Passive Euthanesia

The Supreme Court upheld the right of a person to die with dignity, and made it possible for all adults to make an advance directive specifying to their near and dear ones whether they would like to refuse treatment or have their life extended artificially if they are terminally ill.

Right to live with dignity includes the right to die with dignity, a five judge bench led by Chief Justice Dipak Misra said, recognising the legality of passive euthanasia. “Right to live with human dignity” would mean existence of such a right up to the end of natural life. That would include a dignified death, the court said. A person who is terminally ill or in a persistent vegetative state can make a “choice” to prematurely extinguish his life, the bench said.

While Friday’s order by the constitution bench will allow for the withdrawal of life-support systems for the terminally ill, active euthanasia, usually by administering a lethal injection, is still banned.

Active euthanasia involves an overt act whereas passive euthanasia comes within the sphere of informed consent and authorised omission, the court said. Such omission will not invite any criminal liability if guided by certain safeguards, it added.

The bench said the directive by a person on his wish against using life support systems has to be made in clear unambiguous terms. Such a directive has to be signed by two witnesses and counter-signed by a judicial officer. It should also specify the person who will take the call. The directive kicks in when the person’s physician declares him terminally ill or in a persistent vegetative state. Such directives can also be revoked any time.

If there are more than one such directives, the last one will be given effect to. The judgement was hailed by many lawyers — including Prashant Bhushan who had actively espoused its cause and additional solicitor general PS Narasimha — as a progressive piece of jurisprudence. But some hinted at the possibility of the provision being misused.

The court also acknowledged the possibility that this could be misused to grab property, given the “low ethical levels prevailing in our society … and rampant commercialisation and corruption”.

Accordingly, the court provided a two-step vetting process by medical experts and a final vetting by a judicial magistrate before an advance directive could be given effect to.

In such a case, the hospital treating the person would first set up a medical board (comprising the head of the department treating him plus three other medical experts) which has to rule in its favour.

This opinion will be conveyed to the district collector who will have this decision vetted by another medical board consisting the chief medical officer and three medical experts of 20 years standing. Should this board too clears it, the magistrate will ensure that it is carried out and the records kept with the high court for three years. In case the person hasn’t registered such an advance care directive, his family and friends could still set into motion the process to ensure that his treatment is not prolonged through artificial means.

If the collector’s board refuses permission, the family or friends can move the high court which will examine the case with the help of an independent medical board before taking a call.

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