Common Cause v. UOI (2018) – The Case law on Euthanasia

  Whether a person should be allowed to remain in a stage of incurable passivity suffering from pain and anguish in the name of Hippocratic Oath[1].

The question that arises is should he not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death where after it is said that there is resplendence?

In delineation of such an issue, there emerges the question in law – should he or she be given such treatment which has come into existence with the passage of time and progress of medical technology so that he/she exists possibly not realizing what happens around him/her or should his/her individual dignity be sustained with concern by smoothening the process of dying.

The Supreme Court considered the question of Euthanasia in the case of ‘Common Cause v. Union of India (2018)’ when a Writ Petition was preferred under Article 32 of the Constitution of India by the petitioner, a registered society,

• seeking to declare ‘right to die with dignity’ as a fundamental right within the fold of ‘right to live with dignity’ guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary;

• to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ‘My Living Will and Attorney Authorisation’ which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant;

• to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the ‘Living Wills’.

Assertions by the Petitioners

It was asserted that every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away.

It was contended that each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution. That apart, it is set forth that right to die sans pain and suffering is fundamental to one‘s bodily autonomy and such integrity does not remotely accept any effort that puts the individual on life support without any ray of hope and on the contrary, the whole regime of treatment continues in spite of all being aware that it is a Sisyphean endeavour, an effort to light a bulb without the filament or to expect a situation to be in an apple pie order when it is actually in a state of chaos.

It was put forth that the concept of sustenance of individual autonomy inheres in the right of privacy and also comes within the fundamental conception of liberty. It was averred that due to the advancement of modern medical technology pertaining to medical science and respiration, a situation has been created where the dying process of the patient is unnecessarily prolonged causing distress and agony to the patient as well as to the near and dear ones and, consequently, the patient is in a persistent vegetative state thereby allowing free intrusion.

It was also contended that the petitioner-society is not claiming that the right to die is a part of the right to life but asserting the claim that the right to die with dignity is an inseparable and inextricable facet of the right to live with dignity.

What is Euthanasia?

The word ‘Euthanasia’ is derived from the Greek words ‘eu’ and ‘thanotos’ which literally mean ‘good death’ and is otherwise described as ‘mercy killing’. The word euthanasia, was used by Francis Bacon in the 17th Century to refer to an easy, painless and happy death as it is the duty and responsibility of the physician to alleviate the physical suffering of the body of the patient.

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 known as ‘positive euthanasia’ or ‘aggressive euthanasia’, it has been stated that the said type of euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony.

PASSIVE EUTHANASIA, on the other hand, also called ‘negative euthanasia’ or ‘on-aggressive euthanasia’, entails withdrawing of life support measures or withholding of medical treatment for continuance of life, e.g., withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart lung machine from a patient in coma.

In passive euthanasia, the doctors are not actively killing the patient, they are merely not saving him and only accelerating the conclusion of the process of natural death which has already commenced.

241^st Report of law Commission

The law commission of Indian in its 241^st report dealt with the ‘Passive Euthanasia’. Recognizing that passive euthanasia, both in the case of competent and incompetent patients, is being allowed in most of the countries subject to the doctor acting in the best interests of the patient, the report summarized the broad principles of medical ethics which shall be observed by the doctor in taking the decision.

The said principles as obtained in the report are the patient‘s autonomy (or the right to self- determination) and beneficence which means following a course of action that is best for the patient uninfluenced by personal convictions, motives or other considerations.

Supreme Court’s Analysis

In the present case, while considering the petition, the court extensively referred the legal position on Euthanasia in UK, USA and Canada while mentioning in details case laws that changed the legal position on euthanasia in these countries and also legislations that has been made after those decisions.

The court further referred the International conventions to get the view on euthanasia. The court analysed the question, thus-

• When a terminally ill patient refuses to take medical treatment, it can neither be termed as euthanasia nor as suicide. Albeit, both suicide and refusal to take treatment in case of terminal ailment shall result in the same consequences, that is, death, yet refusal to take treatment by itself cannot amount to suicide.

In case of suicide, there has to be a self-initiated positive action with a specific intention to cause one‘s own death. On the other hand, a patient‘s right to refuse treatment lacks his specific intention to die, rather it protects the patient from unwanted medical treatment. A patient refusing medical treatment merely allows the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self-initiated act.  

• Where it is not practicable for a medical practitioner to obtain consent for treatment and where the patient‘s life is in danger if appropriate treatment is not given, then the treatment may be administered without consent. This is justified by what is sometimes called the ‘emergency principle’ or ‘principle of necessity’. Usually, the medical practitioner treats the patient in accordance with his clinical judgment of what is in the patient‘s best interests.

• Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena.

Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, ‘Death plucks my ear and says, Live- I am coming’. That is the significance of living. But when a patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait?  

Should she/he be cursed to die as life gradually ebbs out from her/his being? Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around him/her think that science in its progressive invention may bring about an innovative method of cure? To put it differently, should he/she be ‘guinea pig’ for some kind of experiment?  

The answer has to be an emphatic ‘No’ because such futile waiting mars the pristine concept of life, corrodes the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.  

• Dignity does not recognize or accept any nexus with the status or station in life. The singular principle that it pleasantly gets beholden to is the integral human right of a person. Law gladly takes cognizance of the fact that dignity is the most sacred possession of a man.

 And the said possession neither loses its sanctity in the process of dying nor evaporates when death occurs. 

• A dying man who is terminally ill or in a persistent vegetative state can make a choice of premature extinction of his life as being a facet of Article 21 of the Constitution. If that choice is guaranteed being part of Article 21, there is no necessity of any legislation for effectuating that fundamental right and more so his natural human right.

• Indeed, that right cannot be an absolute right but subject to regulatory measures to be prescribed by a suitable legislation which, however, must be reasonable restrictions and in the interests of the general public.

  In the context of the issue under consideration, we must make it clear that 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 active euthanasia in which positive steps are taken either by the treating physician or some other person. 

• Where the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life is measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him. The dignity of life is denied to him as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy.

  To meet such situations, the Court has a duty to interpret Article 21 in a further dynamic manner and it has to be stated without any trace of doubt that the right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying.  

Thus analysed, we are disposed to think that such a right would come within the ambit of Article 21 of the Constitution. 

• The society at large may feel that a patient should be treated till he breathes his last breath and the treating physicians may feel that they are bound by their Hippocratic oath which requires them to provide treatment and save life and not to put an end to life by not treating the patient.

  The members of the family may remain in a constant state of hesitation being apprehensive of many a social factor which include immediate claim of inheritance, social stigma and, sometimes, the individual guilt. The Hippocratic oath taken by a doctor 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.  

• In this regard, two aspects are to be borne in mind. First, withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and second, once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors’ dilemma or fear will have any place.

• It is because the sustenance of dignity and self- respect of an individual is inhered in the right of an individual pertaining to life and liberty and there is necessity for this protection.

  And once the said right comes within the shelter of Article 21 of the Constitution, the social perception and the apprehension of the physician or treating doctor regarding facing litigation should be treated as secondary because the primacy of the right of an individual in this regard has to be kept on a high pedestal.  

• It is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors. It also does not involve any kind of overt act on the part of the family members. It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life.

 It is paramount for an individual to protect his dignity as an inseparable part of the right to life which engulfs the dignified process of dying sans pain, sans suffering and, most importantly, sans indignity.

The Court’s Conclusion

While concluding the Judgment, the Supreme Court held as follow-

• “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.  

• 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 component of right to life and liberty.

• 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.

• 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.

• 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.

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

 To read about the Procedure followed in case of Advance Directive to effect euthanasia, Click here.

Reference

Common Cause v. Union of India (2018)

[1] The Hippocratic Oath is an oath of ethics historically taken by physicians. It is one of the most widely known of Greek medical texts. In its original form, it requires a new physician to swear, by a number of healing gods, to uphold specific ethical standards. The oath is the earliest expression of medical ethics in the Western world, establishing several principles of medical ethics which remain of paramount significance today.