SC clears path for living will

Supreme Court-PTI

A five judge constitution bench of the Supreme Court said passive euthanasia is permissible; the court has framed detailed guidelines using its extraordinary power.

Senior advocate Mahesh Jethmalani welcomed the Supreme Court decision on passive euthanasia stating that he believes any individual who is very ill and unable to take care of himself should be allowed to make a decision on his life. Common Cause says persons with a family history of terminal illnesses - or indeed any person who feels he wants to be spared the ordeal of being put on life support -should be permitted to draw up a living will. This led journalist-activist Pinky Virani, who published a book regarding her case, titled Aruna's Story, to file a writ petition with the Supreme Court asking for the legalization of euthanasia so that Aruna's suffering could be terminated by withdrawing medical support.

Though it ultimately refused to do so in 2011, it did pass a landmark judgment back then that opened the door for passive euthanasia in the rarest of rare cases.

However, before we understand what the judgment implies for the common man, it is imperative to understand the concept of passive euthanasia and living will. He further clarified that while active euthanasia is a crime, same is not the case with passive euthanasia as the element of good faith and objective assessment of the caregiver of the patient will protect doctors performing this task.

The apex court said that advance directives for terminally-ill patients could be issued and executed by the next friend and relatives of such a person after which a medical board would consider it.




The bench has said that advance directive by a person in the form of "living will" can even be approved by a magistrate. "Care must be taken to ensure this does not happen by putting strict guidelines", he said. "A failure to recognise advance medical directives (or living will) may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity". The British House of Lords Select Committee on Medical Ethics defines euthanasia as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering".

The order was passed by a five-judge Constitution bench including the Chief Justice of India.

On 15 January, 2016, the Centre had said the 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards and there was also a proposed law - Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.

The bench observed that "dignity" was the core which united fundamental rights because fundamental rights enshrined in the Constitution sought to achieve for each individual the dignity of existence.

In a 538-paged ruling, it was held that such advance directive must be in writing and indicate in clear terms the decision relating to circumstances in which withholding or withdrawal of medical treatment could be resorted to. "That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner", the CJI said.

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