THE CURRENT CONTEXT
The contentious issue of euthanasia once again came to the fore recently, when the Supreme Court on July 15, 2014 issued notices to all the States and Union Territories on legalising passive euthanasia. The Court also appointed former Solicitor General Mr. T.R. Andhyarujina as amicus curiae to assist it on this issue.
The petition was filed by an NGO seeking voluntary passive euthanasia including withdrawal of life-support system of a terminally ill person and stopping medication. Reportedly, the lawyer appearing for the NGO insisted the Court to introduce a procedure under which a terminally-ill person or whose health has deteriorated should be able to execute his or her will and ‘attorney authorisation' for passive euthanasia as and when the situation arrives.
However, the Union Government has argued that passive euthanasia is another form of suicide and cannot be allowed. Attorney General Mr. Mukul Rohatgi, who is representing the Centre, told the Court that the plea for voluntary passive euthanasia was against public policy as it would be in the lines of abetment to suicide and attempt to commit suicide.
Various medical and legal dictionaries say that passive euthanasia is the ‘act of hastening the death of a terminally-ill patient' by altering some form of support and letting nature take its course. Passive euthanasia can involve turning off respirators, halting medications, discontinuing food and water so the patient dies because of dehydration or starvation. Passive euthanasia can also include giving the patient large doses of morphine to control pain in spite of the likelihood that the painkiller can cause fatal respiratory problems.
Whereas, active euthanasia involves helping the patient to die on the basis of a request by either the patient or those close to him or her, usually direct family members.
EUTHANASIA : ARGUMENTS FOR AND AGAINST IN INDIAN SOCIETY
The debate on the need of euthanasia in India got intensified with Aruna Shanbaug's plea which was rejected by Supreme Court of India in 2011. The Law Commission has recommended legalising euthanasia for terminally ill patients. Currently speaking, however, euthanasia is undoubtedly illegal in India. The law in India is very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the IPC.
"The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002," Chapter 6 dealing with unethical acts declares that "a physician shall not aid or abet or commit any of the following acts which shall be construed as unethical". Regulation 6.7 declares ‘euthanasia' as an unethical act.
ARGUMENTS FOR EUTHANASIA
(a) The major argument in favour of euthanasia is that it is a way to end extreme unbearable pain caused due to disease, infirmity of body or mind or some' incurable ailment. Insistence, against the patient's wishes, that death be postponed by every means available is contrary to law and practice. It would also be cruel and inhumane. There comes a time when continued attempts to cure are not compassionate, wise, or medically sound. It is cruel to make a person suffer excruciating pain when there is no chance of recovery.
(b) It provides a way of relief when a person's quality of life is low. Does modern technology not keep people alive who would have died in the past? Should people be forced to stay alive being "hooked up" to machines? It also causes physical, emotional and financial stress on the relatives and family members of the dying patient. Neither the law nor medical ethics requires that "everything be done" artificially to keep a person alive. Comprehensive and compassionate end-of-life care includes the promotion of comfort and the relief of pain, and at times, forgoing life-sustaining treatments.
(c) Since euthanasia and assisted suicide take place anyway, isn't it better to legalise them so that they will be practised under careful guidelines and so that doctors will have to report these activities? However, it may be noted that doctors who do not follow the "guidelines" will not report and,
even when they report, there is no way to know if it is accurate or complete.
(d) It is also to be noted that patients have the right to refuse any medical treatment. A doctor w'ho treats a patient against his or her express wishes can be charged with assault. It would be wise to educate people about their right to refuse treatment at any point of time. The question is only when the person is unable to give consent, and allowing euthanasia may be necessary7.
(e) Some argue that legalising euthanasia in case of people facing terminal illness may save on unproductive medical expenses. It may free up medical funds of the state to help other needy people. In a country like India where
¦ millions of people live below the poverty line and cannot afford any expenses on medical treatment and may die due to non-affordability and non-availability of medical help, given the paucity of state funds for public health facilities; the funds freed by Euthanasia may be utilised to save lives of these poor and needy persons.
(£) Another argument is that it is a case of freedom of choice or individual liberty. Constitution guarantees the fundamental rights and freedoms to people where the positive right includes the negative right. For example, the freedom of speech carries along with it the freedom not to speak. The right to carry on business includes the right to close down the business; in similar manner, the right to live should include within it the right not to live. People should not be forced to stay alive. It is the right of an individual to make a choice, whether to live or not to live.
ARGUMENTS AGAINST EUTHANASIA
(a) Euthanasia devalues human dignity and sanctity of life. No one and no sickness can take the human dignity away. No matter where you are in your life, you are still human and you have the dignity of being human. Allowing euthanasia will offend the principle of sanctity of life.
(b) Archbishop Vincent Nichols, the head of the Roman Catholic Church in England and Wales, believes that euthanasia will leave sick, disabled or vulnerable people with less protection than the rest of the population and could even be seen as providing a "cloak for murder". It seems to imply that if the victim is disabled or terminally ill, then his or her life does not merit the same degree of protection by law. "Such an underlying assumption is unacceptable in a civilised and caring society."
(c) Today, advanced research is constantly being made in the treatment of pain, and with every progressive achievement, the case for euthanasia and assisted-suicide is proportionally weakened. Accepting incurability of diseases will be underestimating medical science. Many diseases which had no cure in the past are curable and controllable today with the help of research in medical field. For example, today, 95% of cancer pain is controllable and the remaining 5% can be reduced to a tolerable level.
(d) Although it is rare, some terminally ill people can and do get better. The chances of mistakes or errors of diagnosis cannot be overruled. Every good doctor knows that medicine is an art as well as a science. No one can predict with 100% certainty who will live and who will die. The Journal of the American Medical Association (JAMA) Vol. 284, No 4, reports that medical errors may be the third leading cause of death in the United States at
225.0 deaths per year. Half are medical mistakes, including 2,000 deaths in a year from unnecessary surgery; 7,000 deaths a year from medication errors in hospitals;
20.0 deaths per year from other errors in hospitals; and 80,000 deaths per year from infections in hospitals.
(e) Euthanasia, if allowed, would not only be for people who are "terminally ill." Where euthanasia has first been legalised for only the terminally ill, later on laws are changed to allow it for other people or to be done non-voluntarily. Euthanasia will become non¬voluntary. Caring is not always curing, but every bit is important. In countries where assisted suicide is allowed, it has moved into mercy killings of deformed babies, and into allowing mentally-ill people to kill themselves rather than seek treatment.
(f) It is usually believed that patients with terminal illness have only two options: either to die slowly in unrelieved suffering or they receive euthanasia. However, there is a middle way, that of creative and compassionate caring. Research in palliative medicine shows that virtually all unpleasant symptoms and chronic pain experienced in terminal illness can be either relieved or substantially controlled by palliative care and medicine.
(g) A patient with a terminal illness is vulnerable. He lacks the knowledge and skills to alleviate his own symptoms, and may well be suffering from fear about the future and anxiety about the effect his illness is having on others. Patients who on admission say ‘let me die' usually after effective symptom relief are most grateful that their request was not acceded to. Losing the opportunity of caring for vulnerable people denies us an essential part of our humanity. The answer is not to change the law, but rather to improve our standards of care.
(h) To some extent it may be true that Euthanasia can help in health-care cost-reduction. But it may develop dangerous precedents suggesting that the longer we keep sick people alive, the more they cost us. Last illnesses cost more than any other medical category. In this materialistic world, if we convince you that you have no hope for a future, we save money on your care and make money on your organs. If we convince you to die early, we inherit your money more quickly. The government saves on Social Security. Your company saves pension money. We must engage in economic activities to live, but this is not why we live. The purpose of economics is to sustain human life; the purpose of human life is not to sustain economics. A crippled person, a mentally retarded person, or an old person is no less valuable than a young and healthy person. The fact that they contribute less to the economy has nothing to do with their value as human beings.
(i) Many people who are terminally ill are not depressed. However, some terminally-ill people are
depressed and talk about suicide. If they get antidepressant medications, a good psychologist and a caring spiritual counsellor, they can recover emotionally. Suicidal people need treatment for depression, not help for committing suicide.
(j) Anti-euthanasia groups say the practice would put pressure on patients, especially on disabled persons, to choose to die rather than be a burden on their families. Emotional, financial and psychological pressures could become overpowering for depressed or dependent people. If the choice of euthanasia or assisted suicide is considered as good as a decision to receive care, some people will feel guilty for not choosing death. This duty to die becomes greater as one grows older. The Alaska Supreme Court ruled unanimously that state laws punishing assisted suicide as manslaughter are to be upheld. It argued that, "The terminally ill are a class of persons who need protection from family, social, and economic pressures, and who are often particularly vulnerable to such pressures because of chronic pain, depression, and the effects of medication"
(k) Physicians and other medical care people should not be involved in directly causing death. It creates incentives to do less medical research and to save money on medical care by offering people poison pills. There is no way to control assisted suicide once you make it legal. In a country like India, where poverty and corruption is rampant, there is no foolproof way to write the law without opening it to abuse. Those who oppose euthanasia say that it would make doctors as well as impatient heirs irresponsible. There will be relatively little effort to improve pain and symptom treatment, suggesting that legalisation of physician-assisted suicide might weaken society's resolve to expand services and resources aimed at caring for the dying patient.
LAW COMMISSION ON THE ISSUE OF EUTHANASIA
The Law Commission in its 196th Report on Treatment to Terminally 111 Patients (Protection of Patients and Medical Practitioners) recommended the deletion of sec 309 of the Penal Code which makes the ‘attempt to commit suicide' an offence. Refusal to obtain medical treatment does not amount to ‘attempt to commit suicide' and withholding or withdrawing medical
treatment by a doctor does not amount to ‘abetment of suicide'.
The Report concludes that ‘Euthanasia' and ‘Assisted Suicide' must continue to be offences under our law. The scope of the inquiry is, therefore, confined to examining the various legal concepts applicable to ‘withdrawal of life support measures' and to suggest the manner and circumstances in which the medical profession could take decisions for withdrawal of life support if it was in the ‘best interests' of the patient.
The report summarises that—from the principles almost uniformly laid down by the Courts in several countries, it is clear that (i) in the case of a patient who is seriously ill, but competent, his refusal, not to take medical treatment and allow nature, to take its own course, it is lawful and does not amount to ‘attempt to commit suicide', (ii) likewise, (a) where doctors do not start or continue medical treatment in such cases because of such patients' refusal, they are not guilty of abetment of suicide or murder or culpable homicide and (b) if the patient is a minor or is incompetent or is in a permanent vegetative state, or (c) if the patient was competent but his decision was not an informed one and if the doctors consider that there are no chances of recovery and that it was in the best interests of the patient that medical treatment be withheld or discontinued, the doctor's action would be lawful and the)r will not be guilty of any offence of abetting suicide or murder or culpable homicide. In such case, as the doctor is acting in good faith, his action in withholding or withdrawing medical treatment is protected and he is also not liable in tort for damages.
OPINION ON THE ISSUE
In modern parlance, the "freedom to die" seems to be flowing from the right to life, autonomy and self-determination. Suicide is a tragic, yet individual act. Euthanasia and assisted suicide are not private acts, however. They are about letting one person facilitate the death of another. Is it ethical and moral to help other commit suicide? Is it legally permissible? This is a matter of great public concern since it can lead to tremendous abuse, exploitation and erosion of care for the most vulnerable people among us. The real issue today is two types of cases:
Firstly, people who can communicate their desire to die. People, who perhaps because of a serious illness or perhaps for reasons unrelated to their illness, are extremely depressed and say they want to die. These people are no different than anyone else who thinks about suicide— they just have medical problems in addition to their emotional or psychological problems. Some feel guilty about being a burden on their family. But social workers and psychologists have routinely found that when people like this talk about or attempt suicide, the vast majority do not really want to die. They just become frustrated that they cannot lead the kind of active lives that they used to before their illness.
Secondly, people who are unable to communicate because they are in a coma, or paralysed, or simply so sick and weak that they cannot make any meaningful communication. The pro-euthanasia people say that for such patients "quality of life" is so low that they are better off dead and they should be killed by taking away their food, fluids and other life- support system. This raises a moral question. Is it right for others to decide whether one person, whatsoever his condition may be, should live or die?
In the ultimate analysis, one may conclude that the arguments against euthanasia outweigh the arguments for legalising euthanasia and India must move very cautiously on this issue.