LIVING WILL/RIGHT TO DIE
From the moment of his birth, a person is clothed with basic human rights. Right to life is one of the basic as well as fundamental right without which all rights cannot be enjoyed. Right to life means a human being has an essential right to live, particularly that such human being has the right not to be killed by another human being. But the question arises that if a person has a right to live, whether he has a right not to live i.e., whether he has a right to die? While giving this answer, the Indian courts expressed different opinions.
Right to life including the right to live with human dignity would mean the existence of such right up to the end of natural life. This may include the right of a dying man to die with dignity. But the ‘right to die with dignity’ is not to be confused with the right to die an unnatural death curtailing the natural span of life.
Thus, the concept of right to life is central to the debate on the issue of Euthanasia. One of the controversial issues in the recent past had been the question of legalizing the Right to Die or Euthanasia. Euthanasia was controversial since it involves the deliberate termination of human life. Patient suffering from terminal diseases are often faced with great deal of pain as the diseases gradually worsens until it kills them and this may be so frightening for them that they would rather end their life than suffering it.
Article 21 includes most of the basic human rights which are essential for a dignified life. In its latest judgement on March 9, 2018 the Apex Court included Right to Die with dignity as a part of right to life under Article 21.
Dr D Y Chandrachud, J in his judgement in Common cause v. Union of India[1] has also defined the relationship between life and death as:
Article 21 of the Indian Constitution reads as follows:
21. Protection of life and personal liberty:
No person shall be deprived of his life or personal liberty except according to procedure established by law – Which includes right to dignified lives.
Dignity
Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, the Supreme Court through its various judgements has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty. The first and foremost responsibility fixed upon the State is the protection of human dignity without which any other right would fall apart. In the South African case of S v. Makwanyane[7], O’ Regan J. had stated in the Constitutional Court that “without dignity, human life is substantially diminished.”
In the nine-Judge Bench decision in K.S. Puttaswamy and another v. Union of India and others[8], dignity has been reaffirmed to be a component under the said fundamental right. Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. Right to Life Under Part-III (Article 21) of the Indian Constitution is one of the most basic natural Right of the human beings. Article 21 prohibits person from deprivation of his life or liberty except according to the process established by law. It ensures upon the state the obligation to provide every person a good quality of life and a dignified life. This Right has been interpreted by the judiciary in a very elaborate way to included new rights within its purview. Earlier to the Common Cause judgement, right to die was not considered as a fundamental right. But the Court in its judgement declared Right to Die with Dignity as fundamental right.
Euthanasia and its legal position in context of Article 21
Euthanasia: Active And Passive
The term Euthanasia comes from two ancient Greek words: ‘Eu’ which means ‘Good’ and ‘thantos’ which means ‘death’ and it pertains to the practice of ending a life to relieve pain and suffering. But, the issue of euthanasia is not as simple as its literal translation of the term. The termination of life may either be by Direct intervention (Active Euthanasia) or by may be by withholding life prolonging measures and resources (passive euthanasia). Aruna Shanbaug case[22] discussed the two categories of euthanasia- Active and Passive.
Active Euthanasia
Also known as positive euthanasia or aggressive euthanasia. This type of euthanasia entails a positive act or affirmative action or an act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention. This type of euthanasia involves taking specific steps to cause the patient’s death such as injecting the patient with some lethal substance.
Passive Euthanasia
Also known as negative euthanasia or non-aggressive euthanasia. This type of Euthanasia entails withdrawing of life support measures or withholding of medical treatment for continuance of life. In active euthanasia a specific act is done to end the patient’s life while passive euthanasia is a situation where something is not done which is necessary in preserving the patient’s life.
The two Judge Bench in the case of Aruna Shanbaug had observed that the legal position across the world seems to be that while active euthanasia is illegal unless there is a legislation which permits it, passive euthanasia is legal even without any legislation, provided certain conditions and safeguards are maintained. Most of the countries today have legalised passive euthanasia either by way of legislations or through the judicial interpretations, but there now also remains uncertainty whether active euthanasia should be granted legal status. The court in this case held that passive euthanasia would only be permissible when the patient is ‘dead’ in clinical sense.
What is an advance medical directive?
Advance directives are legal documents that extend a person’s autonomy and control over their healthcare decisions in the event they become incapacitated. These directives enable individuals to communicate preferences regarding medical treatment, end-of-life care and other aspects of care, as well as designate a surrogate decision-maker ahead of time, before being incapacitated. In simpler terms, an advance directive ensures that the wishes of the executor are honoured, even when they are incapable of making a decision decision-making capacity is severely impaired.
It was noted in the 2018 judgement that unlike other countries, “there was no legal framework in our country as regards the advance medical directives”. However, the bench headed by the then-Chief Justice Dipak Misra observed, it was the constitutional obligation of the court to protect the right of the citizens as enshrined under Article 21 of the Constitution. It was, therefore, held, “An advance medical directive would serve as a
fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt a the
relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be a position to ensure, after being satisfied, that they are acting in a lawful manner.
What changes have been made?
The bench led by Justice K.M. Joseph in January acknowledged that the earlier order resulted in ‘insurmountable’ obstacles that prevented the directions from being implemented. For instance, the court required advanced directives to not only be executed in the presence of two attesting witnesses, preferably independent witnesses, but also countersigned by a judicial first-class magistrate. “This clause has led the very object of this Court issuing directions being impaired, if not completely defeated,”
Surrogate decision-maker
Before guideline : Only one guardian or close relative was to be named, who would, at the time of the execution of the advance directive, be informed by the treating physician of the nature of illness, the availability of medical care, consequences of alternative forms of treatment, and the consequences of remaining untreated. Before a final opinion was formulated by the medical board constituted by the collector, and if the executor was incapacitated, the consent of the guardian or close relative would also be taken
New guideline : More than one guardian or close relative can be named in the document, all of whom have to be informed of the nature of illness, the availability of medical care, consequences of alternative forms of treatment, and the consequences of remaining untreated by the treating physician at the time of the execution of the directive. Before a final opinion was formulated by the secondary medical board, and if the executor was incapacitated, the consent of all the nominees will be taken
Role of judicial magistrate of first class
Before guideline: Countersign of jurisdictional judicial magistrate of first class was required. The officer was further required to record their satisfaction that the document has been executed voluntarily and without fear or favour. The judicial magistrate would also preserve a copy of the document in both paper and digital formats.
New guideline: It is sufficient for an advanced directive to be attested before a notary or a gazetted officer. The requirements for it to be countersigned or preserved by a judicial magistrate has been dispensed with
Role of district court registry
Before guideline: The judicial magistrate was required to forward a copy of the document to the registry of the jurisdictional district court, which would have to retain the document in the original format.
New guideline: This requirement has been deleted
Informing family members and family physician
Before guideline: The judicial magistrate was required to inform the immediate family members of the executor and their family physician, if any
New guideline: The executor has to hand over a copy of the advance directive to the designated decisionmaker(s) and the family physician, if any
Informing the government
Before guideline: A copy of the advance directive had to be handed over to a competent official of the local government. The aforesaid authorities would then nominate an official as its custodian.
New Guideline: In addition to this, the executor can now also incorporate the document as a part of their digital health records, if any
Ascertaining authenticity
Before guideline: When the executor became terminally ill, with no hope of recovery, the treating physician had to execute the advance directive after ascertaining its genuineness and authenticity from the judicial magistrate
New Guideline: When the executor becomes terminally ill, with no hope of recovery, and no longer possesses decision-making capacity, the treating physician will have to execute the advance directive after ascertaining its genuineness and authenticity with reference to the digital records of the executor, or from the custodian of the document appointed by the local government body
Preliminary opinion
Before guideline: A medical board, comprising the head of the department, and at least three experts from the fields of general medicine cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years, had to be constituted. This board had to form a preliminary opinion
New Guideline: A primary medical board, consisting of the treating physician and at least two subject experts of the concerned specialty with at least five years’ experience, will be constituted. This board will form a preliminary opinion preferably within 48 hours of the case being referred to it.
Final opinion
Before guideline: After receiving the hospital medical board’s approval, the treating physician or hospital had to inform the jurisdictional collector, who would then constitute another medical board comprising the chief district medical officer and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry, or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The members of the hospital medical board would not be eligible to be a part of the medical board formed by the collector.
New guideline: After the primary medical board gives its sanction, the hospital will immediately constitute a secondary medical board comprising a registered medical practitioner nominated by the chief medical officer of the district and at least two subject experts with at least five years’ experience in the concerned speciality who were not part of the primary medical board. This board will provide its opinion preferably within 48 hours of the case being referred to it.
Withdrawal of treatment
Before guideline: The decision of the medical board constituted by the collector had to be conveyed by the chairman, i.e., the chief district officer, to the judicial magistrate, who would then authorise the withdrawal of treatment after visiting the executor at the earliest and examining all aspects
New guideline: It is sufficient for the hospital to simply convey the decision of the primary and secondary medical boards and the consent of the person or persons named in the advance directive to the judicial magistrate before giving effect to the decision to withdraw the medical treatment administered to the executor. It is no longer necessary to wait for the judicial magistrate’s authorisation
Refusal by first medical board
Before guideline: If the hospital medical board took a decision not to follow an advance directive, it had to make an application to the medical board constituted by the collector for considering and passing appropriate directions with respect to the document
New guideline: If the primary medical board takes a decision not to follow an advance directive, the nominees of the executor can request the hospital to refer the case to the secondary medical board for consideration and for passing appropriate directions
Appeal to the High Court
If permission to withdraw treatment being administered to the executor is denied by the secondary medical board, it is open to the nominees of the executor, the treating physician, or the hospital staff to file a writ petition at the jurisdictional High Court.
