Supreme Court legalises passive euthanasia: Dignity in death is a facet of Right to Live, rules five-judge bench

FP Staff

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In a landmark ruling, Supreme Court recognised the right to die with dignity and legalised passive euthanasia on Friday. A Constitution bench comprising Chief Justice of India Dipak Kumar Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan, passed the verdict on the plea to allow "living will" that will authorise the withdrawal of all life support systems if in the opinion of the doctors he has reached an irreversible stage of terminal illness.

The Supreme Court says it has laid down guidelines on who would execute the will and how nod for passive euthanasia would be granted by the medical board. The top court further added that its guidelines and directives shall remain in force till a legislation is brought to deal with the issue. CJI Misra said other members of the five-judge Constitution bench have concurred on the guidelines and directives passed by it.

While reserving the order on 11 October, 2017, the Constitution Bench had observed that the right to die in peace could not be separated from Right to Life under Article 21 of the Constitution. This fuelled speculation that the court allow the right to make "living will", which allows a person to opt for passive euthanasia in the event of irreversible serious illness, by putting in place strict conditions including a medical board certifying that a person is in an irreversible state of terminal illness.

An NGO Common Cause had moved the top court way back in 2005 seeking right to make a living will authorising withdrawal of life support system in the event of will makers reaching irreversible vegetative state.

The central government had in the course of hearing of the matter by a five-judge Constitution Bench told the top court that passive euthanasia was the law of the land with safeguards by virtue of an earlier 2014 judgement of the top court in Aruna Shanbaug case.

The top court by its order on 7 March, 2014, in Aruna Shanbaug case had permitted passive euthanasia under certain circumstances, provided it was backed by the permission of the high court. The Centre had also told the Constitution Bench that a draft bill permitting passive euthanasia with necessary safeguards was already before it for consideration.

However, the Centre had opposed permitting a living will both on the grounds of "principle and practicality" as it expressed apprehension of its possible misuse.

The top court in 2011 had recognised passive euthanasia in Aruna Shanbaug's case by which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. The Centre had opposed recognition of 'living will' and said the consent for removal of artificial support system given by a patient may not be an informed one and without being aware of medical advancements.

It had cited examples of various countries in disallowing creation of living will by patients. Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, had argued that safeguards were needed while taking a decision by medical boards to withdraw life support of a patient.

The bench was hearing the PIL filed in 2005 by the NGO, which said when a medical expert is of the opinion that a person afflicted with a terminal disease has reached a point of no return, he should be given the right to refuse life support.

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.

It had said that on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not by the treating physician alone.

Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.

Besides, NGO Common Cause, the Constitution Bench was addressed by a number of interveners who had supported permitting the living will. A living will is made by a person in his normal state of mind that is to be executed in the event of a terminal illness if he reaches an irreversible vegetative state.

However, it was emphasised that living could only be executed after the opinion of the medical board certifying on the condition of the patient.

Also See: Supreme Court likely to pronounce judgment on petition seeking recognition of 'living will' for passive euthanasia today

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