Living Will case put into cold storage again [Read Affidavit]

The writ petition [civil] No.215 of 2005, filed by Common Cause, once again found itself consigned to deep slumber, with the five-Jude Constitution bench agreeing with the Government that the hearing of the case must be deferred to enable consideration of a legislation to legalise passive euthanasia.

The petitioner’s plea, as submitted by its counsel, Prashant Bhushan, failed to convince the bench on 15 February that this case is different from passive euthanasia, which the Government aims to address through the legislation. The next hearing of the case is on 20 July.

The petition sought the enactment of a law on the lines of the Patient Autonomy and Self-determination Act of the USA, which sanctions the practice of executing a “living will” in the nature of an advance directive for refusal of life-prolonging medical procedures in the event of the testator’s incapacitation.  The matter was first disposed of on 25 February 2014.

While disposing this of in 2014, the Supreme Court did not pronounce any order on the specific prayer made in the petition, but invited a Constitution bench to resolve the inconsistencies between the Division Bench judgment in Aruna Shanbaug (2011), which allowed passive euthanasia under certain safeguards, and the Constitution Bench judgment in Gian Kaur (1996), which held that the right to life does not include the right to die.

On the hearing on 15 January, the Constitution bench sought the Centre’s response on living wills. The Government sought time to consider the report of the Law Commission reports Nos.196 and 241 on the issue, in order to prepare a Bill to facilitate passive euthanasia.

The Law Commission in both these reports has only endorsed the right of a competent adult patient to insist that there should be no invasive medical treatment by way of artificial life sustaining measures / treatment and such decision is binding on the doctors / hospital attending on such patient provided that the doctor is satisfied that the patient has taken an ‘informed decision’ based on free exercise of his or her will.

The model bill, recommended by the Commission, in Para 11, said the advance medical directive (living will) or medical power of attorney executed by the person shall be void and of no effect and shall not be binding on any medical practitioner.

The Central Government, in its latest affidavit to the Supreme Court, has not revealed its stand on whether it agrees with the Law Commission's draft Bill on Living Will. The Government cited the pendency of the case before the Constitution bench as reason for not going ahead with the legislation on passive euthanasia, as recommended by the commission.

The Supreme Court has now given the go-ahead to the Government to prepare the law on passive euthanasia, based on the draft bill proposed by the Law Commission.

Strangely, however, both the Supreme Court and the Government are silent on whether the petitioner's plea for legalising Living Will needs to be considered on merits, irrespective of the Law Commission's opposition to it, without stating any reasons.

The Government's concerns on active euthanasia may be valid; its willingness to consider legalising passive euthanasia with safeguards needs to be appreciated. But Living will is to be executed by a healthy person,[not a patient] who decides in advance whether he or she would like to be subjected to artificial life-sustaining measures in future, and if it is given legal status, it will be binding on medical practitioners.

The brief Constitution bench hearing on the matter unfortunately has not shed enough light on the petitioner's main plea. 

Read the Central Government's Affidavit here.