While countries like the UK and the USA have accepted the principle of Living Will or Advance Directive, most people in India are not aware of the concept of a living will or Health Care Proxies or the Durable Power of Attorney. Given the legal position of our courts on issues like euthanasia, will it be possible to introduce these in India?
The recent decision of the Supreme Court of India, reported in (2011) 4 SCC.454, in the case of Aruna Shanbaug on Euthanasia raises some interesting side issues. There is no statutory provision in our country for the legal procedure for withdrawing life support to a person who is otherwise incompetent to take a decision. In the Writ Petition seeking permission to end life of terminally ill Aruna Shanbaug, a rape victim lying in a vegetative state for the last 37 years, the Supreme Court of India has disallowed the Petition. While rejecting the request of the Petitioner to lay down the law in this behalf, the Court has expressed apprehension about misuse and observed as follows:-
“If we leave it solely to the patient’s relatives or to the doctors or the next friend to decide whether to withdraw life support to 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 commercialization 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 plain dictionary meaning of the term ‘euthanasia’ is ‘painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma’. Euthanasia may be active or passive.
Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart-lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life-saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma may also amount to passive euthanasia.
The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life while in passive euthanasia, something is not done that would have preserved the patient’s life. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him.
The general legal position all over the world is that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are to be maintained. However, the law laid down by our courts is that in India, active euthanasia is illegal and a crime and passive euthanasia cannot be permitted unless legislation is passed allowing it.
“The general legal position all over the world is that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are maintained. However, the law laid down by our courts is that in India, active euthanasia is illegal and a crime, and passive euthanasia cannot be permitted unless legislation is passed allowing it.”
This raises an interesting question as to whether a person can while he is of sound mind and in full possession of his faculty take an advance decision not to have his life prolonged by medical treatment or artificial means in the event of his having some terminal illness. Countries like the United Kingdom and United State of America have accepted the principle.
Through advances in medical technology, some patients who formerly would have died can now be kept alive by artificial means. Sometimes a patient may desire such treatment because it is a temporary measure potentially leading to the restoration of health. At other times, such treatment may be undesirable because it may only prolong the process of dying rather than restore the patient to an acceptable quality of life. In any case, each person is seen, under the law, as having the personal right to decide whether to institute, continue or terminate suchtreatment. As long as a patient is mentally competent, he or she can be consulted about desired treatment. When a patient has lost the capacity to communicate, however, the situation is different.
In the United States of America, living will was first perceived as a form of euthanasia. Living will was not acceptable by a number of Catholics and Christians and it led to the fact that people could without any reasonable cause refuse medication. On the other hand, people felt that the use of technology resulted in situations where people were not afraid of dying, but were afraid of the long process of dying. Medicine and technology have progressed immensely and there is a cure for almost anything now.
Over the past three decades, the United States — all fifty states and the District of Columbia — have passed laws to legalize the use of living wills, health care proxies and/or the durable power of attorney. The U.S. federal government has validated state laws on advance directives through the 1991 Patient Self-Determination Act and the U.S. Supreme Court has handed down an opinion acknowledging the congruence of the Constitution of theUnited States with state laws on the right to designate future medical treatment
Even before the legislative action, there were state and federal court decisions that established the right of an incompetent or comatose patient to have his or her wishes respected, as long as those wishes were known. New York law requires clear and convincing evidence of what the patient would want. Of all the various acceptable forms of evidence, a health care declaration can be the best. It simply documents a person’s wishes concerning treatment when those wishes can no longer be personally communicated. In New York, such a document is recognized if it is clear, specific and unequivocal.
In the United Kingdom this concept is known as the Advance Directive. Advance directives are growing in popularity in countries like the United Kingdom because they offer a way for individuals to keep personal autonomy at the end of life, and to maintain some degree of choice and control.
Sometimes called a “Living Will”, the advance directive form expresses a patient’s wishes to his doctors in the event of there being no reasonable prospect of his recovery from serious illness expected to cause him severe distress or to render him incapable of rational existence. Aliving will is a declaration stating that the person who makes the will desires to die a natural death. He does not wish to use extraordinary medical treatment or artificial nutrition or hydration, which is used to keep a person alive if there is no reasonable hope of recovery. A living will gives the doctor permission to withhold or withdraw life support system under certain conditions.
The Age Concern’s Institute of Gerontology and the Centre of Medical Law and Ethics’ joint report stated that term “living will” refers to a document in which a person while still competent, requests and directs that certain measures, which may be variously specified, should be adopted if and when he becomes incapable of taking responsibility of his own health care, i.e. by consenting to or refusing treatment. The measures usually relate to the refusal of certain forms of treatment aimed at the preservation of the person’s life.
A living will is a document made in the present but intended to apply sometime in the future. It gives detailed information in respect of future health care by giving the required directions to the people concerned. It is made while the person is mentally competent and has his full consent.
It does not ask the doctor to do anything against the law. All it says is that, under certain circumstances, the person does not want his life prolonged by medical treatment, but he wants to be kept comfortable with pain relief, even at the cost of shortening life. In common law, competent adults all have the right to decline treatment, and to receive analgesic drugs in quantities sufficient to relieveintolerable distress. Recent legal judgments in the UK show that this right is “anticipatory” – it can extend into the future.
Therefore, in the UK, advance directives are held to be legally binding on doctors, and they are endorsed by the British Medical Association. The Law Commission has recommended a statute law to confirm this situation.
Although it was not a case of a living will or an advance directive, the English Court of Appeals has in a leading case upheld the right of an individual to refuse medical treatment holding that ‘having regard to the right of an individual to autonomy and self-determination, an adult of sound mind was entitled to refuse medical treatment, even when his or her own life depended on receiving such treatment’. The court has gone further to hold that ‘in the case of a pregnant woman, that right was not diminished merely because her decision to exercise it might appear morally repugnant’. (1998 (3) All ER 673).
Law has settled the fact that an adult may refuse treatment. It has also been made clear that if a patient has been giving treatment against his wishes, then such treatment is tortuous. When we say tortuous, we simply mean that it is a civil wrong. This can be justified by saying that if a patient has made a living will, heis entitled to receive what he has stated in the living will, and the medical practitioner and his family should respect his or her wishes.
Tell us your view on Living Will or Advance Directive which is legal in the US? How is it legally different from euthanasia?
From the standpoint of substantive law, there is not much difference between Living Will or Advance Directive and euthanasia. In the case of Living Will or Advance Directive, any normal person who is in command of his mental faculties can prepare a Living Will or issue Advance Directive to the effect that if he goes in a persistent vegetative state or that he is terminally ill and he himself is not in a position to take any decision as regards the medical treatment, then he can clearly express his desire in the Living Will or in the Advance Directive that no medical treatment be given or be given only for aspecified purpose. The Living Will and Advance Directive are only procedural aspects of euthanasia. There is also a concept of “Health Proxy” or “Enduring Power of Attorney”. The Health Proxy or Enduring Power of Attorney is an authorization given to another person to take a decision on behalf of the patient who is in the aforesaid state and is unable to decide whether any medical treatment should be administered or not. All the aforesaid provisions contained in different Statues in England and America deal with the procedural aspect of euthanasia. In case of euthanasia, as is understood in India, the question of artificially terminating the human life arises when the patient is in a persistent vegetative state or terminally ill etc. and when no recovery seems possible.
It is being argued that the declaration under a living will or an advance directive would be treated in India as suicide and the person giving such a directive would be guilty of attempt to committing suicide or the concerned doctor would be punishable for abatement to suicide. What is your opinion on this?
Living Will or an Advance Directive is alien to Indian legal system. Any such document executed by a person would be a clear expression of intention to commit suicide and, therefore, an offence under the Indian Penal Code. Any doctor who would assist such a person would be guilty of abetting suicide and, therefore, would be also committing an offence under the IPC.
Do you think a Living Will or Advance Directive will be a feasible legal option in India considering the cases like Aruna Shaunbaug where the Supreme Court denied euthanasia?
In order to legalize Living Will or Advance Directive, the Parliament will have to enact a law in that behalf. Unless such a law is enacted, it is not possible to give effect to the idea of Living Will or the Advance Directive.
A number of people would consider a living will as an attempt to suicide. ‘Suicide’ means self-killing. To commit suicide is to kill oneself voluntarily, with the purpose of destroying one’s own life, conscious of the probable consequences and having the frame of mind to kill oneself. If the act of suicide fails to accomplish its purpose, it constitutes an attempt to committing suicide, which is an offence. There should not be any confusion regarding living will and euthanasia. There are a lot of significant legal and ethical differences between the two.
A patient cannot refuse basic care like immediate first aid treatment with regard to injuries he has suffered. This simply means that only people who are fully in their senses and can understand right and wrong have the right to choose the type of treatment given to them. In a recent case, law referred to as ‘Adult: Refusal of Medical Treatment’ indicated that the person must be mentally competent and fully aware of the consequences.
If doctors are faced with difficult decisions, it is helpful to them to know the considered opinion of the patient, expressed when in full possession of his faculties, and not in great pain or distress.
Most people in India are not aware of the concept of a living will. A living will is not to be confused with ‘will’, in an ordinary sense. A living will neither disposes of property nor is it operational after death. It has none of the features, which a testamentary document possesses.
There is no judicial pronouncement in India regarding a living will and there may not be many precedents of people in our country having exercised the right of executing a living will or issuing an advance directive. However, the question which needs consideration is whether declaration under a living will or an advance directive would be treated in India as suicide and whether the person giving such a directive can be said to be guilty of attempt to commit suicide or the concerned doctor can be punishable for abatement of suicide. Suicide means the intentional killing of oneself. A living will while being a declaration stating that the person who makes the will desires to die a natural death and does not wish to use extraordinary medical treatment or artificial means to extend his life cannot be considered to be intentional killing of oneself. Therefore, it is evident that following the line of considered court decisions in other countries a living will or an advance directive cannot be equated with suicide.
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