Living will, dignified exit

When a patient is brain dead with even attending doctors entertaining no hope of his revival, can the life support system be withdrawn? With the Supreme Court posing this thorny question to the Central government last Friday, the debate over passive euthasia is likely to be re-ignited in the coming days. Invoking the Right to Life under Article 21 of the Constitution, the non-profit NGO ‘Common Cause’ had petitioned the apex court seeking inclusion of the right to die with dignity. At the heart of its argument is the concept of ‘living will’, in which a person in sound mind and good health records his wish that he should not be kept alive with artificial life support once doctors pronounce him termilly ill with no chance of recovery. When the five-member SC constitution bench sought the Centre’s response on this plea for legalizing ‘living will’, the assistant solicitor general put forth the government’s position that it was considering a Law Commission report which supported passive euthasia; that based on this report, a proposed law titled ‘Medical Treatment of Termilly-ill Patients (Protection of Patients and Medical Practitioners)’ Bill is pending consideration; and that the government has in principle decided to decrimilize attempt to suicide, which is still an offence punishable by up to one year imprisonment under Section 309 of the IPC. The government’s law officer also pointed out that under Indian Medical Council regulations, there is the provision that a team of doctors (not the treating physician alone) could decide withdrawal of life support system from termilly ill patients declared brain dead. However, Common Cause has argued that even a person, not suffering brain death, should have the right to refuse life support — based on his or her ‘living will’.

In this context, the Supreme Court has asked the government’s law officer whether removal of the words ‘brain death’ would affect the meaning of passive euthasia. As of now, passive euthasia means a patient being allowed to die by limiting medical intervention, not escalating aggressive treatment, and withholding or withdrawing artificial life support in cases judged to be medically futile. In its 241st report, the Law Commission had suggested allowing withdrawal of life support for people in persistent vegetative state or in irreversible coma or of unsound mind, who lack mental faculties to make decisions for themselves. In 2011, a two-judge bench of the Supreme Court hearing the Aru Shanbaug case, legalized passive euthasia but the decision was overturned by a three-judge bench. The matter was then referred to a constitution bench, which has now sought a categorical answer from the Central government in the light of new developments like the Common Cause petition on ‘living will’, and death in May last year of rape survivor Aru Shanbaug who had remained in coma for several decades. It remains to be seen whether the government brings forth a law or amendment to legalize passive euthasia and ‘living will’. NGO Common Cause has raised some strong points in arguing that keeping a patient alive by artificial means against his wishes ‘is an assault on his body’, that the law needs to protect termilly ill patients from punishment for ‘attempt to commit suicide’ if they refuse medical treatment, including artificial nutrition and hydration. Then there is the practical question of whether it is right to subject a termilly ill patient’s family to huge fincial drain by putting him on ventilator. Significantly, the constitution bench had some tough posers for the government’s law officer about the rampant commercial exploitation by some hospitals. Its scathing observations about ‘ventilators becoming a lucrative business’ should strike quite a few chords among those who have been at the receiving end.