- Apprentice Lawyer
- Legal Jobs
A Constitution Bench of the Supreme Court yesterday ruled in favour of Passive Euthanasia, holding that the Right to Life under Article 21 includes easing the process of dying in case of a terminally ill patient or a person in persistent vegetative state with no hope of recovery.
The Court facilitated Passive Euthanasia by allowing enforcement of an ‘Advance Directive’, which has been synonymously used with the term “living will”. In its judgment the Court held,
“A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity…”
Thus, it gave legal sanction to this Advance Directive. But how exactly has the Court defined Passive Euthanasia and Advance Directive?
Passive Euthanasia relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. In Active Euthanasia, a specific overt act is done to end the patient‘s life, whereas in Passive Euthanasia, something which is necessary for preserving a patient’s life is not done.
An Advance Directive is a document that persons with deteriorating health or the terminally ill can execute in advance, whereby such a person can choose not to remain in a vegetative state on a life support system if she goes into a state when it will not be possible to express her wishes. It did not have the sanction of law, until yesterday.
Since there is no law governing the execution and enforcement of the Advance Directive, the Court laid down exhaustive guidelines on how to execute and enforce the same.
Below are the guidelines:
Who can execute the Advance Directive and how?
What should it contain?
How should it be recorded and preserved?
When and by whom can it be given effect to?
What if permission is refused by the Medical Board?
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.
When there is no Advance Directive
What is noteworthy about the judgment is that it provides for carrying out Passive Euthanasia even in the absence of an Advance Directive. The Court has said that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed in this event. 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.
Parliament might enact law soon
The above procedure will remain in force only till Parliament enacts a law to govern the field. The Central government has already mooted a bill governing Passive Euthanasia and “living power of attorney”. Once the bill becomes law, the said law will take over from the procedure laid down by the Supreme Court.
Read the judgment below.