Insights into Editorial: The rights of the terminally ill
09 June 2016
Addressing the contentious issue of mercy killing, the government has come up with a draft Bill on passive euthanasia which will give a patient the right to withhold from medical treatment in case they are terminally ill.
- The Union Health Ministry has drafted and put up ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’ in the public domain for consultation with stakeholders.
- According to the Bill, “every competent patient, including minors aged above 16 years, has a right to take a decision and express the desire to the medical practitioner attending on her or him.”
- The Bill goes on to say that such a decision will be binding on the medical practitioner. He or she has to inform the spouse, parents or any other close relative of the patient and desist from carrying out the decision for a period of three days after informing them.
- The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.
- The Medical Council of India has been given the authority to formulate guidelines from time to time for the guidance of medical practitioners and might review and modify the guidelines periodically.
- In case any patient is not competent enough to take a decision then his or her next of kin, including spouse, parents or sibling, can approach the High Court, which will have to take a decision within a period of one month.
The government first attempted to formulate a law in 2006, based on a report of the Law Commission. However, the ministry had at that time decided not to take any action. The Supreme Court had laid down comprehensive guidelines in the Aruna Shanbaug case to process passive euthanasia. Active euthanasia is different from the passive form and involves injecting the patient with a lethal substance causing death in a painless manner.
Why is it difficult to regulate euthanasia?
There are two perspectives on the issue.
- The first is the legal- the state has an understandable interest in maintaining its monopoly on the right to—in crude terms—end a citizen’s life. This is foundational to its legitimacy and authority.
- There are other practical concerns as well. Euthanasia is difficult to regulate and laws allowing it can be vulnerable to malicious intent. At the very least, moral pressure could be exerted on the terminally ill to choose this option.
- There is also a broader ethical and theological perspective. India’s Constitution draws upon Western liberal ideals and the constitutions wherein they are enshrined.
Issues associated with the bill:
- Clause 9: In Clause 9, it says that relatives, medical personnel and the like can apply to the relevant high court for “witholding or withdrawing medical treatment of a competent patient who has not taken an informed decision”. This is dangerous. The bill defines informed decision in subjective terms pertaining to an individual’s understanding of the nature of their illness and the forms and consequences of treatment. As long as the individual is competent, it must not be left to anyone else to judge the merit of their understanding in something as fundamental as their life. This has the potential for misuse and is antithetical to an individual’s fundamental rights.
- Living will: There is a general disappointment over the concept of ‘living will’. As per the idea, it is defined as an advance document in which a person states their desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from their terminal condition, putting the doctors in a fix.
- Court’s faith misplaced: The Bill demonstrates that the Supreme Court’s faith is misplaced. The draft Bill negates the basic common law rights of a patient to autonomy over her own body and the determination of what treatment she is willing to undergo. The government has thus denied the patient’s fundamental right to life and liberty.
- Distinction: The Bill creates an irrational distinction between patients who are competent at the time at which a decision has to be made about refusing or withdrawing life-sustaining treatment, and those who are incompetent at such time, even though they might have expressed their decision earlier in the form of an advance directive. Clause 3 of the Bill states that the decision of the former category of patients to refuse such treatment is binding on their medical practitioners. The time at which the decision was made to refuse or request the withdrawal of treatment cannot be a rationale for distinguishing between these categories of patients, so long as such decisions were taken freely, fully informed, and not altered fundamentally since. Apart from being an infringement of the right to life under Article 21, the classification stands the risk of being struck down as unreasonable and therefore a violation of the right to equality under Article 14.
- Drafting errors: Other problems include drafting errors. The definition of “terminal illness” seems to include even mental health issues.
- Choice of High Court: The choice of the High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives and does not take into account the fact that High Courts are unlikely to be able to deliver swift judgment in such cases.
What is euthanasia?
Euthanasia is a medical term meaning ‘easy death’. It is the act of deliberate or voluntary end of someone’s life to prevent any further suffering or pain to the person.
Active and Passive euthanasia:
- Active euthanasia involves a doctor injecting a lethal medicine to trigger a patient’s cardiac arrest.
- In passive euthanasia, doctors, with the consent of relatives, withdraw the life support system of a person being kept alive with the help of machines.
Should Euthanasia be legal?
Arguments For Euthanasia:
- It provides a way to relieve extreme pain.
- It provides a way of relief when a person’s quality of life is low.
- Frees up medical funds to help other people.
- It is another case of freedom of choice.
Arguments Against Euthanasia:
- Euthanasia devalues human life.
- Euthanasia can become a means of health care cost containment.
- Physicians and other medical care people should not be involved in directly causing death.
- There is a “slippery slope” effect that has occurred where euthanasia has been first been legalized for only the terminally ill and later laws are changed to allow it for other people or to be done non-voluntarily.
Supreme Court’s views on this matter:
Previously in 2011, in Aruna Shanbaug case the Court had ruled in favour of passive euthanasia and the law ministry had opined that the SC’s “directions should be followed”.
- In its landmark 2011 verdict that was notable for its progressive, humane and sensitive treatment of the complex interplay of individual dignity and social ethics, the Supreme Court laid down a broad legal framework.
- It ruled out any backing for active euthanasia, or the taking of a specific step such as injecting the patient with a lethal substance, to put an end to a patient’s suffering, as that would be clearly illegal.
- It allowed ‘passive euthanasia’, or the withdrawal of life support, subject to safeguards and fair procedure.
- It made it mandatory that every instance should get the approval of a High Court Bench, based on consultation with a panel of medical experts.
Although the ethical and philosophical arguments for passive euthanasia apply equally to active euthanasia, the government has made the correct decision in addressing only the former at the moment. By doing so, it has curtailed the potential for misuse of the proposed legislation. A revised bill would be a significant step towards allowing suffering individuals a measure of human dignity.