A five-member team of the think tank Vidhi Centre for Legal Policy has recently submitted a report on “Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016” and asked for scrapping the bill in its current form and suggested drafting a fresh bill.
The Treatment of Terminally ill Patients Bill, 2016 was introduced in Parliament, last year. According to bill terminally ill patient above the age of 16 years can decide on whether to continue further treatment or allow nature to take its own course.
Let us understand the background of Euthanasia which will help in critically examining the bill.
Background of Euthanasia :
What is Euthanasia?
Euthanasia literally means “good death”. It is the practice of terminating the life of a terminally ill person or animal in a painless or minimally painful way, for the purpose of limiting suffering.
Euthanasia can be classified into active and passive or alternatively into voluntary, involuntary and non-voluntary.
- Active euthanasia means putting an end to the life of an individual for merciful reason by a medical practitioner by giving a lethal dose of medication to the patient.
- Passive euthanasia takes place where methods such as removing artificial life support systems such as ventilators, hydration, etc are resorted to.
Passive Euthanasia is executed in following ways
- Lethal injection – Injection of a lethal dose of a drug, such as a known poison, KCl, etc
- Asphyxiation – The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin & tabun etc. are also added in small amounts to fully ensure death.
- One of the methods is also Jack Kevorkian’s death machine .He is also known as Dr.Death. It’s a unique method in which a person can end his life himself. With the use of this machine a person can end his life himself painlessly at the time chosen by the patient.
India’s stand on Euthanasia:
In its judgments in the Aruna Shanbaug and Gian Kaur cases, the Supreme Court has stated that the law currently only permits passive euthanasia, i.e. withdrawal of life-saving treatment.SC made following observation and explained the scope of article 21.
- The administration of a lethal drug dose by a physician (active euthanasia) or by the patient herself (assisted suicide) would constitute attempts to commit or abet suicide under the Indian Penal Code, 1860.
- The court in gian kaur case made it clear that according to Article 21, a person has a right to live a dignified life which also includes right to die with dignity. But here right to die means dying a natural death. Therefore, Article 21 nowhere mentions about right to die an unnatural death. Curtailing the natural span of life of a person who has a certain end to life cannot in any case be read into Article 21.. Thus, right to life does not include right to die according to Article 21.
- If a person’s life is being ended unnaturally it will surely be a violation of human right. By virtue of being a human being a person has right to live a life as he wishes to. But that doesn’t allow him to end his life as and when he wants. This life is given to him by God and thus, it should be ended at its natural span.
- However, in both these judgments, the court stated explicitly that assisted suicide was only illegal in the absence of a law permitting it. Therefore, assisted suicide could be legalised if legislation was passed by Parliament to that effect.
Highlight of the bill:
The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.
- When a patient communicates her or his decision to the medical practitioner, such decision is binding on the medical practitioner,”. However, it also notes that the medical practitioner must be “satisfied” that the patient is “competent” and that the decision has been taken on free will.
- There will be a panel of medical experts to decide on case by case basis.
- The medical practitioner has to maintain all details of the patient and ensure he/she takes an informed decision. He is also required to inform the patient whether it would be best to withdraw or continue treatment. If the patient is not in a conscious state, he/she needs to inform family members. In the absence of family members, the medical practitioner needs to inform a person who is a regular visitor.
- The draft also lays down the process for seeking euthanasia, right from the composition of the medical team to moving the high court for permission.
Lacunae in the bill:
Lengthy and cumbersome process:
The Bill lays down a lengthy and cumbersome process before any action can be taken for the cessation of life.
- Once the medical practitioner and independent panel are satisfied that euthanasia is medically advisable, permission would have to be sought from the High Court.
- The practitioner would then have to receive clearance from the Medical Council of India (MCI). Such a procedure is advisable for an act like assisted suicide which might be prone to abuse.
- However Decisions on such withdrawal are made often and on a regular basis, and the procedure prescribed must not tie up the medical practitioner and family of the patient in litigation.
Role of MCI
- MCI has been affected by corruption and institutional incompetence, and hence it is not advisable to place complete reliance on it. Ideally, its role should ideally be limited to framing guidelines and providing guidance when requested.
Definition of terminally illness
- It defines the terminally illness as a persistent and irreversible vegetative condition under which it is not possible for the patient to lead a “meaningful life”.
- The use of this subjective phrase would require second parties to decide whether a person in a permanent vegetative state is living a life that is meaningful.
- Persons with disabilities, in particular, are likely to be disadvantaged by such an understanding of “terminal illness”.
- It also gives rise to the practical question of how a person in a permanent vegetative state will be able to self-administer the lethal dosage of drugs to commit suicide.
Violation of Right to die with dignity:
The Bill did not identify advance medical directives (or directions written by the patient in advance for a time when he/she may not have the mental competence to make decisions), which is crucial for patient autonomy. The draft bill fails to protect the right to die with dignity, which is part of the fundamental right to life.
Efforts to allow assisted suicide have gained traction around the world in the recent past, with Albania, Colombia and Germany and Switzerland having legalized it in various forms. Even in India, the debate over euthanasia, patient autonomy and the interests of the state in preserving the life of persons is currently playing out in various fora, including the courts and the executive.
Read the draft bill (Source PRS): Click Here