Recently, the concept of “living will” is being discussed in the Supreme court now. The Supreme court has given its directions regarding euthanasia and living will. So, this article deals with the living will or advance directives, its validity and the recent guidelines.

Euthanasia

Euthanasia is an act of deliberately putting a person’s life to an end, in order to eliminate suffering. That is medical treatment can be withdrawn to hasten a person’s death.

Euthanasia is described as “the painless killing of a patient suffering from an incurable and severe sickness or in an irreversible coma” in the Oxford English Dictionary. The phrase was used to refer to an “easy death” and appears to have first entered common usage in the early 17th century. The word is derived from the Greek words “euthanatos,” where “eu” stands for “well” and “thanatos” for “death.” Citizens had a right to a happy death to end their suffering from a terminal sickness in ancient Greece and Rome.(Manning, 1998)[1]

Kinds

1. Voluntary
2. Non-voluntary
3. Involuntary

1. Voluntary:

It means killing at the request of a person. This implies that the patient specifically means to end his/ her life. This type is generally accepted on request of someone who is either

 i) in intolerable pain or ii) who is suffering from an illness which is agreed to be terminal. This may be prior to the development of the illness or during the course. Both active and passive euthanasia come under this type.

• Non-voluntary:

Where a person is incapable of making decisions or refusing to make such request. Therefore, some sort of proxy request that his/her life be ended. In practice, this type of euthanasia is looked at as an arguable alternative to non-treatment.

• Involuntary:

Where a person killed capable of making such a request but has not done so. This means that in absence of either a personal or proxy invitation a person’s life is ended.

The legal fraternity recognises or deals with euthanasia as,

1. Active
2. Passive

1. Active:

This active euthanasia means physician-assisted suicide, where the injection is administered by an undertaking of the patient themself. This also means the death is caused by the administration of lethal drugs or injections.

• Passive:

Here euthanasia occurs when medical practitioners do not provide life-sustaining treatment or remove the person from necessary treatment to sustain life. This also includes,

• Switching of life support
• Disconnecting a feeding tube
• Not carrying out a life-extending operation
• Not administering life-extending drugs

Stance of Indian courts

In India, the question of euthanasia was first discussed in case of P. Rathinam vs Union of India, it debated whether the penalty in case of an attempt or commit to suicide is valid or not. Section 306 of the IPC makes the abetment of suicide a punishable offence. Section 309 IPC makes attempt to commit suicide a punishable offence. These provisions specifically prohibit a person from terminating his life and negate the right to die. The Supreme Court held that right to live includes the right to die also.

In India, active euthanasia is illegal and not permissible as held in Gian Kaur vs the State of Punjab. This judgement overruled the previous Rathinam case, holding that the principle is not right. As the right of someone to choose to die or commit suicide is unnatural. which brought back the validity of an attempt to suicide as an offence. There is an intrinsic difference between active euthanasia, it is a positive affirmative act whereas, passive euthanasia relays to the withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.  In active euthanasia, a specific unconcealed act is done to end the patient ‘s life whereas, in passive euthanasia, something is not done which is necessary for preserving a patient’s life. It is due to this difference that most countries across the world have now legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.

The Bombay High Court in M.S. Dubal vs. the State of Maharashtra[2] observed that the right to live includes the right to die. On the contrary, the Andhra High Court held that the right to die is not a fundamental right. The courts in India have given varying opinions regarding this matter. But in P. Rathinam vs Union of India[3], the Supreme court of India held that Section 309 of IPC was violative of Article 21. Further, it observed that an attempt at suicide cannot be against the state or religion, as it does not cause harm to others. The court inferred the section to be irrational and cruel, punishing someone again who has already suffered agony because of the failure to attempt.  The constitution bench of the Supreme court in Gian Kaur vs State of Punjab[4], stated the right to life, which includes the right to live with dignity, would mean ‘the ceasing of the right to naturally end the life’ and necessarily upheld the constitutionality of Section 309 of IPC.

Whereas, the landmark judgement of Aruna Ramachandra Shanbaug vs Union of India upheld the right to die with dignity as a part of Article 21 of the Constitution. This case discussed the nuances of euthanasia in detail.

 The SC took note of other country legislations, where it discussed the Bland judgement[5]. In the Bland case, the house of lords permitted the patient to die, where the court observed that when a person is in Persistent Vegetative State (PSV) and it opined that it is ultimately the court’s decision, as to what is in the best interest of the patient.

The right to life cannot be devalued, it shall also recognise the right to die with dignity.

Further, the court observed that it shall lay down certain principles and guidelines in case of execution of a living will or advance directive procedures.

The court also stated that,

“We have laid down the principles relating to the procedure for execution of Advance Directive and provided the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none, in the exercise of the power under Article 142 of the Constitution and the law stated in Vishaka and Others v. State of Rajasthan and Others. The directive and guidelines shall remain in force till the Parliament brings a legislation in the field.”

Whether withdrawal of life support valid? Does the Indian constitution confer the ‘right to live’ and include the right to die under article 21 of the constitution? The courts in India have given varying opinions regarding this matter.

Where does the world stand?

The status of the legality of euthanasia differs in different countries across the globe. The Netherlands and Belgium have held euthanasia and PAS as legal.

Other countries such as Norway, New Zealand, Spain, Sweden, Mexico, UK have a status of total illegality, whereas Japan, south Africa are unclear about the status of legality.

The Indian status of euthanasia has accepted passive euthanasia in the 2018 judgement (Aruna Ramchandra Shanbaug vs. Union of India). It has also recognized the concept of living will. The government has also some guidelines as to the practice of living will. Though the order of the court recognises passive euthanasia, that procedure is regarded as time-consuming. Currently, the law has given different guidelines, that will be discussed further.

Living will

It sets out patients’ wishes regarding how they want to be treated if they are seriously ill. It is a legal document that specifies the type of medication that an individual does or does not waif they cannot to communicate their wishes.

The evolution of living will

• 2006- The law commission in its 196^th report named “Medical Treatment to Terminally Ill Patients and Medical Practitioners” mentioned that a patient’s decision as to not receive medical treatment do not constitute an attempt to commit suicide. Also, the doctor who treats, and obeys the instruction of the patient do not commit any breach.
• 2011- Aruna Shanbaug Case, the SC allowed passive euthanasia.
• 2017- The Puttaswamy Judgement – Article 21 included the concept of individual dignity.
• 2018- Common Cause case- the SC legally allowed passive euthanasia and laid down the guidelines.

In the year 2018, in the case of Common Cause vs Union of India, the court observed,

 “An advance medical directive would serve as a fruitful Mensa to facilitate the fructification of the sacrosanct right to life with dignity.” This landmark judgement listed some guidelines:

Guidelines (2018):

• It shall be executed only by an adult who is sound and healthy of mind and is in a position to communicate.
• It shall be voluntarily executed without any coercion and after having full knowledge.
• There should an informed consent without any undue influence.
• It shall clearly state when the medical treatment shall be withdrawn or no specific treatment shall be given to effect to slow the process of death, which otherwise may put him/her in pain, anguish and suffering and further put him in a state of indignity.
• A living will be signed by an executor in presence of two attesting witnesses and countersigned by a judicial magistrate of the first class (JMFC).
• The JMFC shall preserve a copy of the document in his office. He/she shall inform the family members and make them aware of the execution of the document.
• The copy shall be handed over to the competent officer of the local government or municipality.
• The JMFC shall, if necessary, hand over a copy of the advance directive to a family physician if necessary.

When shall be it executed?

• If the executor becomes terminally ill, the treating physician is aware of the advance directive and shall ascertain the authority from the JMFC.
• The Hospital where the patient is admitted shall constitute a medical board consisting of at least three experts from the field of medicine and the medical profession.
• If the hospital medical board certifies that the structure contained in living will be carried out. The judicial collector shall constitute a medical board with the chief medical officer of the district as chairman and three experts’ field of the medical profession.
• The consent of the executor is necessary if the executor is capable of understanding the consequences.
• Then the board constituted by the collector shall inform as to the decision and authorize the implementation of the board.
• It is open to the executor to terminate the document at any stage of the implementation. The revocation of the document shall be in writing.
• if the medical board denies it, the parties can file a writ application as under Article 226 of the constitution.
• the guidelines were changed to the unwieldy process. Therefore, the Supreme court directed this as a result of a petition filed by a non-profit organisation.

Changes as to guidelines (2023):

1. Earlier the guidelines mandated the executor to sign the living will or advance directive to be in presence of two witnesses and a signature by the magistrate.

Now a notary or gazetted officer can sign the living will instead of a magistrate sign, in presence of two witnesses.

• Earlier the process of constituting two boards by the hospital and the collector.

 Now both boards will be constituted by the hospital.

• The magistrate’s approval has now been replaced by an intimation by the magistrate.
• Earlier there was no time limit as to the decision of the medical board, it is now necessary to communicate its decision within 48 hours.
• If the medical board refuses permission, the kin and kith of the executor shall approach the High Court which shall form a new medical team. 

After the changes to the living will guidelines, it is believed that the cumbersome process will be reduced and help the patients to die dignifiedly.

Conclusion

The pronouncements from various cases by various judges namely from Dipak Mishra. J, A.K. Sikhri. J, D.Y. Chandrachud has prepared a structure, it is the legislative body that has to frame specific laws in order to regulate and shall be drafted with a forethought of development in medicine and technology. In one way the decision is a progressive step in order to free people’s loved ones from guilt to take difficult decisions and relieves the doctors from being tried for culpable homicide. The living will respect the patient’s human rights, and also knowing what the patient needs, the doctor can administer what the patient exactly wants. The responsibility is now with the legislative body to frame rules and laws and help in development of medicine.

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[1] Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).

[2] https://indiankanoon.org/doc/490515/

[3] https://www.scobserver.in/journal/right-to-die-court-in-review/

[4]https://www.scobserver.in/journal/right-to-die-court-in-review/

[5] https://www.globalhealthrights.org/wp-content/uploads/2013/01/HL-1993-Airedale-NHS-Trust-v.-Bland.pdf

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Author: Niranjana N

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