Mercy Killing - Some recurring legal and ethical thoughts

The Supreme Court Judgment in Aruna Shanbag’s case  permitting mercy killing by denying food and water to a patient on vegetative state is against the proclaimed  stand of the Govt. of India. According to this judgment, the doctors who have taken the pledge to save the life of human beings have to perform the role of the executioner.

Do you know Aruna Shanbag (pictured right), the unfortunate woman confined to a small room in the Ward IV of K.E. M hospital, Mumbai? She has been  living in a vegetative state for the last 38 years. Aruna Ramachandra Shanbag, 22  from North Karnataka, joined this hospital as nurse in the year 1973. One night, while on duty, she was raped by the ward boy, Sohanlal Valmiki who had also tried to strangle her with an iron chain. The blood supply to her brain was cut off , the vertebrae in the neck as well as the spinal column got damaged. Though death eluded her, she lost mobility and the power of speech. From then onwards, she has been remaining in a persistent vegetative state. Her treatment and care are carried out by the loving nurses and doctors of the hospital. Mumbai Municipality tried to shift her from the hospital, but the employees strongly protested. Though bedridden for an incredibly long period, not a single bed sore has appeared on her body and that proves the care with which she is looked after by the staff of the hospital. The newly recruited nurses here touch her feet to pay her obeisance before joining duty.  

Heart, lungs and brain are the three major organs of the human body. If one of these stops working, the other two will also stop functioning. Heart pumps the oxygen rich blood from the lungs to all parts of the body. If the blood circulation to the brain is stopped by any reason, (e.g.. cardiac arrest), the brain cells will not get oxygen, and if this state continues for ten minutes, the cells in the cerebral cortex will become dead for ever. The centres of knowledge, thought, sensory power, touch, muscle movement etc. are located in this part of the brain. If the oxygen less state continues for more than ten minutes, the brain stem the seat of vital centres of breathing and  circulation become irrevocably damaged  and total brain death takes place.

Modern gadgets like ventilator and pacemaker can make heart and lungs function even if they ceased functioning due to heart failure, but nothing can revive dead brain cells. If the heart of the person is revived only after ten minutes, he may be saved from death, but by then his cerebral cortex would become dead. He will have to live the rest of his life in a vegetative state.This is what happened to Aruna and there are many others who are destined to live in a vegetative state.

A nurse in Medical College, Kozhikode suffered cardiac arrest during her delivery by caesarian section. It took some time to revive her heart, but by then her cerebral cortex had become dead. She died after living in a vegetative state for 18 years. A young doctor in Thiruvananthapuram suffered cardiac arrest during his morning walk. There was some delay in taking him to hospital and revive his heart and by then his cerebral cortex had stopped functioning. For the last thirteen years he has been living in this vegetative state, lovingly looked after by his family. In order to avoid this sad predicament, people in western countries, tie a metal band on the wrist with the inscription, “ DNR” (do not resuscitate me). Some others prepare a living will directing that no resuscitation should be done if they suffer cardiac arrest. There are three ethical and legal norms to be observed in doctor-patient relationship. The first one is the patient’s autonomy. The doctor shouldn’t do any thing against the desire and interest of the patient even if it is not in accordance with treatment procedure.

Believers of a Christian sect, Jehovah’s Witnesses do not accept blood transfusion even if life is in danger. In such a situation, the doctor can only counsel the patient and relatives regarding the risk involved. He cannot force the patient to receive blood against his belief and wish. Similar is the case of resuscitation. The second principle that the doctor has to follow is ‘beneficence’. He should do only those things that are of benefit to the patient. The third principle to be followed is ‘non-malfeasance’ which means not to cause any harm. How does a doctor apply the first principle when the patient is unconscious? There are no laws regarding this situation and usually the doctors act according to the decision taken by the relatives. But on some occasions the doctors act on their own decision. Here are some examples.

A very old patient is brought in to the hospital in a critical state due to brain hemorrhage and he is admitted in the critical care unit. He is connected to the ventilator. Costly medicines and very expensive treatment are offered though fully aware of the hopelessness of the situation. After four or five days the relatives are in a fix as they have exhausted all the money they could afford. They will inform the doctor about their financial difficulties; the doctor will ‘pull the big switch off’; stop the ventilator and all other life supporting system. The patient leaves for a peaceful eternal sleep. This method of treatment offered purely out of financial greed is not only immoral but also illegal. It does not mean that old people should be denied treatment, but before starting expensive and futile treatment, doctors should assess the necessity.

There is a medical centre in our State for cancer patients, and here the poor patients who are likely to get cured will get the medicines free of cost. But in the cases of incurable cancer, the patient will have to buy even very costly medicines. Besides, he has to pay for the whole treatment. After going through intense suffering the patient dies and his family is in ruins due to the heavy debt incurred  for treatment. In all developing countries, the treatment offered for such patients is palliative care and not mercy killing or tortured death.

Let’s go back to Aruna. A journalist, Pinki Virani (pictured right) published the story of Aruna in the year 1998. The Marathi playwright Sri. Datakumar Desai staged a drama based on Aruna’s life. While publishing the novel on Aruna, Pinki Virani said that she would spend the income from the novel for the treatment of Aruna. In the last part of the novel Pinki says:  “ How I wish I could give life to Aruna’s lifeless brain”. But later she did something strange. Claiming herself to be Aruna’s friend she filed a writ petition before the Supreme Court requesting mercy killing for Aruna, It was stated in the petition that Aruna who is sixty,  is  in a bad plight and she must be denied food and water in her vegetative state and must be left to die.

The K.E.M hospital authorities submitted an affidavit against the writ petition of Pinki Virani. They declared in the Court that Aruna continues to be an employee of the hospital, she is given the best medical care and it will continue till her death. It was also stated in the submission that Aruna takes food, moves the muscles on her face and makes some sounds when she wants to empty her bowels. The nurses who care for her can understand what she means by the sounds she makes and takes her to the toilet.

The Court could have rejected the petitions for two reasons. Firstly, Pinky Virani is not a relative of Aruna and this case cannot be regarded as a case of public interest. Secondly, in this case there is no denial of fundamental rights as per section 32 of Indian constitution. In Article 21 of Indian Constitution, the right to live is mentioned and not the right to die. But the Bench consisting of Judges, Sri Markandeya Katju and Smt. Gyan Sudha Misra heard the case and they directed a panel of three expert physicians to examine Aruna and file a  report. They reported that, “ Aruna’s heart and lungs function in a satisfactory manner, there is no damage to the spinal column. Muscles are very weak, though conscious, not aware of surroundings. When water is spooned in to her mouth she will drink it, can take well cooked fruit and food. Though she doesn't cry or laugh, she makes vague sounds. Her cerebral cortex is partly dead, but brain stem, the centre of life is healthy. She is likely to live in this stage for many more years.”

In his deeply moving submission, Dr. Sanjay, the Dean of  K.E.M hospital stated: “ Aruna is one of us, she is most dear to us. We do not feed her through a tube, though she has been bed-ridden for thirty seven years no bedsore has appeared on her body. In the history of medical care no one has lived so long. Taking care of Aruna symbolizes love, dedication and sense of responsibility. Since Aruna has been hospitalised, many doctors and nurses have come and gone, but there isn’t a single one who hasn’t tendered to Aruna. We will take care of Aruna till her last breath. Pinki Virani who has nothing to do with Aruna has no right to demand mercy killing for Aruna. We request the Honourable Court not to kill Aruna by denying her food and water.”

The Attorney General who represented Indian Union strongly argued against mercy killing. Aruna has the right to live and pushing a person to death by denying food and water is immoral and against the laws of the country. The effort the nurses have made to look after Aruna for the past thirty seven years will become futile and it will adversely affect their moral courage. No one can deny Aruna her right to live. Government of India had rejected the directions that Law Commission had given about mercy killing. Indian tradition promotes an attitude of love and kindness to all beings.

The amicus curiae, Sri. Andhyarjunan, appointed by Supreme Court presented rather different arguments. An adult, who is fully conscious, has the right to accept or deny treatment. He strongly argued that in the case of a patient who is in a vegetative state, a responsible doctor must be given the right to take decisions. The opinion of close relatives also could be considered, he said. The Attorney General presented arguments against mercy killing, while Sri. Andhyarjunan’s arguments were in favour of it. Aruna was not in a state of unconsciousness. Equipments like ventilator are not used to support her life. It is not right to to drag her to death by denying food and water and the opinion and desire of the nurses in K.E.M hospital should also be taken into consideration, the Attorney General argued.

Euthanasia or mercy  killing is of two types, active and passive. One method is to inject some fatal drug and the second is to disconnect ventilator and stop giving food and life saving medicines. Mercy killing is performed with the consent of the patient and sometimes without  permission if the patient is unconscious. In India,  mercy killing is against law, only in some countries Euthanasia has been made legal. In active mercy killing it is the doctor who has to give the fatal injection, or the doctor helps the patient to inject himself ( physician assisted suicide).

According to Indian Penal Code the first is murder and the second is abetting suicide. In passive mercy killing the doctor leads the patient to death without doing any thing to support life. This has to be considered a deliberate act of omission. Legally it is a punishable offence and it is against medical ethics. For example, not doing dialysis when it is essential to save life, not giving life saving drugs and not making the ventilator function etc. are criminal acts of omission. A patient has the right to deny treatment to himself. But in the case of patients like Aruna who cannot decide for themselves what action can be taken?

Quoting a British Court verdict( Airedale case) the Supreme Court stated that according to the principle, “parents patriae” (father of society) the court has the right to take decision. In the petition filed by Pinki Virani Aruna was described to be in a condition equal to death. What is death? When all the activities of the brain, especially the brain stem stop, death takes place. A non-functioning state of the cerebral  cortex alone can not be regarded as death.  Hence the court was of opinion that Aruna cannot be considered dead or on the brink of death.

Besides, in the prevailing system of law there is no provision to execute mercy killing by stopping life sustaining food and water, in the case of patients who cannot decide for themselves. The Court suggested the formation of such laws and also issued the norms to be followed until Parliament introduces the new law to deal with such situations.

1. In the case of a patient remaining in a vegetative state due to cerebral cortex death, the close friends or relatives can take the decision to execute mercy killing. But considering the degeneration of values that has afflicted our society this provision is likely to be abused. Hence in such contexts the interference and approval of the Court is essential.

2. As per Article 226 of Indian Constitution, the High Court can come to a decision and for that a Bench consisting of two judges must be formed.

3. The High Court must direct a panel of three doctors ( Neurologist, Psychiatrist, Physician) to examine the patient, collect the opinion of  doctors concerned and inspect records.

4.  A copy of the report of the doctors can be handed over to the relatives and  their statements. are recorded.  After this procedure, the final verdict can be pronounced.

5.  As per section 309 of Indian Penal Code, it is a crime to attempt suicide. A person who is trying to kill himself due to emotional problems deserves help and not punishment. Hence Parliament is requested to delete this section from IPC.

The Court rejected the petition of Pinki Virani. The employees of K.E.M hospital welcomed this verdict with great jubilation. There were demonstrations of joy across the country, but there were mixed responses to the question of mercy killing. The Arch Bishop of Mumbai visited Aruna and congratulated the nurses there. Financial help poured in for the treatment of Aruna, and Aruna continues to live in total oblivion.

An episode of mercy killing that sent shock waves across the conscience of the world took place in America six years ago. A young woman Terry Schiavo suffered heart attack, blood circulation to her brain was blocked for more than five minutes. Her cerebral cortex became lifeless and she remained in vegetative state for fifteen years.  Her husband approached the Court demanding compensation as the cause of cardiac arrest was alleged to be due to negligent treatment. After receiving 20 million dollars as compensation, he requested the Court to grant mercy killing to his wife.  He argued that keeping his wife in vegetative state is cruelty and she must be allowed to die by denying her food and water.

Terry’s parents who had looked after her all the while  raised objection in the court. Though Terry (pictured left with mother) was fed through a tube from nose to stomach, she could cry and laugh. She used to sleep during day and be awake during night. Her state of health was better than that of Aruna. The legal battle that caught public interest stretched for seven years and finally the Supreme Court of Florida gave the verdict. The Court ordered the removal of the tube that supplied food and drink to Terry and grant her mercy killing. Her parents filed many appeals in the Supreme Court of U.S , but none were allowed. The Media described this incident as Murder permitted by the Court. Police men stood guard in the room to prevent any one from giving food or water to Terry. She died after thirteen days, witnesses revealed how her lips opened for a drop of water and how her eyes pleaded.

Disconnecting the ventilator from a patient in the vegetative state cannot be compared to denying food and drink to a patient who has merely lost the power to communicate. It is murder in the pure sense of the term. The term mercy killing itself is meaningless and inappropriate. The doctor who has taken the pledge to save the lives of human beings is forced to act the role of the executioner according to the orders of the court, a very sad state indeed!.  Instead of snapping off the life line, can’t it be allowed to slowly melt away.

“For when I was hungry, you gave me food; when thirsty, you gave me drink; when I was a stranger you took me into your home, when naked you clothed me; when I was ill you came to my help, when in prison you visited me. “Then the righteous asked, “Lord, when was it that we saw you hungry and fed you, or thirsty and gave you a drink, a stranger and took you home, or naked and clothed you? When did we see you ill or in prison and come to visit you? And the Lord replied,” I tell you this: any thing you did for one of my brothers here, however humble, you did for me”  New Testament Matthew Gospel 25: 37-40

 

Dr. B Umadethan is Professor and Head of Forensic Medicine, Amritha Institute of Medical Sciences, Kochi.