Prashant Bhushan Explains the Judgment
“Today the SC has delivered a historic decision on all the issues relating to advanced directive, living will or what is called passive euthanasia,” Prashant Bhushan said. The noted lawyer appeared for the NGO Common Cause that filed the plea.
He said, “The SC has firstly held that every individual has the full right to decide that he should not take any kind of medical treat or be kept alive by artificial life support system and that decision is binding on the doctors and family.”
“Secondly, if a person gives an advance directive or gives a living will saying that if I become unconscious and I am in a situation where my life can only be prolonged by artificial life support systems then that advance directive has to be honored by his family and doctors,” he said, adding, “thirdly, if a person has not expressed his will and if he can only be kept alive only by artificial life support systems, then the doctors and the family members can take the decision to withdraw life support.”
Yes to Living Will
A five-judge Constitution bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, on 9 March, passed the order allowing for advance directive (living will) passive euthanasia with guidelines.
An Advance Directive (Living Will) allows people to decide in advance whether or not they want to be put on life support in cases of terminal illness.
The bench laid down guidelines for those cases when there is no advanced directive. It said in cases when there is no immediate family members, the ‘next of friend’ can approach the concerned HC, which in turn will then set up a medical board to determine whether the concerned patient can be allowed passive euthanasia.
When SC Recognised Passive Euthanasia – But Centre Disagreed
The top court had, in 2011, recognised passive euthanasia in the Aruna Shanbaug case. At the time, it 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.
What Happened During Previous Hearings?
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. Also, 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.
Why Did the Court Reserve Verdict?
A five-judge constitution bench headed by Chief Justice Dipak Misra had on 11 October 2017 reserved its verdict on the plea.
The bench – also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan – had indicated during the hearing that it might recognise the execution of 'living will' in cases of passive euthanasia, as right to die peacefully is part of fundamental right to life under Article 21 of the Constitution.
Article 21 provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law." The apex court, however, had observed that there should be adequate safeguards and implementation of living will would be subject to medical board's certifying that the patient's comatose state is irreversible.
(With PTI and ANI inputs)
The Supreme Court has allowed passive euthanasia for terminally-ill patients, on a petition seeking recognition of the 'living will'.
- The ‘living will’ is a written document that allows a person to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally-ill or unable to express informed consent
- Passive euthanasia is the withdrawal of medical treatment, with the deliberate intention to hasten the death of a terminally-ill patient