Euthanasia Euthanasia When euthanasia is practiced with the

Euthanasia : RIGHT TO LIFE VS
RIGHT TO DIE

 

 

EXCEUTIVE SUMMARY:

Euthanasia is the practice of intentionally ending a life in order to
relieve pain and suffering. It’s of two kind viz. Active and Passive. Active euthanasia occurs when the
medical professionals, or another person, deliberately do something that causes
the patient to die. It is illegal in India.  Passive euthanasia occurs when the patient dies because the
medical professionals either don’t do something necessary to keep the patient
alive, or when they stop doing something that is
keeping the patient alive. This includes:

·        
switch off life-support machines

·        
disconnect a feeding tube

·        
don’t carry out a life-extending operation

·        
don’t give life-extending drugs

 

We note that in Aruna Shaunbaug case Supreme Court had declared passive
euthanasia as legal in India. Since there was no law related to euthanasia, the
Supreme Court judgement is used as law of the land until the Indian parliament
enacts a suitable law.

The Union government has recently come up with a draft bill on passive
euthanasia. It gives patients the right to “withhold or withdraw medical
treatment to herself or himself” and “allow nature to take its own
course”.

Meaning
of Euthanasia:

The term euthanasia comes from the Greece words
“eu”and “Thanatos” which means “good death” or “easy death”. It is also known
as Mercy Killing. Euthanasia is the
intentional premature termination of another person’s life either by direct
intervention (active euthanasia) or by withholding life prolonging measures and
resources (passive euthanasia). Euthanasia
or mercy killing is the practice of killing a person for giving relief from
incurable pain or suffering or allowing or causing painless death when life has
become meaningless and disagreeable.

In the modern context euthanasia is limited to the
killing of patients by doctors at the request of the patient in order to free
him of excruciating pain or from terminal illness. Thus the basic intention
behind euthanasia is to ensure a less painful death to a person who is in any
case going to die after a long period of suffering.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Classification of Euthanasia:

Euthanasia may be classified according to whether a
person gives informed consent under the following heads:

·        
Voluntary Euthanasia
 

·        
Non
Voluntary Euthanasia
 

·        
Involuntary Euthanasia
 

When euthanasia is practiced
with the expressed desire and consent of the patient it is called voluntary
euthanasia. This includes cases of:
– Seeking assistance for dying
– Refusing heavy medical
treatment
– Asking for medical treatment
to be stopped or life support equipment to be switched off
– Refusal to eat
or drink or deliberate fasting.
?
 

It
refers to ending the life of a person who is not mentally competent to make
an informed decision about dying, such as a comatose patient.
 
The person cannot make a
decision or cannot make their wishes known. This includes cases where:
– The person is in a coma
– The person is too young (e.g.
a young baby)
– The person is absent-minded
– The person is mentally
challenged
– The person is
severely brain damaged
NOTE: In these cases, it is
often the family members, who make the ultimate decision.
 
 

Involuntary euthanasia is
euthanasia against someone’s wish and is often considered as murder. This
kind of euthanasia is usually considered wrong by both sides hence rarely discussed.
In this case, the patient has capacity to decide and consent, but does not
choose death, and the same is administered. It is quite unethical and sounds
barbaric. During World War II, the Nazi Germany conducted such deaths in gas chambers
involving people who were physically incapable or mentally retarded.
 

 

 

Euthanasia can be further
classified in two regarding its manner.

They are active euthanasia and
passive euthanasia.

a.    
Active
Euthanasia: Active
euthanasia involves painlessly putting individuals to death for merciful
reasons. A doctor administers lethal dose of medication to a patient. Active
euthanasia involves the use of lethal substances. A person cannot himself cause his
death but requires someone else’s help with some medication causing death.  In India active euthanasia is illegal
and a crime under section 302 or at least section 304 IPC. Physician assisted
suicide is a crime under section 306 IPC (abetment to suicide).

b.   
Passive
Euthanasia:
Euthanasia is passive when death is caused by turning off the life supporting
systems. Withdrawing life supporting devices from a terminally ill patient
which leads eventually to death in normal course is a recognized norm. In
“passive euthanasia” the doctors are not actively killing anyone;
they are simply not saving him.

Passive
euthanasia is described when the patient dies because the medical professionals
refrain from doing something necessary to keep the patient alive, such as:


Switch off life-support machines


Disconnect a feeding tube


Not to carry out a life-extending operation


Not to give life-extending drugs

Reasons for
Euthanasia: There
are certain reasons behind advocating euthanasia. People under circumstances
justify its use. There are various reasons for euthanasia. Some of them are:

(a) Unbearable pain.

(b) Demand of “right to
commit suicide”

(c) Should people be forced to
stay alive?

 

Religious Views
on Euthanasia: There
are various religious views on euthanasia which are diverse and modify
according to changing age of mankind:

Hinduism: There are two
Hindu approaches on euthanasia. It is a double edged sword. By helping to end a
painful life a person is performing a good
deed and so fulfilling their moral obligations. On the other hand, meddling
with life and death of a third person is not humanly, which is a bad deed. Hinduism does not advocate
actions leading to death of a person. A Sanyasi or a Sanyasini, wish to depart
the mortal life, are permitted to end his or her life with the hope of reaching
Moksha i.e.; emancipation of the soul.

Muslim: Muslims are
against euthanasia. They believe that human life is sacred because it is given
by Allah, and that Allah chooses how long each person will live. Human beings
must not interfere in these divine powers. According it life is precious and
sacred, which Allah will choose to end when, how and where etc.

Jainism: Mahavira
Varadhmana explicitly allows a shravak (follower of Jainism) full consent to
put an end to his or her life if the shravak feels that such a stage would lead
to moksha. Salvation can be achieved through self-sacrifice

Christianity: Catholic
teaching condemns euthanasia as a “crime against life” and a “crime against
God”. Protestant denominations vary widely on their approach to euthanasia and
physician assisted death

Buddhism: Compassion is
a valued virtue of Buddhist teachings. It is used by some Buddhists as a
justification for euthanasia because the person suffering is relieved of pain.9
However, it is still immoral “to embark on any course of action whose aim is
to, destroy human life, irrespective of the quality of the individual’s
motive.”

Shinto:
In
Japan, the dominant religion is Shinto. 69% of the religious organizations agree with the act of voluntary passive euthanasia. In Shinto, prolonging the
life using artificial means is a
disgraceful act and hence against life. There are mixed views on active euthanasia. 25% Shinto and Buddhist organizations in Japan support
voluntary active euthanasia.

 

 

EUTHANASIA AND
SUICIDE:

 

In India, euthanasia is
undoubtedly illegal. The law in India is also very clear on the aspect of assisted
suicide. Right to suicide is not a “right” available in India – it is
punishable under the India Penal Code, 1860. Provision of punishing suicide is
contained in sections 305 (Abetment of suicide of child or insane person), 306 (Abetment
of suicide) and 309 (Attempt to commit suicide) of the said Code. Section 309,
IPC has been brought under the scanner with regard to its constitutionality.
Right to life is an important right enshrined in Constitution of India. Article
21 guarantees the right to life in India. It is argued that the right to life
under Article 21 includes the right to die. Therefore the mercy killing is the
legal right of a person.

 

 

 

 

CASES
RELATED TO INDIA:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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RIGHT TO
LIFE” DOESN’T INCLUDE “RIGHT TO DIE”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

·        
In India abetment of suicide and attempt to
suicide are both criminal offences.

·        
 In 1994,
constitutional validity of Indian Penal Code Section (IPC Sec) 309 was
challenged in the Supreme Court .

·        
The Supreme Court declared that IPC Sec 309 is
unconstitutional, under Article 21 (Right to Life) of the constitution in a
landmark judgement

·        
This debate cuts across complex and dynamic
aspects such as, legal, ethical, human rights, health, religious, economic,
spiritual, social and cultural aspects of the civilised society

·        
 

 

 

 

 

 

 

 

 

 

 

·        
In
January 2016 on the PIL( public interest litigation ) filed by NGO ” common
cause” which emphasized on the “living will” option to provide to patients, a
constitutional bench of supreme court sat down to solve the prevailing
inconsistencies on euthanasia legislation.

·        
It
was argued that ventilation can be torturous and financially draining and
possibly against the patients will too.

·        
The
constitution bench, led by justice Anil R. Dave, said it will wait till 20 July
for govt. or parliament to finalize a law on passive euthanasia

·        
Medical
termination ill patient (protection of patient and medical Practioners) bill, 2006
is still pending in parliament.

·        
241st
law commission also recommended passive euthanasia to be allowed with certain
safeguards”

INTERNATIONAL CASE

 

 

SALIENT FEATURE OF  ARUNA RAMACHANDRA CASE JUDGMENT à

Best interests’ include the best interests of a patient:
(i) Who is an incompetent patient
 (ii)
who is a competent patient but who has not taken an informed decision, and
are not limited to medical interests of the patient but include ethical,
social, moral, emotional and other welfare considerations

 

‘Incompetent patient’ means a
patient who is a minor below the age
of 18 years or person of unsound mind
or a patient who is unable to –
·        
Understand
the information relevant to an informed decision about his or her
medical treatment;
·        
Use or weigh that information as part of the
process of making his or her informed decision;
·        
Make an informed decision because of impairment
or a disturbance in the functioning of his or her mind or brain;
·        
Communicate his or her informed decision
(whether by speech, sign, language or any other mode) as to medical
treatment.
 

 

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Informed
decision’ means the decision as to continuance or withholding or withdrawing
medical treatment taken by a patient who is competent and who is, or has
been informed about-
·        
Nature of his or her illness,
·        
Alternative form of treatment that may be available,
·        
Consequences of those forms of treatment,
·        
Consequences of remaining untreated.

 

 

 

 

 

 

 

 

 

Euthanasia:
Right to life vs right to die

CRITIQUE VIEW

Arguments against
euthanasia

Euthanasia supporters

1.    
Eliminating
the invalid: ‘The right to death with dignity’, people with incurable and
debilitating illnesses will be disposed from our civilised society
2.    
Palliative
care is an active, compassionate and creative care for the dying
3.    
Constitution
of India: ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or
extinction of life and, therefore, incompatible and inconsistent with the
concept of ‘right to life'(welfare state there should not be any role of
euthanasia)
4.    
Attempted
suicide is considered as a sign of mental illness
5.    
Malafide
intention:  Possibility of misusing
euthanasia by family members or relatives for inheriting the property of the
patient.
6.    
‘Mercy killing’ should not lead to
‘killing mercy’ in the hands of the noble medical professionals. Hence, to
keep control over the medical professionals
7.    
Commercialisation
of health care: Poor patients and their family members refuse or withdraw
treatmentà
huge cost involved in keeping them aliveà
commercial health sector will serve death sentence to many disabled and
elderly citizens of India for meagre amount of money
8.    
 Desire
for death in terminal patients is correlated with the depression

1.    
Caregivers
burden: ‘Right-to-die’ supporters argue that people who have an
incurable, degenerative, disabling or debilitating condition should be
allowed to die in dignity.
2.    
Refusing
care: Right to refuse medical treatment is well recognised in law,
including medical treatment that sustains or prolongs life
3.    
Right
to die: Many patients in a persistent vegetative state or else in chronic
illness do not want to be a burden on their family members. Euthanasia can be
considered as a way to upheld the ‘Right to life’ by honouring ‘Right to die’
with dignity.
4.    
Encouraging
the organ transplantation: Euthanasia in terminally ill patients provides
an opportunity to advocate for organ donationà
‘Right to life’ for the organ needy
patients.
 

 

For
the purpose of analysing euthanasia, 5 principles are recognized by most of the
theorists.

 

 These principles are:

(a) The principle of motive: each action is judged by the intention
behind it.

(b) The principle of certainty: a certainty cannot be voided, changed
or modified by uncertainty.

(c) The principle of injury: an individual should not harm others or be
harmed by others.

(d) The principle of hardship: hardship mitigates easing of the rules
and obligations.

(e) The principle of custom: what is customary is a legal ruling

The Medical Treatment of Terminally
ill patients (Protection of Patients and Medical Practitioners) Bill 2016

Salient Provisions of
the Draft Bill:

·        
A terminally ill patient above the age of 16 years can decide on whether
to continue further treatment or allow nature to take its own course.

·        
Every competent patient, including minors aged above 16 years, has a
right to take a decision and express the desire to the medical practitioner
attending on her or him.

·        
The Bill provides protection to patients and doctors from any liability
for withholding or withdrawing medical treatment and states that palliative
care (pain management) can continue.

·        
When a patient communicates her or his decision to the medical
practitioner, such decision is binding on the medical practitioner. However,
it also notes that the medical practitioner must be “satisfied” that the
patient is “competent” and that the decision has been taken on free will.

·        
There will be a panel of medical experts to decide on case by case
basis.

·        
The medical practitioner has to maintain all details of the patient and
ensure he/she takes an informed decision. He is also required to inform the
patient whether it would be best to withdraw or continue treatment.

·        
If the patient is not in a conscious state, he/she needs to inform
family members. In the absence of family members, the medical practitioner
needs to inform a person who is a regular visitor.

·        
The draft also lays down the process for seeking euthanasia, right from
the composition of the medical team to moving the high court for permission.

·        
The Bill only pretends to legalise what is called “passive euthanasia”,
as discussed in the judgement pertaining to Aruna Shaunbaug.

·        
Active
euthanasia is considered Illegal.

 

 

SHORTCOMINGS OF THE BILL:

1.      
The Right to Die with Dignity: The failure to
recognise and give effect to Advance Medical Directives, ill definition of
‘terminal illness’ under the Bill, lack extend immunity from prosecution to
palliative care practitioners

2.      
The Right to Patient Autonomy: Discrimination
against incompetent patients with terminal illnesses, Paternalism by medical
practitioners, Incorrect understanding of competence, lack of assessment of
‘best interests’ by medical practitioners under the Bill,

3.      
Facilitating the Exercise of Patient Autonomy: This
Bill overlooks provisions of the mental health Bill, which might potentially
undermine the rights of patients to refuse life-saving medical treatment that
have been recognised in this Bill.

4.      
Minimising Judicial Intervention in End-of-Life
Decision-making: Clause 9 of the Bill creates uncertainty about the
circumstances in which medical treatment may be withheld or withdrawn from
incompetent patients.

 

 

 

 

 

 

 

 

 RECOMMENDATIONS

1.      
The Bill must thus create a legal framework for
the operation of advance medical directives for extension of right to life.

2.      
Every person has a fundamental right to life,
which includes the right to die with dignity. (“SC”) in Gian Kaur v State of
Punjab (1996).It is recommended to State should take  measures within its power to ensure that this
right is protected, respected and fulfilled.

3.      
Patient autonomy is paramount. A necessary
component of the right to dignity includes the right to make decisions about
one’s body, including the right to refuse medical treatment. {Aruna Ramchandra
Shanbaug v Union of India (2011)}.

4.      
To ensure that patients are able to exercise his
or her autonomy. This requires making accurate and comprehensive information
available and accessible as well as allowing flexibility in their decisions. {Aruna
Ramchandra Shanbaug v Union of India (2011)}.

5.      
Communication and consultation between doctors
and the family, relatives or friends of the patient are key component in
determining the patient’s best interests

6.      
In order to counter the MISUSEà EUTHANASIA panel
should be set up comprising of skilled doctors, lawyers and a representative of
government who can give proper decision on case to case basis.

7.      
Before euthanasia is finalizedà consent of at least 2
doctors, who are not related to each other or to patients.

8.      
Those who survival an attempt to commit suicide
are mentally and emotionally distressed and requires medical assistance rather
than punishments.

9.      
Like in USA, living wills should be made a legal
document in India, that is, enforceable in the court of law. It should be
signed in the presence of qualified physician and assisted by a lawyer

10.  
It is recommended that immunity from prosecution
be extended to medical practitioners who administer palliative care.

11.  
Medical practitioners should only be required to
obtain free and informed consent from patients before they administer
palliative care.

12.  
To ensure that palliative care is administered
in a manner consistent with the right to die with dignity, the Medical Council
of India should frame guidelines for the withholding or withdrawing of medical
treatment and Standard Treatment Guidelines for the administration of
palliative care. Further, medical and paramedical students should be trained to
administer palliative care.

13.  
Competent patient has made an informed decision
to withhold medical treatment, the medical practitioner must only be required
to communicate to the next of kin. Sub-clause (3) of Clause 3 of the Bill
should be suitably amended.

14.  
Under Clauses 5 and 8, the legal liability of
medical practitioners should not be linked with their assessment of the best
interests of the patient. A determination that the patient was competent to
make decision and exempt the medical practitioner from legal liability.

15.  In
requiring the medical practitioner to assess the best interests of the patient,
Clause 8 is inconsistent with sub-clause (2) of Clause 3, which states that the
informed decision of a competent patient is binding on the medical practitioner.
It is thus recommended that Clause 8 be amended to remove the requirement to
determine the best interests of a competent patient.

16.  
The Mental Healthcare Bill, 2016, will permit
physical restraints to be placed on persons with mental illnesses who are
attempting to cause bodily harm to them. These provisions might affect a
patient’s ability to choice to withhold or withdraw medical treatment under
this Bill. It is thus recommended that appropriate provisions be introduced to
ensure that persons with mental illnesses, but who are competent patients, are
not hindered from giving effect to their informed decisions.

17.  Due
to the use of the word ‘may’ in clause 9 of the Bill, it isn’t clear whether it
is compulsory on the part of the patients to seek the permission of the High
Court before withholding or withdrawing treatment. It is recommended that such
a provision be kept discretionary to minimise judicial intervention in the
decision-making process.

18.  Judicial
intervention in end-of-life decision-making should be kept minimum, and
promoted only when there is serious disagreement about what constitutes the
patient’s best interests.

19.  It
is recommended that Ethics Committeesà
Appeals may be allowed from the decision of the Ethics Committee to the High
Court only on the narrow grounds of material error of fact or mala fide.

20.  Laws are made for the people and it should have provision to
bring out changes in order to meet the need of change in society. Legislation
is duty bound to walk with the society.

 

References:

1.      Aruna Ramchandra Shanbaug vs. Union of
India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March,
2011. accessed on August 16, 2011

2.     
P. Rathinam vs. Union of India, 1994(3) SCC 394

3.     
 Gian Kaur vs. State of Punjab, 1996(2) SCC 648

4.     
 The Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations. 2002. accessed on
August 19, 2011

5.      Gursahani R. Life and death after Aruna
Shanbaug. Indian J Med Ethics. 2011;8:68–9

6.      Dowbiggin I. A
merciful end: The euthanasia movement in modern America. New York:
Oxford University Press, Inc; 2003.