In this article, Tanya Nayak of KIIT School of Law discusses the legal position of passive euthanasia and living wills in India.

Passive Euthanasia

Passive euthanasia means the withdrawal of life support to patients in a vegetative state. Euthanasia cannot be justified with the common word i.e. killing because there is a difference between deliberately carrying out an act in order to get the desired result and simply omitting an act. Killing includes an action which is intended in order to get the consequences so desired whereas euthanasia refers to withdrawal of life support in case of patients who are in a complete vegetative state.

Acts amounting to passive euthanasia are

•         Switching off life support systems.
•         Disconnecting feeding tubes.
•         Not carrying out a life-extending surgery.
•         Not providing life-extending drugs.

‘’Thou shalt not kill but needst not strive, officiously to keep alive’’- Arthur Hugh Clough[1].

Legal position of Passive Euthanasia in India

• Active euthanasia is a crime under section 302 or 304 of IPC.
• Passive euthanasia is legal in India under exceptional circumstances. The theory of passive euthanasia got its legal status in the year 2011.
• In March 2011, the supreme court of India, passed a judgment in support of passive euthanasia, it permitted the practice of passive euthanasia in India.
• It all started in the year 2009 when Pinki Virani approached the highest court with a PIL as the ‘’next friend’’ asking the legislation of euthanasia so that Aruna Shanbaug’s continued suffering could end by withdrawing medical support. Further, it was contended by Pinki that the patient had been in a permanent vegetative state for the past 42 years and did not have any chance of recovery at all[2].
• The Supreme Court accepted the petition and immediately constituted a medical board, comprising of three eminent doctors. The report from the committee was that the patient was not brain dead and responded to some situations in her own way. They felt that there was no need for euthanasia in Aruna’s case. Further, the staffs at KEM Hospital and the Bombay municipal corporation filed their counter petition, in this case, opposing euthanasia for Aruna.
• The court in its decision elaborated the difference between active and passive euthanasia and said that active euthanasia means killing a person through the use of lethal substance or force, and passive euthanasia means withdrawing or discontinuing medical support necessary for the continuation of life.
• The court rejected the plea for euthanasia for Aruna Shanbaug but legalized passive euthanasia in the country[3]. The Court rejected the ambit of euthanasia but legalized passive euthanasia under special circumstances and also decriminalized the attempt to commit suicide by removing the punishment which was there under section 309 of IPC.

Guidelines given by the Supreme Court on Passive Euthanasia

The Court in this connection laid down the guidelines which will continue to be the law until Parliament makes a law on this point.

1. A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be made by the doctors attending the patient. However, the decision should be made bona fide in the best interest of the patient.
2. Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
3. When such an application is filled, the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. A committee of three reputed doctors to be nominated by the Bench, who will give a report regarding the condition of the patient. Before giving the verdict, a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict.

A timeline – Passive Euthanasia attaining its legal status

1. In 2006, 196th law commission report proposed`The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill 2006. However, the government didn’t choose to formulate any law with respect to euthanasia.
2. In March 2011, while hearing the Aruna Shanbaug’s case, the Supreme Court laid down guidelines to process pleas for passive euthanasia. It also laid down the differences between active and passive euthanasia.
3. Again in August 2012, drafting of a legislation on passive euthanasia was proposed by the law commission making a draft bill called the Medical Treatment of Terminally Ill Patients (protection of patients and medical practitioners) Bill. It could not go through because of lack of content regarding active euthanasia.
4. In May 2016 the ministry of health reviewed the bill and asks for a public opinion.

The concept of living wills

• The concept of living wills is associated with passive euthanasia but it is more a complex subject matter to legislate upon. A Living will is a legal document which allows an individual to express their wishes to doctors in case they become incapacitated.
• In a living will, one can outline whether or not they want their life to be artificially prolonged in the event of devastating illness or injury.
• The government didn’t support this concept and said that living wills could be misused and might be a threat to public health policy.
• Justice Dipak Mishra said that a living will relieve the relatives of taking the painful decision of advising doctors to withdraw life support from the patient.  
• The medical treatment of terminally ill patients ( protection of patients and medical practitioners) Bill recognized the concept of a living will but does not make it binding on medical practitioners and says that it cannot be executed by any patient since it would be considered void.
• However, the bill recognized the difference between a competent and an incompetent patient and states that if a person above 16 years of age understands the consequences of their decision and makes an informed call about the denial of the medical treatment, such a decision would be binding on the doctor. If the patient is below 16 years of age, then consent with regard to such a decision has to also be obtained from their parents or major spouse.
• On December 23, 2014, the government of India endorsed and re-validated the passive euthanasia judgment –law in a press release. The Hon’ble Supreme court of India dismissed the plea for mercy killing and laid down comprehensive guidelines to cases related to passive euthanasia. Thereafter, the matter of mercy killing was examined in consultation with the ministry of law and justice.
• According to the 241st law commission report, Supreme court made it mandatory to get a clearance from the high court to give effect to the decision to withdraw life support to an incompetent person.
• The law commission of India also clarified that where a competent person takes an ‘informed decision’ to allow nature to have its course, the patient is, under common law, not guilty of attempt to commit suicide (u/s 309 IPC) nor is the doctor who omits to give treatment, guilty of abetting suicide (u/s 306 IPC) or of culpable homicide (u/s 299 read with Section 304 of IPC)[4].
• At present, there is no proposal to enact legislation on this subject and the judgment of the Supreme Court is binding on all. In the case of Aruna Shanbaug court stated that in the absence of a law regulating euthanasia in India, its decision becomes the law of the land until the parliament enacts a suitable law[5].

Arguments against the concept of a living will in cases of passive euthanasia

• The government of India is opposed to the concept of a living will in cases of passive euthanasia stating that it can be misused and it may not be viable in the public interest. This practice is followed in the UK, US, and the Netherlands but in India, it seems difficult to implement.
• In 2014, Supreme court had referred the petition to a five-judge constitution bench which sought to recognize the execution of a ‘’living will’’ of persons suffering from chronic terminal diseases and likely to go into a permanent vegetative state.
• On January 15, 2016, the center mentioned about the 241st law commission report which stated that passive euthanasia should be allowed with certain safeguards and a law regarding the subject matter was also proposed in the name of Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.

Conclusion

With respect to the subject matter, no proper law has been framed yet. Passive euthanasia is only guarded by certain guidelines and no proper legislation. Moreover, passive euthanasia is allowed under special circumstances. Living wills on the other side is a complex subject matter, which needs a carefully made legislation because it might just be misused. According to my observation and research, ‘’passive euthanasia’’ and ‘’living wills’’ can only be dealt based upon precedents, guidelines and law commission reports.

References

[1] http://www.bbc.co.uk

[2] www.indiatimes.com

[3] Aruna Ramchandra Shanbaug v. Union of India

[4] http://lawcommissionofindia.nic.in

[5] (2011) 4 SCC 454.