In India, the law is not clear as to when a person really dies.
Section 46 of the Indian Penal Code defines ‘death’ as the ‘death of a human being’. Section 2(b) of the Registration of Births and Deaths Act, 1969 does not recognise brain stem deaths. So, hospital authorities continue to sustain the patient till his heart ceases to beat. But the Transplantation of Human Organs Act, 1994 says that if a person is willing to donate his organs, his brain stem death is certified and recognised.
Should a patient be left to the vagaries of these contradicting laws in the final moments of his life? Does the dignity of human life end when a terminally-ill patient, already ‘brain dead’ and in a vegetative state, is forcibly subjected to invasive medical technology and life-support mechanisms like such as ventilators by institutional hospitals authorities who want to avoid the risk of being hauled up for violating the law?
Four petitioners who are professionals— Girish Trimbak Gokhale, Rajkumar Mani, Srinagesh Simha and Roopkumar Dayaram Gursahani — have moved the Supreme Court for the right of a person to plan the course of his own treatment or Advance Care Directives, to avoid being subjected to any kind of medical treatment which violates both physical and personal dignity during the last moments of life. This also includes the right to choose to not seek to receive and obtain any kind of medical treatment.
The proposed Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill which was put up for public comments has not been finalised or presented before Parliament till date. But the draft law only addresses the issue of euthanasia and not the right of a person to refuse treatment under Article 21 (right to life) of the Constitution.
The right to life entails the right to decide one’s future medical care in the advent of a terminal illness, they argued. “Nobody can insist upon [the] patient taking invasive treatment in preference to alternative medication. Equally, it is entirely upon a person to decide whether to take any treatment at all”.
The petitioners argued how the fundamental right to choose one’s medical treatment or even to decide to deny oneself any treatment is confused with euthanasia or other forms of attempts to suicide. “It is submitted even if the result of not taking treatment is enhanced likelihood of death (for nobody can predict with certainty) it does not amount to an attempt to commit suicide if a person who is affected with illness, declines treatment,” the petition said.
They contended that as long as a person has the capacity to decide, it is the will of the patient and that alone should decide treatment, the extent of the treatment, the form of the treatment and also the right to completely refuse any kind of treatment. Equally, a patient has the right to terminate at any point of time treatment which he considers unacceptable for any reason.
They wanted the Supreme Court to judicially declare a legal framework for Advance Care Directives, and at least allow a person to embrace death with the same dignity as he has lived his life. A bench led by Chief Justice of India J.S. Khehar has asked the Ministry of Health to consider their petition.
