SUPREME COURT UPHOLDS PASSIVE EUTHANASIA, ISSUES GUIDELINES ON ADVANCE DIRECTIVES IN LANDMARK JUDGEMENT

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1 NEWSFLASH SUPREME COURT UPHOLDS PASSIVE EUTHANASIA, ISSUES GUIDELINES ON ADVANCE DIRECTIVES IN LANDMARK JUDGEMENT 14 March 2018 A Constitution Bench of the Hon ble Supreme Court of India, comprising of the Hon ble Chief Justice of India, Hon ble Mr Justice A M Khanwilkar, Hon ble Mr Justice A K Sikri, Hon ble Dr Justice D Y Chandrachud and Hon ble Mr Justice Ashok Bhushan on 9 March 2018 while deciding a Writ Petition under Article 32 of the Constitution of India, which was referred to it by a three judge bench vide Reference Order dated 24 February 2014, legalised Passive Euthanasia by giving legal sanction to Advance Directive or Living Wills. The issues broadly addressed by the Hon ble Supreme Court of India while deciding the reference: 1. Whether the Right to Live as envisioned as a fundamental right by Article 21 of the Constitution of India (the Constitution) would include within its ambit the Right to Die? 2. Whether there exists any inconsistency in the observations of the Hon ble Supreme Court of India (Court) in Aruna Ramachandra Shanbaug v Union of India 1 (Aruna Shanbaug), with respect to what was held by it in Gian Kaur v State of Punjab 2 (Gian Kaur)? 3. Whether there exists a right to Living Wills or Advance Directives? Principles underlying the decision: A. The Court has in great detail considered the international position on euthanasia inter alia the position in the United Kingdom (UK), the United States of America (USA), Australia and Canada. While referring to the position in the UK, specific reference in detail has been made to the case of Airedale NHS Trust v Bland 3 (Airedale), which related to the withdrawal of artificial life support measures when the patient is in a Persistent Vegetative State (PVS). In this case discontinuation of medical treatment by doctors, if the patient refused such treatment was declared as lawful by the House of Lords. Further, it was held that that if the patient was not in a situation permitting him to convey his wishes then it would be the duty of 1 (2011) 4 SCC (1996) 2 SCC (1993) 2 WLR 316 1

2 the doctors to act in the best interest of the patient. The Court also discussed decisions of the European Court of Human Rights (ECHR) upholding the legality of passive euthanasia as the same would be within the scope and ambit of the rights contained in the International Covenant on Civil and Political Rights (ICCPR). B. The judgement has detailed discussions on passive euthanasia in the context of Article 21 of the Constitution. All members of the Bench unanimously concurred that that Article 21 comprehends dignity as its essential foundation and further, as an essential aspect of dignity and the preservation of autonomy of choice, each individual must have the right on whether or not to accept medical intervention and treatment. It has been made clear by the Court that as part of the right to die with dignity in case of a dying man who is terminally ill or in a PVS, passive euthanasia would come within the ambit of Article 21. While recognising the need for dynamism in interpretation of the Constitution, it has been held that the Right to Die with Dignity is one of the intrinsic facets of Article 21, the same however not being absolute and subject to regulatory measures prescribed by legislation. C. The difference between active euthanasia and passive euthanasia has also been emphasised in detail by the Court. In active euthanasia, a specific overt act (such as administration of lethal drugs and/or injections) is done being a positive contribution to accelerate death, whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. The Court has unequivocally held that active euthanasia is legally impermissible. D. The Court also explained in detail the concept of Advance Medical Directive which as per the Black s Law Dictionary is "a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate. The Court, in wake of the lawful recognition given to Advance Directives in various jurisdictions either by legislation or by judicial pronouncements, acknowledged that the same would be a means to facilitate the fructification of the Right to Live with Dignity. Historical background of euthanasia in India: The decisions of the Court in Gian Kaur and Aruna Shanbaug were prior to this judgement, and held the fort on the position of legality of euthanasia in India. The Court in this judgement opined/clarified that- Aruna Shanbaug upholds the authority of passive euthanasia on the incorrect premise that the Constitution Bench in Gian Kaur s case upheld the view as taken in the Airedale case of removal of life support by a medical practitioner on the patient s wishes, being legal. The Court in Gian Kaur has not expressed any opinion on the ratio in Airedale, it has simply made a reference to it and the view expressed therein regarding legislation. Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale is incorrect. Gian Kaur has neither given any definite opinion on euthanasia nor has it stated that the same can be conceived of only by a legislation (as was held in Airedale). Guidelines on execution and enforcement of advance directives: The Court noticed that there is no legal framework regarding Advance Medical Directives in India and therefore in order to protect the rights of citizens as enshrined in Article 21 of the Constitution, in exercise of the power under Article 142 of the Constitution and the law 2

3 stated in Vishaka v State of Rajasthan and Others 4 it issued comprehensive guidelines and safeguards pertaining to Advance Directives. The said guidelines are to remain in force till the Parliament introduces legislation in this regard. The guidelines are as enlisted below: (a) Who can execute the Advance Directive and how? The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. It must be voluntarily executed and without any coercion or inducement It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering. (b) What should it contain? It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to. It should mention that the executor may revoke the instructions/authority at any time. It should disclose that the executor has understood the consequences of executing such a document. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive. (c) How should it be recorded and preserved? The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences. The JMFC shall inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document. The JMFC shall handover copy of the Advance Directive to the family physician, if any. 4 (1997) 6 SCC 241 3

4 (d) When and by whom can it be given effect to? In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness of the same from the jurisdictional JMFC before acting upon it. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured. If the physician treating the patient (executor) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice. The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from different fields, with experience of at least twenty years. This Medical Board shall visit the patient in the presence of his guardian/close relative and form an opinion on whether or not to certify carrying out the instructions of withdrawal / refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then constitute a second Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors with experience of at least twenty years. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the first Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive. The Board constituted by the Collector must ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained. The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board. 4

5 It will be open to the executor to revoke the document at any stage before it is acted upon and implemented. (e) What if permission is refused by the Medical Board? If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent Committee consisting of three doctors with experience of at least twenty years. The High Court shall hear the application expeditiously after affording opportunity to the State counsel. (f) Revocation of Advance Directive An individual may withdraw or alter the Advance Directive at any time she has the capacity to do so, and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing. (g) Where there is no Advance Directive The Court has held that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed when there is no Advance Directive. However, the Court has prescribed an additional procedure to be followed in such cases. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board. This Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient. If they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion. The rest of the procedure will remain the same as is followed in case there is an Advance Directive. Comment The judgment is a significant and historic one as it has conclusively clarified the purport of euthanasia and its legality in different circumstances. Moreover, this verdict has clarified the position in the earlier cases of Gian Kaur and Aruna Shanbaug, thereby avoiding any conflict/ambiguity on the issue. Though there were four separate opinions of the bench, all the judges were of the unanimous opinion that the living will should be permitted since a person cannot be allowed to continue suffering in a comatose/pvs when he or she doesn t wish 5

6 to live. There being a unanimous decision now, this judgment is expected to be the final word on the issue. Till a new legislation is enacted by the Parliament, the directions and guidelines as provided in the judgment are actionable and confer the requisite jurisdiction upon the judicial magistrates in cases of such nature. The previous apprehension of medical professions of being convicted of culpable homicide under Section 299 of the Indian Penal Code, in case they withdrew the life support of terminally ill patients, stands addressed and resolved by this verdict of the Supreme Court of India. - Ajay Bhargava (Partner), Rony Oommen John (Principal Associate) and Chandni Anand (Associate) For any queries please contact: editors@khaitanco.com For private circulation only The contents of this are for informational purposes only and for the reader s personal non-commercial use. The views expressed are not the professional views of Khaitan & Co and do not constitute legal advice. The contents are intended, but not guaranteed, to be correct, complete, or up to date. Khaitan & Co disclaims all liability to any person for any loss or damage caused by errors or omissions, whether arising from negligence, accident or any other cause Khaitan & Co. All rights reserved. Mumbai New Delhi Bengaluru Kolkata One Indiabulls Centre, 13 th Floor Ashoka Estate, 12th Floor Simal, 2nd Floor Emerald House Tower 1 841, Senapati Bapat Marg 24 Barakhamba Road 7/1, Ulsoor Road 1 B Old Post Office Street Mumbai , India New Delhi , India Bengaluru , India Kolkata , India T: T: T: T: E: mumbai@khaitanco.com E: delhi@khaitanco.com E: bengaluru@khaitanco.com E: kolkata@khaitanco.com