The introduction of a Bill in Parliament to govern end-of-life medical care appears to have been missed in all the din of political developments. Tabled by MP Baijayant Panda, the Treatment of Terminally Ill Patients Bill, 2016 contains several prominent features: it recognises the validity of advance medical directives by terminally-ill patients, which physicians will be bound to respect while treating them, and it also emphasises the need to account for palliative care when making end-of-life-care decisions. However, the provisions most likely to attract popular attention are those permitting physician-assisted suicide for terminally-ill patients.
In its judgments in the Aruna Shanbaug and Gian Kaur cases, the Supreme Court has stated that the law currently only permits passive euthanasia, i.e. withdrawal of life-saving treatment. The administration of a lethal drug dose by a physician (active euthanasia) or by the patient herself (assisted suicide) would constitute attempts to commit or abet suicide under the Indian Penal Code, 1860. However, in both these judgments, the court stated explicitly that assisted suicide was only illegal in the absence of a law permitting it. Therefore, assisted suicide could be legalised if legislation was passed by Parliament to that effect.
Right to assisted suicide
The first efforts have been made in this direction through this Bill, which recognises the right of terminally-ill patients to withhold and refuse medical treatment, and to express their desire to a medical practitioner to assist them in committing suicide. It does not permit active euthanasia. Once the practitioner is satisfied that the patient is competent and has taken an informed decision, the decision will be confirmed by a panel of three independent medical practitioners. This Bill is a bold and welcome step in many respects, and is a significant improvement over the draft Ministry Bill that it is based on. It moves away from decision-making based on the ‘best interests’ of the patient and recognises the right to die with dignity. However, there is need to clearly think through some of the provisions in this Bill and the procedures it sets out.
This Bill adopts a modified definition of “terminal illness” from a draft Medical Treatment of Terminally Ill Patients Bill, which was released by the Ministry of Health in May last year. However, like the draft Bill it is based on, it defines the term as a persistent and irreversible vegetative condition under which it is not possible for the patient to lead a “meaningful life”. The use of this subjective phrase would require second parties to decide whether a person in a permanent vegetative state is living a life that is meaningful. Persons with disabilities, in particular, are likely to be disadvantaged by such an understanding of “terminal illness”. It also gives rise to the practical question of how a person in a permanent vegetative state will be able to self-administer the lethal dosage of drugs to commit suicide.
In the case of incompetent patients, or competent patients who have not taken an informed decision about their medical treatment , the Bill lays down a lengthy and cumbersome process before any action can be taken for the cessation of life. Once the medical practitioner and independent panel are satisfied that euthanasia is medically advisable, permission would have to be sought from the High Court. The practitioner would then have to receive clearance from the Medical Council of India (MCI). Such a procedure is advisable for an act like assisted suicide which might be prone to abuse. However, it would be a violation of patient autonomy if it were applied to instances of merely withholding or withdrawing medical treatment. Decisions on such withdrawal are made often and on a regular basis, and the procedure prescribed must not tie up the medical practitioner and family of the patient in litigation. Further, given that the MCI has been affected by corruption and institutional incompetence, and likely to be overhauled completely, it is not advisable to place complete reliance on it. Ideally, its role should ideally be limited to framing guidelines and providing guidance when requested.
The way ahead
Efforts to allow assisted suicide have gained traction around the world in the recent past, with Albania, Colombia and Germany and Switzerland having legalised it in various forms. Even in India, the debate over euthanasia, patient autonomy and the interests of the state in preserving the life of persons is currently playing out in various fora, including the courts and the executive. While the ethical implications of these acts have been debated endlessly, there is a need to debate how such a law would be operationalised. This will help to ensure the constitutionally guaranteed right to bodily integrity and autonomy, and to minimise misuse of the law. This Bill acts as a great starting point, and must take these debates into account to be implemented effectively.
Nivedita Saksena is a lawyer working on public health at the Vidhi Centre for Legal Policy