‘Passive euthanasia’ is legal in India: what difference does it make?

On 9 March 2018, in a landmark verdict, the Supreme Court of India ruled that “‘passive euthanasia’ is lawful and legally permissible in this country”. What is the significance of this judgement, what are its implications for end of life care in India and what will the general public understand about this constitutional development?

The key messages of the judgement are: a) for the first time, the apex court has stated that ‘passive euthanasia’ is legal. The judgement defines ‘passive euthanasia’ as follows: “a decision to withdraw life-saving treatment by a patient who is competent to take a decision as well as with regard to a patient who is not competent to take a decision can be termed as passive euthanasia, which is lawful and legally permissible in this country”, b) the judgment recognises that a ‘living will’ or ‘advance directive’ given by a patient is a valid legal document in the context of medical decisions such as withdrawing futile medical treatment and c) the judgement  affirms the right “to take an informed decision to refuse medical treatment including withdrawal from life-saving devices”.

Until now the only statutory provision on euthanasia in Indian law is a reference to it as one of the “unethical acts” prohibited in medical practice. The new judgment effects no change in that position. It repeats, “no one is permitted to cause the death of another person . . . even if the intention is to relieve pain and suffering”.

The significance of this ruling is simply that the Supreme Court explicitly declares that ‘passive euthanasia’ is legal in India. The endorsement of the right to refuse and withdraw treatment allows clinicians to make such decisions without having to worry about litigation, as long as they follow the guidelines outlined by the court. They do not need to seek a legal directive each time a decision of this nature needs to be made. This could lead to relief of suffering for some in the end of life care situation.

But we have another problem in India. The combination of the mushrooming of tertiary care private hospitals in the cities and even small towns in many parts of the country, the societal pressure on families to rush a sick parent/relative to the biggest hospital in town and the expectation that these big medical institutions with their state-of-the-art equipment will perform some magical recovery practically means that an increasing number of people are dying, often unnecessarily, in ICU beds attached to machines and lines and away from family and friends. It is hard to see how this new ruling will have any impact on this growing problem.

A real difference is possible through building public awareness of issues around end of life care decision making. This is because in India most critical decisions about the place and nature of care at the end of life are left to the members of the family and are highly influenced by their financial abilities and societal pressures. The latest ruling, in my opinion, can negatively impact public awareness on what is legal.

Here is why: the use of the phrase ‘passive euthanasia’ instantly poses challenges. Concerns regarding the use of terminology are frequently highlighted in discussions on euthanasia internationally. It is argued that the use of the term ‘passive euthanasia’ only adds to the confusion about medical procedures and ethical considerations around end of life issues. It is of interest to note that a report by the Indian Council of Medical Research released days after the supreme court verdict rejects the use of the term ‘passive euthanasia’:

“The term passive euthanasia is an obsolete terminology and should be avoided as euthanasia cannot be passive and withholding or withdrawing a potentially inappropriate treatment in a patient dying with a terminal illness that only prolongs the dying process, cannot be construed as an intention to kill.”

The terminological confusion gets worse when translated into regional languages of the country. The fact that information about such legal provisions reaches most citizens of the country in their own languages is significant. In my mother tongue, Tamil, the word used for ‘passive euthanasia’ is “கருணைக்கொலை” (karunaikkolai), (literally meaning ‘mercy killing’). The word used for ‘euthanasia’ is also exactly the same word and makes no distinction between ‘active’ and ‘passive’. The fact that the readers/listeners of news outlets are so accustomed to seeing/hearing the word “கொலை” (kolai) in connection with ‘murder’ overshadows public perception on the ‘passive euthanasia’. There are fragile attempts by some journalists to mark the distinction between ‘active’ and ‘passive’ euthanasia, but they seem to go in vain and often deepen the confusion. One could safely conclude that the same is the case with translations to other Indian languages as well.

Similarly, the recognition of the ‘living will’, although its purpose is to promote dignity based on autonomous and informed decision making, raises several practical challenges. The ‘living will’ to be a legally valid document, the ruling requires that it must be a written document signed by two witnesses and a Judicial Magistrate. While this allows for informed and voluntary decision making about one’s own end of life, questions remain as to how practical the procedures are. Given that end of life treatment decisions are mostly left to the members of the family, others, even though well known to the person in question, would hesitate to sign a document of this importance and would leave that to the family. Culturally, talking about one’s own death is considered inauspicious and is actively discouraged by family and friends. Getting two witnesses to sign a ‘living will’ may not be an easy task. And, even if one manages to get this stage completed, the requirement to obtain a signature of a Judicial Magistrate will deter many.

The legal provision of ‘living will’ appears to promote patient autonomy and person-centred end of life decision making. It is apparent that these procedures are introduced to ensure the legal validity of the document. However, in practice, it is unlikely to open the floodgates of ‘living wills’ anytime soon and the benefits on the ground may be limited.

No wonder the palliative care community in India has received the verdict with mixed emotions. The legal position on end of life issues in India has been described at best vague and analysis of the details of the new law on ‘passive euthanasia’ has highlighted some glaring inconsistencies. The latest ruling of the Supreme Court of India does, however, contribute some clarity. Juridical recognition of withdrawal/withholding of futile treatment and advance directives may well be counted as the first step in the right direction, albeit with some confusing wording. But much more clarity is needed along with open and honest conversations among communities about what brings and preserves dignity at the end of life.

Sources:

1. Coombs, M.A., 2016. Treatment withdrawal, allow a natural death, passive euthanasia: a care‐full choice of words. Nursing in critical care, 21(4), pp.193-194.
2. Hopkins, P.D., 1997. Why does removing machines count as “passive” euthanasia?. Hastings Center Report, 27(3), pp.29-37.
3. Indian Council of Medical Research, 2018. Definition of terms used in limitation of treatment and providing palliative care at end of life. http://www.icmr.nic.in/icmrnews/Definition%20of%20terms%20used%20in%20limitation%20of%20treatment%20and%20providing%20palliative%20care%20at%20end%20of%20life.pdf
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6. Materstvedt, L. J., 2018. “Assisted dying” – What it is, where it’s practicsed, and what the future might hold. https://discoversociety.org/2018/02/06/assisted-dying-what-it-is-where-its-practised-and-what-the-future-might-hold/
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10. The Supreme Court of India. Judgement on WRIT PETITION (CIVIL) NO. 215 OF 2005 http://supremecourtofindia.nic.in/supremecourt/2005/9123/9123_2005_Judgement_09-Mar-2018.pdf