Modern Medicine has reached an age, where the Health care professionals intuitively seek to prolong life so long as it is possible to do so. Alternatively the Doctors may themselves raise the question, as to whether it is in the patient's best interest that he or she should live.[1] Two situations in which life and death decisions become fundamental and unavoidable are when we are born...
Modern Medicine has reached an age, where the Health care professionals intuitively seek to prolong life so long as it is possible to do so. Alternatively the Doctors may themselves raise the question, as to whether it is in the patient's best interest that he or she should live.[1] Two situations in which life and death decisions become fundamental and unavoidable are when we are born and when we are dying.[2] Looking at the point of view of the patient, Euthanasia itself is categorized into – voluntary, non-voluntary and involuntary categories, depending on whether the patient seeks death, is unable to express any opinion on the matter, or is ignored in the decision making process itself.[3] While in the first category, the patient specifically requests that his life be ended, an act of involuntary Euthanasia, involves the ending of patient's life in the absence of either a personal or proxy invitation to do so. The most common example of involuntary Euthanasia is 'mercy killing' by relatives or carers. On the contrary, argument on voluntary Euthanasia, rest on the principle of autonomy.[4] The individual is the final arbiter of his or her destiny.[5] In this piece an attempt shall be made to analyze the premature termination of life- which happens to be the simplest definition of the term Euthanasia- the primary focus of this paper. Endeavour shall be made, to discuss the approach adopted in England as well as in India. Some of the landmark decisions passed in this regard, both in the English continent as well as in India, shall also be examined. Compared to the practice prevalent in America, England or Switzerland where active euthanasia is in prevalence, one of the reason behind being that palliative care is poorly developed[6], Euthanasia is not the accepted practice in India. Worth pointing out that, in April 2002, the Dutch Parliament legalized Euthanasia, where it was actually in practice for two decades.[7] In the United States, the Euthanasia Society of America was founded in 1938. It is considered either as Suicide (if performed by the patient himself) or as murder or abetment to commit suicide (if performed by another) which are offences which come within the ambit of section 309, 302 and 306 IPC respectively.[8] Central to the theme of beneficent killing or voluntary Euthanasia, is the great slippery slope argument, and the concept of personhood, advocated by Academics. The argument is simple in form: if we adopt such and such a particular change in practices, it just might start a slide into a moral deterioration that it might start a slide into moral deterioration that ends with our committing Nazi style atrocities.[9] Possibly, the lone argument that we can think of in justifying Euthanasia is to conclude that individuals in Permanent Vegetative state, as Tony Bland, whose case will be discussed below, has lost his personhood. But the value associated with every life, does it at all diminish, is the moot question that requires deliberation.
Approach adopted by the English courts: Inclusive vs Objective approaches to the best interests test
The common law approach to providing medical treatment is not based on patients' subjective rights, but on an objective duty to care imposed on the medical team. When patients are competent they are involved in the decision-making process affecting them and, in some cases, they may be able to choose between possible treatments; they may also refuse treatment, but they may not request a particular medical treatment
The overseeing of law over the administration of pain-relieving treatment with inevitable life-shortening consequences is of crucial significance in view of the dogmatic approach of the law to active euthanasia.[10] As Lanham states in respect of society's treatment of terminal physical pain: 'If the euthanasia option is not available, some other method will have to be found'.[11] In Britain and Australia that method involves palliative care and the hospice movement. Quite contrary on the other hand is the approach adopted by Switzerland, where assisted suicide was decriminalized way back in 1942. There in Switzerland, ever since 2003, the controversial clinic named Dignitas functions, and it has helped around 100 people from Britain end their lives and a further 690 are reported to be members, which means they may in future opt to travel there for an assisted suicide.
In the English continent, the initial trend was that, causing death in order to relieve a patient of further pain and suffering amounted to murder. This was the decision arrived at in the case of R v Cox, [12]decided in the year 1992. Soon thereafter the view changed, and knowingly shortening life through the administration of pain killing drugs was considered lawful by the House of Lords, in Airedale NHS Hospital Trust v Bland[13]. The House of Lords Select Committee Report on Medical Ethics also rejected legally permitted active Euthanasia, whilst at the same time accepted the legality of giving life-shortening pain relief.[14] The distinction drawn in both law and ethics typically revolves around assessments of actor's intention i.e. mens rea and implicitely the Doctrine of Double Effect. [15] According to the doctrine, all intended bad ends and all bad means chosen to achieve ends are morally wrong. By contrast, unintended but foreseen consequences are side-effects, which may be justified according to the totality of the circumstances! P. Knauer, in his famous essay, 'The Hermeneutic Function of the Principle of Double Effect' states the principle more simply in the following terms: 'One may permit the evil effect of his act only if this is not intended in itself but is indirect and justified by a commensurate reason'.[16]
Year 2004, the decision arrived at by the High Court in R. (on the application of Burke) v General Medical Council, [17] provided the first example of human dignity being used as a central argument by an English court. In it, the applicant suffered from a congenital degenerative brain condition (spino-cerebellar ataxia) and wanted to ensure that he will continue to receive artificial nutrition and hydration (" ANH" ) in the penultimate stage of his illness, when he will still be sentient but unable to communicate. Basing his reasoning on the notions of autonomy, dignity and self-determination, the Queen's Bench Division of the High Court upheld the applicant's claim. The General Medical Council then preferred an Appeal against the judgment passed by the High Court and Court of Appeal Court decided the case a year later. A rather conservative approach to the best interests test, was adopted by the Appeal Court that concluded that, 'the GMC guidelines did allow for the patient's protection in the final stages of his illness' and thus the first instance decision was overturned. Leave of appeal to the House of Lords was refused. Thereafter, on May 17, 2006, Leslie Burke lodged an application with the European Court of Human Rights (" ECtHR" ). Largely endorsing the approach of the Court of Appeal, the ECtHR delivered its decision of inadmissibility on July 11, 2006. Unlike the High Court, neither the Court of Appeal nor the Strasbourg Court considered the argument of human dignity, and their decision therefore seems to have put an end to the judicial development of this concept in relation to withdrawal of medical treatment.
As elaborated in the preceding paragraph, the Indian judicial system does not accept Euthanasia. Some of the important decisions in this regard, are P. Rathinam v Union of India[18]; Gian Kaur v State of Punjab[19] . In the first case, Section 309 I.P.C. and the right to die vis-à-vis Article 21 of the Constitution of India was considered. Hon'ble Justice B.L. Hansaria, who authored the Judgment, started by quoting Mahatma Gandhi and William Ernst Henley- the celebrated English poet. Drawing a distinction between Suicide and Euthanasia , the two Judge Bench of the Supreme Court though held that, Article 21 has enough positive content in it that it also includes the right to die, and the right to commit suicide. The Court was further of the view that, Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. However, in Gian Kaur v State of Punjab[20],a Constitution Bench of the Supreme Court held that , Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination, extinction of life be read to be included in 'protection of life'.In the landmark case of Aruna Ramachandra Shanbaug v Union of India[21] , a writ Petition was preferred under Article 32 of the Constitution of India, by a next friend of Aruna Shanbaug, Pinky Virani. Without much deliberation on the facts of the poignant case of Aruna, it may be stated here the approach adopted by the Apex Court. After examining the report of the Doctors the Supreme Court held that, it was not in the patient's best interest to let her die. The Judges were particularly appreciative of the hospital and their staff and their dedicated service to her. Post Aruna Shanbaug,[22] in its 241st Report, the Law Commission of India, has also recognized Passive Euthanasia, but no law has been enacted by it. The law on Passive Euthanasia and withholding or withdrawing life prolonging treatment of terminally ill patient, was expanded further by the Constitution Bench of the Hon'ble Supreme Court, on 9th of March, 2018, in the case of Common Cause (A registered Society ) v Union of India and Another[23]. While deliberating on the difficulties faced by patients who are unable to express their wishes, at the time of taking the decision, the five Judge Bench of the Hon'ble Supreme Court, was of the view that Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity.[24] In its further deliberation on who can execute the Advance Directive and how- the Hon'ble Court was of the view that, it can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. The Court thus outlined the procedure for execution of the Advance Directive, as such:
'198.1.2. It must be 'voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information';
198.1.3 It should have the characteristics of informed consent given without any undue influence or constraints;
198.1.4 It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/ her pain, anguish and suffering and further put him/ her in a state of indignity'.
From the above discussion it is seen that, the Courts have always used the best interest test, in weighing whether Euthanasia is justifiable or not. Again the argument of personhood comes in everytime its legality is weighed. Infact when weighed from the angle of personhood and the value of life, the only way to justify the judgment delivered in Bland by the House of Lords, where the patient Tony Bland was in persistent vegetative state, is to argue that individuals in persistent vegetative state have permanently lost their personhood.[25] Quite contrary was the reasoning of the Supreme Court of India, in Aruna Ramachandra Shanbaug[26]. Seen from a broader angle, in the event a person is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, or the wishes of surrogates acting on his behalf ("substituted judgment") are to be respected'[27]. Critics as such argue that, human dignity is not a simple concept and certainly not easy to use in judicial reasoning. In some situations, such as in the case of Burke,[28] where the applicant, wanted to ensure that he will continue to receive artificial nutrition and hydration, in the penultimate stage of his illness, the argument of living a dignified life until its end, arguably comes very close, to that of a dignified death. However, dignified death being too close to euthanasia, was ruled unacceptable by the European Court of Human Rights. Quite contrary, was the reasoning in Tony Bland's case. Meanwhile in the absence of any statute or an amended law, Judges and academics have a role to play in addressing the issues of dignity while justifying the concept of Euthanasia- which according to a critic like me, cannot see any justification, when weighed in the light of the value attached to every life. Cause, every life in this world matters seen from the angle of personhood![1] Mason & Mc Call Smith's, 'Medical Futility' (Law and Medical Ethics, Seventh Edition, Oxford University Press)
[2] Ibid
[3] Supra at n.1
[4] Brazier & Cave, 'Medicines, Patients and the Law' (Fourth Edition: Penguin Books)
[5] Keneddy and Grubb, Medical Law: Texts and Materials, p 1997.
[6] David Lanham 'Euthanasia, Painkilling, Murder and Manslaughter' (1994) l(3) Journal of Law and Medicine 146, 147. In the US, doctors are reluctant to administer pain relief in life-shortening doses whatever pain the patient may be suffering, yet euthanasia is also unlawful, creating obvious quandaries: (1996) 313 BMJ 1
[7] Modi, A Textbook of Medical Jurisprudence and Toxicology, (published by Lexis Nexis Butterworths, 24th Edition, 2011
[8] Ibid.
[9] J.A. Burgess, 'The great slippery slope argument' (1993) Jol. Medical Ethics 169
[10] David Price, 'Euthanasia, Pain Relief and double effect'
[11] D Lanham 'Euthanasia, Painkilling, Murder and Manslaughter' (1994) l(3) Journal of Law and Medicine 146, 147. In the US, doctors are reluctant to administer pain relief in life-shortening doses whatever pain the patient may be suffering, yet euthanasia is also unlawful, creating obvious quandaries: (1996) 313 BMJ 11
[12] [1992] 12 B.M.L.R. 38
[13] [1993] 1 All E.R. 821
[14] Report of the Select Committee on Medical Ethics HL Paper 21-1 HMSO, 1994.
[15] David Price, 'Euthanasia, Pain relief and double effect', Journal of Legal Studies 323
[16] P Knauer 'The Hermeneutic Function of the Principle of Double Effect' (1962) 12 Natural Law Forum 132 at 136.
[17] [2005] EWCA Civ 10003= [2005] Q.B. 424
[18] (1994) 3 SCC 394
[19] (1996) 2 SCC 648
[20] AIR 1996 SC 1257
[21] (2011) 4 SCC 454.
[22] Ibid
[23] (2018) 5 SCC 1
[24] Supra at Para 198
[25] John Harris, 'Human beings, persons and Conjoined Twins: An Ethical Analysis' (2001) 9 M.L.R.221
[26] Supra at n 20
[27] (2018) 5 SCC 1 Para 173 at Page 123
[28] [2005] EWCA Civ 10003