It was Aruna Shanbaug case that bought issues like end-of-life care (EoLC) and euthanasia to the collective consciousness of the society. The landmark judgement by the Supreme Court in 2011 evoked a sense of relief in some and an aggrieved feeling of betrayal in others. Even though the court stated that ‘passive euthanasia’ can be permitted in some cases, the guidelines were too ambiguous for interpretation. This called for a comprehensive legislation regarding the legality of euthanasia, responsibility of doctors and perplexing issues like the ‘living will’.
It took five years and hundreds of representations from civil society organisations for the Ministry of Health and Family Welfare (MoHFW) to come out with a draft legislation on the subject. Tentatively titled as The Medical Treatment of Terminally ill Patients (Protection of patients and medical practitioners) Bill, the draft document refrains from using the word euthanasia anywhere in the pages. It basically lays down guidelines to be followed in ‘passive euthanasia’ for categories of patients they describe and differentiate as ‘competent’ and ‘incompetent’. The bill specifies the procedures to be followed by patients, their relatives and medical practitioners in the process of allowing a patient to have dignity in death.
According to palliative care physicians, this draft bill acknowledges a person’s right to decide their own destiny albeit in a small and limited way. The bill explicitly states that the decision by a mentally competent person is binding on the medical practitioner. The document goes on to propose full legal protection and confidentiality for the patients, their relatives and medical practitioners. It also gives the processes involved in withdrawal of medical care to patients who are described as 'incompetent' to take a decision for themselves. Significantly, the bill gives provision for the medical practitioner to give palliative care to the patient irrespective of their decision on continuation of life-saving treatments.
A major criticism of the bill has been its complete silence on addressing the issue of active euthanasia. Even though many countries have legalised or banned the practice of active euthanasia or assisted suicide, the draft bill is conspicuously silent on the issue. This can possibly give rise to ambiguity in defining passive and active euthanasia, and what its dimensions and limitations are in the context of Indian legal discourse.
Another major issue is the fact that advance medical directives like a ‘living will’ or 'medical power of attorney' has been declared invalid before the law. This can possibly take away a person’s right to decide on the extent of life support measures, if he/she falls terminally ill. A few experts in bioethics argue that the right to a dignified death should be seen equivalent to the right to protection of life and personal liberty which is enshrined in the Constitution. The provision which gives sixteen and seventeen-year-olds the right to choose passive euthanasia measures and the binding nature of their decisions have also been put under scrutiny by various agencies. “When the same legal system states that these adolescents are too young to vote or drive, how they can decide on life or death” seems to be the most prominent argument here.
Overall, this bill is a step in a positive direction as it acknowledges for the first time, an individual’s right to a dignified death. It also recognises the need to expand palliative care services and widen the scope of end-of-life care. Even though it does not state so, the bill can be seen as a weak systemic measure against corporate hospitals treating terminally ill patients as milch cows to boost their balance sheets. If the ministry can incorporate the suggestions from organisations working in this field and improve the scope of the legislation, it can bring relief to thousands of suffering patients and provide much needed clarity to this legal gray area.
_The author is a public health specialist and has interests in palliative care and gerontology _