Passive euthanasia, the act of withdrawing life support to a terminally-ill patient, is already the law of the land, the government told a Constitution Bench of the Supreme Court.
The government pointed out that the Supreme Court itself, in 2011, had issued comprehensive guidelines allowing passive euthanasia in the tragic case of the bed-ridden former Mumbai nurse Aruna Shanbaug. In her case the staff of KEM Hospital took care of her till her natural death in 2015.
The government said it was finalising a draft law on passive euthanasia called 'The Management of Patients With Terminal Illness – Withdrawal of Medical Life Support Bill', which was drawn up in line with the recommendations of the Law Commission of India that life support can be withdrawn for patients in persistent vegetative state (PVS) or suffering an irreversible medical condition.
The Centre, however, objected to legalising the concept of ‘Living Will’ —an advance written directive to physicians for end-of-life medical care. It pointed out that this may lead to the abuse and neglect of the elderly, especially if they were financially well-off.
The government pointed out that the living will was a concept which contradicts a person's instinctive urge to survive.
Besides, the Ministry of Health and Family Welfare has, in an affidavit filed in January 2016 before the apex court, already refused to legalise ‘active euthanasia’ — an intentional act of putting to death a terminally-ill patient – on the grounds that this would lead to potential misuse and is practised in “very few countries worldwide”.
A five-judge Constitution Bench of Chief Justice of India Dipak Misra, Justices A K Sikri, A M Khanwilkar, Ashok Bhushan and D.Y. Chandrachud was on Tuesday hearing a petition filed by NGO Common Cause for legalising euthanasia and the Living Will.
But Chief Justice Misra remarked that a living will may relieve grief-stricken relatives the moral burden of deciding whether life support should be withdrawn from a terminally-ill person. Doctors may also be spared of any accusation of foul play or negligence in cases where patients had penned down a living will.
“A person is on ventillator. Who will take the decision to remove the life support. Everybody is in confusion. If there is a will, it is morally sustainable,” Chief Justice Misra remarked orally.
The Chief Justice asked whether a person's suffering should be unnecessarily prolonged. There should be a dignity in the process of dying just like how the law recognises the dignity of a person in death, he observed.
However, Justice D.Y. Chandrachud pointed out the pit-falls of passive euthanasia, elaborating on the nuances of when and who decides the point of final withdrawal of life support. The judge agreed with the Centre that chances of abuse in the case of the elderly was real.
“What is threshhold of pain at which the life support is to be withdrawn. How proximate should the withdrawal be from the point of likely death?” Justice Chandrachud asked.
Justice Chandrachud delved into the legal question of whether a person can actually have the right to deny himself medical treatment.
At this point, Chief Justice Misra asked whether there was any mechanism to ensure that a living will is genuine.
“What is the safeguard to ensure that it is really his will and how will one...who will certify that his condition is bad?” the CJI asked.
The court was responding to arguments led by advocate Prashant Bhushan, for Common Cause, that a living will is his choice to die in peace and with dignity, without unnecessary suffering.
Mr. Bhushan said cases of living will and their authenticity should be decided like how the Supreme Court, in its Aruna Shanbaug judgment, framed guidelines, which included the setting up of medical boards to decide cases of passive euthanasia.