Draft Bill on Passive Euthanasia

Euthanasia is the practice of intentionally ending a life in order to relieve pain and suffering. It’s of two kind viz. Active and Passive. Active euthanasia occurs when the medical professionals, or another person, deliberately do something that causes the patient to die. It is illegal in India.  Passive euthanasia occurs when the patient dies because the medical professionals either don’t do something necessary to keep the patient alive, or when they stop doing something that is keeping the patient alive. This includes:

• switch off life-support machines
• disconnect a feeding tube
• don’t carry out a life-extending operation
• don’t give life-extending drugs

We note that in Aruna Shaunbaug case Supreme Court had declared passive euthanasia as legal in India. Since there was no law related to euthanasia, the Supreme Court judgement is used as law of the land until the Indian parliament enacts a suitable law.

The Union government has recently come up with a draft bill on passive euthanasia. It gives patients the right to “withhold or withdraw medical treatment to herself or himself” and “allow nature to take its own course“.

India’s Euthanasia Timeline

• In 2006, the 196th report of the Law Commission of India brought out `The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill 2006. However, health ministry had opted not to make any law on euthanasia.
• In March 2011, while hearing the Aruna Shabaug versus Union of India case, the Supreme Court laid down guidelines to process pleas for passive euthanasia. It said till Parliament works out legislation, the procedures laid down by the guidelines should be followed. It also spelt out differences between active and passive euthanasia.
• In August 2012, The Law Commission again proposed making legislation on passive euthanasia and prepared a draft bill called the Medical Treatment of Terminally Ill Patients (protection of patients and medical practitioners) Bill. It doesn’t recommend active euthanasia.
• In May 2016, health ministry uploads the draft bill and wants people to give their views via email ([email protected]) before June 19, 2016, so that it can take a decision to enact/not to enact a law on passive euthanasia.

Euthanasia in other countries

As of June 2016, human euthanasia is legal in the Netherlands, Belgium, Colombia, and Luxembourg. Assisted suicide is legal in Switzerland, Germany, Japan, Canada, and in the US states of Washington, Oregon, Vermont, Montana, and California. Euthanasia is illegal in Australia, UK. Active euthanasia is illegal throughout the United States.

Salient Provisions of the Draft Bill

• A terminally ill patient above the age of 16 years can decide on whether to continue further treatment or allow nature to take its own course.
• Every competent patient, including minors aged above 16 years, has a right to take a decision and express the desire to the medical practitioner attending on her or him.
• The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.
• When a patient communicates her or his decision to the medical practitioner, such decision is binding on the medical practitioner. However, it also notes that the medical practitioner must be “satisfied” that the patient is “competent” and that the decision has been taken on free will.
• There will be a panel of medical experts to decide on case by case basis.
• The medical practitioner has to maintain all details of the patient and ensure he/she takes an informed decision. He is also required to inform the patient whether it would be best to withdraw or continue treatment. If the patient is not in a conscious state, he/she needs to inform family members. In the absence of family members, the medical practitioner needs to inform a person who is a regular visitor.
• The draft also lays down the process for seeking euthanasia, right from the composition of the medical team to moving the high court for permission.
• The Bill only portends to legalise what is called “passive euthanasia”, as discussed in the judgement pertaining to Aruna Shaunbaug.
• Active euthanasia is not being considered “as it is likely to be used by unscrupulous individuals to attain their ulterior motives.”

Questions for Analysis

• There have been mixed reactions with the passage of the draft bill for passive euthanasia. What are the probable concerns with regard to the bill?
• What were the Supreme Court guidelines on passive euthanasia?
• What is “living will” and what are debates and arguments in relation to living will?

There have been mixed reactions with the passage of the draft bill for passive euthanasia. What are the probable concerns with regard to the bill?

Euthanasia is regarded as the only viable option when all end of life care mechanisms fall short of a better life for an individual who is terminally ill or in a vegetable-like state. Although a law on euthanasia is a prerequisite for people suffering from terminal illnesses, there was no legislation with respect to euthanasia in India until now. The government of India has finally come up with a draft bill on passive euthanasia.

Some consider it as a “good start”, but others didn’t quite agree.

The draft has disappointed experts who wanted complete clarity on the concept of a living will. A living will is defined as “a document in which a person states his/her desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from his/her terminal condition”.

Child rights activists are also not too happy about it. They opine that in India, signing a contract or marrying before the age of 18 is not permitted, then how can a child decide to live or die!

However, doctors are of the opinion that euthanasia should be made legal in cases where there is no scope of a patient recovering. There is no point in prolonging the physical agony of a terminally ill person.

India however requires a mix of sensitivity and maturity for such an important decision to be taken as it involves ‘right to life’ and ‘right to die with dignity’.

What were the Supreme Court guidelines on passive euthanasia?

The following guidelines were laid down for carrying out passive euthanasia:

• Decision to discontinue life support needs to be taken either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend.
• Such a decision can also be taken by the doctors attending the patient as bona fide in the best interest of the patient.
• Every such decision needs approval from concerned High Court.
• When a high court receives such application, the Chief Justice should constitute a Bench of at least two Judges who should decide to grant approval or not.
• This bench will nominate and need a report from a committee of three reputed doctors.

What is “living will” and what are debates and arguments in relation to living will?

In July 2014, the Supreme Court had issued notice to all states seeking their views on whether a terminally ill person can execute a “living will” that his or her life support system be withdrawn if he or she reaches a vegetative state with no hope of revival. The court has also appointed amicus curiae. This has reopened the debate on Euthanasia in India and rekindled the issue of right to die.

A Living Will is a document which sets out a patient’s wishes regarding health care and how they want to be treated if they become seriously ill and unable to make or communicate their own choices. Living wills are also called active declarations.

• Such a document may be helpful to relatives and to medical professionals in the case of a seriously ill and incapacitated patient.
• A living will is not an instrument of euthanasia, but a request in advance to doctors not to give certain medical treatments.
• A living will need not block treatment, but could specify that doctors must continue treatment until the patient is dead, regardless of pain or suffering.

Living wills are useful because:

1. They respect the patient’s human rights, and in particular their right to reject medical treatment
2. Creating them encourages full discussion about end of life decisions
3. Knowing what the patient want means that doctors are more likely to give appropriate treatment
4. They help medical professionals in taking difficult decisions
5. A patient’s family and friends don’t have to take the difficult decisions

Various arguments against living wills

1. Writing them may be very depressing.
2. It’s difficult for a healthy person adequately to imagine what they would really want in the situations where a living will would take effect.
3. It may be hard to translate the words of the living will into actual medical action.
4. Patients may change their minds but not change their living wills.
5. They’re no use if they can’t be found quickly when needed.

Debate and arguments

The current demand from India lawmakers regarding right to die ranges from de-criminalizing attempts to commit suicide and seeking to legalize mercy killing. We note here that attempt to commit suicides well as abetment of suicide is crimes. The problem is that to be able to make a living will, the legislation would need to decriminalize both.  Though, the court should consider the legitimacy of a will, but there are several issues. For example, if the death of the patient is of material value to those are who close to him / her (such as property), the suspicion over the validity of the living can become a legal issue. Thus, there is a need to carefully set up conditions under which a living will may be executed.