What is a living will, and the new Supreme Court order for simplifying passive euthanasia procedure?
- Recently, a five-judge Bench of the Supreme Court agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.
- It was laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
Euthanasia
- Meaning: Practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
- Type: Administered only by a physician, can be either ‘active’ or ‘passive’.
- Active euthanasia: It involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
- Passive euthanasia: Withdrawing life support or treatment that is essential to keep a terminally ill person alive.
- Legality: Legalised in India by the Supreme Court in 2018.
- Condition: Contingent upon the person having a ‘living will’ or a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
SC ruling in 2018
- Allowed passive euthanasia: Also recognised the living wills of terminally-ill patients who could go into a permanent vegetative state, and issued guidelines regulating this procedure.
- No Parliament legislation: This has not happened, and the absence of a law on this subject has rendered the 2018 judgement the last conclusive set of directions on euthanasia.
- Questions raised: Who would execute the living will, and the process by which approval could be granted by the medical board.
Situation before 2018
- P Rathinam vs Union Of India, 1994: In a case challenging constitutional validity of Section 309 of the IPC (mandating up to one year in prison for attempt to suicide), SC deemed it to be a “cruel and irrational provision”.
- Smt. Gian Kaur vs The State Of Punjab, 1996: A five-judge Bench said that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
- Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then.
- Law Commission of India, 2006: It recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
- Law Commission’s ‘241st Report On Passive Euthanasia, 2008: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.
- 2018 guidelines on living wills: A living will was required to be signed by an executor in the presence of two attesting witnesses & to be further countersigned by a Judicial Magistrate of First Class (JMFC).
2018 guidelines
- Conditions for treating physician: It was required to constitute a board comprising 3 expert medical practitioners with 20 years of experience, who would decide whether to carry out the living will or not.
- If medical board granted permission: The will had to be forwarded to the District Collector for his approval.
- Collector to form another medical board: The board will constitute 3 expert doctors, including the Chief District Medical Officer.
- If the second board agrees: The decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
New process
- Both boards to be formed by the hospital: The requirement of 20 years of experience for the doctors has been relaxed to five years. The requirement for Magistrate’s approval replaced by an intimation to the Magistrate.
- Medical board to communicate its decision within 48 hours: The earlier guidelines specified no time limit.
- A notary or gazetted officer can sign the living will: It will be signed in the presence of two witnesses instead of the Magistrate’s countersign.
- If medical boards refuse permission: It will now be open to the kin to approach the High Court which will form a fresh medical team.
Laws in different countries
- Netherlands, Luxembourg, Belgium: They allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
- Switzerland: It bans euthanasia but allows assisted dying in the presence of a doctor or physician.
- Canada: It announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023.
- United States: It has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
Prelims Takeaway
- Euthanasia