Will Make Guidelines On "Living Will" More Workable, No Review: Supreme Court : Daily Current Affairs

Date: 20/01/2023

Relevance: GS-2: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes; Mechanisms, Laws, Institutions, and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.

Key Phrases: Euthanasia, Persistent Vegetative State, Right to Life, Right to Die with Dignity, Article 21, Living Wills or Advance Medical Directive, Aruna Ramchandra Shanbaug case, Common Cause versus Union of India.

Why in News?

The Supreme Court has recently clarified that it will not review its 2018 judgment on passive euthanasia and will only make the guidelines on "living will" workable. However, the legislature has to enact a law for terminally ill patients wanting to stop treatment.

Key Highlights:

The five-judge Constitution Bench heard the public interest organization Common Cause’s miscellaneous application relating to concerns in implementing the Supreme Court’s 2018 direction relating to the execution of Living Wills or Advance Medical Directive in its judgment in Common Cause (A Regd. Society) versus Union of India.
Observing that the legislature is much more endowed with "skills and sources of knowledge" to enact a relevant law, the Supreme Court held that it would limit itself to improving the guidelines it had laid down on "living will".

Arguments given by the Supreme Court:

The Supreme Court recognized that a terminally ill patient or a person in a persistent vegetative state may execute an advance medical directive or a "living will" to refuse medical treatment, holding the right to live with dignity also included "smoothening" the process of dying.
It had been observed that the failure to legally recognize advance medical directives might amount to "non-facilitation" of the right to smoothen the dying process, and that dignity in that process was also part of the right to life under Article 21 of the Constitution.

Background:

The Supreme Court had laid down principles related to the procedure for execution of advance directives and spelled out guidelines and safeguards to give effect to passive euthanasia in both circumstances where there are advance directives and where there are none.
However, the directions issued by the court in its 2018 judgment have turned out to be unworkable.

What is Living Will/Advance Medical Directive?

Living Will/Advance Medical Directive is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.
It allows a person to terminate life support and die with dignity.

Elements of living will:

It should be in writing and should clearly state when medical treatment may be withdrawn or if specific medical treatment should be given which will have the effect of delaying the process of death.
Instructions must be absolutely clear and unambiguous and should mention whether the patient may revoke the instructions/authority at any time.
It should specify the name of a guardian or close relative who, in the event of the patient becoming incapable of deciding at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment
If there is more than one valid Advance Directive, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be implemented.

Supreme Court’s directions in the judgment:

As per the Supreme Court’s directions in the judgment, a medical board has to first declare that the patient has no scope of recovery or is brain dead.
Then, the matter goes to the district collector, who constitutes an independent medical board to obtain a second opinion.
After this, the matter is referred to a Judicial Magistrate of First Class, who has to go to the hospital to satisfy himself that the board’s opinion, that the life support could be withdrawn from the patient, is correct.
Many stakeholders have found this procedure unworkable due to cumbersome guidelines.
Moreover, some families may consider aged people as unwanted, and therefore chances of misuse of the living will.
Thus, there have to be some safeguards to protect against misuse of the directions.

Do you know?

What does euthanasia mean?

Euthanasia, sometimes known as mercy killing, is the act or practice of putting to death people who are suffering from a terrible and incurable sickness or a physically incapacitating disorder without pain, or permitting them to die without treatment or artificial life-support measures.

Types of Euthanasia:

Passive Euthanasia: withdrawal of nutrition and water and withholding of life-saving treatment, thus facilitating the person’s end, and relieving them from suffering.
Active euthanasia involves a physician, who actively assists suicide by injecting lethal substances to accelerate death. Active euthanasia remains illegal in India.

Landmark cases of Euthanasia in India:

In the case of Gyan Kaur versus the State of Punjab, the supreme court held that Euthanasia and assisted suicide are unlawful in India. The court held that the right to life under article 21 of the Indian Constitution does not include the right to die.
In Aruna Ramchandra Shanbaug versus Union of India 2011, the supreme court held that passive Euthanasia could be allowed under exceptional circumstances under strict monitoring.
In 2014, a three-judge bench of the Supreme Court of India turned the judgement in the Aruna Ramchandra Shanbaug case to be inconsistent in itself and referred the issue of Euthanasia to its 5 judge constitution bench.
In common cause versus Union of India, the court held that the fundamental right to life and dignity includes the right to refuse treatment and die with dignity. It held that the fundamental right to a meaningful existence includes the person's right person choice to die without suffering.

Conclusion:

The laws related to living will have to be framed considering the evolution of science & technology and the knowledge of the existing laws prevalent over the globe.
It should keep in mind that the right of a dying man is to die with dignity when life is ebbing out and in the case of a terminally ill patient or a person in a persistent vegetative State (PVS), where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.

Source: The Hindu

Mains Question:

Q. The fundamental right to a meaningful existence includes the person's right person choice to die without suffering. Critically analyze. (150 words)