The recent case before the Supreme Court

The Supreme Court is reported to have admitted a petition seeking to end the life of Aruna Shanbaug, a former Mumbai nurse who has been lying in hospital in a vegetative state for the past 36 years. She was admitted at Mumbai’s KEM Hospital in this condition following a sexual assault she suffered in the same hospital in November 1973. She is being kept alive by doctors by being fed through a food pipe. The petition moved by journalist Pinki Virani has sought directions to the hospital to stop Aruna’s force?feeding. Virani has argued that keeping Aruna in this persistent vegetative state was violative of her right to live with dignity guaranteed by the Constitution. The newspapers state that the petition claims that Aruna does not have the life of a human being and is lying in a hospital bed like a dead animal; she cannot speak, hear or express herself and cannot even chew or taste the food she is being fed. Yet another weekly (The Week, 31?12?2009) however states that Aruna even recognises the nurses who attend to her. The Court had admitted the petition and is reported to have sought responses from the Union and the Maharashtra Governments, Mumbai Police Commissioner and the Dean of KEM Hospital.

The relevant questions

Is there not a freedom to die? Does a right to life include a right to die? If euthanasia is medically assisted suicide, are there different forms of euthanasia, the permissible and the impermissible types? If the patient is in a vegetative state, who could be competent to consent for withdrawal of the life support systems? What shall be the role of courts in this exercise? The idea of this article is only to explain the concepts through judgments rendered already by the Supreme Court of India and of the courts elsewhere, particularly in the UK and the USA, and is not judgmental in any way, approving or disapproving any of the practices.

Attempt to suicide is an offence: the Supreme Court reverses itself

The Penal Code, 1860 penalises the attempt to commit suicide through an express provision under Section 309 IPC. Suicide per se cannot be an offence, for if committed, there cannot be a person alive to stand trial or receive the punishment. The ancient Bharat perhaps did not regard the annihilation of the body by penance as a despicable act or regard the attempt as a punishable offence. The Supreme Court examined the issue in one of its judgments¹ reproducing the relevant text from the chapter on “The hermit in the forest”, Manu’s Code:²

From the parallel passage of Apastambha II, 23, 2, it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit’s life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious.

The recommendation contained in the 42nd Report (1971) of the Law Commission of India also wanted Section 309 scrapped. The British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence. The Supreme Court in P. Rathinam v. Union of India³ anchored its reasoning to these views to rule the section as unconstitutional and struck it down. The judgment did not hold the field for long and a later judgment in Gian Kaur⁴ found, its earlier decision did not lay down the correct law and restored the validity of the section.

Types of suicide related offences

Suicide is an act of criminal self-destruction. While, as stated above, it is not possible to punish a dead person for what he did, if he survived the attempt, he could be proceeded with legally under regimes that make an attempt at suicide an offence. The Penal Code contains detailed provisions about when attempt to suicide is punishable, when abetment to suicide constitutes culpable homicide and when even the husband or certain classes of relatives could be said to commit acts of cruelty, when a woman after marriage commits suicide. Any act, say, by a medical professional, which he knows is most likely to cause death will amount to culpable homicide and hence an offence.

Right to life does not include the right to die

The Supreme Court expatiated in Gian Kaur⁵ thus: (SCC pp. 649h-650c)

Right to life is a natural right embodied in Article 21 of [the Constitution], but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of “right to life”. When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the “right to life” under Article 21. ...

There is no similarity in the nature of other rights under Article 19 to provide a comparable basis to hold that the “right to life” also includes the “right to die”. Under Article 19 the fundamental right is of a positive kind, for example, freedom of speech, freedom of association, freedom of movement, freedom of business, etc., which were held in certain decisions to include the negative aspect of there being no compulsion to exercise that right by doing the guaranteed positive act. In those cases the right to do an act has been held to include also the right not to do an act in that manner.

Euthanasia, active

If a patient refuses administration of medicine or undertakes a fast unto death and the doctor forces medicine, it will amount to battery and also an offence. If a person is dying, for any reason and the doctor makes no offer for treatment, it could be an unethical act, but still not amount to a criminal offence. If a patient invites a doctor to end his life and the latter does so by administration of drugs that will mean an offence. It could be noted that there are definite dividing lines in each one of these situations. An active assistance given to a person to die is what would qualify as euthanasia. Active euthanasia generally involves the administration of some agent or procedure which the physician believes is warranted to end the patient’s life. The Indian Medical Council Regulations, 2002 set out an ethical code for medical practitioners which through explicit terms states that practising euthanasia shall constitute unethical conduct. A medical intervention to accelerate death will be active euthanasia.

There are again no universally accepted norms to justify euthanasia. On the contrary, the opinion that euthanasia is morally permissible is traceable to Socrates, Plato, and Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to contravene the prohibition of murder in the Ten Commandments. The organised movement for legalisation of euthanasia commenced in England in 1935, when C. Killick Millard founded the Voluntary Euthanasia Legalisation Society (later called “the Euthanasia Society”). The Society’s bill was defeated in the House of Lords in 1936, as was a motion on the same subject in the House of Lords in 1950. In the United States the Euthanasia Society of America was founded in 1938. The first countries to legalise euthanasia were the Netherlands in 2001 and Belgium in 2002. In the Netherlands, nearly 10,000 people die by euthanasia every year at the hands of cooperative physicians. The Netherlands has developed criteria that must be met for an act of euthanasia to be considered medically and ethically acceptable. First, the patient’s medical situation must be intolerable, with no prospect for improvement. Second, the patient must be rational and must voluntarily and repeatedly request euthanasia of the physician. Third, the patient must be fully informed of the procedures and consequences. Lastly, there must be no other means of relieving the suffering, and two physicians must concur with the request.

In 1997 Oregon became the first State in the United States to decriminalise physician-assisted suicide through a legislation called “the Oregan Death With Dignity Act”. Opponents of the controversial law had it overturned through a decision of a District Court (1995). The State of Washington’s ban on euthanasia as articulated in Wash. Rev. Code § 9?A.26.060(1) (1994), was challenged as violative of the US Constitution Amendment XIV on assisted suicide. The US Supreme Court however held in Washington v. Glucksberg⁶ that the Act was rationally related to a legitimate government interest and did not violate the due process clause of the Fourteenth Amendment. The Court reasoned that State legislation sought to preserve human life and also uphold the integrity and ethics of the medical profession. Additionally, Washington’s statute sought to protect vulnerable groups, such as the poor, elderly, and disabled from abuse, neglect, and mistakes. Finally, the Court held that Washington’s ban on assisted suicide effectively prevented a broader licence to voluntary or involuntary euthanasia.

Euthanasia, passive

Is there a passive side to it? There definitely is. A withdrawal of life support that may result in death will constitute the passive type. Herein lies the present debate. Passive assistance occurs when a health care provider does nothing to prevent a patient’s suicide. In the health care context, however, passive assistance has been an ethical practice for many years. For example, do-not-resuscitate (DNR) orders have been instrumental in forming the current awareness of rights and responsibilities in the area of death and dying. A physician who refrains from attempting cardiopulmonary resuscitation (CPR) on a patient who has made a rational choice to commit suicide is within the acceptable guidelines of the practice of medicine. It consists of permitting a patient to die by withholding life-sustaining treatment. In McKay v. Bergsted⁷, for example, a US court allowed a competent adult who had been dependent on a respirator for twenty-one years to discontinue treatment. The court distinguished the plaintiff’s case from that of a suicidal adult by stating, “Unlike a person bent on suicide, Kenneth sought no affirmative measures to terminate his life; he desired only to eliminate the artificial barriers standing between him and the natural processes of life and death that would otherwise ensue with someone in his physical condition”.

The potential of modern medical practice to prolong life through technological means has provoked the question of what courses of action should be available to the physician and the family in cases of extreme physical or emotional suffering, especially if the patient is incapable of choice. There have been two types of cases: passively doing nothing to prolong life or withdrawing life-support measures has resulted in criminal charges being brought against physicians; on the other hand, the families of comatose and apparently terminal patients have instituted legal action against the medical establishment to make them stop the use of extraordinary life?support.

The situation of withdrawing life supporting systems is also statutorily recognised in certain types of situations, like when a live organ could be transplanted. The Transplantation of Human Organs Act, 1994, for example, contemplates the legitimate medical intervention when the question of withdrawing supporting devices to sustain cardiopulmonary function even after brain death, may be decided not merely by the treating physician alone but by a team of doctors authorised under the Act. Such team shall consist of the doctor in charge of the patient, the Chief Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organs Act, 1994.

Limitation to the sanctity of life principle

A competent patient cannot be compelled to undergo life saving treatment. Under the double effect principle, propounded by the House of Lords in Airedale NHS Trust v. Bland⁸, medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death. This principle entails a distinction between foreseeing an outcome and intending it. The case of Bland⁹ involved a further step of the House of Lords holding that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die. This has been followed in another decision, NHS Trust A v. M¹⁰. These are at present the only inroads on the sanctity of life principle in English law. In this corner of the law England is not an island on its own. Dutch courts, relying on the principle of “noodtoestand” (necessity), relaxed the prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor’s respect for life and his duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical opinion. It is important to note that this line of decisions is not based on the European Convention. Parliament of the Netherlands has enacted a statute viz. the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2001, which formalises a relaxation of the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical supervision. It is to be noted, however, that the UN Human Rights Committee in a report dated 27?8-2001 expressed serious concerns about the operation of the system: CCPR/CO/72/NET.

Serious illness that impairs capacity to consent: who should consent? The UK House of Lords’ view

If the patient’s illness is such that continuation of treatment itself is futile, whose consent should the doctor take to discontinue treatment? The answer seems to be: A doctor who had in his care a patient who was incapable of deciding whether or not to consent to treatment is under no absolute obligation to prolong the patient’s life regardless of the circumstances or the quality of the patient’s life. Airedale¹¹ was a case of a 21-year-old patient, AB, in the care of the applicant health authority who had been in a persistent vegetative state for three-and-a-half years after suffering a severe crushed chest injury which caused catastrophic and irreversible damage to the higher functions of his brain. He was being fed artificially and mechanically by a nasogastric tube which had been inserted through his nose and down into his stomach. The unanimous opinion of all the doctors who had examined him was that there was no hope whatsoever of recovery or improvement of any kind in his condition and that there was no reasonable possibility of his ever emerging to a cognitive sapient state from his existing persistent vegetative state in which, although he continued to breathe unaided and his digestion continued to function, he could not see, hear, taste, smell, speak or communicate in any way, was incapable of involuntary movement, could not feel pain and had no cognitive function. In those circumstances the consultant geriatrician at the hospital where AB was being cared for reached the clear conclusion that it would be appropriate to cease further treatment, which would involve withdrawing the artificial feeding through the nasogastric tube and declining antibiotic treatment if and when infection appeared. If such a course were adopted the lack of sustenance would bring to an end the physical functioning of AB’s body within one to two weeks and he would die by starvation. The consultant’s view was supported by other distinguished medical experts.

The health authority responsible for AB’s care applied to the court for declarations that it and the responsible physicians could lawfully discontinue all life-sustaining treatment and medical support measures designed to keep AB alive in his existing persistent vegetative state including the termination of ventilation, nutrition and hydration by artificial means and that they could lawfully discontinue and thereafter need not furnish medical treatment to him except for the sole purpose of enabling him to end his life and die peacefully with the greatest dignity and the least pain, suffering and distress. The plaintiffs’ action was supported by the parents and family of AB. The judge granted the declarations sought. The Official Solicitor appealed to the Court of Appeal, which affirmed the judge’s decision. The Official Solicitor appealed to the House of Lords, contending that the withdrawal of life-support was both a breach of the doctor’s duty to care for his patient, indefinitely if need be, and a criminal act. The House of Lords dismissed the appeal and held that medical treatment, including artificial feeding and the administration of antibiotic drugs, could lawfully be withheld from an insensate patient with no hope of recovery when it is known that the result would be that the patient would shortly thereafter die, provided responsible and competent medical opinion is of the view that it would be in the patient’s best interests not to prolong his life by continuing that form of medical treatment because such continuance is futile and would not confer any benefit on him. Furthermore, discontinuance of life-support by the withdrawal of artificial feeding or other means of support does not amount to a criminal act because if the continuance of an intrusive life-support system is not in the patient’s best interests, the doctor is no longer under a duty to maintain the patient’s life but is simply allowing his patient to die of his pre?existing condition and his death would be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.

The US Supreme Court’s view

See a diametrically different view in a slightly different situation. In Cruzan v. Missouri Deptt. of Health¹² decided by the US Supreme Court, the petitioners, who were parents suing on their behalf and on behalf of their daughter, requested a court order directing the withdrawal of their daughter’s artificial feeding and hydration equipment after she was rendered vegetative in an auto accident. The appellate court denied their petition holding that the petitioners lacked authority to effectuate the request because there was no clear and convincing evidence of the daughter’s desire to have life-sustaining treatment withdrawn as required under the Missouri Living Will Statute, Mo. Rev. Stat. § 459.010 et seq. (1986). It said that the Due Process Clause, US Constitution Amendment XIV, did not require the State to repose judgment on matters concerning the right to refuse treatment with anyone but the patient herself. The Court held that a State could choose to defer only to the patient’s wishes rather than confide the decision to close family members.

It cannot be disputed that the Due Process Clause, US Constitution Amendment XIV, protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decision-makers. And even where family members are present, there will, of course, be some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent’s wishes may very well not be an adversarial one, with the added guarantee of accurate fact-finding that the adversarial process brings with it.

Court’s power to decide

In case of dilemma, it shall be the court from which opinion shall be sought. A case arising in the UK examined the court’s power to decide. Even when the condition of the patient is not a vegetative state, if the issue is whether a particular treatment which was intrusive and had the effect of prolonging the agony, the Court of Wards would take a decision as to what a normal parent would do, in the best interest of the patient. J. (A Minor) (Wardship: Medical Treatment), In re¹³ J., a child who was born prematurely in May 1990, suffered perinatal brain damage and required immediate resuscitation by means of mechanical ventilation, an invasive procedure which with the accompanying intensive care procedures was distressing to the child. In September, following convulsions and episodes when he stopped breathing, he was again placed on a ventilator. The most optimistic prognosis suggested that he had a considerably shortened life expectancy, that he would become a serious spastic quadriplegic, probably without sight, speech or hearing, but that his only likely normal reaction was that of pain. There was a possibility that he might at any time suffer respiratory collapse requiring further resuscitation. The Court of Appeal said that although there was a strong presumption in favour of the preservation of life, no principle of public policy regarding the sanctity of life displaced the paramountcy of the ward’s best interests; and that accordingly even where a ward was not terminally ill the court might in appropriate circumstances withhold consent to life-saving treatment. In so doing, the Court in this specific case took note of the severe lack of capacity of the child in all his faculties which even without any further complication would make his existence barely sentient. Secondly, that, if further mechanical ventilation were to be required, that very fact would involve the risk of a deterioration in J.’s condition, because of further brain damage flowing from the interruption of breathing. Thirdly, all the doctors drew attention to the invasive nature of mechanical ventilation and the intensive care required to accompany it. They stressed the unpleasant and distressing nature of that treatment. To add such distress and the risk of further deterioration to an already appalling catalogue of disabilities was clearly capable of producing a quality of life which justified the stance of the doctors and the Judge’s conclusion.

Would the court be always guided by the medical opinion of what is in the best interests of the patient? The answer to this difficult decision was made in a case where the patient had slipped to a permanent vegetative state. The Court of Appeal in Frenchay Healthcare National Health Service Trust v. S.¹⁴ said:

Although the court had the ultimate power and duty to review the medical decision in the light of all the facts and should not necessarily accept medical opinion as to what was in the patient’s best interests as being in fact in the patient’s best interests, the court should be reluctant to place those treating the patient in a position of having to carry out treatment which they considered to be contrary to the patient’s best interests unless the court had real doubt about the reliability, bona fides or correctness of the medical opinion in question.

Has the Supreme Court a particular pronounced stand?

Some people suggest that the Supreme Court took a pro-life stand in a recent case of Suchita Srivastava v. Chandigarh Admn.¹⁵, decided on 23?8?2009, when the Supreme Court refused to terminate a foetus of a mentally retarded woman who was a victim of rape and who had been brought up in a State-run orphanage, when the latter applied for the Court’s permission for abortion. The Supreme Court, while rejecting the request of the State Administration and in reversing the permission granted by the High Court did so, not on a high moral ground that abortion was not permissible, but on the ground that a substituted judgment by the Administration cannot be applied, when the best interest principle that would guide shall be that the woman, although mentally retarded, had opted to retain the foetus and carry it to full term. It is most likely that the Supreme Court would have granted the woman permission to terminate the pregnancy as well, if the woman had wanted an abortion, having regard to the fact that the Medical Termination of Pregnancy Act makes possible for a rape victim to secure a legal abortion, if she so desired. It is a matter of interest that on 3-12-2009, the woman gave birth to a healthy child at a government hospital at Chandigarh. A mentally retarded person, who was a rape victim, willed her child to come into the world with full life; whose will shall determine if Aruna, also a rape victim who was pushed to the vegetative state by a rapist, should be kept alive or exit the world? Do the above cases give any guidance? If they do not, the Supreme Court will tell you soon. Till then, it should engage interesting public debate, with due sensitivity to the patient lying (not dying, god willing) in the hospital.