Law on Euthanasia in India

Law on Euthanasia in India
Dr KK Aggarwal & Advocate Ira Gupta
Life and death as concepts have invited many a thinker, philosopher, writer and physician to define or describe them. Swami Vivekananda expects one to understand that life is the lamp that is constantly burning out and further suggests that if one wants to have life, one has to die every moment for it. One may like to compare life with constant restless moment spent in fear of extinction of a valued vapour; and another may sincerely believe that it is beyond any conceivable metaphor.  Death is complicated and life is a phenomenon which possibly intends to keep away from negatives that try to attack the virtue and vigour of life from any arena. In spite of all the statements, references and utterances, be it mystical, philosophical or psychological, the fact remains, at least on the basis of conceptual majority, that people love to live – whether at eighty or eighteen – and do not, in actuality, intend to treat life like an ―autumn leaf.


The perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word life, which one calls a dance in space and time becomes still and blurred and the inevitable death comes near to hold it as an octopus gripping firmly with its tentacles so that the person shall rise up never.


The ancient Greet philosopher, Epicurus, has said, although in a different context:-


Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which can only exist when I do not?


But there is a fallacy in the said proposition. It is because mere existence does not amount to presence. And sometimes there is a feebleness of feeling of presence in semi-reality state when the idea of conceptual identity is lost, quality of life is sunk and the sanctity of life is destroyed and such destruction is denial of real living.


The society at large feels that a patient should be treated till he breathes his last breath.


Every doctor is supposed to take a specific oath that he will make every attempt to save the life of the patient whom he/she is treating and who is under his/her treatment. This oath, thus, puts a moral and professional duty upon a doctor to do everything possible, till the last attempt, to save the life of a patient.


The Medical Council of India (MCI) Code of Ethics Regulations rejects Euthanasia (deliberately ending a patient’s life at his or her own request or at the request of close relatives).  “6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.”


While MCI Code of Ethics rejects euthanasia, it does not talk about physician-assisted-suicide (where a physician deliberately enables a patient to end his or her life by prescribing or providing medical substances with the sole intent of causing death. But practically it is included in the same as both acts are contrary to the ethics of medicine and the role of the physician.


Medical scientists have been, relentlessly and continuously, experimenting and researching to find out better tools for not only curing the disease with which human beings suffer from time to time, noble attempt is to ensure that human life is prolonged and in the process of enhancing the expectancy of life, ailments and sufferings therefrom are reduced to the minimal. There is, thus, a fervent attempt to impress the quality of life.


It is this very advancement in the medical science which creates dilemma at that juncture when, in common perception, life of a person has virtually become unlivable but the medical doctors, bound by their Hippocratic Oath and medical ethics want to still spare efforts in the hope that there may still be a chance, even if it is very remote, to bring even such a person back to life.


The Hippocratic Oath taken by a doctor and the MCI Code of Ethics may make him feel that there has been a failure on his part and sometimes also make him feel scared of various laws. There can be allegations against him for negligence or criminal culpability.


No physician should be forced to participate in euthanasia or assisted suicide, nor should any physician be obliged to make referrals to this end. However, the right to decline medical treatment is a basic right of the patient. 


The physician does not act unethically in respecting the patient’s wish to decline medical treatment, even if such a wish may result in the patient’s death by allowing the natural dying process to unfold in the course of terminal phases of sickness.


A doctor has a crucial role to play in such situations as there is a very thin line between this ethical and unethical act.


Remember it is the patient who has a right to deny the treatment and not the relatives. However, the patient must be in his or her sound state of mind to take any such decision.


There is a distinction between the administration of lethal injection or certain medicines to cause painless death and non-administration of certain treatment which can prolong the life in cases where the process of dying that has commenced is not reversible or withdrawal of the treatment that has been given to the patient because of the absolute absence of possibility of saving the life. To explicate, the first part relates to an overt act whereas the second one would come within the sphere of informed consent and authorized omission. The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards. The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state.


In the landmark judgment Common Cause versus Union of India2018 (5) SCC 1, the Hon’ble 4-Judge Constitution Bench of the Supreme Court held that Euthanasia is basically an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).


Active euthanasia also includes physician-assisted suicide, where the injection or drugs are supplied by the physician, but the act of administration is undertaken by the patient himself. Active euthanasia is not permissible in most countries.


Passive euthanasia is when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life sustaining treatment. This could include disconnecting life support machines or feeding tubes or not carrying out life-saving operations or providing life extending drugs. In such cases, the omission by the medical practitioner is not treated as the cause of death; instead, the patient is understood to have died because of his underlying condition.


Further, in Gian Kaur versus State of Punjab, (1996) 2 SCC 648, the Hon’ble Constitution Bench  of Apex Court expounded that the word “life” in Article 21 has been construed as life with human dignity and it takes within its ambit the “right to die with dignity” being part of the “right to live with dignity”. As part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of activeeuthanasia in which positive steps are taken either by the treating physician or some other person. That is because the right to die with dignity is an intrinsic facet of Article 21.


In Aruna Ramachandra Shanbaug versus Union of India, 2011 (15) SCC480, Hon’ble Supreme Court has observed that autonomy means the right to self-determination where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, or the wishes of surrogates acting on his behalf (substituted judgment) are to be respected.


Thus, all adults with the capacity to consent have the common law right to refuse medical treatment and the right of self – determination. Doctors would be bound by the choice of self-determination made by the patient who is terminally ill and undergoing a prolonged medical treatment or is surviving on life support, subject to being satisfied that the illness of the patient is incurable and there is no hope of his being cured.


In “Common Cause versus Union of India2018 (5) SCC 1 the Constitution Bench of Hon’ble Supreme Court held that Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. However, Advance Medical Directive cannot operate in abstraction. The Hon’ble Court in the said judgment has enumerated various safeguards and procedure of advance medical derivatives and also in cases where there is no advance medical derivatives which will remain enforced till Parliament makes a law on Advance Medical Derivatives.
Quit, or patch up!
SB Easwaran
GovernanceNow, January 15, 2019 edition, pg 10
Should e-cigarettes, nicotine patches, other nicotine-replacement therapies, and heat-not-burn (HNB) tobacco products be encouraged? Are they less harmful than smoking and traditional ways of taking tobacco? The current tobacco debate, as always, is between the hard line and pragmatism. Both sides have cogent arguments in this suspicion-ridden contest, clouded by the shadow wars staged by big tobacco and pharma lobbies.


Among those in India who argue for a pragmatic approach is leading cardiologist Dr KK Aggarwal, a Padma Shri and former president of the Indian Medical Association (IMA). “If a patient tells me he smokes, I tell him he must quit. As a doctor, my ethics dictate that I do that – and I always advise young people to never consume tobacco in any form. Or get into other drug dependencies, for that matter. I also took part in the campaign for bigger pictorial warnings on cigarette packets,” he says. “But when a patient with a long history of tobacco use is unable to stop, or does not want to, what can a doctor do? A pragmatic solution is to suggest that the patient switch to less harmful ways of getting his nicotine high. Also, these aids may help him quit ultimately.”


Nicotine patches or e-cigarettes may help smokers or tobacco chewers assuage the craving. Since there’s no smoke or tar, nor any chewing, the risk of lung and oral cancer is lower. Though nicotine is highly addictive, causes hypertension, constricts and hardens arteries, and increases the heart rate and the risk of blood clotting, it’s not per se known to cause cancer.


Aware that controversy hovers over the topic, Dr Aggarwal sets down strong caveats: sale should be restricted to those above 21; some items must be available only on prescription; efforts should be redoubled to discourage tobacco use in young people; and students should be cautioned on the health risks of tobacco use and other dependencies, right at school level. Since a ban on tobacco can neither be effected nor prove effective, he says there should be enough leeway for “harm reduction”. He cites reports from Public Health England; the US National Academy of Sciences, Engineering and Medicine; the American Cancer Society; Cancer Research UK; and the Royal College of Physicians.


“Harm reduction” is a new buzzword, but those on the other side call it a euphemism coined to ease in new fashions that benefit tobacco giants. They suspect a nascent tobacco-pharma lobby is at work: after all, the nicotine in the patches and vaping fluids comes from tobacco. Researchers at the University of California, San Francisco, say “the pharmaceuticalisation of the tobacco industry” has begun.


In the US, as across the world, the debate is polarised. On December 18, surgeon-general Jerome Adams issued a rare public health advisory calling for immediately addressing the vaping epidemic among teenagers. He warned that nicotine exposure in adolescence can harm the developing brain. Vaping fluids in kid-friendly flavours and e-cigarettes with sleek gadget appeal would hook teens and make them adult smokers. Or marijuana users, since teens start using the devices for vaping marijuana too. On the other hand, in a November 15 article in the Washington Post, Tom Miller, a former attorney-general, wrote that if smokers are denied safer alternatives because of the overreaction against e-cigarettes, the country risked losing the huge fall in smoking rates (from 24 percent to 14 percent) achieved over 20 years.


There is also the controversial case of Derek Yach, a former World Health Organisation (WHO) hand who took part in the scripting of the Framework Convention on Tobacco Control. He now heads the Foundation for a Smoke-Free World, which advocates the use of e-cigarettes, patches, etc. The foundation is promoted by Philip Morris International, a tobacco giant.


Dr Aggarwal, like Yach, is all for switch-and-quit. Even if quitting does not happen, the harm at least is reduced, he reasons. As for behavioural therapies for quitting tobacco, he says they are not practicable on a large scale in India: counselling takes months and there arent enough counsellors. The debate smokes. Or perhaps does the dragon, a teen-favorite trick in which vapers exhale fumes through the nostrils and the corners of the mouth at the same time.


(Reproduced from: GovernanceNow, January 15, 2019 edition, pg 10)