Case BriefsForeign Courts

Supreme Court of Ireland: While deliberating on a somber appeal of “life or death”, filed by the parents of a boy (hereinafter referred to as ‘John’ in order to protect the child’s privacy) with permanent brain injuries, intended at ensuring that they, rather than his treating hospital, have control over his medical treatment, the bench of Mr Justice O’Donnell, Ms Justice Dunne, Ms Justice O’Malley, and Ms. Justice Baker, held that the hospital would not be acting unlawfully if the clinical director considered it to be in the best health and welfare interests of John, (and if it was considered appropriate to do so) to withhold life-prolonging treatments/ supports that are not considered to be in the best medical or welfare interests of John. However, in order to maintain the possibility and primacy of parental decision-making, in this case, the hospital must act thus only in the instance the prior consent of John’s parents had been sought and refused.

Background

John suffered catastrophic injuries towards the end of June, 2020, in an accident which led to his treatment in ‘the hospital’ since the date of his accident. As per the doctors, John was required to be on a ventilator until the end of July when he was successfully extubated following a previous unsuccessful attempt. As a result of his injuries, John is currently fed by a nasogastric tube, has a long-term catheter to facilitate the delivery of medications. He had a urinary catheter and is doubly incontinent. As per the diagnosis, it is highly unlikely that John will ever walk, talk, develops any meaningful awareness of his surroundings, be able to communicate or process information; nor will he ever be capable of performing any voluntary movements.

In addition to the unfortunate condition, John has developed a severe form of ‘dystonia’ which is a hyperkinetic movement disorder that can arise for a number of reasons, including an acquired injury to the brain, in particular. This causes abnormal electrical signals to be sent to the muscles. In turn, these signals trigger painful, prolonged, and involuntary contractions of muscles. This is where the heart of the dispute lies- differences between the family and the hospital vis-à-vis the approach towards the treatment of John’s dystonia.

Medical Concerns: Although the medical team had gained a certain degree of control over John’s dystonia, but in their estimation, the condition is merely hidden and not gone. The dispute also centers on the consequences in case John suffers a further dystonic episode or, his condition worsens so much that invasive ICU measures are necessary to save his life. It is their professional opinion that, ultimately, John will suffer a dystonic crisis incapable of successful intervention; this is because, over time, John’s cardiac respiratory reserves will decrease to the point of him being unable to withstand a dystonic crisis.  The doctors were of the opinion that John’s respiratory capacity is failing due to the administration of painkilling medication to ease the pain brought on by a dystonic episode; whereas the parents are of firm belief that John’s preference would be for his life to be continued for as long as possible by whatever means necessary.

Family’s Concerns: The concerns expressed by the family members were highlighted in the affidavit submitted by John’s guardian ad litem Mr McGrath, “Her (mother) view was that the clinicians were always negative in relation to the prospects for John. It is apparent that she found it frustrating and upsetting that so much of the discussions with the treating doctors concerned the possibility of his early death”. The families pointed out that John’s physical injuries have healed and he just needs time to recuperate further. Their view is that John should be given a chance of life. They also accepted that John would most likely require a lifetime of care but, according to McGrath, “She believed that he could come out of it as a new born baby to the point where he would relearn each step”. The Guardian also pointed out the opinions of John’s father, which were more or less similar to that of the mother, “He expressed the view that John did not seem to be in a lot of pain and he described the situation of John as being like he was in a very long sleep. He noted that his heart, lungs, and liver were fine. He did not need oxygen or life support. Like John’s mother, he emphasised a desire to give John a chance and to treat him in the context of further care needs. He did, however, accept that if that was not working, he would have to accept that situation”.

Relief sought: The hospital thus sought permission to administer such medication, sedation or anaesthesia as might be required to alleviate breakthrough or neurological symptoms, and the permission to withhold certain specified invasive treatments and therapies.

Meanwhile, the position of John’s parents was that they would not consent to a care plan that envisaged a scenario where medication might be administered to a level that caused a risk to John’s life.

Observations

At the heart of this case is the concern of the medical team not to prolong John’s pain and suffering, on the one hand, and the concern of his parents that he should be allowed the chance to recover to the fullest extent possible by whatever means are available, on the other hand. At the moment, these positions are in a precarious – if uneasy – balance. However, these positions may prove to be irreconcilable in the event that John suffers from any further serious dystonic episode. This is the dilemma at the heart of this very sad case”. Highlighting the quandary that came before the Court, the Bench at first addressed the decision rendered on the issue by the High Court. The High Court had concluded that the conduct of the parents in the particular circumstances amounted to a failure, therefore requiring the State, through the court, to supply the place of the parents. Keeping in mind the decision of the High Court, the Court delved into a detailed scrutiny of the constitutional aspects involved- 

Constitutional Aspects – Child’s interest, Parental Failure: The key provision of the Irish Constitution involved in the proceedings was Article 42A, which allowed the State to intervene in case the parents fail in their duty to the child to the extent that the welfare of the child was prejudicially affected; the best interest of the child being the paramount consideration. Article 42A recognises family as the natural, primary and fundamental unit group of society possessing inalienable and imprescriptible rights antecedent and superior to all positive law, and as such being the primary and natural educator of the child. “Some decisions made within the Family are decisions by parents in relation to their children, and where it is possible that the parental decision, or the absence of a parental decision can be said to be damaging to the interests of the child. Article 42A.1 is an emphatic statement of the rights of the child, and that there is, therefore, a corresponding duty on parents to uphold and vindicate those rights”.

The Court duly noted that the question of medical treatment is one such area which can pose a distinct problem because parental decisions in relation to medical treatment are not necessarily an example of collective family decision-making about life choices. In common law, any medical procedure requires the patient’s consent; since a child cannot lawfully provide such consent, a substitute consent is necessary. In such circumstances, the rights of the child come to the forefront. One of the objectives of Article 42A.1 is to ensure that such cases were not approached by reference to the objective of maintaining the authority of the family, but rather through the lens of the rights of the child.

Rejecting the argument put forth by the parents that, there must be parental failure to such an extent that the safety or welfare of the child is likely to be prejudicially affected and the case must be exceptional; the Bench observed that if there is parental failure to the extent required by the Constitution and the rights of children were prejudicially affected, then the State could not be barred from acting to protect the child because, ‘exceptionality’ is not a legal test capable of determining this or any other case. It is potentially dangerous that it “may lead to the wrongful downgrading of significant circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional” –HH v. Deputy Prosecutor Italian Republic, Genoa, [2012] 3 WLR 90.

Any approach to the question of whether a particular parental decision should be supplanted by the State must give full value and effect to the genuine, heartfelt, and honest response of the family here, even if it runs counter to the entirety of the medical consensus”. The Court duly observed that John’s parents’ response, in this case, has been both exemplary and humbling. The parents, even though now separated, have been with John in the Hospital from the moment he was admitted and have remained involved and the father has made it clear that he sees his role as being as supportive as possible to John’s mother. However, the Court also noted that John’s family had to deal with the confusing medical procedures and specialisations which they had never encountered before and attempt to digest and comprehend sometimes complex medical terms and advice, especially now that the matter has developed legal technicalities.

Regarding Euthanasia: The Court also considered the question of whether the course of treatment proposed amounts to an impermissible acceleration of death and, therefore, euthanasia. The Court however stated that the course proposed by the Hospital, did not amount to euthanasia or the impermissible hastening of death by direct intentional measures. The Bench noted that, “It is perhaps understandable why, particularly in a crisis situation involving engagement with unfamiliar, and perhaps bewildering, medical and legal terminology and procedures, John’s mother might understand the application in this way if, indeed, she does so”.

Conclusion

Upon detailed perusal and appreciation of John’s family’s concerns and their position on the matter, the Court however reluctantly but clearly concluded that, John’s parents’ decision to refuse their consent to any care plan that contemplates, in the event of a dystonic or other medical crisis, the administration of whatever level of medication is required to alleviate suffering, unless invasive therapies and treatments are also made available for the purpose of resuscitation, was a decision which could not be said to be in John’s best interests. The Court further concluded that the Parents’ decision to not give the said assent is prejudicial to his welfare since it was a decision which, if implemented, would be likely on the evidence to cause him extreme and avoidable pain and suffering. It is also clear, on the evidence that any intervention in John’s case will (even if successful in the short term) return him to a weakened state of health, with depleted cardio-respiratory reserves. Thus, albeit the commendable care, love and determination shown by John’s parents, their decision in this single regard can properly be described as constituting a failure of duty.

Other Significant Conclusions: Stating that cases involving the withholding of medical treatment contrary to the wishes of a family of a child involve decisions of enormous importance for everyone involved, the Court also made the following conclusions-

  • A child has rights under the Constitution both individually as a person, and collectively as a member of a family. The Constitution recognises the benefits to a child of being a member of a family. The dynamics of relationships are sensitive and important and should be upheld where possible.
  • In cases of disagreements between doctors and parents as to medical treatment, it may be necessary to distinguish between consent to treatment and the withholding of treatment.
  • In the absence of a specific statutory procedure to resolve disputes as to the future treatment of a child, wardship jurisdiction may be used to determine if the court, in performance of the State’s duty under Article 42A, should supply the place of the parents and provide, in the particular circumstances, consent to treatment. Accordingly, wardship orders should be limited to the relevant decision as to those aspects of medical treatment where there is reason to believe that parental approval will not be provided.

[J.J., In Re., S:AP: IE:2020:000131, decided on 22-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Op EdsOP. ED.

It hath been often said, that it is not death, but dying, which is terrible.

–Henry Fielding

“Better to flee from death than feel its grip”. I would say “better to embrace death than feel its grip [it shall please both]”

 – Homer

1. The word euthanasia is derived from the Greek words ‘eu’ which means good and ‘thanotos’ which means death, thus the word literally means good death’. The term is commonly known as ‘mercy killing’ and is legally and medically defined as ‘an act of terminating or ending the life of an individual who suffers from an incurable disease or situation especially painful’. In common words, euthanasia means intentional killing by an act/omission of person whose life is felt is not to be worth living.

2. Euthanasia has branched into two forms based upon the method by which they are performed:

  • Passive Euthanasia – It is defined as hastening the death by removing the life support and letting the death by natural phenomenon. The above method is practiced where the chance of recovery of the patient is uncertain and is only done to allow the death naturally. This method thus involves omission to perform the extraordinary acts like removal of life support system, stopping food and water and allowing natural death by de-hydration or not allowing CPR (cardio-pulmonary-resuscitation).
  • Active Euthanasia – It is an act done in mercy, to end the suffering or a painful and meaningless existence. The above method is done through administering some external source into the patient for example, lethal injection such as sodium pentothal to hasten the death.

3. Further, euthanasia is classified into three forms on the basis of consent:

  • Voluntary – In this type, the person himself seeks the plea for commission of euthanasia. The patient makes a request orally or written, preferring euthanasia rather than to continue living in suffering. Therefore, under voluntary request both passive euthanasia and active euthanasia can be practiced.
  • Involuntary – In this type, a person is incompetent to consent to the decision of euthanasia. Therefore, this method includes cases of brain-dead, coma patients, etc.
  • Non-voluntary – In this type, a person is competent yet non-consenting to the decision of euthanasia. No doubt, this form is direct homicide.

4. Other relevant terms with respect to euthanasia that deserve a mention here are enumerated below:

  • Physically Assisted Suicide (PAS): Also known as aid-in-dying, PAS is a semi-passive form of euthanasia, whereby the medical practitioner prescribes or introduces the right amount of lethal dose for the termination of life at the request of the patient itself. The dose may either be self – injected by the person or the same be made available to the patient who himself/herself injects or inhales the lethal dose.
  • Permanent Vegetative State (PVS) : It is a state whereby a patient is in a vegetative stage, where he/she no longer is capable of sustaining on his/ her own means and is on support of any or many life support systems or even other individuals (including family, relatives, doctor, medical staff, etc.) to perform basic human functions.
  • Terminal disease – It refers to an incurable and irreversible disease or condition that has been medically confirmed and will, within reasonable medical judgment, produce death.
  • Advanced medical directive – Also termed as ‘living will’, it is a directive given by a person, desiring that he/she may not be given extra-ordinary medical treatment in case of his/her terminal illness. Such a directive to be legal, must be voluntary, competent and in advance.

HISTORY OF EUTHANASIA

6. If we delve into history, the period did not have euthanasia running into so many fields. The period of the Greeks and the Romans accounts for practicing suicide and assisted suicide without attaching any social dilemma. The medical field was not so evolved and was never a noble profession till that part of the history. Moreover, the present advocacy on this subject is based on the ideas of autonomy and individual rights, which are themselves the gospels of ancient Greeks and Romans. 

7. The Common Era by its religious teaching of Christianity and Judaism posed first great challenge to practicing euthanasia. Christianity teaches that life is a gift of God, and one must live it till the end. Another religion, Islam is also against the concept of euthanasia, as it professes that life is sacred which is given by Allah, and only he decides how long a man shall live.

8. In India, the moral standards, rules, duties and principles of life and religion in the Srutis, Smritis, Vedas, Upanishads, Puranas, Gita, Mahabharata and the Ramayana and other texts are to be followed in life and upon the death by the people. Hinduism seemed very much advocating suicide and self-liberation. Even Manusmriti talks about attaining self-liberation when suffering from incurable disease.

Hindu religion preaches about themes of life – Dharma, Arth, Karma and Moksha. The first three helps in attaining the final; and it is the fourth and the final belief Moksha i.e. extrication of the soul from samsara (continuous life i.e. cycle of birth, life, death and rebirth) and bringing to an end all the sufferings and thereafter being a subject to repeated cycle of death and rebirth (re-incarnation). Thus, Hindu religion strongly holds the philosophy of rebirth and death is only attributed as dispensing of only body by the soul to attain a new one.

Therefore, Hindu religion finds no ethical issues in taking away one’s own life in certain specific circumstances. It is believed that Lord Rama and his brother Lakshmana took Jal Samadhi in Surayu River, while Lord Mahavir attained death by seeking it. Further, Prayopavesa i.e. fasting onto death was taken up by the Hindu leader Satguru Sivaya Subramuniyaswami in November 2001. Liberation under Hindu religion is permissible but is restricted as to when it shall be pursued. Various religious texts, Vedas, etc. states that a man who has attained all aims in life can seek to achieve liberation from samsara, and hence, when a person who is terminally ill and has no chance of recovery shall be allowed to pursue death.

8. Other religions in India like Buddhism and Jainism also support suicide in some restricted form. Buddhism, supposed to be evolved in around 5th century BC, based upon the teachings of Siddhartha Gautum who is commonly known as Buddha (meaning ‘the enlightened one’ in Sanskrit and Pali), preached the gospels of samsara (cycle of life and death) and liberation from samsara as the ultimate goal of life. Jainism which emerged around 6th century BC also holds the concept of rebirth and final liberation.

 MEDICAL PERSPECTIVE

9. Medical laws and ethics pose serious opposition to euthanasia yet we find that not the entire medical community is against practicing it. Medical ethics in theory have detailed arguments both in favour and against euthanasia. However, a concrete answer as to its legality and practicability is still debatable. A detailed account on medical ethics is indispensable thereof since, it is ultimately the doctors who would have the call of ‘dignified death’.

10. There are two distinctive and contrary concepts to this issue at hand – the ‘sanctity of life’ and the ‘concept of death’. The ‘sanctity of life’ holds that life in all situations possesses same value and needs protection until natural death.

On the other hand, the ‘concept of death’ further dissects into two sub-concepts – one for a person and one for the organism. The ‘death of a person’ is when one dies and ceases to exist when his/her brains lose the capacity for consciousness in a way that is in principle irreversible, whereas, ‘death of an organism’ is a biological phenomenon that consists in the irreversible cessation of integrated functioning in the major organs and sub-systems (respiratory, circulatory, immune, etc.).

 LEGALITY OF EUTHANASIA

11. The status of legality of euthanasia in several countries across the world is reflected below[1]:

Sl. No. Country Legal status of Euthanasia Legal status of PAS
1. Australia Illegal (legal in Victoria) Illegal
2. Belgium Legal Legal
3. Canada Unclear (Legal in Québec) Legal
4. China Illegal Illegal
5. Colombia Legal Illegal
6. Denmark Illegal Illegal
7. Finland Illegal Legal
8. France Illegal Illegal
9. Germany Illegal Legal
10. India Illegal Illegal
11. Ireland Illegal Illegal
12. Israel Illegal Illegal
13. Italy Illegal Illegal
14. Japan Unclear Illegal
15. Luxembourg Legal Legal
16. Mexico Illegal Illegal
17. Netherlands Legal Legal
18. New Zealand Illegal Illegal
19. Norway Illegal Illegal
20. Philippines Illegal Illegal
21. Russia Illegal Illegal
22. South Africa Illegal Unclear
23. Spain Illegal Illegal
24. Sweden Illegal Illegal
25. Switzerland Illegal Legal
26. Turkey Illegal Illegal
27. United Kingdom Illegal Illegal
28. Uruguay Illegal Illegal

EUTHANASIA IN INDIA

12. Indian history of the 19th century too accounts for some instances of euthanasia. Veer Savarkar and Vinoba Bhave are the two well-known examples who chose to end their lives by refusing to take nutrition.

13. Mahatma Gandhi was also known to have supported the idea of wilful death. He got his name ‘Mahatma Gandhi’ only because of his deeds. He preached ahimsa (non-violence) throughout his life, and supported fasting as purification of the soul and saw no wrong in ending once life for a good cause. Inf act, he himself practiced fasting onto death as a political tool unless his demands were met.

14. India has seen a considerable debate on the subject. The opening note regarding euthanasia was made by the Law Commission of India’s Report No. 42 in 1971[2], which for the first-time recommended deletion of Section 309 of the Penal Code, 1860. Further, the Supreme Court in Rathinam v. Union of India[3] held that Section 309 IPC is violative of Article 21 of the Constitution of India. The Court termed the said section as cruel and irrational, resulting in punishing a person again, who has already suffered agony and would be undergoing ignominy because of his failure to commit suicide. Further, an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society, and that it does not cause any harm to others, because of which States’ interference with the personal liberty of the persons concerned is unwarranted.

15. However, the above judgment was overruled by a Constitution Bench of the Supreme Court in Gian Kaur v. State of Punjab[4], wherein it was held that “right to life” is inherently inconsistent with the “right to die” as is “death” with “life”. In furtherance, the right to life, which includes the right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include “death with dignity” but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In addition of the above, the constitutionality of Section 309 IPC, which makes “attempt to suicide” an offence, was upheld, overruling the judgment in Rathinam case[5] .

16. After about a decade, the Law Commission of India in 2006 came up with the 196th Report[6] on terminally ill patients, which recommended legalising ‘passive euthanasia’ in a very strict and controlled mechanism. The Report made it clear that euthanasia and physician-assisted suicide shall remain illegal, and the Report only dealt with the protection of the patients in cases where the terminally ill patient is in a permanent vegetative state with no chance of recovery. In such a case, the patient voluntarily by oral or written request, can seek for the removal of support system, thereby hastening his death, albeit subject to certain safeguards. The doctors attending to such a patient have the duty to inform the patient completely of his state and future prospects and further, shall forcefully keep the patient on life support against his will. This request as per the Report is made as a direction of the terminally ill patient which is binding on the doctor, and protection from Section 306 IPC is available to the doctor who acts under such instructions of the patient. Further, in cases of incompetent patient a mandatory clearance from the High Court shall be taken by the next friend to give effect to the withdrawal of life support.

17. The Supreme Court considered the whole debate in the landmark case of Aruna Ramchandra Shanbaug v. Union of India[7], where although the above Report was refused, still passive euthanasia was made legal without any legislation under the guidelines provided thereunder. However, active euthanasia was altogether precluded from being legalised under the present statues until and unless Parliament makes a specific law in this regard. Further, commenting upon active form of euthanasia, the Court ruled that it is no doubt a criminal offence punishable under Section 302 or at least 304 IPC, when done by any person, and when executed by a doctor as physician assisted suicide (PAS) is punishable under Section 306. The Court has ruled that active form of euthanasia shall remain illegal unless the legislature comes with a law to legalise it. Thus, presently at hand the Court refused its legality as it would amount to ‘constitutional cannibalism’, ‘judicial murder’ and apprehension of being misused by unscrupulous person to inherit property etc.
The Court[8] gave the following safeguards and conditions:

  • A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
  • Even if the decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
  • However, apprehending misuse of the law at the hands of the unscrupulous person in conspiracy with the doctors to inherit or to grab the property of the patient, the High Court recognised the doctrine of parens patriae (father of the country).
  • In view of the developments around the world stressing on countries to decriminalise attempt to suicide, Indian Psychiatric Society recommended the Law Commission to prepare a report in this regard. The Law Commission suo motu took up the issue and submitted a report recommending to the Government to initiate steps for repeal of anachronistic law contained in Section 309 IPC. The Report discussed the constitutionality and validity of the section in light of several judgments by the judiciary, and also dealt briefly with situation in other jurisprudence and earlier Report by the Commission on the subject. Finally, the Report stated that the anachronistic law is inhumane, irrespective of whether it is constitutional or unconstitutional and shall be deleted.
  • The Report of 2012[9] submitted in August, suggested legalisation of passive euthanasia, in the light of Aruna Shanbaug case[10], whereby the Court laid down guidelines for passive euthanasia and rejected decriminalising active euthanasia in toto. The Court in the judgment accepted some of the prepositions of the earlier 196th Report, hence, this Report saw a relook into legalising passive euthanasia and revised the proposed Bill to be presented before the Legislature. The present Report respecting the views expressed by the Court in the case, recommended that a law is necessary in line of the guidelines made out in Aruna Shanbaug case. However, the Report clarified that active euthanasia and Physician Assisted Suicide shall be illegal and even attributed active euthanasia as punishable under Section 300 (when voluntary) and Section 302 (when involuntary) of the Penal Code, whereas PAS is opposed to Section 306 of the Code.
  • In Common Cause Union of India[11] , a writ petition was filed by the appellant society praying for declaring ‘right to die with dignity’ as a fundamental right within the fold of ‘right to live with dignity’ guaranteed under Article 21 of the Constitution and to issue direction to the respondent, to adopt suitable procedures, in consultation with the State Governments wherever necessary, to ensure that the persons with deteriorated health or terminally ill should be able to execute a document viz. ‘my living will & attorney authorisation’ which can be presented to the hospital for appropriate action in case of the executant being admitted to the hospital with serious illness which may threaten termination of his life or in the alternative, issue appropriate guidelines to this effect and to appoint an Expert Committee consisting of doctors, social scientists and lawyers to study into the aspect of issuing guidelines regarding execution of ‘Living Wills’. The Court referred the matter to a Constitution Bench of the same Court be holding as under:

“14. Nevertheless, a vivid reading of para 104 of Aruna Shanbaug[12] demonstrates that the reasoning in para 104 is directly inconsistent with its own observation in para 101. Para 104 reads as under:

‘104. It may be noted that in Gian Kaur case[13]  although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case[14], it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialisation, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.’

15. In paras 21 & 101, the Bench was of the view that in Gian Kaur[15], the Constitution Bench held that euthanasia could be made lawful only by a legislation. Whereas in para 104, the Bench contradicts its own interpretation of Gian Kaur[16] in para 101 and states that although this Court approved the view taken in Airedale[17] , it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g., a person in coma or PVS. When, at the outset, it is interpreted to hold that euthanasia could be made lawful only by legislation where is the question of deciding whether the life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS.

 16. In the light of the above discussion, it is clear that although the Constitution Bench in Gian Kaur[18] upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug[19] , which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur[20] had upheld the same.

17. In view of the inconsistent opinions rendered in Aruna Shanbaug[21] 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.”

21. The Constitution Bench of the Supreme Court, on the above matter[22] being referred to it, allowed the writ petition, while upholding the observation made in the reference order to the effect that Constitution Bench in Gian Kaur case[23] did not express any binding view on the subject of euthanasia. The Constitution Bench further held[24] as follows:

M. CONCLUSIONS:

 629. From the above discussions, we arrive on following conclusions:

  • The Constitution Bench in Gian Kaur case[25] held that the “right to life: including right to live with human dignity” would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
  • We agree with the observation made in the reference order of the three-Judge Bench to the effect that the Constitution Bench in Gian Kaur case[26] did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of euthanasia.
  • The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The later was held not to be covered under any right flowing from Article 21.
  • Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.
  • An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way.
  • Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.
  • We are thus of the opinion that the right not to take a life saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.
  • The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
  • We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.

                 *                *                    *

 

  1. In view of our conclusions as noted above the writ petition is allowed in the following manner:
  • The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case[27] which we reiterate.
  • We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.”

22.In view of the above, it is time for the Government to create public awareness, apart from an ambiguous law, effective implementation and strict adherence. Also, the necessary panel of experts of Doctors and Judges have to be made owing to the number of cases. Further, the Government should also strive to check proper functioning of mechanism and provide necessary infrastructure as and where required. Lastly, there is also a need for drafting a special law on the practice of euthanasia along with amending the relevant provisions of IPC.


*Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal only.

[1] https://euthanasia.procon.org/euthanasia-physician-assisted-suicide-pas-around-the-world/

[2] 42nd Report on Indian Penal Code (June 1971)

[3] (1994) 3 SCC 394

[4]  (1996) 2 SCC 648

[5] (1994) 3 SCC 394

[6] 196th Report of the Law Commission on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners (March 2006)

[7] (2011) 4 SCC 454

[8] Ibid

[9] 241st Report of the Law Commission on Passive Euthanasia — A Relook (August 2012)

[10] (2011) 4 SCC 454

[11] (2014) 5 SCC 338 

[12] (2011) 4 SCC 454

[13] Gian Kaur v. State of Punjab, (1996) 2 SCC 648

[14] Airedale N.H.S. Trust v. Bland, 1993 AC 789

[15] (1996) 2 SCC 648

[16] Ibid

[17] 1993 AC 789

[18] (1996) 2 SCC 648

[19] (2011) 4 SCC 454 

[20] (1996) 2 SCC 648

[21] (2011) 4 SCC 454 

[22] Common Cause v. Union of India, (2018) 5 SCC 1

[23] (1996) 2 SCC 648

[24] (2018) 5 SCC 1  at p. 308

[25] (1996) 2 SCC 648

[26] Ibid

[27] Ibid

Case BriefsHigh Courts

Madras High Court: The Bench comprising of N. Kirubakaran and Abdul Quiddhose, JJ. dealt with a petition in which father (i.e. petitioner) of a child approached the Court seeking euthanasia, as his child’s brain was injured and continued to be in persistent vegetative state.

Petitioner in the present case approached the Court seeking mercy killing or euthanasia for his child on account of the child’s brain being dead since past 10 years. He stated that the child was diagnosed with the condition of Hypoxic-Ischemic Encephalopathy (HIE) and after receiving treatments from various hospitals no sign of improvement was seen.

The notable facts as submitted by the petitioner were that the child was not aware of himself or anything happening around him as he was suffering from a severe form of brain damage in which only his reflexes worked for any movements or actions. On facing the above-stated circumstances and situation of the child, the petitioner approached the Court.

The Court on referring the decision of Supreme Court in Common Cause v. Union of India, (2018) 5 SCC 1 and by order dated 24-08-2018, appointed a 3 member search committee to nominate 3 doctors for child’s examination. On examination,n it was found that the child does not fit the category of persistent vegetative state and his condition cannot be reversed. Mr S. Raveekumar, representing Anirudha Medical Organisation (P) Ltd. and its director Dr P. Uma Maheswari convinced the Court to treat the child through Trigger Point Therapy. The results after the said therapy were seemingly good.

The matter was further listed for 08-11-2018 wherein photographs of the child were shown with a huge improvement from the Trigger Point Therapy.

Thus, the Court taking a suo motu stand impleaded Medical Council of India to answer ‘whether there is any Superspeciality Diploma or Superspeciality Course available in Trigger Point Therapy and Musculo Skeletal Therapy and how many experts are available in India for the said therapy. Central Government and Medical Council of India are also asked to submit their answers with regard to the above stated. The matter is listed for further hearing. [R. Thirumeni v. Union of India,2018 SCC OnLine Mad 3303dated 08-11-2018]

Case BriefsSupreme Court

Supreme Court:

“Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?” – Epicurus

This is one of the several profound quotes quoted by the Constitution Bench in its 538-page long verdict on the issue of Euthanasia.

In 4 separate but concurring opinions, the 5-judge Constitution Bench of Dipak Misra, CJ and AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. The Court said:

“the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”

CJI, for himself and Khanwilkar, J:

Explaining why only passive euthanasia is permissible and not active euthanasia, CJI, writing for himself and Khanwilkar, J, said that there is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and that once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors‘ dilemma or fear will have any place.

Living Will versus Advance Medical Directive:

The Court also refrained from using the term ‘living will’ and said that the concept ‘advance medical directive’ should be applied in our country. To understand both the concepts, the Court also provided with the definitions:

The Black’s Law Dictionary defines an Advance Medical Directive as,

“a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

A Living Will, on the other hand, is

“a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.”

Advance Medical Directive:

Laying down detailed safeguards and directions with respect to Advance Medical Directive, the Court that:

  • the said document can be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. However, it should be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information and must have characteristics of an informed consent given without any undue influence or constraint.
  • The said document shall be in writing clearly stating as to when medical treatment may be withdrawn, or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
  • It should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by 173 the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.
  • Also, an individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Absence of Advance Medical Directive:

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board (HMB).
  • HMB, after discussing with the family physician and the family members of the patient, may form a preliminary opinion on whether or not to withdraw the treatment. The final decision, however, will be endorsed by JMFC after it has visited the patient, verified the medical reports, examined the condition of the patient and discussed with the family members of the patient.

Sikri, J:

It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

Chandrachud, J:

While upholding the legality of passive euthanasia (voluntary and nonvoluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function. Besides lending assurance to the decision of the treating doctors, the setting up of such committees and the processing of a proposed decision through the committee will protect the ultimate decision that is taken from an imputation of a lack of bona fides.

Bhushan, J:

In   cases   of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such   decision   be   taken   by   specified   competent   medical experts   and   be   implemented   after   providing   a   cooling period to enable aggrieved person to approach the court of law.

Conclusion:

  • Right to die with dignity is a fundamental right.
  • an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
  • In case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and decision is to be taken by competent experts.

The Court, however, made clear that the Advance Directives and the safeguards as mentioned in the judgment will remain in force till the Parliament makes legislation on this subject. [Common Cause v. Union of India, 2018 SCC OnLine SC 208, decided on 09.03.2018]

To read the background of the case, click here.

Hot Off The PressNews

Supreme Court: The 5-judge Constitution bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ reserved the verdict on whether or not a terminally ill patient has a right to die with dignity.

The Court was hearing the reference of the 3-judge bench of P. Sathasivam, CJ, Ranjan Gogoi and Shiva Kirti Singh, JJ that has, in  Common Cause v. Union of India, (2014) 5 SCC 338, referred the matter relating to right to die or euthanasia to a Constitution Bench and noted:

“although the Constitution Bench in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur had upheld the same.”

The bench had said that it was extremely important to have a clear enunciation of law on euthanasia and hence, invited the Constitution bench to lay down exhaustive guidelines in this regard.

Earlier, in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, the bench of Markandey Katju and Gyan Sudha Misra, JJ, had refused to allow Aruna Shaunbaug, who had been the centre of the euthanasia debate as she spent 42 years of her life in a Permanent Vegetative State, to be euthanised but allowed terminally ill patients to choose to be passively euthanised. It was held that passive euthanasia can also only be allowed by the High Court and an application should be moved before it in this regard. Allowing passive euthanasia, the bench had said:

“if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialisation 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.”

The 5-judge bench heard the matter for 2 days continuously and will pronounce the verdict soon.

Case BriefsForeign Courts

Supreme Court of Appeal of South Africa: While deciding the present case wherein the legality of an order by the High Court of South Africa, Gauteng Division, Pretoria to allow physician assisted euthanasia to a dying cancer patient, was debated, the Court held that it is the forte of the Legislature to introduce laws in respect of legalizing physician assisted suicide/euthanasia, and that the present case in not appropriate for the Court to develop the common law of murder and culpable homicide.

The applicant who was dying of cancer, approached the High Court of South Africa, Gauteng Division, Pretoria claiming an order that a medical practitioner could either end his life by administering a lethal substance, or provide him with the lethal substance to enable him to administer it himself, and that in the event if a medical practitioner must end his life, then such medical practitioner would not be subjected to prosecution or disciplinary steps by the relevant professional body. Furthermore the applicant as seeking the above relief as matter of right as enshrined in the Bill of Rights under the Constitution also sought an order that the common law in relation to the crimes of murder and culpable homicide should be developed in terms of Section 39(2) of the Constitution of South Africa. The applicant was allowed by the High Court to go for physician assisted euthanasia; unfortunately however the applicant died 2 hours prior to the passing of the Order. The High Court however refused to recall the Order stating that it’s Order had extensive societal implications, upon which then the State decided to prefer an appeal to the Supreme Court.

Perusing the facts and the arguments for and against legalizing euthanasia, and also looking upon the complexities involved in the issue, the Court discussed the laws, the precedents regarding the issue. The Court further took notice of various countries wherein extensive laws have been laid down in respect of euthanasia, most particularly Netherlands and the State of Oregon, USA. However the Court noted that the separation of powers requires that Parliament should decide any changes on the law rather than requiring judges to do so. The Court further observed that the South African situation, social values and social-economic and political conditions are very different from the jurisdictions where euthanasia has been legalized. The Court also stated that the High Court was hasty in deciding the case and did not properly consider the South African law or international precedent cases and was wrong to assume that the common law on murder needs to be changed to accommodate assisted suicide and euthanasia. [Minister of Justice and Correctional Services v. Estate Stransham-Ford, 2016 SCC OnLine ZASCA 46 : 2016 ZASCA 197, decided on 06.12.2016]