The 241st Report of The Law Commission of India on Passive Euthanasia

The report rightly points out that a rational and humanitarian outlook should have primacy in such a complex matter. Recognizing that passive euthanasia, both in the case of competent and incompetent patients, is being allowed in most of the countries subject to the doctor acting in the best interests of the patient, the report summarized the broad principles of medical ethics which shall be observed by the doctor in taking the decision.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

Common Cause (A Regd. Society) ...Petitioner(s)

Versus

Union of India and Another …Respondent(s)

J U D G M E N T

Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

I. The 241st Report of The Law Commission of India on Passive Euthanasia:

122. After the judgment of Aruna Shanbaug was delivered, the Law Commission of India submitted its 241st report which dealt with ‗Passive Euthanasia – A Relook‘. The report in its introduction has dealt with the origin of the concept of euthanasia. It states that the word ―Euthanasia‖ is derived from the Greek words ―eu‖ and ―thanotos‖ which literally mean ―good death‖ and is otherwise described as ―mercy killing‖. The word euthanasia, as pointed out in the Report, was used by Francis Bacon in the 17th Century to refer to an easy, painless and happy death as it is the duty and responsibility of the physician to alleviate the physical suffering of the body of the patient. A reference has also been made in the Report to the meaning given to the term by the House of Lords. The Select Committee on ―Medical Ethics‖ in England defined Euthanasia as ―a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering‖. Impressing upon the voluntary nature of euthanasia, the report has rightly highlighted the clarification as provided by the European Association of Palliative Care (EAPC) Ethics Task Force in a discussion on Euthanasia in 2003 to the effect that ―medicalised killing of a person without the person‘s consent, whether non-voluntary (where the person is unable to consent) or involuntary (against the person‘s will) is not euthanasia: it is a murder.‖

123. The Commission in its report referred to the observations made by the then Chairman of the Law Commission in his letter dated 28th August, 2006 addressed to the Hon‘ble Minister which was extracted. It is pertinent to reproduce the same:-

―A hundred years ago, when medicine and medical technology had not invented the artificial methods of keeping a terminally ill patient alive by medical treatment, including by means of ventilators and artificial feeding, such patients were meeting their death on account of natural causes. Today, it is accepted, a terminally ill person has a common law right to refuse modern medical procedures and allow nature to take its own course, as was done in good old times. It is well-settled law in all countries that a terminally ill patient who is conscious and is competent, can take an ‗informed decision‘ to die a natural death and direct that he or she be not given medical treatment which may merely prolong life. There are currently a large number of such patients who have reached a stage in their illness when according to well-informed body of medical opinion, there are no chances of recovery. But modern medicine and technology may yet enable such patients to prolong life to no purpose and during such prolongation, patients could go through extreme pain and suffering. Several such patients prefer palliative care for reducing pain and suffering and do not want medical treatment which will merely prolong life or postpone death.‖

124. The report rightly points out that a rational and humanitarian outlook should have primacy in such a complex matter. Recognizing that passive euthanasia, both in the case of competent and incompetent patients, is being allowed in most of the countries subject to the doctor acting in the best interests of the patient, the report summarized the broad principles of medical ethics which shall be observed by the doctor in taking the decision. The said principles as obtained in the report are the patient‘s autonomy (or the right to selfdetermination) and beneficence which means following a course of action that is best for the patient uninfluenced by personal convictions, motives or other considerations. The Report also refers to the observations made by Lord Keith in Airedale case providing for a course to safeguard the patient‘s best interest. As per the said course, which has also been approved by this Court, the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the decision taken by the medical practitioners in charge to discontinue the treatment of a PVS patient. With respect to the ongoing debates on ―legalizing euthanasia‖, the Report reiterates the observations made in Airedale that euthanasia (other than passive euthanasia) can be legalized by means of legislation only.

125. The Report, in upholding the principle of the patient‘s autonomy, went on to state:-

―…the patient (competent) has a right to refuse medical treatment resulting in temporary prolongation of life. The patient‘s life is at the brink of extinction. There is no slightest hope of recovery. The patient undergoing terrible suffering and worst mental agony does not want his life to be prolonged by artificial means. She/he would not like to spend for his treatment which is practically worthless. She/he cares for his bodily integrity rather than bodily suffering. She/he would not like to live 28 like a ‗cabbage‘ in an intensive care unit for some days or months till the inevitable death occurs. He would like to have the right of privacy protected which implies protection from interference and bodily invasion. As observed in Gian Kaur‘s case, the natural process of his death has already commenced and he would like to die with peace and dignity. No law can inhibit him from opting such course. This is not a situation comparable to suicide, keeping aside the view point in favour of decriminalizing the attempt to suicide. The doctor or relatives cannot compel him to have invasive medical treatment by artificial means or treatment.‖

126. The Report supports the view of several authorities especially Lord Browne-Wilkinson (in Airedale case) and Justice Cardozo that in case of any forced medical intervention on the body of a patient, the surgeon/doctor is guilty of ‗assault‘ or ‗battery‘. The Report also laid emphasis on the opinion of Lord Goff placing the right of self-determination on a high pedestal. The said relevant observations of Lord Goff, as also cited in the Report, are as follows:-

―I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient's wishes.‖

127. We have referred to the report of the Law Commission post Aruna Shanbaug only to highlight that there has been affirmative thought in this regard. We have also been apprised by Mr. Narasimha, learned Additional Solicitor General appearing for the Union of India, that there is going to be a law with regard to passive euthanasia.