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Published : September 08, 2016 | Author : PRASHANTI UPADHYAY
Category : Jurisprudence | Total Views : 743 | Rating :

  
PRASHANTI UPADHYAY
Pashanti Upadhyay pursuing LL.M. from Law College Dehradun Uttaranchal University
 

Euthanasia: Contemporary Debates

Every human is desirous to live and enjoy the fruits of life till he dies. But some times a human being is desirous to end his life by use of unnatural means. While ‘suicide’ denotes the manner by which a person ends his life by his own acts, the intentional termination of a patient’s life, by act or omission of medical care, is called ‘mercy killing’ or ‘euthanasia’.

The Encyclopedia of Crime and Justice defines euthanasia as ‘an act of death which will provide relief from a distressing or intolerable condition of living’. This decision may involve direct intervention (active euthanasia) or withholding of life-prolonging measures (passive euthanasia). If it is with the patient’s consent and he has consciously and expressly approved of the decision, it is known as ‘voluntary euthanasia’. Where the individual concerned is not aware of the decision and has not consciously and expressly approved it in advance, it is called ‘non-voluntary euthanasia’.

Euthanasia and code of medical ethics

Euthanasia presents a paradox in the code of medical ethics, for it involves a contradiction within the Hippocratic oath, which is essentially the promise to prolong and protect life even when a patient is in the late and most painful stages of a fatal disease. The paradox lies in the fact that while an attempt to prolong life violates the promise to relieve pain, relief of pain by killing violates the promise to prolong and protect life. This argument of ‘conflict of duties’ was used by the defence in a crucial case decided by the Dutch High Court in 1984, known as the Alkmaar case. In this case, a ninety-five year old lady was unable to eat or drink and subsequently lost consciousness. On regaining consciousness, she pleaded with her doctor several times to put an end to her suffering. After discussing the matter with his assistant physicians and the son of the patient, the doctor agreed to her request for euthanasia. Later, charged with mercy killing, in his defence, the doctor argued that his legal duty to preserve and prolong life had been in conflict with his duty as a physician to relieve his patient’s unbearable suffering. Though the lower court and the court of appeals rejected this argument, the High Court suggested that this matter should be considered taking into account ‘responsible medical opinion’, measured by the ‘prevailing standards of medical ethics’.

This decision implied that when a patient was in an unbearable situation and there was no hope of improvement and his suffering could not be relieved in any other way; a doctor who has acted on the patient’s explicit, persistent and well-informed request for euthanasia, would not be held guilty of an offence. In the same year, the Royal Dutch Medical Association issued guidelines on euthanasia, which were later put into law by the Dutch Parliament in 1993. Under these, Dutch doctors could provide help to patients who were suffering unbearably without any hope of improvement and who also asked to be helped to die. Netherlands thus became the first country in which euthanasia is officially condoned and widely practiced.

Euthanasia and Law

While growing population demands make it nearly impossible to have referendums of popular choice in every particular dispute, it is true that for the law to be respected and effective, it must, in a democracy, embody what is generally regarded as right. A series of opinion polls conducted both in India and abroad revealed that a majority of the population was in favor of legalisation of euthanasia. In one such historic referendum in November 1994, Oregon (U.S.A.) became the first state to vote in favor of physically assisted suicide.

Some scholars have recently been arguing that the State has no right to force a person to live in a state of unbearable pain and bear the expense of unproductive medical treatment. Every person must have a right to choose his own way of life and the State cannot force a person to live in a particular manner.

In England, there is the famous case of Dr. Nigel Cox who was tried for attempted murder. In August 1991, Lillian Boyes had been suffering acute pain from rheumatoid arthritis, which her doctor, Nigel Cox, was unable to control with analgesics. She repeatedly begged him to kill her and, in the face of her terrible anguish and his own inability to control the pain, Dr. Cox injected Lillian Boyes with two ampoules of potassium chloride - a double dose of a lethal drug that has no curative or pain killing properties. Some days later a Roman Catholic nurse reported his action and he was charged with attempted murder. He was found guilty and was given a twenty-month suspended prison sentence. The General Medical Council reviewed his case and said that while a doctor could ease pain and suffering, it is ‘wholly outside that duty to shorten life in order to relieve suffering’. Nevertheless, the Council added that it had decided ‘to temper justice with mercy’ and impose no penalty.

The comparatively recent de-criminalisation of suicide in many countries offers an escape for the patient without doctor’s involvement. In England, though the 1961 Suicide Act has removed the possibility of criminal prosecution for those recovering from a failed suicide attempt, it is still a criminal offence to aid, abet, counsel or procure a suicide. Therefore death must be accomplished alone and unaided, and unfortunately for many this is no longer physically possible. In some countries notably Germany, Switzerland and Sweden, aiding a suicide is not a crime and a doctor can provide appropriate drugs to an incurably ill patient though not administer them.

In India, suicide per se is not a crime but attempted suicide is. Exception 5 the Section 300, IPC protects a person who causes the death of another above the age of eighteen with his/her consent. However this section has a limited scope. It only reduces the gravity of the offence and the person charged is made liable for culpable homicide not amounting to murder. The doctors, who have taken active steps in supplying lethal drugs to patients on their requests, can claim the benefit of this exception. However this is not sufficient as euthanasia is absolutely different and is applied in cases of advanced old age and severe illness.

Can There Be a Fundamental Right To Die?

The Indian Constitution says that the 'Right to Die' is not a fundamental right under Article 21. Whether the right to die is included in Article 21 of Constitution came up for consideration for the first time before the Bombay High Court in Maruti Shripathi Dubal v. State of Maharashtra case. The Court held that the right to life, guaranteed by Article 21 includes the right to die, but did not clearly explain how even at the level of plain logic, life includes death. Apparently the two cannot coexist. Death is the absence of life.

On 26 April 1994 in P. Rathinam v. Union of India, a two-judge bench of the Supreme Court through Justice B.L. Hansaria invalidated section 309 of the Penal Code, which made attempt to commit suicide an offence, on the ground that it ‘violated the fundamental right to life’. However, on March 21, 1996 in Gian Kour v. State of Punjab, a five judge Constitution Bench of the Court overruled Rathinam and upheld the validity of section 309 of the Penal Code. It held that 'right to life, under Article 21 of the Constitution, does not include right to die or right to be killed. The right to die is inherently inconsistent with the right to life’.

The court made it clear that the 'Right to Life,' including the right to live with human dignity, would include the existence of such a right till the end of natural life. This also includes the right to a dignified life up to the point of death, including a dignified procedure of death. This may include the right of a dying man to die with dignity, when his life is ebbing out. However, according to the court, the ‘Right to Die’ with dignity at the end of life is not to be confused with the 'Right to Die' an unnatural death. The Court reiterated that the argument to support the views of permitting the termination of life in such cases (e.g. a dying man, who is terminally ill and is totally dependent on life support systems), by accelerating the process of natural death, when it was certain and imminent, was not available to interpret article 21 to include the right to curtail the natural span of life.

We do not have any precedents, either Indian or foreign to support the argument that life includes death or right to live includes right to die. The right to life is guaranteed in almost all the constitutions that have a bill of rights as well as in all international human rights documents. But inspite of the continuing intense debate on dignified death, the right to die has not been recognized under any of them. For example, in United States, in some cases State laws providing for removal of life saving devices in the case of comatose persons who have no chance of survival have been upheld, but no general right to end one’s life has yet been recognized.

Should Euthanasia be legally allowed?

There has been a lot of debate over this topic in the past few decades. One school of thought argues that right to dignified life should be recognized as a part of basic human rights. Life does not only mean life with flesh and bones but a life with full human dignity and honor. If a person cannot live with this honor and dignity, he or she should have the right to medical assistance in dying. Therefore more emphasis should be laid on quality of life rather than sanctity of life.

It is argued that the word “right to life” as mentioned in Article 21 of the Constitution should embrace in its ambit the right to have good health and if it cannot be achieved through all possible means then it should also include the “right to die peacefully with medical assistance”. It seems unconstitutional a law preventing doctors to provide a lethal dose to terminally ill patients who have given their consent for the same.

But the counter argument to this is that for allowing euthanasia, the law of consent needs to be changed. Presently, Section 87 of the Indian Penal Code lays down that consent cannot be pleaded as defence in a case where the consent is given to cause death or grievous hurt. As regards to death, the restriction is absolute and unconditional, though consent may have the affect of reducing the gravity of offence.
It is also argued that the resources of the hospitals are limited in our country and thus the chunk of these recourses, which are ‘wasted’ for the treatment of terminally ill patients should instead be utilised for the health care of other citizens who if provided good treatment, might have many years of useful and fruitful life ahead. However this argument cannot be accepted on the ground that, in a welfare state, providing a better health care is the responsibility of the state and nobody, even at his deathbed can be denied this facility. However, once legalized, the high cost of medical care could induce the state or family members to convert voluntary euthanasia to compulsory euthanasia.

To date, no consensus has been reached which makes one question the possible role that law can play in resolving this issue. It has on occasions, been claimed that the courts are ill equipped to deal with the highly sensitive and rather ambiguous concept of euthanasia. The efficacy of statutory regulations is to be doubted, especially when it is considered that the courts would be required to use their discretion in applying such statutes to the inevitably diverse and unforeseeable range of cases, which come before them.

Society has reached a critical stage, being asked whether in the name of mercy and self-determination one of the oldest of medicine’s prohibitions should be overturned, or whether in protecting its traditional role of only healing life and not taking it, the prohibitions should be upheld. At stake are some of our most important ethical, legal and social issues.

 




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