SC mulls 'living will to die' for passive euthanasia: All you need to know

A 'living will' provides written directions regarding patient's preferences to end his life at a stage where he can no longer express informed consent

Should the Supreme Court legitimise ‘living will to die’ for terminally ill patients? While hearing a petition on Tuesday that concerns the right of a person to make a living will if he or she becomes incapable of doing so at a later stage, the court on Wednesday indicated it might recognise the execution of the will in cases of passive euthanasia.

The bench was hearing a petition filed in 2005 by an NGO, which said when a medical expert opines that a person afflicted with a terminal disease has reached a point of no return, he should be given the right to refuse life support.

Understanding what a ‘living will to die’ means?

A 'living will' provides written directions to a patient’s physicians and loved ones regarding the patient’s preferences to end his life at a stage where he can no longer express informed consent. This is followed by passive euthanasia. It also addresses other important questions, detailing a person's preferences for tube feeding, artificial hydration, and pain medication in certain situations. 

When will the living will apply?

A person’s written directive will come into effect when the person is no longer sound of mind to communicate his wishes about desired medical treatment. For example, a person in a coma or a vegetative state cannot physically communicate with the doctors, so the living will represents his choice.

What about the Right to Live?

Prior to making any decision, the court needs to resolve the question of whether the right to life under Article 21, which provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law”, is inclusive of the right to die as well. 

A five-court bench, headed by Chief Justice Dipak Misra, on Wednesday said that right to life does not mean right to die, but a dignified life would certainly include right to die with dignity, as advance directive would take effect once a medical board affirms that the patient comatose state is irreversible. (Read more)

SC permits mercy killing

Currently, Indian law permits passive euthanasia or mercy killing, where a person suffering from a terminal illness and has no chance of revival as per the medical opinion is allowed to die. This means terminally-ill patients won’t be given any sort of life support or treatment after someone, on their behalf, seeks permission from the court. Only after consulting an expert panel of doctors, the court will grant permission on a case-by-case basis.

Active euthanasia or assisted suicide, where medical intervention death is granted to a person, is banned in India. Among nations allowing it are the United States, Canada, Germany and Belgium.

Walk down the memory line

2011 in Aruna Shanbaug's case: Shanbaug died from pneumonia on 18 May 2015 after being in a persistent vegetative state for nearly 42 years as a result of sexual assault. However, the apex court had recognised passive euthanasia in this case, in which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision.

OnJanuary, 15, 2016, the Centre had said the 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards and there was also a proposed law — Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006. It had said that on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not by the treating physician alone.

Why is Centre opposing passive euthanasia?

Additional Solicitor General P S Narasimha, appearing for Centre, opposed recognition of 'living will' and said the consent for removal of artificial support system given by a patient may not be an informed one and without being aware of medical advancements.

He said the decision whether to remove life support or not, can only be taken by a medical board after examining the condition of a patient.

Advocate Prashant Bhushan, appearing for petitioner NGO 'Common Cause', said safeguards are needed while taking a decision by medical boards to withdraw life support of a patient.

Senior advocate Arvind Datar, appearing for an intervenor NGO 'Vidhi Centre for Legal Policy', said that the apex court has recognised the distinction between the active termination of life and the withdrawal of life-sustaining treatment with the latter firmly recognised as an expression of autonomy, bodily integrity and right to life.