Life & Death are One Thread
LIFE & DEATH ARE ONE THREAD
Right to Life Includes Right to Die with Dignity
The rituals of embracing the life’s end have been practised by Indians since eternity. Prayopavesa, Santhara or Samadhi Marana and Mahaprasthana are all final pit stops in the spiritual trajectory of human life, as described in different religious traditions. These terms are variously understood as the grand journey, great going, liberation or desired death with a balanced mind.
“ The customs, followed by Hindus, Jains and Buddhists, are not regarded as suicide, but voluntary acts that give individuals the choice to end their lives in a dignified manner. “
These customs, followed by Hindus, Jains and Buddhists, are not regarded as suicide, but voluntary acts that give individuals the choice to end their lives in a dignified manner. The decision to hasten life’s end is undertaken after much introspection and practitioners are believed to choose them when they are either terminally ill or feel that life has served its purpose. Therefore, the right to exercise individual autonomy had religious sanctions for a very long time.
Common Cause believes that the right to die with dignity is an integral part of right to live with dignity. If an entire life lived with dignity culminates in an undignified death, in an environment encouraging intrusive procedures that invade privacy of the human body, it is degrading. Artificial medical interventions that merely extend the longevity of a meaningless life, do not translate into a life with dignity.
To that end, Common Cause approached the Supreme Court in 2005 with a prayer seeking to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity,” guaranteed under Article 21 of the Constitution. The petition requested the top Court to issue directions to the executive to adopt suitable procedures in consultation with the state governments, for ensuring the execution of an Advance Medical Directive (AMD), also called ‘Living Will.’ These directives need to be drawn up by persons who are terminally ill or suffer from deteriorating health conditions.
On February 25, 2014, owing to the inconsistencies between the Division Bench judgment in the Aruna Shanbaug (2011) case and that of the Constitution Bench in the Gian Kaur (1996) case, which both had a direct bearing on the Common Cause petition, the Court invited a Constitution Bench to resolve the inconsistency and address the prayers. The Division Bench had in 2011 allowed passive euthanasia, subject to certain safeguards, under the presumption that the Constitution Bench in Gian Kaur (1996), had held that the right to life included the right to die.
On March 9, 2018 the Constitution Bench, comprising the Chief Justice of India Dipak Misra as well as Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, delivered four separate but concurring judgments bringing the right to die with dignity, within the fundamental right “to live”. This article analyses and presents the essence of the four judgments delivered on March 9, 2018.
Resolving Inconsistencies of Previous Judgments
The Court in the Common Cause case referred to the judgment in Aruna Shanbaug, which placed reliance on paragraphs 24 and 25 from Gian Kaur, and drew the conclusion that the Constitution Bench in the latter did not express any binding view on the subject of euthanasia. Rather, it reiterated that the legislature would be the appropriate authority to bring the change. The SC clarified that in the previous Constitutional Bench judgment (Gian Kaur) the right to die with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural death, curtailing the natural span of life.
The combined judgment of Justices Dipak Misra and A M Khanwilkar noted that “…a dignified procedure of death may include the right of a dying man to also die with dignity when the life is ebbing out. This is how the pronouncement in Gian Kaur has to be understood. It is also not the ratio of the authority in Gian Kaur that euthanasia has to be introduced only by a legislation... Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale is not correct. It is also quite clear that Gian Kaur does not lay down that passive euthanasia can only be thought of or given effect to by legislation. Therefore, it can be held without any hesitation that Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation.”
Passive Euthanasia and the Right to Die with Dignity
After a careful analysis of the Aruna Shanbaug and the Gian Kaur judgments, the Court noted that the legal position until this judgment was that right to life does not include right to die. It is in this background that the legality of passive euthanasia was being determined. In this momentous judgment, the Court not only provided legal validity to passive euthanasia, but also held that the right to die with dignity is an intrinsic facet of the right to live, under Article 21 of the Constitution, thereby enlarging the scope of this fundamental right.
The Supreme Court in its judgment legalised passive euthanasia by reiterating previous judgments and by referring to supporting material, including the 241st report of the Law Commission of India. The Court emphasised that “…The law must, therefore, in a changing society, march in tune with the changed ideas and ideologies”.
At the same time, it drew a clear distinction between active and passive euthanasia. Justices Misra and Khanwilkar’s judgment clearly states that only passive euthanasia would fall within the ambit of right to die with dignity under Article 21. The judgment also unequivocally declares that active euthanasia (where positive steps are taken either by the treating physician or any other person to terminate the life of the patient) will not be included in the right to die with dignity under the same Article.
In the context of social morality, medical ethics and state interest, the SC highlighted two important considerations. First, that withdrawal of treatment in an irreversible situation is different from not treating or attending to the patient. Second, the legal recognition of right to die with dignity under Article 21 will make apprehensions of physicians regarding facing litigation secondary. That’s because the primacy of the right of an individual in this regard has to be kept on a high pedestal.
Justice Sikri quoted from the judgment of the nine-judge Constitutional Bench in the case of K.S. Puttaswamy, where it was authoritatively held that the right to life enshrined in Article 21, includes the right to privacy. He pointed out that one of the facets of this right acknowledged an individual’s decision to refuse life prolonging medical treatment.
Advance Medical Directives and the Right to Self-Determination
The above reading of the law, in which there’s a clear recognition of the individual’s right to autonomy and self-determination so as to be able to refuse medical treatment, lies at the heart of the judgment delivered by the Bench. In the landmark judgment, the Court legalised the validity of the AMD, also known elsewhere as Living Will, to give effect to the individual’s right to refuse medical treatment in case of a terminal illness.
The SC did an analysis of the existing law in other common law countries and concluded that all adults with the capacity to consent have the common law right to refuse medical treatment. They also possess the right of selfdetermination. Justices Misra and Khanwilkar’s judgment dealt with this issue and thereby provided legal sanctity to the AMD:
“First, we shall analyse the issue of legal permissibility of the Advance Medical Directive. In other jurisdictions, the concepts of ‘living will’ and involvement of Attorney are stipulated. There is no legal framework in our country as regards the Advance Medical Directive but we are obliged to protect the right of the citizens as enshrined under Article 21 of the Constitution. It is our constitutional obligation. As noticed earlier, the two-judge Bench in Aruna Shanbaug (supra) has provided for approaching the High Court under Article 226 of the Constitution. The directions and guidelines to be given in this judgment would be comprehensive and would also cover the situation dealt with Aruna Shanbaug case.
191. In our considered opinion, 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 at 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 in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. ….”
On page 229 the SC states, “In this process, as far as ‘living will’ or ‘AMD’ is concerned, that needs to be permitted, along with certain safeguards. It would not only facilitate prevention of any misuse but take care of many apprehensions expressed about euthanasia.”
The Court pointed out that an individual’s self-autonomy gives him the right to choose his destiny. This, on the one hand, helps him decide through an advance directive at what stage of his physical condition he would not like to have medical treatment, while on the other hand, opening it to a possible misuse. It was held, however, that the possibility of misuse cannot be a valid ground for rejecting the need for an advance directive, as is also opined by the Law Commission of India in its 196th and 241st report.
Justice Chandrachud in his judgment defined Advance Directives as documents a person draws up while he or she is still in possession of decisional capacity. This means he can lay down instructions on how treatment decisions should be undertaken in the event she or he loses decision making capacity in future. He outlined three conditions for which these directives may be applicable: (i) a terminal condition; (ii) a persistently unconscious condition; and (iii) an end-stage condition.
Justices Chandrachud, Bhushan and Sikri all concurred with the observations made by Chief Justice Dipak Misra and Justice Khanwilkar with regard to the legal validity of the Advance Directive. They also agreed on the procedural mechanisms to be followed for its execution, which will act as a safeguard against its misuse. Justice Sikri in the concluding lines stated, “My last remarks are a pious hope that the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/ advance directive’ so that there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.”
The Need for Safeguards
In order to prevent any misuse of the AMD, the Bench added a word of caution. It stressed that doctors would be bound by the choice of self-determination made by the patient. The person receiving medical attention in this case could either be terminally ill and undergoing a prolonged medical treatment or surviving on life support. Therefore, the doctor needs to be bound by the patient’s choice, subject to being satisfied that his or her illness is incurable and there is no hope of him or her being cured. The judgment added that “any other consideration cannot pass off as being in the best interests of the patient.”
Justice Chandrachud elaborated: “The view which this judgment puts forth is that the recognition of advance directives as part of a regime of constitutional jurisprudence is an essential attribute of the right to life and personal liberty under Article 21. That right comprehends dignity as its essential foundation. Quality of life is integral to dignity. As an essential aspect of dignity and the preservation of autonomy of choice and decision-making, each individual must have the right on whether or not to accept medical intervention. Such a choice expressed at a point in time when the individual is in a sound and competent state of mind should have sanctity in the future if the individual were to cease to have the mental capability to take decisions and make choices. Yet, a balance between the application of the substituted judgment standard and the best interest standard is necessary as a matter of public interest. This can be achieved by allowing a supervisory role to an expert body with whom shall rest oversight in regard to whether a patient in the terminal stage of an illness or in a permanent vegetative state should be withheld or withdrawn from artificial life support.”
The Court gave a detailed explanation of how the AMD is to be defined and understood, and the legal procedures that are to be put in place for its execution, till the legislature drafts and enacts a comprehensive law on it. The Court directives have been provided in the following section.
SC Guidelines on Advance Medical Directives Defining AMD:
The AMD is a legal document with unambiguous instructions, detailing an individual’s decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to. It should specify the name of a guardian/close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the AMD. The document should also mention that it is revocable by the executor at any time and that he or she has understood the consequences of executing the AMD.
Execution of AMD
The AMD can be executed only by an adult of a sound mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. It must be voluntarily executed, without any coercion or inducement or compulsion and after having full knowledge or information. It should have characteristics of an informed consent given without any undue influence or constraint.
Recording and Preservation of AMD
When and by Whom Can it be Given Effect?
What if Permission is Refused by the Medical Board?
Revocation or Inapplicability of AMD
An individual may withdraw or alter the AMD at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of AMD. Withdrawal or revocation of an AMD must be in writing.
An AMD shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of drawing up the AMD, and which would have affected his/her decision had he/she anticipated them.
If the AMD is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the guidelines meant for patients without AMD shall be made applicable.
When the Hospital Medical Board takes a decision not to follow an AMD while treating a person, it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the AMD.
The lack of legislation on patient autonomy and self-determination has forced the SC to take a decisive step in this direction. The AMD guidelines will remain in force till an appropriate Act is passed by the Parliament. Though the guidelines are very comprehensive, we need an Act, which is unambiguous in the AMD’s definition and scope. Legislation detailing the complex terms and precise conditions of a Living Will is indeed the need of the hour. The Courts cannot and should not take on the policymaking role of the Parliament, but can only fill in a legislative vacuum. Now the executive must take a cue from the Apex Court judgment and come up with a draft legislation for effective deliberations, discussion and suggestions on a public platform. Undoubtedly, this is a much-awaited relief granted by the judiciary, which has on several occasions protected the citizens against intractable situations.