Saturday, 10 March 2018 | Abraham Thomas | New Delhi-
In a landmark judgment, the Supreme Court has paved the way for “passive euthanasia” by allowing withdrawal of life support to a patient if s/he slips into irreversible coma. The doctors treating such a patient will withdraw medical support provided the patient has left behind a “living will” for pulling the “plug” in such situations. The Friday judgment of the five-judge Constitution Bench of the Supreme Court will be in operation till Parliament enacts a suitable law.
While right to take one’s life is not recognised under the right to live enshrined in Article 21 of the Constitution, by this judgment the apex court has also said that in the absence of a “living will” by the patient, the family can request the hospitals treating him to constitute a medical board to determine on withdrawal of life support in case of irreversible coma.
The judgment came on a PIL filed by NGO Common Cause and was argued by noted lawyer Prashant Bhushan.
So far, pulling the plug on a terminally-ill patient posed a grave moral and ethical dilemma to the family as also to the treating doctor and hospital who ran the risk of criminal prosecution for abetting murder.
Realising this, the Bench said that the “living will” must be an informed consent by an adult while in a sound state of mind before a Judicial Magistrate of First Class and in the presence of two independent witnesses who will attest. The said instruction will unambiguously indicate when medical treatment is to be withdrawn and even name a guardian or close relative who will execute the said “will” in the event the patient slips into coma or persistent vegetative state (PVS). A copy of the
will shall be restored in the office of the Judicial Magistrate and the local municipality or panchayat.
The decision, given by the Bench of Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, said, “The right to live with dignity (a component of right to life and liberty under Article 21) also includes the smoothening of the process of dying in case of a terminally-ill patient or a person in PVS with no hope of recovery. A failure to recognise advance medical directives (or living will) may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”
When the living will or medical directive is produced by the family to the treating doctor, the hospital shall constitute a Medical Board of three doctors of minimum 20 years standing to examine the patient and the feasibility of executing the “living will”. Their preliminary opinion will be forwarded to the District Collector who will constitute another Medical Board headed by Chief Medical Officer of the district and three other doctors. The Board will visit the patient and give its view on the opinion of the first medical board.
If both the boards concur, the Collector will communicate the decision to the Judicial Magistrate, who will issue orders to execute the living will. However, in case of difference of opinion or rejection by the Medical Board on account of ambiguity in the advanced directive, the family or the hospital can approach the High Court that will expeditiously hear and decide the case. It will be open to the HC too to constitute a Medical Board of its own.
The court also considered such cases where no living will or directive is left behind. The treating doctor, on the request of the family members, may ask the hospital to form a Medical Board. Taking into account above safeguards, the same process will be adopted. Here too, the final decision to withdraw life support will be that of the Judicial Magistrate of First Class. In cases where the matter come up before the High Court, the Magistrate will intimate withdrawal of life support and the said order shall be preserved in court records for three years after the patient’s death.
With the advancement in medical technology and the fact that medical directive achieved lawful recognition in the US, Australia, Canada and other jurisdictions, the Bench felt that it was time for India to recognise this right as part of a citizen’s right of self-determination, dignity, autonomy and privacy as well by choosing not to suffer a painful death.
The landmark decision saw four out of the five judges penning separate judgments each arriving at the same conclusion but with different reasoning. Justice Sikri who termed the issue at hand to be “thorny and complex” coming within the category of “hard cases” that a judge has to encounter, captured the emotion of his judgment by quoting the lyrics of a popular Bollywood number “Rote hue aate hain sab, hasta hua jo jayega…” from the movie “Muqaddar ka Sikandar”. Making an interesting analysis of how passive euthanasia is opposed in the country both morally and religiously, the judge voted in its favour citing human dignity and the cost benefit involved in opting for the same.
Justice Chandrachud weaved the right to privacy into the issue by saying, “Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and integrity recognised as a facet of privacy.” He further clarified that while active euthanasia is a crime, same is not the case with passive euthanasia as the element of good faith and objective assessment of the caregiver of the patient will protect doctors performing this task.
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