Changes in living will guidelines

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On Tuesday, a five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’, as laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia. What is the legal history of this matter, and the issues involved?

First, what is euthanasia, and what is a living will?

Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering. Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.

Active euthanasia involves active intervention to end a person’s life with substances or external force, such as administering a lethal injection. Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.

Passive euthanasia was legalised in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’ or a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.

In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

What did the SC rule in 2018?

The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state, and issued guidelines regulating this procedure.

A five-judge Constitution Bench headed by then Chief Justice of India (CJI) Dipak Misra said that the guidelines would be in force until Parliament passed legislation on this. However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.

The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board. “We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices,” the court said in the 2018 ruling.

And what was the situation before 2018?

In 1994, in a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide — the Supreme Court deemed the section to be a “cruel and irrational provision” that deserved to be removed from the statute book to “humanise our penal laws”. An act of suicide “cannot be said to be against religion, morality, or public policy, and an act of attempted suicide has no baneful effect on society”, the court said. (P Rathinam vs Union Of India)

However, two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia. (Smt. Gian Kaur vs The State Of Punjab, 1996)

In 2011, the SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”. (Aruna Ramchandra Shanbaug vs Union Of India & Ors)

Earlier, in 2006, the Law Commission of India in its 196th Report titled ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ had said that “a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.” It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.

Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.

What changes after the SC’s order this week?

The petition was filed by a nonprofit association that submitted that the 2018 guidelines on living wills were “unworkable”. Though the detailed judgement is yet to be released, the Court dictated a part of their order in open court.

As per 2018 guidelines, a living will was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and to be further countersigned by a Judicial Magistrate of First Class (JMFC).

Also, the treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience, who would decide whether to carry out the living will or not. If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.

The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer. Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.

This cumbersome process will now become easier.

Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital. The requirement of 20 years of experience for the doctors has been relaxed to five years.

The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate. The medical board must communicate its decision within 48 hours; the earlier guidelines specified no time limit.

The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign. In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

DIFFERENT COUNTRIES, DIFFERENT LAWS

NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.

SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.

CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.

UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.

UNITED KINGDOM considers it illegal and equivalent to manslaughter.