (Amendment) Bill, 1978, accordingly permitted for the deletion of section 309. Sadly, the Lok Sabha was dissolved and the Bill expired before it could be passed by the Lok Sabha.

In its 210th Report, the Law Commission later argued that attempts to commit suicide may be seen more as a symptom of a mental illness that requires care and attention than as a crime deserving of punishment. Gian Kaur, a case before the Supreme Court, focuses on the legality of section 309.

The wisdom of keeping or maintaining the same in the statute was not discussed. The Commission has decided to urge the Government to take action to remove the obsolete statute found in Section 309 of the IPC, which could ease the suffering of the oppressed.

One of the most significant topics ever studied by the Law Commission of India is the subject of this 196th Report, “Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners).”

The Commission has recommended the following:

1. It goes without saying that the first thing that needs to be stated is that every “competent patient” who is afflicted with a terminal illness has the right to refuse medical treatment (as defined, including artificial nutrition and respiration) as well as the beginning or continuation of such treatment that has already begun. When a patient makes a well-informed choice, the doctor must abide by that decision. At the same time, the doctor must be certain that the choice was made by a capable, well-informed patient. Such an informed choice must be made by the capable patient on his own, without excessive influence or pressure from others.
2. Additionally, it must be made clear that the doctor has the right to provide palliative care, or the relief of pain, suffering, discomfort, or emotional or psychological suffering, to both the incompetent and the competent patient who has refused medical treatment, regardless of the withholding or withdrawal of treatment.
3. The doctor must seek the advice of three expert medical practitioners from a panel assembled by a high-ranking authority before withholding or discontinuing therapy, as is proposed. We also offer a further, very important warning: the choice to withhold or withdraw from medical treatment for a specific ailment or disease must be made in accordance with Medical Council of India rules about the conditions under which such a decision may be made.
4. Additionally, it is suggested that doctors who recommend withholding or withdrawing therapy for patients must keep a Register for both competent and incompetent patients. The Register must record both the decision and the decision-making process. The reasons the doctor believes the patient is competent or incompetent, why he believes the patient made an informed decision or not, the opinion of the experts the doctor has consulted in the case of incompetent patients and competent patients who have not made an informed decision, what is in their best interests, the name, sex, age, etc. of the patient, must all be included in the register that the doctor keeps.
5. He is obligated to maintain the patient’s identity and other information’s privacy. Before discontinuing or delaying medical care if the aforementioned Register has been properly maintained, the doctor must notify the patient (if he or she is conscious), or his or her parents or relations.
6. The doctor can refuse or discontinue medical care for a patient who is terminally ill if the aforementioned steps are taken. Otherwise, he won’t be able to terminate or stop the treatment.
7. According to section 309 of the Indian Penal Code, 1860, a patient who decides to withdraw or refuse medical care must be shielded from prosecution for the crime of “attempt to commit suicide.” The common law also states that a patient is entitled to let nature to run its own course and that if he does so, he does not commit an offence. This provision is meant to be extremely cautious because, in their opinion, the very provisions are not attacked.
8. The doctors must also be protected if they are charged with “abetment of suicide” under sections 305 and 306 of the Penal Code, 1860, or with “culpable homicide not amounting to murder” under sections 299 and 304 of the Penal Code, 1860, when they decide to withhold or withdraw life support and act in the patients’ best interests, both when dealing with patients who are competent but have not made an informed decision. The protection should extend to the hospital administration as well. As of right now, the doctors are not guilty of any of these offences under the aforementioned sections read with sections 76 and 79 of the Indian Penal Code. This clause is also meant to be extremely cautious.
9. We therefore deemed it appropriate to include an enabling provision that allows patients, parents, relatives, close friends, doctors, or hospitals to request a declaration from a Division Bench of the High Court that the proposed action of continuing, withholding, or withdrawing medical treatment is “lawful” or “illegal”. Time being of the essence, the High Court must reach a decision in such situations as soon as possible and within thirty days. Any subsequent civil or criminal procedures between the same parties in connection to the same patient will be governed by the High Court’s decision that the action of withholding or withdrawing medical care recommended by the doctors is “lawful.”
10. It is universally acknowledged that patient, doctor, hospital, and expert identities should all remain private. Therefore, we have suggested that throughout Court proceedings, these people or organisations shall be identified by letters chosen at random from the English alphabet, and that no one, including the media, may reveal or publish their identities. Even when the matter is resolved, identity disclosure is prohibited.
11. The Medical Council of India is required to create and distribute guidelines for stopping or delaying medical treatment. The aforementioned Council may seek advice from additional critical care medicine specialist organisations before publishing its recommendations in the Central Gazette or on the Medical Council of India website.

TERMINAL ILLNESS – PRESUMPTION[5]

The issue of defining the phrase “terminal illness” has proven to be difficult. Almost universally, the definitions of “illness” agree that it refers to an abnormal bodily condition or a disability. Health is “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity,” according to the World Health Organization. The essential question is whether the right to life refers to forcibly remaining alive or should it mean a meaningful “natural” life free from forcible medical intervention in view of the current ambiguity in the definition of terminal disease paired with significant advances in life prolonging procedures. But for the sake of this study, it is acceptable to assume that being terminally ill means having a condition that not only possesses no treatment but also whose there’s no scope for improvement.

THE CASE OF ARUNA: A NEW LEGAL PERSPECTIVE

Passive euthanasia has recently been legal according to our Supreme Court’s decision in Aruna Ramchandra Shanbaug v. Union of India[6]. Aruna Ramchandra Shanbaug was the subject of a petition to the Supreme Court asking for permission to end her life because she was in a persistent vegetative state (P.V.S.), was unconscious, and had a brain that was essentially dead. The Supreme Court created a commission to examine the patient medically in order to determine the problem.

But the court did permit passive euthanasia in India in its famous ruling. The court established standards for passive euthanasia while denying Pinki Virani’s request for the euthanasia of Aruna Shanbaug. These regulations define passive euthanasia as the deprivation of care or nutrition that might prolong the patient’s life. Last but not least, the Court denied the petition submitted on behalf of Shanbaug, stating that while passive euthanasia is legal under strict supervision in rare instances, active euthanasia is not. The Indian Penal Code’s punishment for suicide attempt should be eliminated, as per the court’s recommendation.

1. The decision to stop life support must be made by the patient’s parents, spouse, or other close relatives; if none of them are present, the choice may be made by a person or group of people acting as the patient’s next friend. The medical professionals caring for the sick may also take it. But the choice must truly be made with the patient’s best interests in mind.
2. 2. Because we cannot completely rule out the possibility of family members or others misbehaving in order to inherit the patient’s property, even if a decision is made to withdraw life support by close relatives, doctors, or the patient’s next friend, that decision still needs to be approved by the High Court in question, as stated in the Airedale case.
3. In the present case, the Chief Justice of the High Court is required to immediately appoint a Bench of at least two Judges following the filing of such an application, who will decide whether to approve it or not. Prior to doing so, the Bench should consult with any appropriate medical authorities or practitioners and appoint a committee of three reputable physicians, who will be chosen by the Bench. One of the three doctors should ideally be a neurologist, with the other two being psychiatrists and a physician as the third.
4. The High Court Bench will appoint a committee of three doctors who will carefully examine the patient, check the patient’s medical history, and seek input from the hospital personnel before submitting a report.
5. The High Court bench should render its decision after hearing from the State and the patient’s immediate family, such as his or her parents, spouse, brothers, and sisters, and in the event of their absence, his or her nearest friend. India should adhere to the aforementioned approach up till Parliament passes relevant legislation.
6. According to the ‘best interest of the patient’ standard established by the House of Lords in the case of Airedale, the High Court shall make its judgement and provide precise justifications.

THE EUTHANASIA BILL[7]

The “Euthanasia (Permission and Regulation) Bill, 2007” (hence, “The Bill”) was introduced as a bill in the Lok Sabha with the goal of legalising euthanasia. According to the declaration of purposes and justifications, active euthanasia provides a means of escape for those who have “no hope of recovery” and is a better option “than suicide, which is a crime under the current penal provisions.”

The bill goes on to say that “adequate checks and balances at the institutional level are necessary before making euthanasia legal to ensure that the system is not abused by dishonest elements.”

Additionally, it must be made sure that “due process has been followed and in a humane and compassionate manner in the presence of family members and elected representatives” before the patient’s life is terminated. The bill states that “a person who is completely invalid and/or bedridden or who cannot carry out his daily chores without regular assistance, may either by himself or through persons authorised by him have the option to file an application for euthanasia (an instance of active euthanasia) with the civil surgeon or the Chief Medical Officer (CMO) of the district government hospital.”

The CMO is then required to present the application to a medical board, which will subsequently look at the patient’s actual condition. In the event that the board is persuaded that the patient’s condition cannot be treated, a certificate endorsing the patient’s case for euthanasia will be provided.  The main argument against the law was that if such authority were officially granted to a doctor performing an act, it would make the doctor’s murder of the patient much more convenient. This was refuted by the claim that a trained doctor is always aware of how to kill the patient covertly. The legislation has since expired. The 2007 bill, which was correctly pro-active in its approach to active euthanasia, provided comfort to patients who were towards the end of their lives.

CONCLUSION

We may conclude from the foregoing debate that no such law could be guaranteed to be free of the potential, if not likely, of abuse, primarily focused on the lives of other sick people who did not want their lives taken. The ease with which such misuse can be made unnoticed makes it a particularly dangerous characteristic. Mercy killing thus seems to be morally acceptable, but its practical implementation seems to be nearly impossible. It is possible to admit that some people may view euthanasia as suitable in certain circumstances. Individual examples, however, cannot logically serve as the basis for a policy that would have such grave and wide-ranging effects.

The conflict between the sanctity of life principle and the rights to self-determination and dignity of a human being must therefore be resolved in order to decide the right to die argument. Euthanasia may be permitted as a necessary exception only in the rarest of rare cases, in appropriate situations where the person is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and to withdraw the life support system is in the patient’s best interest, and by a recent decision in in Aruna Shanbaug case the Supreme Court has taken step in right direction and now it is the turn of government and the High Courts to follow the guidelines given by the court.

The ethics of euthanasia, being value debate, still remains as a debatable issue.

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[1] Nehra, Dharmender & Kumar, Pradeep & Nehra, Sheetal, Euthanasia: An Understanding (2013), file:///C:/Users/Dell/Downloads/DKEuthanasiaAnUnderstanding.pdf , last seen on 12/04/2023

[2] Wake and Gondarra v. Northern Territory of Australia, [1996] 112, SC (Supreme Court of Australia)

[3] Art.21, the Constitution of India.

[4] Smt. Gian Kaur vs The State Of Punjab, AIR 1996 SC 946

[5] Nimish Jha, Right to Die: An Addendum to right to life , Lex Warrier (07/09/2015) available at http://www.journal.lex-warrier.in/2015/09/07/right-to-die-an-addendum-to-right-to-life-euthanasia/ last seen on 12/04/2023

[6] Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011

[7] The Euthanasia (Regulation) Bill, 2019(pending)