LIVING WILL
1. Context
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.
2. What is Euthanasia?
Euthanasia refers to the practice of intentionally ending a life to relieve pain and suffering. With Greek roots, the word translates into ‘good death’ or ‘easy death’ and is also known as ‘mercy killing’. It is associated with people with a terminal illness or who have suffered irreversible incapacitation and are undergoing incurable pain.
The right to die or end one’s life is not a novel aspect of modern society. Instances of active euthanasia are found in the Greek civilization. Debates about the justifiability of euthanasia on moral, religious, and practical grounds, however, have been intrinsic to discussions on the theme.
3. Active and Passive Euthanasia
- Active euthanasia involves an 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 legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’ or a written document specifying what actions should be taken if the person cannot make their own medical decisions in the future.
- If a person does not have a living will, family members can make a plea before the High Court to seek permission for passive euthanasia.
4. Euthanasia in India
- The present law on euthanasia in India is a result of the landmark Supreme Court judgment in the Common Cause v. Union of India, 2018 case which legalized passive euthanasia and stated that the same was not an offense under IPC as it neither at par with murder nor with an attempt to suicide.
- The SC used religious texts and scriptures and references from schools of jurisprudence to indicate the moral sanction for ending the life of the terminally ill.
- It held that the 'right to die' is a part of Article 21 of the Constitution, and a person has a right to live with dignity until his death. The judgment permitted the execution of a Living Will or advanced medical directives by declaring that a Living Will is a part of the right to live with dignity.
- The Apex Court also introduced guidelines to be followed while performing euthanasia and a set of procedures involved in executing a Living Will.
- A Living Will is a document containing a person’s wishes in case s/he becomes incapacitated. It must be executed by a patient who is of sound mind and capable of understanding its consequences.
5. Evolution of laws on Passive Euthanasia
- The first judgment to deal with the issue of euthanasia was the Maruti Shripati Dubal v. State of Maharashtra case, 1986 where the Bombay High Court declared that the rights have both negative and positive aspects. The right to life under Article 21 could therefore also be interpreted as the right not to live a forced life.
- In the P Rathinam v Union of India, 1994, the Supreme Court held that criminal penalties for suicide violate the constitutional right to life by amounting to a double punishment and it rendered Section 309 of the IPC unconstitutional.
- The above judgment was overturned by the Supreme Court in 1996 in Gian Kaur v. the State of Punjab, which pronounced the judgment that both active and passive euthanasia and assisted suicide is unlawful in India and that the right to life did not include the right to die.
- The landmark judgment in 2011 in the Aruna Shanbaug v. Union of India was a major milestone wherein the SC held that passive euthanasia is legally valid in the country under exceptional circumstances, which allowed withdrawal of life support to patients in a persistent vegetative state (PVS).
6. Living will 2018 Guidelines
- As per 2018 guidelines, a living will be 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).
- 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.
7. Living Will new guidelines
- 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 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.
- According to the 2018 Judgement, only a judicial magistrate could attest or countersign a living will, which would remain with the district court.
- In the apex court's new judgment, this power has been given to a notary or a gazetted officer and the document will now be in the national health records accessible by hospitals.
- The 2018 Judgement made no mention of any stipulated time within which a decision had to be made.
- Now, a secondary board must immediately be constituted by the hospital and the primary/secondary board must decide within 48 hours on the withdrawal of further treatment.
For Prelims & Mains
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For Prelims: Euthanasia, Active Euthanasia, Passive Euthanasia, Judicial Magistrate of First Class (JMFC), and Persistent vegetative state (PVS).
For Mains: 1. What is Active and Passive Euthanasia? Discuss the evolution of laws on Passive Euthanasia.
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Source: The Indian Express
