Tuesday saw the Supreme Court’s five-judge bench, presided over by Justice K M Joseph, agree to change the rules for “living wills,” which were established in the court’s 2018 decision in Common Cause vs. Union of India & Anr, which authorised passive euthanasia. What are the issues at stake in this case, and what is the legal background?
Let’s start by defining euthanasia and living wills –
Euthanasia is the deliberate ending of a person’s life, frequently to alleviate the suffering of an uncurable illness or excruciating pain. Euthanasia, which can only be performed by a doctor, can be “active” or “passive.”
A lethal injection or other active intervention to end a person’s life with drugs or an outside force is an example of active euthanasia. Withholding treatment or life support that is necessary to keep a terminally sick individual alive is referred to as “passive euthanasia.”
The Supreme Court of India legalised passive euthanasia in 2018, but only if the patient has a “living will,” or a written document that outlines what should be done if they are ever unable to make their own medical decisions.
Families can petition the High Court for authorization to perform passive euthanasia if a person does not have a living will.
What was decided by the SC in 2018?
The Supreme Court established rules for passive euthanasia and recognised the lives and wishes of terminally ill people who might enter a permanent vegetative state.
The rules would remain in effect until Parliament introduced legislation on this, according to a five-judge Constitution Bench presided over by the former Chief Justice of India (CJI), Dipak Misra. But because there is no law on the matter, the 2018 ruling serves as the last and final set of euthanasia-related instructions.
The rules addressed issues such as who would execute the living will and the procedure by which the medical board could provide approval. In its 2018 judgement, the court stated, “We declare that an adult human person with mental capacity to make an informed decision has the right to refuse medical treatment, including withdrawal from life-saving technologies.”
And how did things stand in 2017?
The Supreme Court declared Section 309 of the IPC to be a “cruel and irrational provision” that needed to be removed from the statute book in order to “humanise our penal laws” in a case challenging its constitutionality in 1994. Section 309 mandates up to one year in prison for attempts to commit suicide. The court ruled that attempts at suicide have no negative effects on society and that attempts at suicide “cannot be deemed to be against religion, morality, or public policy.” The Indian Union vs. P Rathinam
However, two years later, a five-judge court panel overturned the P Rathinam ruling, arguing that Article 21’s right to life did not include the right to death and that only laws could authorise euthanasia.(1996) Smt. Gian Kaur v. Punjab State
Aruna Shanbaug, a nurse who had been sexually abused in Mumbai in 1973 and has been in a vegetative state ever since, was granted passive euthanasia by the SC in 2011. The court distinguished between “passive” and “active” behaviour and permitted the latter in “limited conditions.” Union of India v. Aruna Ramchandra Shanbaug & Others
In its 196th Report, published in 2006, the Law Commission of India addressed the topic of “Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)” and stated that “a doctor who complies with a competent patient’s request to discontinue or withhold medical treatment does not commit a violation of professional responsibility, and the failure to treat will not be a crime.” Additionally, it acknowledged the patient’s decision to forgo medical care and declared that this did not qualify as an attempt at suicide under Section 309 of the IPC.
The Law Commission once again suggested legislation on “passive euthanasia” in its “241st Report on Passive Euthanasia: A Relook” in 2008, along with a draught bill.
What has changed as a result of this week’s SC order?
A nonprofit organisation filed the petition and said that the 2018 living will standards were “unworkable.” The court outlined a portion of their order in open court, despite the fact that the whole judgement has not yet been made public.
A living will must be signed by an executor (the person seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and it must also be countersigned by a Judicial Magistrate of First Class (JMFC), according to 2018 rules.
A board of three competent medical professionals from distinct but related fields of medicine, each having at least 20 years of experience, was also required to be established by the treating physician. This board would decide whether or not to carry out the living will. The will had to be sent to the district collector for his approval once the medical board approved it.
A second medical board comprised of three leading physicians, including the Chief District Medical Officer, was thereafter to be established by the Collector. The JMFC would only be informed of the decision if this second board concurred with the hospital board’s conclusions. The JMFC would then visit the patient and decide whether to grant approval.
Now, this difficult procedure will be simpler.
The hospital will now create both medical boards, rather than the Collector and the hospital doing so. The minimum experience requirement for doctors has been lowered from 20 years to 5. An email notification to the magistrate has taken the place of the requirement for the magistrate’s approval. The medical board must notify the public of its decision within 48 hours; there was no time restriction given in the previous standards.
A notary or gazetted officer may now sign the living will in the presence of two witnesses in place of the magistrate’s countersignature, which was previously necessary under the 2018 rules. It will now be possible for the relatives to seek the High Court, which will assemble a new medical team, in the event that the hospital’s established medical boards deny authorization.
Different nations have various laws –
The Netherlands, Luxembourg, and Belgium permit assisted suicide as well as euthanasia for those who are experiencing “unbearable suffering” that is not likely to get any better.
While assisted suicide is prohibited in Switzerland, it is permitted in the presence of a medical professional.
Euthanasia and assisted death for mentally ill people would be legal in Canada by March 2023, but the decision has drawn heavy criticism, and the implementation date may be postponed.
Distinct states in the United States have different laws. Some states, including Washington, Oregon, and Montana, permit euthanasia.