Right To Live Includes Right To Die With Dignity, A Fundamental Right : Supreme Court

INTRODUCTION

In a milestone verdict expanding the right to life to incorporate the right to die with dignity, the Supreme Court on 09-03-2018 legalised passive euthanasia and approved 'living will' to provide terminally ill patients or those in persistent and incurable vegetative state (PVS) a dignified exit by refusing medical treatment or life support. The verdict, the latest in a string of boosts for individual freedoms by the apex court, was delivered by a constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

This landmark Judgement empowers a person of sound mind and health to make a 'living will' specifying that in the event of him/her slipping into a terminal medical condition in future, his/her life should not be prolonged through life support system. The person concerned can also authorize, through the will, any relative or friend to decide in consultation with medical experts when to pull the plug.

WHAT IS LIVING WILL

Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express his/her consent. It includes authorizing their families to switch off life support in case a medical board declare that the patient is beyond medical help.

Passive euthanasia involves allowing a patient to die by curtailing treatment while active euthanasia involves giving a lethal shot to end life.

Aruna Ramchandra Shanbaug case

The Supreme Court verdict allowing passive euthanasia takes us back to Aruna Ramchandra Shanbaug case. On November 27, 1973, Aruna Shanbaug, a junior nurse at the King Edward Memorial Hospital in Mumbai was sodomised and brutally assaulted by a janitor working in the same hospital. Aruna Shanbaug was tied with a dog chain round her neck while she was assaulted. Aruna was found next morning in a pool of blood; the chain round her neck had cut off oxygen supply to her brain for over 8 hours. Ms Shanbaug suffered brain stem and cervical cord injury and went into coma for the next four decades. Colleagues and nurses at the KEM Hospital fed her and cleaned her, refusing to let her go. They looked after Ms Shanbaug so well that not a single bed sore developed in over 40 years.

Pinki Virani, an activist and journalist, who followed Ms Shanbaug's case, petitioned to the Supreme Court in 2009, seeking passive euthanasia for Aruna retrieving that Aruna had "died on November 27, 1973". But the supreme court refused to let her die holding that can be done by way of legislation. However the Supreme Court observed that with the approval of the Bombay High Court, the life support may be withdrawn. Aruna Shanbaug who was lying like a vegetable, at ward number 4 for 42 years died on May 15, 2015 after being diagnosed with pneumonia.

Aruna Shanbaug's case started a huge discourse on right to die with dignity, for patients in irreversible coma. The top court, in its 2011 order, for the first time said passive euthanasia should be permitted, making a distinction from active euthanasia.

Recent Judgement;

A PIL was filed by a NGO for a Common Cause seeking robust system of certification for passive euthanasia and legal recognition for ‘living will’ in India. The NGO had approached the apex court seeking direction on what constitutes ‘living will’, and contended that when a team of medical experts are of the opinion said that a patient had reached a point of no return with regard to his/her illness, then the patient should be given the right to refuse being put on a life-support system.

The petition raises certain important questions such as how can a person be told that he/she does not have right to prevent torture on his body? Right to life includes right to die with dignity. A person cannot be forced to live on support of ventilator. Keeping a patient alive by artificial means against his/her wishes is an assault on his/her body.

Previously In Gian Kaur v. State of Punjab, a Constitution Bench, held that the right to live with dignity under Article 21 of the Constitution of India was inclusive of the right to die with dignity and upheld passive euthanasia. Hence the matter had been referred to five Judge Bench.

The five-Judge Bench has unanimously held that the two-Judge Bench in Arun Shanbaug had wrongly ruled that passive euthanasia can be made lawful “only by legislation” through an erroneous interpretation of the judgment in Gian Kaur. Recognizing passive euthanasia, it observed,

“an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.”

During the hearing, the government side argued that a living will be misused and may not be viable as a part of public policy. The government, however, said that it had agreed in principle to permit ‘passive euthanasia’.

Not agreeing with the government completely, the bench had said that it would lay down norms governing how such living wills can be drawn up, executed and given effect to. “Now that you have decided to allow passive euthanasia, we have to evolve safeguards,” the CJI had said. The CJI refused to leave the issue to the government whether to allow a person to end his life with dignity and in peace, in accordance with his wishes. “The individual’s will, his right and the individual rights will be thwarted in such a case,” he had said. The bench said that a person can write his wishes in the form of ‘living will’ which can even be approved by a magistrate.

Examining the legal position in various other jurisdictions, Justice Misra observed that all adults with the capacity to consent have the common law right to refuse medical treatment and the right of self-determination in deserving cases. He, however, cautioned that doctors would be bound by the patient’s choice of self-determination, subject to being satisfied that the illness of the patient is incurable and there is no hope of his being cured. Justice Misra further opined that State interest should not over-weigh individual interest and that a person should be allowed to die peaceably instead of prolonging the process against his will through technology, he explained,

“It is so because it is in accord with the constitutional precept and fosters the cherished value of dignity of an individual. It saves a helpless person from uncalled for and unnecessary treatment when he is considered as merely a creature whose breath is felt or measured because of advanced medical technology. His being exclusively rests on the mercy of the technology which can prolong the condition for some period. The said prolongation is definitely not in his interest. On the contrary, it tantamounts to the destruction of his dignity which is the core value of life. In our considered opinion, in such a situation, an individual interest has to be given priority over the State interest.”

Furthermore, Justice Misra clarified that even though the Counsel had used the words “living will”, the Court did not intend to use it. It then agreed for utilization of an “Advance Medical Directive”, noting, “The said directive, we think, 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.”

The two Judges then summarized the findings of the Court as follows:

“(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.

(ii) The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case.

(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation.

(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.

(v) There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to the withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.

 (vi) In active euthanasia, a specific overt act is done to end the patient‘s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient’s life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.

(vii) Post Aruna Shanbaug (supra), the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, but no law has been enacted.

(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The ‘Emergency Principle’ or the ‘Principle of Necessity’ has to be given effect to only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.

(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as a component of right to life and liberty.

(x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.

(xi) 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. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.

(xii) Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.

(xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.

(xiv) When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.”

With regard to the Advance Directives, Justice Sikri cautioned that the system may be open to abuse, and observed,

“At this juncture, we may again reiterate that on the one hand autonomy of an individual gives him right to choose his destiny and, therefore, he may decide beforehand, in the form of advance directive, at what stage of his physical condition he would not like to have medical treatment, and on the other hand, there are dangers of misuse thereof as well.”

Justice Chandrachud wrote extensively on death, dignity, privacy, sanctity of life and the nuances involved in the “sanctity of life principle”.

On sanctity of life:

“The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the Constitution. The Constitution recognizes the value of life as its indestructible component. The survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and liberty.”

On living a dignified life:

“The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life. Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence.”

On the right to refuse medical treatment:

“The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compels an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity.”

On Advance Directives:

“An individual who is in a sound and competent state of mind is entitled by means of an advance directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such an advance directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment abides by an advance directive is protected against the burden of criminal liability.”

On protection of doctors who withdraw treatment:

“The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision.” Further, he agreed with the conclusions drawn by the other Judges on Gian Kaur and Aruna Shanbaug’s cases.

Justice Bhushan explained, “We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, it is in the best interests of the patient that the decision be taken by competent medical experts and that such decision be implemented after providing a cooling period at least of one month to enable the aggrieved person to approach the Court of Law.

The best interest of the patient as determined by medical experts shall meet the ends of justice. The medical team by taking decision shall also take into consideration the opinion of the blood relations of the patient and other relevant facts and circumstances.”

CONCLUSION

In the cumulative 538-page judgment containing four opinions, the Supreme court said passive euthanasia, or a provision for passive euthanasia through 'advance directive' or 'living will', would save a helpless person from uncalled for and unnecessary treatment when he is considered as merely a creature whose breath is felt or measured because of advanced medical technology.

With this ruling, the SC has recognised that an individual with terminal illness or in a state of irreversible vegetative condition has the agency to decide whether he/she would like to die, a sphere which was so far constitutionally reserved for the state, which alone could deprive a person of his/her life in accordance with law.

Displaying a rare unanimity of thought to weave a common constitutional principle, CJI Misra led his colleagues on the bench to harmonise the inevitable yet opposite facets of life and death and say in unison that "right to die with dignity is an intrinsic facet of right to life guaranteed under Article 21".

{Dipak misra, CJI [for himself and A.M. Khanwilkar, J] 192 pages, A.K. Sikri, J. 112 pages, Dr D Y Chandrachud, J 134 pages, Ashok Bhushan, J. 100 pages}