EUTHANASIA & THE LIVING WILL

admin | July 13, 2016 | Constitutional | 1 Comment

This article was written by Ayushi Priyadarshini a student of Symbiosis Law School, Pune

INTRODUCTION AND DEBATE

The term Euthanasia has been derived from two Greek terms, “eu” meaning good and “thanatos” meaning death – thus it is the practice of bonafide end of life to relieve physical pain and suffering, and is more commonly termed mercy killing. Most countries have a divisive public controversy over the moral, ethical, and legal issues of euthanasia. Those who are against euthanasia argue for the sanctity of life, while proponents of euthanasia rights emphasize alleviating suffering, and preserving bodily integrity, self-determination, and personal autonomy. In the current usage, euthanasia has been defined as the “painless inducement of a quick death”. However, this approach fails to properly define euthanasia, as it leaves open possible actions which would meet the requirements of the definition, but would not be seen as euthanasia – including situations where a person kills another, painlessly, but for no reason beyond that of personal gain; or unintentional accidental deaths that are quick and painless. The definition by the Oxford English Dictionary incorporates suffering as a necessary condition, with “the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma”. Counterexamples can be given: such definitions may encompass killing a person suffering from an incurable disease for personal gain, and commentators have argued that doing so would constitute “murder simpliciter” than euthanasia. The third element is that of intentionality – the death must be intended for a “merciful death”. Assisted suicide is the act of deliberately assisting another person to kill themselves.

Classification

Voluntary

It is the Euthanasia conducted with the consent of the patient. While active voluntary euthanasia is legal in Belgium, Luxembourg and the Netherlands, passive is legal throughout the US.[1] Assisted suicide is legal in Switzerland.

Non-Voluntary

It is the Euthanasia conducted when the consent of the patient is unavailable. Examples include child euthanasia, illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol.

Involuntary

It is the conducted against the will of the patient. Being a homicide, it is illegal worldwide.

Active and Passive

Passive euthanasia entails the withholding of common treatments like antibiotics, necessary for the continuance of life. Active euthanasia entails the use of lethal substances or forces, such as administering an injection to kill.

History

The Indian history goes a long back to the practice of willful death in its ancient period, the Ganga Labh, wherein the oldest members of the family were supposed to take multiple dips in the winter waters of the Ganges at Banaras, until they ‘reached their heavenly abode, all purified’ – that is, to consciously succumb to death, to prevent being a ‘burden’ on their heirs, owing to their their senility and debility[2]. The current practice of Kumbh and Mahakumbh Melas though differ in the intention, share mutual motives. The origin of the contemporary debate started in 1870. Euthanasia was supported by Socrates and Plato, although Hippocrates spoke against the practice. Karl Marx believed that a doctor had a moral duty to ease the suffering of death through encouragement, support and mitigation using medication. Such an “alleviation of death” reflected the contemporary Zeitgeist, but was brought into the medical canon of responsibility for the first time by him. Marx also stressed the distinction between the theological care of the soul of sick people from the physical care and medical treatment by doctors. In Japan suicide has not traditionally been viewed as a sin, as it is used in cases of honor.

The Voluntary Euthanasia Legalization Society (Dying in Dignity) was founded in 1935 by Charles Millard. The movement campaigned for the legalization of euthanasia in Great Britain. In modern terms, the use of “euthanasia” is seen to be a euphemism to disguise a program of genocide, in which people were killed on the grounds of “disabilities, religious beliefs, and discordant individual values”. The ultimate object of the Society is based on the Totalitarian principle that the state is supreme and that the individual does not have the right to live if his continuance in life is a hindrance to the state. The Nazis followed this principle and compulsory Euthanasia was practiced as a part of their program.

The Legal Debate

According to euthanasia opponent Emanuel[3], proponents of euthanasia have presented four main arguments: a) right to self-determination b) assisting a subject to die a better choice than continuance to suffering c) the distinction between passive and active euthanasia is not substantive d) permitting euthanasia will not necessarily lead to unacceptable consequences. Pro-euthanasia activists point to the Netherlands and Belgium to argue that it is mostly unproblematic. Emanuel further argues that there are four major points presented by opponents: a) not all deaths are painful b) alternatives like cessation of active treatment with pain relief, are available; c) the distinction between active and passive euthanasia is morally significant; and d) legalizing euthanasia will place society on a ‘slippery slope’, leading to unacceptable consequences. According to the research conducted by the World Health Organization[4], the top reasons of seeking euthanasia were a loss of dignity and fear of burdening others.

Proponents of euthanasia and physician-assisted suicide (PAS) contend that terminally ill people should have the right to end their suffering with a quick, dignified, and compassionate death. They contend that the right to die is protected by the constitutional safeguards guaranteeing rights as marriage, procreation, and the refusal of life-saving medical treatment. While, the Opponents counter that doctors have a moral responsibility to keep their patients alive, courtesy the Hippocratic Oath. They argue there may be a “slippery slope” from euthanasia to murder, and that legalization will unfairly target the poor and disabled, and create incentives for insurance companies to terminate lives to save money.

THE LIVING WILL AND RELATION TO TORTS

Euthanasia and the Living Will

The Union government of India has informed a Constitution Bench of the Supreme Court that its experts are examining a draft Bill proposed by the Law Commission in its 241st report[5]. Over a decade ago, the government felt that legislation on euthanasia would amount to doctors violating the Hippocratic Oath and that they should not yield to a patient’s “fleeting desire out of transient depression” to die. The government’s latest stand represents forward movement in the quest for a legislative framework to deal with the question whether patients who are terminally ill and possibly beyond the scope of medical revival can be allowed to die with dignity. The question was raised with a great deal of passion in the case of Aruna Shanbaug[6], wherein a landmark 2011 verdict allowed ‘passive euthanasia’, subject to safeguards and fair procedure.

The question before a Constitution Bench on a petition by the NGO Common Cause is whether the right to live with dignity under Article 21 includes the right to die with dignity, and whether it is time to allow ‘living wills’, or written authorizations containing instructions given by persons in a healthy state of mind to doctors that they need not be put on life-support systems or ventilators in the event of their going into a persistent vegetative state or of terminal illness. The experts have not agreed to active euthanasia because of its potential for misuse and have proposed changes to a draft Bill suggested by the Law Commission. However, there seems to be no support for the idea of a ‘living will’, as the draft says any such document will be ‘void’ and not binding on medical practitioners. It is logical that it should be so, as the law will be designed specifically to deal with patients not competent to decide for themselves because of their medical condition. This has to be tested against the argument that giving those likely to drift into terminal illness an advance opportunity to make an informed choice will help them avoid “cruel and unwanted treatment” to prolong their lifespan. To resolve this conflict between pain and death, the sooner that a comprehensive law on the subject is enacted, the better it will be for society.

Relation with Torts

The exercise of a reasonable degree of care, caution and skill is supposed to be undertaken by every medical professional. The only assurance he can give that he possesses requisite skill in practicing with reasonable competence. Thus he can be held liable for Medical Negligence in matters wherein he fails to abide by either of the above[7]. A medical professional owes certain duties to his patients, a breach of which would render the right of action against him by the patient. Medical Negligence is a wing of Tortious Negligence today.

Duty of care in deciding on undertaking a case
Duty of care in deciding on the treatment
Duty of care in administrating the treatment properly.

A doctor would be liable for tort of trespass if he operates an adult of sound mind without the consent. But where the patient is incapable of giving consent, the doctor can lawfully provide treatment concerned in the best interests of the patient if carried out to improve on the physical or medical condition. The test determining liability will be the Bolam principle. However, in cases of a patient of unsound mind, the court may entertain a petition for declaration whether the proposed treatment may be lawfully performed.[8]

The principle of self-determination has led to the rule that if an adult patient of sound mind wants the life support system be withdrawn, then the doctor may allow such. However, it is only applied in cases where the insensate patient has no chance of recovery. The patient will not be liable for attempt to suicide, and the doctor will not be condemned for abetting it.

But when a patient is incapable of deciding then the duty of the doctor becomes controversial. In Airelade NHS Trust v. Bland, the court held that the doctor is under no absolute obligation to prolong a patient’s life regardless of the circumstances. The life support can be lawfully withheld in a case where the competent medical opines that doing or not doing so would be futile. Here, the death caused would be attributed to the disease or injury suffered by the patient; and the doctor should seek guidance of the court by applying declaratory relief.

The Supreme Court in P. Rathinam Nagbhusan Patnaik v. UoI held that a patient has a right not to live a forced life, and attempt to suicide is not illegal. Thus the right to live conversely incorporates the right not to live. But this was overruled by a Constitutional Bench where Sections 306 and 309 of the IPC holding suicide and its abetment as punishable offences as constitutional valid. Thus a doctor will be liable if he takes any positive steps, like administration of drugs even with the patient’s consent, as a criminal act. Permission of euthanasia is a matter of policy within the domain of the literature.

In the Aruna Shanbaug case, Markande Katju and Gyan Mishra, JJ. described euthanasia to be of two types, active and passive, and voluntary and non-voluntary. Physician-assisted suicide (PAS) is a crime under Section 306 of the IPC. Thus there is no statutory provision in India as to legal procedure for withdrawing life support to a person incompetent to take decision.

Passive Euthanasia is permitted in India under special situations, but the Parliament is yet to make a law on the subject.

Decision in the bonafide of the patient is to be taken either by parents or spouse or close relative, or in such an absence, by a person acting as a next friend or the doctor.
Such a decision requires approval from the High Court concerned.

Therefore, it is the duty of a doctor to abstain from doing any such act or assisting in the same, otherwise it will rise to criminal liability against him. Medical Negligence calls for a comparative high degree of reasonable care expected from a doctor.

CRITICAL AND COMPARATIVE ANALYSES

Pros

Cons

1) Right to Die: The right of a competent, terminally ill person to avoid excruciating pain and embrace a timely dignified death is implicit to human liberty. The exercise such is central to personal autonomy and bodily integrity. A state’s ban on PAS interferes with the protected liberty interest.

The asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Constitution.

2) Patient-Suffering and End of Life: Everyone should enjoy the right not to be forced to suffer as guaranteed in the European Declaration of Human Rights. It should be considered a crime to make someone live who does not wish to continue as taking life without consent.

Laws against euthanasia and assisted suicide are to prevent abuse and to protect people from unscrupulous people, and are not intended to make anyone suffer.

3) Slippery Slope to Legalized Murder:
There needs concrete evidence that showing horrible slope consequences likely to occur. The mere possibility does not constitute evidence.

In a society obsessed with the costs of healthcare and the principle of utility, the dangers of the abuse of such a right is definite.
It will pave way for other forms of direct euthanasia for incompetent patients or suicide in the elderly. If right to die is allowed, then there would be absolutely no need of consent.

4) Hippocratic Oath and Prohibition of Killing: Doing harm means prolonging a life that the patient sees as a painful burden, and ‘doing no harm’ means helping the patient die.

The prohibition against killing patients is the promise of self-restraint in the Hippocratic Oath, as medicine’s primary taboo. It rejects the view that the patient’s choice for death can make killing him right. Human life commands respect and reverence, and does not depend upon human agreement or consent.

5) Government involvement: Currently, increased longevity and medical advances, makes death suspend-able. When are we allowing wondrous medical methods to perversely prolong the dying than the living? These personal and socially expensive decisions should not be left to governments, judges or legislators better attuned to highway funding.

Cases like Shanbaug touch on basic constitutional rights, such as the right to live and the right to due process, and consequently there could very well be a legitimate role for the federal government to play. The medical community needs to have restrictions on what it may do to people with disabilities.

6) Palliative Care: Euthanasia is a far cry from being ‘easier options for the caregiver’ than palliative care, as critics of Dutch practice suggested. Every appropriate palliative option must be discussed and tried before a request for assisted death can be accepted.

Studies show that hospice-style palliative care is virtually unknown. There are very few hospice facilities, and few specialists.
The widespread availability of euthanasia in the Netherlands may be another reason for the stunted growth of the Dutch hospice movement.

7) Risk of Abuse: Disadvantaged populations would be disproportionately represented among patients who chose assisted suicide. Socially disadvantaged groups have variably included ethnic minorities, the poor, women, and the elderly – however, most people requesting for suicide have been specially challenged.

PAS is practiced through the prism of social inequality and prejudice characterizing the delivery of services in all segments of society. Those who will be most vulnerable to abuse are the poor, minorities, and the least educated and empowered. There is no reason to believe that the practices, whatever safeguards are erected, will be unaffected by the broader social and medical context in which they will be operating.

8) Religious Concerns: Guided by belief as Unitarian Universalists that human life has inherent dignity, compromised when life is extended beyond the will or ability of a person; and that it is everyone’s right to determine the course of action to be taken in the event of no reasonable expectation of recovery from extreme physical or mental disability, it is advocated the right to self-determination and the release from civil or criminal penalties.

As Catholic or Hindu leaders and moral teachers, it is believe that life is the most basic gift of a loving God. The tradition strongly affirms that one must never directly intend to cause one’s own death, or the death of an innocent victim, by action or omission.

9) Living wills: To refuse extraordinary, life-prolonging care and are effective in providing clear and convincing evidence necessary under state statutes to refuse care after one becomes terminally ill.

Not only are we awash in evidence that the prerequisites for a successful living wills policy are unachievable, but there is direct evidence that living wills regularly fail to have their intended effect. People signing living wills have generally not thought through its instructions; the drafters have failed to offer people the means to articulate their preferences accurately; and the wills do not reach the people actually making decisions for incompetent patients.

Legislative Status in Other Countries

Selective governments around the world have legalized voluntary euthanasia but commonly it is considered to be criminal homicide. Active euthanasia is currently only legal in Belgium, Netherlands and Luxembourg, and five American States. Under the laws in these countries, a person’s life can be deliberately ended by their doctor or other healthcare professional. However, it remains homicide although it is not prosecuted and not punishable if the perpetrator (the doctor) meets certain legal conditions. In the Netherlands and Flanders, euthanasia is understood as “termination of life by a doctor at the request of a patient”. The legal debate concerning euthanasia in the Netherlands took off with the Postma case in 1973[9], concerning a physician who had facilitated the death of her mother following repeated explicit requests for euthanasia. Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect in April 2002. It legalizes euthanasia and PAS in very specific cases. The Dutch Penal Code Articles 293 and 294 make both euthanasia and assisted suicide illegal[10], however doctors who directly kill patients or help in killing will not be prosecuted if they follow certain guidelines which the Rotterdam court in 1981 established:

Patient to experience unbearable pain
He must be conscious
The death request must be voluntary
The patient must have been given alternatives and time to consider them
There must be no other reasonable solutions to the problem
The patient’s death cannot inflict unnecessary suffering on others
There must be more than one person involved in the euthanasia decision
Only a doctor can euthanize a patient
Great care must be taken in actually making the death decision.

The British House of Lords Select Committee on Medical Ethics defines euthanasia as “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering”. Both active euthanasia and assisted suicide are illegal under English law. Depending on the circumstances, euthanasia is regarded as either manslaughter or murder and is punishable by law, with a maximum penalty of up to life imprisonment. Assisted suicide is illegal under the terms of the Suicide Act (1961) and is punishable by up to 14 years’ imprisonment. Attempting to kill yourself is not a criminal act in itself. If you are approaching the end of life, you have a right to good palliative care – to control pain and other symptoms – as well as psychological, social and spiritual support. You’re also entitled to have a say in the treatments you receive at this stage. For example, under English law, all adults have the right to refuse medical treatment, as long as they have sufficient capacity (the ability to use and understand information to make a decision). If you know that your capacity to consent may be affected in the future, you can arrange a legally binding advance decision (previously known as an advance directive). An advance decision sets out the procedures and treatments that you consent to and those that you do not consent to. This means that the healthcare professionals treating you cannot perform certain procedures or treatments against your wishes.
The person is usually given an overdose of muscle relaxants or sedatives. This causes a coma and then death.

However, euthanasia is only legal if the following three criteria are met:

The person has made an active and voluntary request to end their life.
It is thought that they have sufficient mental capacity to make an informed decision regarding their care.
It is agreed that the person is suffering unbearably and there is no prospect for an improvement in their condition.

Capacity is the ability to use and understand information to make a decision. Some types of PAS are legal in Switzerland, Germany, Mexico and five American states.

Coming to India, the question was raised with a great deal of passion in the case of Aruna Shanbaug, a nurse who lay in a vegetative state in a Mumbai hospital from 1973-2015. In a landmark 2011 verdict that was notable for its progressive, humane and sensitive treatment of the complex interplay of individual dignity and social ethics, the Supreme Court laid down a broad legal framework. It ruled out any backing for active euthanasia to put an end to suffering, as that would be clearly illegal. It allowed ‘passive euthanasia’, subject to safeguards and fair procedure[11]. Thus it is mandatory that every instance should get the approval of a High Court Bench, based on consultation with a panel of medical experts before commencing with such a procedure[12].

RECOMMENDATIONS AND CONCLUSION

I submit the following recommendations to the Government of India and the Parliament, in view of the ongoing intense debate regarding the legalization of Euthanasia in India.

Active or Passive, Euthanasia must not be legalized: India has high potential of misusing the bonafide intentions behind such a legalization, as an instrument of elder abuse. Cases like that of Anantarama Setty in 2013 in Mangalore, who was chained in his own house by his children due to his failing health and treated inhumanely; or the recent 2015 concrete statistics as per NGOs like Help Age India stating that more than 55% of Indian senior citizens have been and are abused, prove that We are not ready for such a massive socio-ethical change
Informed Consent: even if passive euthanasia is legalized, then there will be need of concrete laws ensuring the right to have an informed choice, but there are major loopholes as studied in the comparative analysis
Damage to humane rationale: Euthanasia by its very nature, is an abuse and the ultimate abandonment of patients, titillating the human conscience
Doctors as life-savers or life-takers: Euthanasia should not be legalized even passively as it only gives doctors greater power and a license to kill, especially in a country where there has always existed killings in the name of property security and backward mindedness of people in abandoning the aged on the grounds of them being a burden and hindrance to their peace of mind, or female infanticide in the name of deformity of unwontedness – basically, the Indian uneducated mind is not mature enough to handle this issue with utmost care and intelligence
Unavailability of basic healthcare: Unlike Holland, where high level of medical care is automatically provided for everyone – in India millions of people cannot even afford fundamental medical treatment. If euthanasia and assisted-suicide were to become accepted, death would be the only “medical option” left, simply on the grounds that the medical practitioners are not competent enough to handle complex cases of disease or injury
Public Policy and Welfare: Giving doctors the legal power to kill their patients is dangerous to the public welfare, and against the very basics of the Directive Principles of State Policy
Subjectivity and Discretionary: It is impossible to define subjectivity and leaving such a grave issue on judge’s discretion, who tend to misuse the powers, would be catastrophic
Living Will: The concept of ‘living will’ is itself a flaw. How can legislations strictly define competence to give consent to mercy-killing? What about cases where people have never been competent?
Religious issues: In a country where citizens are known by their belief in God first, the logic of ‘God is the reason behind birth and only He should have the right to take it away’, based on Natural Law and Justice – is a major constraint in such a legalization. The right of individual autonomy cannot subside values that thy must not kill.
A safeguard suggested, if there ever comes a time to legalize euthanasia, is the appointment of a knowledgeable quasi-judicial authority in the medical field to look into the requests of the patients and the steps taken by the doctor – the ropes which would be tightened by Directive Principles and the Constitution.

The current crisis the country and the world faces is whether to allow or not the practice of Euthanasia, and should remedies be given under Law of Tort and Consumer Protection Act, 1986 or there needs a legislative enaction for Medical Negligence or Malpractice, due to the increase in the number of cases. Some crucial loopholes include non-registration of complaint due to unawareness or long judicial proceedings, or prescription of unsuitable and harmful medicines to the patients – defects which fail to grab the limelight. The time has arrived for a forum to be established to provide easy remedies to the patients, coupled with strict implementation and proper advertising of the available rights. A balance between the rights of the patients and doctors is mandatory, to open doors for novel and treatment and securing humane rights of the patient. The second decade of the 21^st century cannot simply resort to homicide in special cases of zero recovery, keeping note of the heights the medico-scientific world has reached. According to my opinion, a person would always desire to have a healthy “life” over consenting to kill oneself – thus it is always preferable to find better modes of treating than taking away a life. Analogically, if we believe that it is definitely impossible to find a cure for every disease as we are humans ultimately – then how can we deduce that a patient has slipped into the Permanent Vegetative State (PVS) and there exists absolutely no possibility of recovery?

BIBLIOGRAPHY

The following books, journals and websites have been referred to while compiling the assignment:-