- The Centre has informed the Supreme Court that it is vetting a draft law to permit “passive euthanasia” – The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, but that it is against letting people make “Living Wills”, by which they can direct that they not be put on life support in case of terminal illness. Should the law allow ‘living wills’?
- Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.
Supreme Court’s Stand
- The Supreme Court has indicated it might recognise the execution of ‘living will’ in cases of passive euthanasia, as right to die peacefully is part of fundamental right to life under Article 21 of the Constitution.
- The Supreme Court, however, said there should be adequate safeguards and implementation of living will would be subject to medical board’s certifying that the patient’s comatose state is irreversible.
- The court will have to resolve the question whether the right to life under Article 21 of the Constitution, which according to an earlier verdict does not include the right to die, is being voluntarily waived by a person giving such an advance directive.
- A living will, at the same time, may relieve the close family members and caregivers of a terminally ill patient of the moral burden of making a life-ending decision.
- Under U.S. jurisdiction patient autonomy is paramount, and many States have laws allowing advance directives, even the nomination of a ‘health care proxy’ who can decide on behalf of the patient. Should India follow suit?
- While reserving its verdict, the court has indicated that it may lay down comprehensive guidelines on operationalising the idea of living wills.
The Govt.’s Stand:
- The government has opposed the concept of an advance directive, arguing that it would be against public policy and the right to life.
- The government is rightly concerned that the idea may be misused and result in the neglect of the elderly.
- In Aruna Ramchandra Shanbaug vs. Union of India & Ors (2011) the Supreme Court distinguished between “active” and “passive” euthanasia: “Active euthanasia entails the use of lethal substances or forces to kill a person, e.g. a lethal injection. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die.”
- In the landmark verdict in 2011, ruled out any support for active euthanasia, but laid down a broad legal framework for passive euthanasia, or the withdrawal of life support subject to safeguards and a fair procedure.
- In the present case, the court may have to draw up stringent safeguards for certifying living wills, preferably by a judicial officer, and lay down the exact stage at which the advance directive becomes applicable.
- The court’s observation that it would kick in only after a medical board rules that a person’s condition is incurable ought to be sufficient reassurance for those concerned about its possible misuse. Living wills should come with robust safeguards.