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Published : May 31, 2016 | Author : Shreyaa
Category : Jurisprudence | Total Views : 1310 | Rating :

BBA LLB, Symbiosis Law School, Pune

Euthanasia: A 360 degree analysis

it was in news that Jyoti, a 20 year old girl from a village in Pratapgarh, who had been suffering from serious cancer for past two years has sought permission from the Uttar Pradesh Governor for euthanasia through the district magistrate. Due to the cost of the treatment being very high, a request has also been made to the government to help the girl financially, as her family is no longer in a position to bear the expenses of her treatment.

We often come across such bedridden terminally ill patients who are totally dependent on others. They live a life which is painful both physically and psychologically. Anyone who is a witness of their dreadful condition would say that death would have been a better option for them than living such a painful life.

In this article, some basic points regarding euthanasia and the legal scenario around the world in context of the euthanasia debate has been analyzed.

Euthanasia literally means good death and is derived from two ancient Greek words – ‘Eu’ meaning good and ‘thantos’ meaning death. According to the House of Lords Select Committee on Medical Ethics, euthanasia is ‘a deliberate intervention undertaken with the express intention of ending life to relieve intractable suffering’. It is also known as Mercy Killing where an individual is leading a painful life suffering from an incurable disease or has no chances of survival ends his life in a painless manner.

Euthanasia can be classified into the following categories:

v Voluntary Euthanasia: In this case, the patient himself makes an explicit request to terminate his life.

v Involuntary Euthanasia: Here, another person be it from family, friends or even the physician treating him, gives an informed consent on behalf of the patient who is no longer in a position to do so himself.

v Active Euthanasia: It involves causing death of a patient directly through injection, etc done in response the individual’s request.

v Passive Euthanasia: It involves removal of the life saving support systems or discontinuing the medical treatment so that a person ultimately dies a natural death.

v Physician Assisted Suicide: When a physician supplies information or dose of sleeping pills or exposes the patient to carbon monoxide gas, it is then the discretion of the patient to administer it on himself. It is called Physician Assisted Suicide.

The basic objective of euthanasia is, thus to ensure a less painful death to a person who has undergone a long period of suffering. However, legalization of euthanasia has turned into one of the most widely debated and widely discussed subjects in the world. The debate is continuing as some people view life as sacred and no one therefore should hold the right to end it further a right to end one’s life can be abused and used as a cover for murder. Many on the other hand say that life belongs to oneself and therefore one should have a right to choose what he wants to do with it, let alone dying. Euthanasia therefore raises many questions such as –
· Should human beings have a right to decide on the issues of life and death?
· Under what conditions, if any should euthanasia or mercy killing be made justifiable?

The Concept of Living Will

Many who debate on the issue of euthanasia being legalized raise these questions as to what if the person doesn’t want to die? What if his relatives or family members who are trusted to make a reasonable and informed decision on the patient’s behalf are impregnated with malicious and selfish motives? In order to keep these possibilities at bay, many countries have adopted advance healthcare directives such as living will.

A living will is a document wherein a person specifies as to how would he as a patient want to be treated or what actions should be taken for their health if they become seriously ill or are no longer in a position to make decisions for themselves or communicate them because of their illness or incapacity. Living wills are also called active declarations. A living will is thus not an instrument of euthanasia, but a request to the doctors in advance to give or not to give certain medical treatments.

Living will has certain advantages –
a) Respects a patient’s right to reject certain medical treatment.
b) They guide family members and relatives in taking difficult yet crucial decisions.
c) Knowing what the patient wants helps doctors give treatment accordingly.

Euthanasia And Law of Torts

Since the concept of euthanasia revolves around doctors and medical professionals it becomes imperative to view the issue in relation to the law of torts. The concept of medical negligence today can be considered to be a wing of negligence as a tort. The only assurance that a professional can render to the patient is that he possesses the required skill and competence while performing the task undertaken. A medical professional owes certain duties towards the patient –
1. A duty of care in deciding whether to undertake a particular case.
2. A duty of care in deciding what treatment to give.
3. A duty of care to be exercised while administering that treatment properly.

A breach of any of these duties can give the patient a right to sue under negligence. He would however not be liable if he acted in accordance with a practice accepted as proper by a reasonable number of skilled medical men. Under common law, a doctor cannot lawfully operate on an adult person of sound mind without their consent or he will be liable for trespass. But if the person is incapable due to some reasons to give consent the doctor can undertake the treatment if that is in the best interests of the patient or can save his life. Same is the case of an insensate person who has no chance of recovery if that patient gives his consent through a living will or otherwise for removal of the crucial life support system. A minor is generally considered as not having the required capacity to form an informed consent to crucial medical treatments. In such a case, the guardian, parent or a person in loco parentis must consent although it has been suggested that if the child is over 13 years old, his consent should also be obtained. In India however a patient still does not hold the right to decide for his treatment.

Euthanasia in torts – Imposing a tortuous liability in euthanasia cases can lead to recovery for assault, battery or intentional infliction of mental stress. Involuntary euthanasia is a battery no matter whether the person administering it is a specialist or not. In action under tort law for euthanasia, it is not always that the physician is liable.

Under following conditions a physician may escape liability –
Ø Presence of an informed consent – An informed consent essentially requires disclosure of information regarding all possible risks and available alternative treatments if any before gaining consent for euthanasia. In case of a criminal action being filed, the defendant can escape if he manages to prove the presence of an informed consent on behalf of the patient himself or a near kin.

Ø Nature of contract – A medial contract as per law, unlike any other contract, can be terminated at will. A patient by dropping his doctor can terminate his contract. Similarly, a physician too in most cases can end it by withdrawing from the case at the very initiation of the treatment. A mere rendering of services in an emergency does not necessarily give rise to a duty bound relationship.

Status of Euthanasia Around The World

As per October 2015 update, euthanasia stands legalized only in the Netherlands, Belgium, Ireland, Columbia and Luxembourg. The legal status of euthanasia stands like this around the globe –

Euthanasia is illegal in Australia any person can therefore be arrested for aiding and abetting suicide. It was legal earlier in the northern territory under the Rights of the Terminally Ill Act 1995. In 1997, the Australian Federal Government overrode it through the introduction of the Euthanasia Laws Act 1997. Australia however gives patients an Advanced Care Directive as an option under the Powers of attorney act of 1998 and Guardianship and Administration act of 2000.

United States
Active euthanasia is illegal throughout the United States. However, patients hold the right to hasten their death using the passive euthanasia option. Also, assisted suicide is legal in Oregon and Washington (Death with Dignity Act) , Vermont, California (effective from mid-2016), one county in New Mexico, and is de facto legal in Montana. Living will is considered as a legally binding document in United States. California however does not recognize a living will but provides an Advance Health Care Directive option to its patients. Supreme Court in US happens to condone active or passive euthanasia only if there is a clear evidence of informed consent from the patient himself or a legal surrogate. Following are the landmark passive euthanasia cases in US -

Karen Ann Quinlan case where Karen Ann Quinlan, 21, became unconscious after she consumed alcohol while on a crash diet and lapsed into a coma, followed by a persistent vegetative state. After doctors refused to disconnect Karen's respirator, her parents filed suit in New Jersey Supreme Court. On March 31, 1976, the court granted their appeal and Quinlan was taken off the ventilator. She continued to breathe unaided and died from respiratory failure in 1985.

Washington v. Glucksberg where Dr. Harold Glucksberg, a physician, challenged Washington state's ban against assisted suicide in the Natural Death Act of 1979. It was claimed that assisted suicide was a liberty protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The court decided against him and held that the clause supported state’s interest of preservation of human life and the protection of the mentally ill and disabled from medical malpractice and coercion. Further, if the physician-assisted suicide was declared a constitutionally protected right, it will ultimately lead to involuntary euthanasia.

The Terri Schiavo case in which Theresa Marie "Terri" Schiavo, a woman was in an irreversible persistent vegetative state. Her husband and legal guardian advocated for removal of her feeding tube. However, her parents argued in favor of continuing artificial nutrition and hydration. After a long series of legal battles Schiavo’s feeding tube was removed ultimately in 2005. She died after 2 weeks of removal. This case managed to spur a large scale debate between pro-life movement and right to die in United States.

Euthanasia was legalized by the Belgian parliament on 28 may 2002 and was further extended to children by December 2013. In most cases unbearable physical suffering was reported. However certain conditions are imposed in case of children opting for euthanasia -
· The patient must be truly aware of the meaning of euthanasia and what he or she is assenting to. His decision making capacity should also be attested to by a psychologist.
· The request must also be approved by the child’s parents and a qualified medical team.
· The child’s illness should be terminal and the option of euthanasia should be that of last resort.
· The consent given for euthanasia must be voluntary.

United Kingdom
Euthanasia is illegal in the United Kingdom. Any person can be convicted for assisting suicide or attempting it. However the 1957 judgment of Judge Delvin in the trial of Dr. John Bodkin Adams laid down the principle of Double Effect and ruled that if in causing death through administration of drugs, the intention is principally to alleviate pain, and it is not considered murder even if death is the most likely outcome. In England and Wales, people may make an advance directive or appoint a proxy to decide on behalf of themselves under the Mental Capacity Act 2005. The concept of living wills is also very popular here. However there are certain requisites that are required to be fulfilled for it to be legally binding –

· Patient’s decision must be recorded in writing and witnessed.
· He should be adult, competent and properly informed while making such a decision.
· It should be done voluntarily.

The Netherlands
The famous Postma Case of 1973 was one of the very first cases addressing the issue of euthanasia not only in the Netherlands but in the world as well. In 1971, Dr. Geertuida Postma injected her mother who was suffering from brain hemorrhage with morphine and curare, leading to her death. She was charged under Article 293 of the Dutch Penal Code. But the court later withheld the sentence. This case laid down the criteria as to when a doctor would not be required to keep the patient alive contrary to their will, that is, after having received all the available type of palliative care.

In 2002 however, the country legalized euthanasia including physician assisted suicide and codified the conventions laid down under the Postma Case and subsequent cases. In September 2004, Groningen Protocol for legalized child euthanasia was also laid down. In the Netherlands, apart from making the living will, at least 2 physicians totally unrelated to each other should agree that the patient holds no hope of recovery under the available possible means before opting for the euthanasia option.

Under Section 241(b) of Criminal Code of Canada, it was illegal to aid and abet suicide. The same was upheld in the landmark case of Rodriguez v British Columbia (AG) where when Sue Rodriguez, a 42-year-old mother diagnosed with Amyotrophic lateral sclerosis (ALS) found that she would not live more than a year, she began a crusade to strike down section 241(b) of the Criminal Code as it violated sections 7(the right to "life, liberty, and security of the person), 12 (protection against "cruel and unusual punishment"), and 15(1) (equality)of the Canadian Charter of Rights and Freedoms. It was held that criminal prohibition of assisted suicide does not violate the Charter.

In the later case of R v Latimer where Robert Latimer, a farmer got convicted for murdering his disabled daughter Tracy Latimer. He justified it using the defense of necessity. The case sparked a national debate on the very ethics of mercy killing. The supreme court of Canada held that a crime cannot be justified using necessity as defense.

The above two cases were recently overruled when the Canadian Supreme Court on 6 February 2015 in Carter v Canadastruck down the section 241(b) for it being invalid under section 7 and 15 of the Charter of Rights and Freedoms. It was ruled that Canadian adults who are mentally competent but suffering intolerably due to terminal illness have right to a doctor’s help in dying. However, the judgment was suspended till 6 June 2016 so that the government could come up with a well written legislation for the same. In 2014, the Quebec became the first Canadian province legalized physician assisted suicide through state sanction. It might become legal in entire country in 2016.

Legal Status of Euthanasia In India

In India euthanasia in any form wasn’t legal until the very recent Aruna Shaunbaug Case which reignited the long existing debate India between right to life and right to die. Article 21 has been one of the most controversial elements in the Indian Constitutional history. It states that –

“No person shall be deprived of his life and personal liberty except according to the procedure established by law”

The whole debate revolves around the single question whether right to life as provided under Article 21 also includes right to die? If the provision provides for right to a dignified life, then it should also include right to die. But inclusion of right to die under Article 21 would contradict with Section 309 of IPC which states –

“Whoever attempts to commit suicide and does any act towards commission of such offence shall be punished with simple imprisonment of a term which may extend to one year”

On a wider interpretation it would mean that lives of men are not only valuable to them but also to the state which seeks to protect them. Since the above section contradicts with the fundamental right given under Article 21, many a times its very usefulness is questioned.

The Supreme Court of India repealed Section 309 of IPC in P Rathinam v Union of India. But the decision was later overruled by a constitutional bench in Gian Kaur v State of Punjab where Gian Kaur and her husband were charged for abetting suicide of their daughter-in-law. They had fearlessly poured kerosene on her and they had a clear intention to see her dead. The case distinguished between right to die and right to die with dignity. Court here reaffirmed the legality of Section 309.

210th Law Commission report also emphasized on the invalidity of Section 309 and recommended it being struck down.

Euthanasia hasn’t been allowed in India because of these reasons only. The concept of Mercy Killing in India was taken as synonymous to an attempt to commit suicide criminalized under Section 309 of IPC. Supreme Court of India ruled in favor of passive euthanasia being legalized in the sensational Aruna Shaunbaug Case where Aruna, a young nurse, was raped and gagged with a dog chain in 1973. For forty-two years, she lived as a comatose patient under ventilation in an almost vegetative state under the care of KEM hospital, Mumbai. She died on 23 May 2015 on removal of life support system. She became the face of Indian Euthanasia debate.

In January 2016 on the PIL filed by the NGO ‘Common Cause’ which emphasized on the ‘living will’ option to be provided to patients, a constitutional bench of Supreme Court sat down to solve the prevailing inconsistencies on euthanasia legislation. It was argued that ventilators can be torturous and financially draining and possibly against the patient’s will too. The Constitution Bench, led by Justice Anil R. Dave, said it will wait till 20 July for the government or Parliament to finalize a law on passive euthanasia. Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practioners) Bill, 2006 is still pending in the parliament.

241st Law Commission also recommended passive euthanasia to be “allowed with certain safeguards”.

Even though the state considers saving lives of its citizens as its duty and ultimate responsibility for it being a welfare state, it’s high time that we realize that by deliberately keeping someone alive in utmost painful condition against his or her wishes, they are doing no welfare. For people who are terminally ill but are mentally conscious, it becomes a horror to see the quality of their lives deteriorate to worst in front of their eyes and also of their loved ones who keep on spending lakhs and crores on their treatment only to see them die ultimately.

Our very thought process pertaining to euthanasia needs to be changed. Rather than considering it as a murder or an attempt to suicide, it would be more correct to look at it as a way to end the consistent pain, suffering and torture in a person’s life. In India, life of a person has always been considered as most sacred of all as per its scriptures but the same scriptures mention practices like Jauhar, etc. Even in Mahabharata, Bheeshma had a boon to live as long as he wished but then why is he allowed to die on a death bed of arrows as Pandavas watch him die, is it not suicide? Or murder?

It should be noted that by being a welfare state, a state should work for the welfare of its people even if the welfare lies in removal of the crucial life support system keeping the person alive. Here are few recommendations that can prove useful in the current Indian legal environment –

# Section 309 should be deleted from Indian Penal Code as there is nothing that can hold back those who want to end their lives due to some reason or the other.

# Those who survive an attempt to commit suicide are mentally and emotionally distressed and require medical and psychological help rather than punishment.

# Passive euthanasia and Physician Assisted suicide should be legalized as recommended by 241st Law Commission.

# Advance healthcare directives and the facility of living will should be provided to citizens in India. Through living will a person would be able to easily specify his or her decision in relation to the treatment administered to him and will thus be able to make an informed consent regarding the same.

# Like United Sates, living wills should be made a legal document in India, that is, enforceable in the court of law. It should be signed in the presence of a qualified physician and should be attested by a lawyer.

# In order to counter the misuse of euthanasia option by relatives or near kin or even the doctors for that matter, a euthanasia panel must be set up comprising of skilled doctors, lawyers and a representative from the government who can give proper decision on case to case basis.

# If a person is no longer in the position to give an informed consent for euthanasia, the legal guardian or near and dear ones and family members should decide on his behalf and in their absence, the matter should go to the court.

# Before euthanasia is finalized for a patient a final recommendation should be taken from at least 2 doctors who are not related to each other or to the patient. So that it can be assured that apart from euthanasia, there does not exist any other option through which the patient’s life could be saved.

Every person who has a Right to Life should also have a universal right to relief from pain and suffering. Thus, not being tortured is a human right not because it hurts but because it violates autonomy or a choice to decide for one’s own life. This is where the slippery slope argument of those who oppose euthanasia loses ground.

End Notes
# In re Quinlan (70 N.J. 10, 355 A.2d 647 (NJ 1976))
# Washington v. Glucksberg, 521 U.S. 702 (1997)
# Robert and Mary Schindler v Michael Schiavo (1984-2005)
# Postma Case (1973)
# Rodriguez v British Columbia (AG) [1993] 3 S.C.R. 519
# R v Latimer [2001] 1 S.C.R. 3
# Carter v. Canada (Attorney General), 2012 BCSC 886
# Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454
# Rathinam v Union of India (1994) 1605 SC INSC 254
# Smt. Gian Kaur vs The State of Punjab 1996 AIR 946

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