The rights of the terminally ill

June 09, 2016 12:00 am | Updated June 07, 2017 03:46 pm IST

Euthanasia has always been fraught with moral, social, and religious tensions across jurisdictions. On the one hand, nations have tried to grapple with the issue by creating a legal framework that balances these multiple considerations. On the other hand is the Ministry of Health and Family Welfare’s draft Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016, which creates a flimsy framework. The Bill, which has been put up for public comments, has attracted a range of views so far. In particular, its refusal to give legal effect to advance medical directives (‘living wills’) is an abdication of legislative responsibility and a violation of Article 21 (protection of life and personal liberty).

Rights and limitations

The Bill does the bare minimum to give effect to the rights of competent terminally ill patients to refuse or request the withdrawal of life-sustaining treatment. This legal recognition of passive euthanasia has been a long time coming — the 196th Report of the Law Commission of India made this recommendation as far back as 2006, and the Supreme Court gave effect to it in Aruna Ramchandra Shanbaug v. Union of India in 2011 — which makes the Bill’s content more disappointing. The Bill virtually reproduces the model legislation set out in the 241st report of the Law Commission. The Commission had advised against recognising the legal validity of advance directives, and Clause 11 of the Bill regurgitates this recommendation without attempting to assess the merits of the Commission’s objection.

The 196th report recommended that an advance directive in exercise of the right to refuse medical treatment be overridden because of the fear that such directives would lead to unnecessary litigation. This position finds expression in the Bill. This is a conceptually problematic understanding of rights and their limitations. While rights are not absolute, the limitations that they are usually subjected to are imposed in order to give effect to other interests that are valued by society. Rights are not wholly taken away because there is a danger that they will be misused, especially not when all that this so-called danger involves is moving the courts frequently for their enforcement. The answer perhaps lies in a strong law that pre-empts litigation, rather than in refusing to give effect to the right altogether.

The government’s unthinking adoption of the Law Commission’s reasoning is in spite of the fact that it has had the benefit of hearing arguments in favour of advance directives through a PIL filed by Common Cause in the Supreme Court. Earlier this year, the court deferred the hearing in order to allow the government to draft legislation legalising passive euthanasia. This deferral by the court was appropriate; given the complexity of the issue, it is desirable that it be governed by comprehensive parliamentary legislation rather than by judicial guidelines.

However, the Bill demonstrates that the court’s faith was misplaced. The draft Bill negates the basic common law rights of a patient to autonomy over her own body and the determination of what treatment she is willing to undergo. The government has thus denied the patient’s fundamental right to life and liberty.

Absence of safeguards

There are several safeguards that the Bill could have incorporated from laws in other countries to ensure that advance directives are properly executed by medical practitioners. For example, a valid advance directive would have to be in writing and executed in the presence of witnesses. When concerns were raised about the informed consent process in PIL on clinical trials, the Supreme Court ordered the audio-visual recording of the process rather than banning trials outright. A similar provision could be considered to record the process of making an advance directive. If doubts about the validity of the directive were to arise at the time of execution, such a recording might prove useful in resolving them. Some of these safeguards have already been addressed in the Mental Health Care Bill, 2013.

By failing to address these questions, the Bill creates an irrational distinction between patients who are competent at the time at which a decision has to be made about refusing or withdrawing life-sustaining treatment, and those who are incompetent at such time, even though they might have expressed their decision earlier in the form of an advance directive. Clause 3 of the Bill states that the decision of the former category of patients to refuse such treatment is binding on their medical practitioners. For the second category of patients, Clause 9 of the Bill requires medical practitioners or relatives to move the High Court for permission to withdraw treatment.

The time at which the decision was made to refuse or request the withdrawal of treatment cannot be a rationale for distinguishing between these categories of patients, so long as such decisions were taken freely, fully informed, and not altered fundamentally since. Apart from being an infringement of the right to life under Article 21, the classification stands the risk of being struck down as unreasonable and therefore a violation of the right to equality under Article 14.

Besides this, other problems include drafting errors. The definition of “terminal illness”, for instance, seems to include even mental health issues! The choice of the High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives and does not take into account the fact that High Courts are unlikely to be able to deliver swift judgment in such cases.

However, the Bill’s biggest fault lies in its failure to protect the constitutional rights of patients who wish to have their decisions about medical treatment respected. Still, given that the Bill is in the draft stage, there is hope that the government will see the wisdom in recognising advance directives made by individuals regarding their treatment, and put in place a mechanism for their enforcement.

Alok Prasanna Kumar and Dhvani Mehta are Senior Resident Fellows at the Vidhi Centre for Legal Policy. Vidhi has filed an intervention application in the ongoing Common Cause v. Union of India PIL, arguing that advance directives be recognised in law in India.

The draft Bill fails to protect the constitutional rights of patients who wish to have their decisions about medical treatment respected

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