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 The Law of Life and Death: Passive Euthanasia

Professor Madabhushi Sridhar, NALSAR

To lay down law of life and death, the Supreme Court took the opportunity provided by Pinky Virani in her writ petition seeking permission to end life of terminally ill Aruna Shanbauh, a rape victim lying in vegetative state for 37 years. Disallowing the petition, which means allowing prolonging life of Aruna, the Supreme Court said passive euthanasia could be permitted only when the High Court offers a considered opinion. It also visualized legalizing of passive euthanasia. This reminds that our Parliament is yet to fulfill obligation of enacting a code for terminally ill people like Aruna. Union Law and Justice Minister M. Veerappa Moily went on record saying that the government was examining whether a fresh legislation was required to permit passive euthanasia. The bench of Justices Markandey Katju and Gyan Sudha Misra clarified that until Parliament enacts a law, its judgment on active and passive euthanasia will be in force.

Passive or active euthanasia

The bench explained the terms: “Passive euthanasia would occur when medical treatment is withheld or withdrawn leading to the death of a terminally ill person. Active euthanasia is generally referred to a state where a patient is given a lethal injection or through any other method allowed to die in presence of doctors, while passive euthanasia involves withdrawing the life support system from a patient…. passive euthanasia can be voluntary and non-voluntary. It is voluntary if the patient requests mercy killing”.

The court explained the difference between voluntary and non-voluntary euthanasia. Euthanasia conducted with the consent of the patient is “voluntary euthanasia”, which is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the U.S. states of Oregon and Washington. When the patient brings about his or her own death with the assistance of a physician, the term “assisted suicide” is used. If euthanasia is carried out on a patient, who is not in a condition to express his or her desire to die, it is called non-voluntary euthanasia. Examples include child euthanasia, which is illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol. In Colombia, the Supreme Court ruled in favor of mercy killing in 1997 and recommended removing penalties over it, but Colombian Congress did not pass any guidelines. If three or four members of family agree, it is legal in Albania. In 1995, Australia’s Northern Territory had approved a euthanasia bill. It went into effect in 1996, but the Australian Parliament overturned the bill the next year. Both forms of euthanasia are illegal in Switzerland; assisted suicide is penalized only if it is carried out “from selfish motives”.   Ireland opposed active contribution for ending the life while legalized removal of life support systems.  In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Though active euthanasia remained illegal in Norway, it has softened penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act.  The Supreme Court of India has allowed passive euthanasia under “exceptional circumstances” it has made clear that active euthanasia is illegal.

Referring to the contentions, Justice Katju wrote: “There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision. We agree with [senior counsel] Mr. T.R. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General [G.E. Vahanvati] that it should never be permitted.”

Next Friend

Deciding who ‘next friend’ is, the Court held:  “Aruna Shanbaug's parents are dead and other close relatives have not been interested in her ever since she had the unfortunate assault on her. It is the KEM Hospital staff  who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug should be allowed to live.”

Who decides?

While laying down the principles under which the passive euthanasia could be allowed, the Bench did not leave the issue to the relatives or next friends or medical experts’ team but, rightly preferred the High Court to decide it with judicious application of mind.  The Bench suggested the High Court could pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person. The High Court should seek the opinion of a committee of three reputed doctors to be nominated by it. The committee should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court which should appropriate orders on the application seeking withdrawal of life support.

Misuse

Expressing apprehensions about misuse, the Bench said: “If we leave it solely to the patient's relatives or to the doctors or the next friend to decide whether to withdraw life support to an incompetent person, there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

Professor BM Hegde, former professor of cardiology, Middlesex Hospital Medical School, London explained: How does an individual come to the conclusion that an unconscious patient would prefer death to “suffering”? How could one kill him/her mercifully (mercilessly)? Until these vexing questions are answered, man should not be authorised to kill another of his species — the “so-called” mercy killing. Elizabeth Butler and Ruth Richardson, journalist historians, feel that the modern medical profession has become “a corporate monstrosity.” One would do well to read that wonderful satire ‘The Doctors Dilemma’ — a play by George Bernard Shaw, before coming to any conclusions about a doctor's capacities. I have no such opinion, though. Money and power could sway things in any direction. (Dr Hegde also quoted Idjave Edewor saying: “Man is an intellectual giant but a moral dwarf.”)

Sanctity of life

Principle of sanctity of life was the basis of a judgment of House of Lords in Airedale NHA Trust v Bland (1993) 2 WLR 316, classic case on euthanasia. Saying that the withdrawal of artificial measures for continuance of life by a physician in the context of existence in the persistent vegetative state of no benefit to the patient, involves the principle of the sanctity of life, the Court made a distinction in such cases:

1. Cases in which a physician decides not to provide for his patient, treatment or care which would not or might prolong his life; and
2. Cases in which a physician decides with the help of a lethal drug, actively to bring his patient’s life to end.

House of Lords held in this case that it was not lawful to permit a doctor to administer lethal drug to end the life, even though that course is prompted by a humanitarian desire to end his suffering.

The Supreme Court in Giani Kaur case AIR 1996 SC 1257, explained the ‘life’ as right:

1. Right to die with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before the natural process of certain death. Right to die is inherently inconsistent with right to life, as is death with life. The right to die with dignity at the end of life is not to be confused or equated with the right to die unnatural death curtailing the natural span of life.

1. Extinction of life cannot be included in ‘protection of life’. Unnatural termination or extinction of life is incompatible and inconsistent with the concept of right to life.

Irrelevancy of s. 309, IPC

Under Indian Penal Code, killing a person with his consent or on his request is culpable homicide not amounting to murder. As per Section 300 exception 5 of IPC ‘euthanasia’ could be punishable as culpable homicide not amounting to murder. If a person prefers to end his life and attempts it is an offence under Section 309. Assisting a person to commit suicide will be another crime abetment of suicide under Section 306. If a doctor administers a lethal injection to suffering patient it could be murder under section 302. If he places poison by his side, the patient consumes it and commits suicide, such doctor is liable for abetment of suicide under 306.

Though Supreme Court in above case held Section 309 IPC constitutionally valid, the Bench in Aruna case recommended, “the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in depression, and hence he needs help, rather than punishment…..It may be noted that in Gian Kaur's case although the Supreme Court has quoted with approval the view of the House of Lords in Airedale's case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person, e.g. a person in a coma or PVS [permanent vegetative state]. This vexed question has been arising often in India because there are a large number of cases where persons go into a coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises who should give consent for withdrawal of life support.”

Pinky criticizes

Unhappy with the judgment which mandated Aruna to survive, while permitting passive euthanasia to future victims, the petitioner Pinky Virani explained the agony of Aruna in following words:

“Aruna Shanbaug. Sodomised. Strangled with a dog-chain while being brutalised. Extensive brain stem injury, partially brain-dead. Cortically blind. Cannot speak. Or walk. No control over body movements. Administered mashed food, swallows automatically, upchucks equally. Teeth loosening and falling—one by one—on her bed. In pain. Shrieking. Howling. Weeping. Laughing manically. After the initial days, no medicines prescribed by the doctors, so none given. Abandoned by friends; authorities don’t encourage their visits as they are not blood relatives. Abandoned by relatives; they used to be constantly told by this free hospital to “take her home”. I’ve been told too. I would if I could; but it doesn’t change the fact that Nurse Aruna Shanbaug has every right to remain in that hospital. Hers is a case of aggravated sexual harassment and assault in the workplace. The hospital would have had to pay large cash compensation plus provide permanent care had her relatives been well-educated, not poor, and had access to a responsive legal system.

Abandoned, too, by municipal doctors; and here is the supreme irony. The daily devotion of her nursing colleagues has been so systematically thrust upfront that it has successfully masked the medical mismanagement of Aruna’s case by key municipal doctors. Hypocrites also take the Hippocratic oath. After Aruna was brutally assaulted, no doctor at the hospital was willing to file a complaint that drew attention to the fact that she had been anally raped, even though there are now claimants to “being there first to treat her”. The result: the sodomiser walked free after a mere seven years in jail for robbery. …..And so, equally abandoned by the law”. http://www.outlookindia.com/article.aspx?270853

Though considered it as path-breaking judgment, it is difficult, complex and some times impossible to judge the authority of an individual or group of people to decide about the life or death of another person. Now the ‘law of euthanasia’ remains a judicial legislation until parliament lives up to the ‘legal’ expectations.  The long time the High Courts and then Supreme Court in India might consume, will ultimately decide the length of life of terminally ill patients in PVS. For Aruna’s life, this profound law of death makes no difference.