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Source: Hindustan Times dated 07.07.2015
DILEMMA Is it death with dignity or a licence to kill? Allowing euthanasia for terminally ill patients raises several questions that require debate
From page 1 KEM NURSE ARUNA Shanbaug, who spent 42 years in a vegetative state after a sexual assault left her mentally and physically paralysed, died in May; but before her death she gave India a euthanasia rule. In 2011, the Supreme Court, hearing a writ petition filed by author Pinki Virani seeking euthanasia for Shanbaug, recognised and allowed “conditional” passive euthanasia for the first time in the country. In active euthanasia, a terminally ill patient is helped to die by the injection of a lethal dose of drugs; passive euthanasia means shutting down of the life support system.
Lawyer and author Zia Mody lists Shanbaug’s case in her book Ten Judgements That Changed India. The judgment has become a landmark one, but it has been criticised by a section of the medical fraternity, which believes that the case created an unwieldy legal process for pursuing passive euthanasia.
The debate over euthanasia is fraught: some see it as the right to die with dignity; others say it is a licence to kill. However elaborate the guidelines, the choice cannot but be gut-wrenching. Advances in medical science have complicated matters even more.
End-of-life care is an inseparable part of the debate. How does one weigh the costs and benefits? Can it even be done?
In this, the first of a fourpart series, Hindustan Times looks at the apex court directive that legalised euthanasia, although conditionally, the complicated conditions laid out for seeking euthanasia, and laws on euthanasia in other countries. The second
part of the series will look at the various facets of endof-life care, the choices and the costs, not just monetary.
The third part wi ll look at the concept of a living will that seeks to allow a person to choose his fate, well almost.
The last part will explore the facilities available in our hospitals for end-of-life care.
Long legal process makes matters worse
MUMBAI: Ars Moriendi or “art of dying” is a body of Christian literature that provided practical guidance for the dying and those attending them. In the centuries since these works in Greek first appeared in the 14th century, medicine had advanced to the point where it is possible to delay death, whatever the quality of life itself.
The narrative has thus shifted to the right to end life.
Euthanasia refers to causing the death of incurable or terminally ill patients. Also referred to as mercy killing or physician-assisted suicide, its aim is to end suffering.
The debate has special resonance for Mumbai as India owes its laws on euthanasia to the case of KEM nurse Aruna Shanbaug, who died in May after spending 42 years in a vegetative state after she was sexually assaulted. In 2011, the Supreme Court, hearing a writ petition filed by author Pinki Virani seeking euthanasia for Shanbaug, recognised and allowed “conditional” passive euthanasia for the first time.
Virani’s plea of euthanasia for Shanbaug was dismissed because the writer was not acknowledged as Shanbaug’s ‘next-of-kin’ who could take the decision whether the nurse should live or die. The nurses at the hospital, who had been taking care of her, said they were Shanbaug’s custodians and refused to give permission.
However, even before the SC recognised passive euthanasia, many doctors said the practice occurred routinely across hospitals in the country — it just did not have legal sanction.
“It is no secret that passive euthanasia is routinely practised across hospitals, across countries,” said Dr Nagraj Huilgol of the Society for the Right to Die with Dignity and head of radiation oncology at Nanavati Hospital, Vile Parle. “The way I look at it is that euthanasia is not killing -- to kill is not easy and no doctor would like blood on his hands — but enabling living a good life till the end. To my mind that is the principal philosophy of euthanasia,” said Dr Huilgol.
One of the arguments given by those who do not support euthanasia is the nature of Indian society; that it is not mature enough to embrace such a law, and that the law could be misused. In the case of Shanbaug, Dr Oak, the then dean of the KEM Hospital in Parel — where she spent the rest of her life as a patient — said in an affidavit that she should not be subjected to passive euthanasia. He added that India was not ready to allow legalisation of euthanasia. “I feel that society has not matured enough to accept the execution of an act of euthanasia or mercy killing. I fear this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences,” wrote Dr Oak in his affidavit to the Supreme Court.
Hearing the Shanbaug case in 2011, a two-judge bench laid down a tough set of guidelines under which passive euthanasia could be pursued through a high-court monitored mechanism. The court further stated that parents, spouses, or close relatives of the patient could make such a plea to the high courts.
The chief justices of t he high courts would constitute a bench to decide it. The bench, in turn, would appoint a committee of at least three renowned doctors to advise it on the matter.
The judgment has not set off a flurry of euthanasia pleas in the country’s courts. So, in effect, India as of now recognises and allows passive euthanasia but no one has approached the court with another case. However, there have been cases of senior citizens, who were in good health and of sound mind, moving courts seeking permission for voluntary death. For example, in 2000 an 80-year-old retired school teacher CA Thomas made a plea to the Kerala high court, which turned it down.
“After Shanbaug’s case, there has been no documented case of any euthanasia plea anywhere in the country,” said Dr Roop Gursahani, consultant neurologist at Hinduja Hospital, who was one of the three doctors appointed by the SC to conduct a medical examination of Shanbaug.
“The procedure laid down by the court in 2011 for passive euthanasia is so long winding and ridden with complications that no one would feel inclined to pursue it when a patient would actually be a fit case for euthanasia” said Dr Gursahani.
Passive, active euthanasia: The difference
IN SHANBAUG’S CASE, THE WRIT PETITION SEEKING EUTHANASIA FOR HER STATED THAT SHE WAS BEING FORCE-FED TO KEEP HER BODY ALIVE AND THAT SHOULD NOT BE DONE
MUMBAI: The Oxford dictionary defines euthanasia as “the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma.”
But when it is comes to differentiating between active and passive euthanasia, there is a marked difference of opinion among doctors. A wide range of literature defines active euthanasia as when a medical professional, or another person, deliberately does something that causes the patient, who is suffering from an incurable disease and death is imminent, to die.
Euthanasia is passive when the patient dies because the medical professionals either don’t do something necessary to keep the patient alive or they stop doing something that is keeping the patient alive: this is withholding or withdrawing treatment.
Some doctors are of the opinion that the Shanbaug judgment has complicated the definition of euthanasia. “Euthanasia has become a term that is very loosely used. And, the judgment in Aruna Shanbaug case muddled it up further. In my opinion withholding treatment and withdrawing treatment in case where death is imminent and can be any time, in matter of hours or days, is entirely different from euthanasia,” said Dr Jigi Divatia, who led the team of doctors appointed by the Supreme Court to submit a detailed report on Shanbaug. He is professor and head of the department of anaesthesia, critical care and pain at Tata Memorial Hospital, Parel.
What happened in the Shanbaug case was that the Supreme Court clubbed withholding and withdrawing of treatment with euthanasia, which I think has made the matter more complicated,” added Dr Divatia.
According to Dr Divatia, for now if the courts give legal sanction or there is a legislation that validates withholding and withdrawing of treatment, then India would do just fine even if a law on euthanasia takes longer to enact.
In Shanbaug’s case, the writ petition seeking euthanasia for her stated that she was being force-fed to keep her body alive and that should not be done and the natural course should have been allowed to take place.
Dr Nagraj Huilgol, a long-time member of the Society for the Right to Die with Dignity and head of radiation oncology at Nanavati Hospital, Vile Parle, maintained that there was enough literature and case studies that very clearly distinguished between passive and active euthanasia.
“Withholding and withdrawing of treatment is clearly what is defined as passive euthanasia. And, euthanasia is nothing but the ideal end-of-life care philosophy, that is to live well to the end,” said Dr Huilgol.
‘India is prepared to legalise euthanasia, but terminally ill patients are still forced to suffer’
MUMBAI: Dr Sharmila Ghuge, a professor of law at a city college, who has written ‘Legalizing Euthanasia, a pedagogue’s perspective’ talks about euthanasia in India. Excerpts from an interview:
Is India prepared to legalise euthanasia? What is the difference between active and passive euthanasia from the point of view of legal
terminology?
India is certainly prepared to legalise euthanasia. However, the fact that terminally ill patients still suffer and are forced to live an undignified phase of life has not undergone any change in our country, despite the augmentation in medical arena. To provide a peaceful and dignified exit, India should make a positive move towards legalising euthanasia. While passive euthanasia means removal of life support system, active euthanasia includes bringing about death of a terminally ill patient by administering a lethal dose.
With high illiteracy rate, there is a high possibility of misuse of the law? What safeguards can be laid down to avoid such a situation?
Illiteracy should not be looked upon as a mode to misuse the law. In fact, if one thinks about the misuse of euthanasia, the most probable cases will be amongst the high profile and educated people, who possess immense wealth and not the poor and illiterate. Moreover, a country should not stop enacting laws because of the fear of misuse. The possibility of misuse of law cannot be denied, but nevertheless a skillfully drafted legislation will be equipped with required safeguards to avoid misuse. For example, forming a committee comprising legal and medical experts, including psychiatrist and a social worker, to decide on the application made by a terminally-ill patient.
What is a living will and how can it be exe-
cuted? Does it have legal sanction?
A living will is the will of a person which he wants to be executed during his lifetime. I don’t want myself to be tortured by a dozen of tubes in my body during my old age, or keep me alive on live support system, so I draft a document stating my wish that I should not be forced to undergo all this. If at any point of time in my life I am a victim of terminal illness, I should be allowed to die with dignity and should not be kept alive on artificial life support system. This a living will. In India, there is no legal sanction to living will.
What is a physician-assisted suicide and how can one implement it here?
Physician-assisted suicide is an active form of euthanasia. In PAS, the terminally ill patient voluntarily requests the doctor to assist him in dying. The physician may prescribe a lethal dose to bring about an easy and painless death. The patient will take the dose on his own with the assistance of the doctor. PAS is legalised in Oregon, the first state in the US to legalise euthanasia. It is not legal in India and hence cannot be implemented unless legalised.
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