right, advocacy, lex

ABOUT EUTHANASIA AND THE RECENT JUDGEMENT OF SUPREME COURT THAT CAME ABOUT EUTHANASIA

Abstract

A moral conundrum that arises in clinical practice is whether it is preferable to actively kill a patient or allow for a more gradual and natural death. In comparison to a slow, potentially painful death, the former may be thought to involve less suffering. How to establish what level of pain is intolerable is the main issue with euthanasia. In reality, people with neurological diseases, especially those that are degenerative and chronic, often feel helpless and powerless, which is a burden. The extent of suffering is evolving throughout time, making it challenging to establish definitive standards for euthanasia.

Keywords

Living Will, Good Will, Passive Euthanasia, Active Euthanasia, Right to Die with Dignity

[1] Research methodology

This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the euthanasia and her judgement of SC of India. Secondary sources of information like newspapers, journals, and websites are used for the research.

Review of Literature

Euthanasia reform has been a very important topic and the recently Supreme Court judgement are release the euthanasia. “The act or practice of killing hopelessly ill or injured beings (such as persons or domestic animals) in a reasonably painless way for motives of kindness” is the definition of euthanasia. Although it has been a part of human history for centuries and is also translated from Greek as “Good Death,” not all societies have accepted it as a solution to a life of suffering brought on by medical issues like genetic deformities or incurable illnesses.

Historical Background of Euthanasia

Before Christianity, attitudes toward infanticide, active euthanasia, and suicide tended to be lenient in ancient Greece and Rome. Pagan physicians probably frequently performed abortions as well as both voluntary and involuntary mercy killings in the ancient Greek and Roman cultures since many of them lacked a convincingly defined belief in the inherent dignity of every individual human life. Few ancient Greek or Roman physicians adhered strictly to the Hippocratic Oath, which forbade doctors from prescribing “a lethal medication to anyone, not even if asked,” or from advising such a course of action. Many people in classical antiquity preferred quick death to excruciating pain, and doctors agreed by frequently giving their patients the poisons they wanted.

The Black Stork Movie Stirs Up Debate About Infant Euthanasia. The extraordinary example of Chicago surgeon Dr. Harry Haiselden, who persuaded the parents of a new born with multiple disabilities to let the child die rather than have life-saving surgery, served as the basis for the movie.

Euthanasia is condemned by the World Medical Association, and physician assisted suicide support is declining, according to a poll. Only 36% of Americans responded in favour of making it legal for doctors to end the lives of incurably ill patients through painless ways if they and their families requested it in a 1950 poll, which is a 10% decrease from the late 1930s.

Michigan defeats a proposal for physician-assisted suicide in November 1998. Proposal B to legalise physician-assisted suicide has been introduced in Michigan. By a vote of 29% to 71%, the proposition is defeated.

Euthanasia and physician assisted suicide are now legal in Luxembourg. The Luxembourg parliament approves a measure that makes euthanasia and physician-assisted suicide legal.

Vermont becomes the fourth state to permit physician-assisted suicide on May 20, 2013. The “End of Life Choices” bill was passed into law by Governor Peter Shumlin of Vermont, making physician-assisted suicide lawful for the first time in American history. The law in Vermont establishes protections to control doctors who are now permitted to prescribe drugs that may cause death to state citizens who are terminally ill, similar to the laws in Oregon and Washington.

Definition of Euthanasia

In the majority of English language dictionaries, mercy killing is just another phrase for euthanasia. Because of euthanasia, mercy killing is the practise of putting a person or animal to death painlessly or letting them to pass away by refusing to provide them with medical care, typically due to a debilitating and incurable sickness. Euthanasia, which is a Greek word, means “good death”, terms like mercy killing and making it can be reassuring in the face of trying medical circumstances. Our natural reaction is to provide relief in any manner we can for someone who is suffering from pain, mental decline, or another bad condition, especially a family member or close friend. Sometimes, the patient’s or caregiver’s urge to reduce pain might grow so powerful that it overrides our more fundamental goal to preserve life.

Francis Bacon coined the term “euthanasia” for the first time in a medical setting in the 17th century. to speak of a quick, painless, joyous demise during which it was the “duty of the physician to relieve the body’s bodily afflictions”.

The deliberate taking of a life to end pain and suffering is known as euthanasia (provided motive should be good & death must be painless as much as possible).

Types of Euthanasia

. Voluntary Euthanasia (with patient’s consent): With the patient’s permission, euthanasia is carried out. Some nations, like as Belgium, the Netherlands, etc., have legalised it.

. Non- Voluntarily Euthanasia (patient’s consent unavailable): When a person expresses a desire to end their life in such circumstances but is unable to provide their consent (for instance, when the patient is in a coma or has serious brain damage) and someone else makes the decision on their behalf.

. Involuntary Euthanasia (without asking consent or against the patient’s will): Involuntary euthanasia refers to the practise of killing a patient against his or her will. It’s also considered to be murder.

. Active euthanasia:  Refers to the deliberate killing of a patient, such as administering a deadly amount of medication. Occasionally known as “aggressive” euthanasia.

. Passive Euthanasia: The deliberate with holding of artificial life support, such as a ventilator or feeding tube. Some ethicists make a distinction between withdrawing life support and ceasing to provide it (the patient is on life support but then removed from it).

CASE: Aruna Ramchandra Shanbaug Vs. Union of India

[2] For one to lead a life of dignity and fulfilment, fundamental rights are necessary. The most important Fundamental Right is perhaps the Right to Life, which is protected by Article 21 of the Indian Constitution. It is a right that encompasses a plethora of additional rights within its broad scope, such as the right to legal representation and the right to a healthy environment.

In the present instance, the question that arose was whether or not this fundamental right includes the right to die, or whether it is conceivable for someone to have control over their own death and choose to end their life. The right to die has become a critical topic due to developments in medical legislation and the potential for misuse by family members.

Whether this sentence can be read to encompass the “Right to Die” is still up for debate. However, as the medical industry lays a greater emphasis on patients’ informed consent, the topic of euthanasia in India has been met with a range of responses. By distinguishing between passive and active euthanasia, the case continues.

It is still debatable whether this statement may be interpreted to include the “Right to Die.” The subject of euthanasia in India has drawn a variety of reactions, nevertheless, as the medical industry places more emphasis on patients’ informed consent. The argument is supported by a distinction between passive and active euthanasia.

Introduction

The Hon’ble Supreme Court of India was consulted in this matter to authorise the death of Aruna Ramchandra Shanbaug, who was in a persistent vegetative state, in accordance with Article 32 of the Indian Constitution. The plea was presented by Ms. Pinki Virani, who identified herself as the petitioner’s close friend.

There was no logical justification for the petitioner to bring a complaint under Article 32 for a violation of a basic right because the Court has clearly rejected the right to die in previous rulings. However, the Supreme Court granted the petition after taking into account the gravity of the situation and the accompanying public interest in learning if euthanasia is permitted.

Facts of the Case

Aruna Ramachandra Shanbaug, the petitioner, was described as a staff nurse at the King Edward Memorial Hospital in Parel, Mumbai. She was attacked by a hospital sweeper who tied a dog chain around her neck and pulled her back on the evening of November 27, 1973. When he realised she was menstruating during his attempt to rape her, he sodomised her instead. He wrapped the chain around her neck to hold her immobile while performing this act. She was discovered unconscious and covered in blood on the floor the following day by a cleaner. It was said that the dog chain’s strangulation caused the brain to stop receiving oxygen and suffer damage. 36 years had passed since the aforementioned incident. She was unable to move her hands or legs and had been surviving on mashed food. It was claimed that there was no chance for her condition to get any better and that she was totally reliant on KEM Hospital in Mumbai. The Respondents were prayed for to cease feeding Aruna and allow her to pass away peacefully.

Issues Raised

  1. Is it acceptable to remove a person’s life support systems and equipment if they are in a permanent vegetative state (PVS)?
  2. Should a patient’s preferences be honoured if they have previously said that they do not want to undergo life-sustaining measures in the event of futile treatment or a PVS?
  3. Does a person’s family or next of kin have the right to request the withholding or removal of life-supporting measures if the individual has not made such a request already?

Judgement

This decision was made on March 7, 2011 by the prestigious Supreme Court of India Division Bench, which also included Justice Markandey Katju and Justice Gyan Sudha Mishra. The Transportation of Human Organs Act of 1994’s definition of brain death and the doctor’s report were both used by the court to rule that Aruna is not brain dead. She had sensations and could breathe without assistance from a machine. She also used to exhibit some symptoms. Despite being in a PVS, her status was stable. Therefore, the justifications offered here are insufficient to end her life. It wouldn’t be acceptable. In addition, the court stated during its discussion of the matter that in the current instance Pinki Virani would not be next to the patient’s family but rather the personnel of the KEM Hospital. Therefore, KEM Hospital has the authority to make any such choice on her behalf. In this instance, she was surviving solely on food. Therefore, removing life-saving measures in this case would imply depriving her of nourishment, which is in no way justifiable under Indian law.

The Supreme Court recognised passive euthanasia under specific circumstances. However, the court ruled that the authority to decide when a person’s life should be ended would be subject to the permission of the High Court after a proper procedure in order to prevent future exploitation of this provision.

Every time a request for passive euthanasia is made in the High Court, the Chief Justice of the High Court must convene a Bench of at least two judges to decide whether to accept the request or not. A committee of three reputable doctors’ advice should be taken into account by the Bench before it issues any judgement. The Bench also proposes these physicians after consulting with the proper medical professionals. The court must not only appoint this committee but also promptly send notification to the state, family members, kin, and friends, as well as a copy of the report produced by the committee of doctors. After the court has heard from all parties, it should then issue its ruling. In India, this approach must be followed everywhere up till relevant legislation is passed.

Aruna Shaunbaug was refused euthanasia in the case’s final judgement, which took into account all of the relevant facts. The hospital personnel may approach the High Court using these guidelines if they feel the need for the same thing at any point in the future, according to the court’s opinion. Through the provision of a comprehensive set of standards that must be followed, the decision in this case has contributed to the clarification of the concerns surrounding passive euthanasia in India. The court also suggested that section 309 of the IPC be repealed. We have covered every aspect of the case. Let’s now talk about the emergence of two crucial characteristics that emerged in this instance and received a lot of attention in future events.

Judgement Analysis

The Supreme Court established standards for passive euthanasia in the case of Aruna Shanbaug. These regulations allowed for the removal of a person’s life support system, which might ultimately result in death. Passive euthanasia is now legal in India under certain circumstances that will be ruled by the High Court. Later in 2018, the Supreme Court issued a new ruling in the case of Common Cause v. Union of India, reinstating the right to a dignified death, legalising passive euthanasia, and granting permission to remove life support from patients who are terminally ill and in a life-long coma. The Court also introduced the idea of “living wills” along with this.

Living well : A living will is a legal instrument that enables a person to decide in advance what course of treatment they want to receive in the event that they become critically ill in the future and are unable to make their own decisions.

As a result, India has joined the list of nations that have legalised passive euthanasia. However, there are still flaws in the way passive euthanasia is carried out. It was a laborious process because it was mandated that every case obtain approval from the High Court after the Shanbaug case. Passive euthanasia is now more difficult to put into practise thanks to the new ruling, which calls for the execution of the directive in the presence of two witnesses, verification by a judicial magistrate, approval from two medical boards, and a jurisdictional collector. The fundamental goal of passive euthanasia is to end the suffering of the person in question, so this delay is a significant obstacle in the approach.

Right to Die with Dignity

All of its inhabitants have a clear right to life under our constitution and laws. There are no questions about the right to life because it is an unquestionable right that is guaranteed by Article 21 of the constitution. But whenever we discuss the right to die, there are always questions since it has been a contentious topic for our legislators. The courts have given it varied interpretations in separate rulings and based their conclusions on those interpretations.
In the case of State of Maharashtra v. Maruti Sripati Dubal2, the Bombay High Court ruled that Article 21’s right to life also includes the right to die. It was argued that as Section 309 of the Indian Penal Code (attempt to commit suicide) violates Article 21 of the Constitution, it is therefore illegal. In this ruling, the court made it very clear that the right to die is only unusual, not against nature. In P. Rathinam v. Union of India3, the Supreme Court subsequently acknowledged that Article 21 of our Constitution’s Right to Life also encompasses the Right Not to Live. However, the Supreme Court later overturned P. Rathinam’s decision in the case Gian Kaur v. State of Punjab4 and ruled that the right to life does not include the right to die. At the same time, the court added that the right to life will also include the right to live with dignity and the right to die with dignity. The court ruled that the right to die should be separated from the right to die in peace. While the right to die is an unnatural death that shortens a person’s natural lifespan, the right to die with dignity is a benefit that is given to a person. As an illustration, if someone with PVS were given the option to die, it will end his suffering, physical and mental agony.

Passive Euthanasia: The Supreme Court concurs to alter the conditions for the adoption of orders for Living Will and Advance Medical Directives.

The Supreme Court’s Constitution Bench decided that the standards for living wills and advance medical directives must be modified in light of the court’s recognition of “passive euthanasia” in Common Cause v. Union of India and Anr.

Judges K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar were sitting on a bench to evaluate a Miscellaneous Application submitted by the Indian Council for Critical Care Medicine is requesting that the rules for living wills and advance medical directives be changed because the prior rules are no longer applicable. The Senior Advocate, Mr. Arvind Datar, gave an example of the impracticability, which the Bench noted. According to the prior order, the advance medical directive had to be signed in front of two impartial attesting witnesses. The direction had to be countersigned by a Judicial Magistrate of First Class as per the criteria. The applicants claimed that this condition has complicated the application procedure and begged that it would be overturned. After holding numerous discussions with all the stakeholders, the Bench debated the ideas made by the applicant over the course of four days. The Bench previously stated that it would be in everyone’s best interests if the petitioner and the Union Government jointly proposed changes. As a result, it was suggested that the attorneys for the parties sit down and create a shared chart. The Court decided to take it up.

In place of the prior need of 48 hours, Mr. Datar advised that the time given for the consideration to be made by the Primary Medical Board and the Review Board be 24 hours each. It appears that the Union Government has recommended a 48-hour window. Justice Joseph thought that 48 hours was a reasonable amount of time. If 48 hours are acceptable, Mr. Datar argued, it should be made clear that the consideration will happen “within 48 hours.”

There might not be a need for a Review Board, according to Mr. Datar. However, the Union Government wished to keep it in place as a safeguard. Justice Joseph sought clarification by asking when the 48 hours would “start ticking.” Mr. K.M. Nataraj, Additional Solicitor General, said, “Once the Board is established.” However, Mr. Datar said that it would be taken into account once the treating physicians are aware that “the end is inevitable.”

Regarding the scenario in which there is no advance medical directive, there was some discussion. Mr. Datar informed the Bench that the approval of the family must be taken into account in all such circumstances. It was observed that passive euthanasia is carried out even in the absence of an explicit directive. According to Mr. Datar, the doctors would be well-protected by a Supreme Court injunction. Justice Joseph asked about the meaning of family and what would happen if members of the immediate family held different opinions.

The Medical Board’s doctors used to be required to have at least 20 years of experience. The amendment was requested because it was difficult to find doctors with such a long history of practice, especially in rural areas lower the minimum experience requirement to five years. Dr. R.R. Kishore, an advocate and amicus in the passive euthanasia case, asserted that there is no obligation to restrict the doctors’ experience. He did, however, advocate for having “subject-experts of the concerned specialization” on the board.

Justice Joseph disagreed with Mr. Kishore on the issue of defining an experience age restriction but agreed that adding doctors who are “subject-experts of the concerned speciality” to the Board would be problematic.

Justice Joseph then asked, “Will the hospital itself comprise the secondary board?”

The ASG retorted that even if the Board is created by the hospital, at least one doctor should be proposed by the CMO. The problems in finding the CMO in bigger cities were mentioned by Mr. Datar.

We are awaiting a thorough order with clear instructions. The Supreme Court’s Registry has been instructed to make a copy of the order available to Registrar Generals of High Courts once it has been typed out. These individuals would then give a copy of it to the health secretaries of the states and UTs so they can communicate it to the CMOS in their respective states and UTs.

[3] 

Passive Euthanasia: Doctors’ Association Informs Supreme Court of Practical Issues With “Living Will” Guidelines

The hearing of the Miscellaneous Application to Modify the Rules for Living Will/Advance Medical Directive that Was Issued by Way of the Supreme Court’s Constitution Bench. A living will or advance medical directive is a written document that enables a patient to give specific 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. The Supreme Court of the United States recognized “passive euthanasia” in its judgment in Common Cause v. Union of India and Anr.

An appeal has been filed on behalf of the Indian Council for Critical Care Medicine (applicant) by a five-judge panel consisting of Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar currently working on making the Common Cause directives for advance medical directives operational. Given the lengthy procedure required in implementing Advance Medical Directives, the Council had noted in its application how it has become challenging to enforce the Court’s orders. The method is so cumbersome that since the ruling in Common Cause, which was rendered almost 5 years ago, not a single case has been brought since Day 1 of the hearing, according to Common Cause attorney Prashant Bhushan a witnessed of an advance medical directive. Mr. Datar had previously explained some of the difficulties in carrying out the Living Will. The executor must sign the living will in the presence of two witnesses who can attest to it and jurisdictional Judicial Magistrate of First Class countersigned (JMFC). He had stated that if, after ten years, the executor of the Will is admitted to the hospital and the medical staff certifies that there is no executor of the Will, hope for healing. The issue must then be forwarded to the Collector, who will form a second board of doctors to provide a second opinion, in accordance with the rules. The jurisdictional JMFC must next visit the hospital in person to personally authenticate the document. Mr. Datar had stated that this laborious procedure is unworkable, so some suggestions to change the rules have been included in the current application.

Mr. Datar explained before the Bench the idea known as “futility of therapy” by the Indian Council of Medical Research (ICMR), which is “despite the ideas put up by the applicant. Treatment is an option, and it may be worthwhile. He made the suggestion that the direction be changed in order to accommodate the same. Mr. K.M. Nataraj, the Additional Solicitor General, strongly disagreed with the idea. He claims that the idea is overly general and open to abuse. In response, Mr. Datar said that although doctors had made the advice, the Court ultimately has the last say.

Justice Ravikumar reasoned that “A clarification cannot lead to review” since the changes sought could materially affect the original directions. According to Mr. Datar, the goal of the effort is to make the Apex Court’s directives practical. It can be changed, he continued, if it is documented in the sequence in which a particular paragraph is posing a challenge.

He let the Bench know that the applicant had ideas for the Advance Medical Direction to be digitalized. Assisting Mr. Datar as an attorney, Dr. Dhvani Mehta briefed the bench of the initiative. To guarantee that all hospitals have interoperable electronic health records, there is a National Digital Health Mission (NDHM). It is crucial that the doctors have access to the advance directive in order for it to be used. She argued that after the agreement was signed, the executor might decide on their own whether to incorporate it into their patient records. She assured the Bench that the NDHM has privacy rules for all electronic documents in order to address the privacy concern. “Ultimately we are sitting in this composition to make it workable, not on technicalities,” Justice Rastogi said in reference to the amendment.

The Bench then continued to hear more proposals for adjustment. Mr. Nataraj took issue with the directives’ use of the word “vegetative.” He claimed to have learned that “vegetative” is a not a medical phrase; subjective term.

How do you describe the vegetative state, Justice Joseph questioned Dr. Kishore (Amicus in Common Cause)?

In reply, Dr. Kishore said “He cannot communicate when in the PVS (permanent vegetative stage), and he cannot perceive while brain dead either.

After 20 years, a person in PVS can also return back to life ” Dr. Kishore believes that since PVS has an unknown consequence, it would be best if the term was not included in the new instructions.

Dr. Kishore proposed that the Medical Board should be composed of three doctors: the treating physician, the director of the specific hospital, and a specialist in the relevant field.

Justice Joseph pointed out that since the majority of hospitals have Medical Directors who are MDs in general medicine, a multidisciplinary Board would no longer be necessary if the treating physician was also an MD in general medicine. He believed that the prior directives, where the Apex Court favored a multidisciplinary Board, were made in this regard very carefully. He proposed adding three specialized members to the Board.

Deliberations also focused on the experience requirements for the board members who are physicians. The applicant claimed that the requirement of 20 years of experience is a challenging one to satisfy. Mr. Datar offered: “Your Lordships could cite ten years. Why not? If a lawyer can become a judge after 20 years “Justice Joseph then questioned Dr. Kishore about whether having experience in “critical care” was still a requirement for Medical Board members. Dr. Kishore reasoned that it might not be necessary to do the same. But according to Justice Joseph, it may be said that one of the Medical Board’s three members is knowledgeable about critical care. Mr. Datar appeared to believe that “Unworkable once more.” Mr. Datar is now required to inform the Bench of the challenges facing the Review Board tomorrow. The Bench will carry out a similar procedure to address the problem.

Conclusion and Suggestions

Euthanasia appears to have sparked ethical questions in society, to sum it briefly. Moral, practical, and religious concerns are a few of the important considerations. Euthanasia, however, entails a great deal of ambiguity because there is no uniformity in how society views it. As a result, different social groups in the society have different opinions on the problem, which has led to the creation of two opposed camps: the supporters and the opponents. The euthanasia proponents contend that it is appropriate so long as one’s choice won’t interfere with others’ rights. They further assert that making euthanasia legal everywhere will ease the strain on healthcare resources. Opponents of euthanasia, however, assert that it is unethical in nearly all facets of person life. They subscribe to the widely held belief that death is a natural occurrence and that people have no right to meddle with the course of life. Euthanasia is not universally regarded as being morally acceptable, which has created the current, unprecedented ethical conundrum.

      [1] Organised Assistance to Suicide in England?Christoph Rehmann-Sutter & Lynn    Hagger – 2013 – Health Care Analysis 21 (2):85-104.

[2] Nurses’ attitudes towards euthanasia in conflict with professional ethical guidelines.Anja Terkamo-Moisio, Tarja Kvist, Mari Kangasniemi, Teuvo Laitila, Olli-Pekka Ryynänen & Anna-Maija Pietilä – 2017 – Nursing Ethics 24 (1):70-86

[3] Meaning and Medicine: An Underexplored Bioethical Value.Thaddeus Metz – 2021 – Ethik in der Medizin 33 (4):439-453.

[4] Opposing Abortion, Gay Adoption, Euthanasia, and Suicide.Csilla Deak & Vassilis Saroglou – 2015 – Archive for the Psychology of Religion 37 (3):267-294.

[5] The Importance of Clear and Careful Thinking in Clinical Ethics.J. Clint Parker – 2021 – Journal of Medicine and Philosophy 46 (1):1-16[4] 

AUTHOR:

Aditi Garg

The ICFAI University Dehradun