Thursday, January 21, 2016

EUTHANASIA AND CONSCIENCE TO KEEP

Euthanasia, mercy killing, assisted suicide, physician aid in dying is debatable issue. Even if it is desired by the person concerned, it poses moral dilemma for those who have to take the decision. In our country, it is punishable and this question is referred to the constitutional bench in Common Cause vs Union of India 2014 SC (Supp) 1456 = 2014(5) SCC 338 after disagreeing with Aruna Ramachandra Shanbaug Vs Union 2011(4) SCC 454 = 2011 CrLJ (Supp) 301. The bench has sought the views of the government on the same. The following article considers the debate, moral dilemma, and law of the other nation in this regard. It also takes into account the latest decision of the Canadian Supreme Court in Carter Vs Canada upholding such right.
Aruna Ramchandra Shanbaug - picture courtesy Wikipedia

Euthanasia or mercy killing is the act or practice of painlessly putting persons to death, who are suffering from painful or incurable diseases. Assisted suicide or physician aid in dying (PAD) is another form of the same. In euthanasia, the doctor or a third party administers the lethal dose but assisted suicide or PAD is committed with assistance from others to end suffering from a severe physical illness. 

They are talked about in public; debated by philosophers: if the God has given life then, he and he alone can take it;  but if a person can never talk, never feel, never express, and spends his life like a vegetable, then is such a life worth living? 

There is another aspect. It may lead to involuntary Euthanasia or manipulating people into asking for suicide or actually killing them, without their permission, if they are not liked. It did happen in the 20th century―Nazi Holocaust; non-Germans were viewed as expendable and it did not take long to transform the war crimes into an act of compassion.

LEGALITY OF EUTHANASIA
In India
In India, an attempt to commit suicide is punishable and its abetment as well. Of course, if one is successful in his attempt then he can’t be punished; a dead man cannot be convicted. But the person abetting it can be punished. Murder is of course punishable.

Our Supreme Court too has dealt with the question, whether a person has the right to take his own life. In P Rathinam Vs Union of India, {1994 AIR 1844 = 1994(3) SCC 394} the court declared section 309 of Indian Penal Code providing punishment for the attempt to commit suicide to be ultravires the constitution. In a later decision, Gian Kaur Vs State of Punjab {AIR 1996 SC 946 = (1996) 2 SCC 648 (the Gian Kaur case) it overruled the previous decision; upheld the validity of section 309 of IPC; and left it to the legislature to legislate.


Other Countries
In most of the legal systems, there is no specific provision for euthanasia. It is treated as suicide or murder. 

In the US, some of the States had enacted law banning assisted suicide or physician aid in dying (PAD). These laws were upheld by the US Supreme Court in Washington v. Glucksberg 521 US 702 (1997) and Vacco v. Quill 521 US 793 (1997). The court held that neither the right to assistance in committing suicide is a fundamental liberty protected by due process clause, nor the laws violated the equal protection clause of the fourteenth amendment.  But since then, States of Washington, Oregon, Vermont, New Mexico and Montana have enacted laws legalising it; in some cases, laws were approved in the referendum and in some cases law was in pursuance of State court decision. 

In Canada, aiding or abetting a person to commit suicide is a criminal offence under section 241 (b) of the Criminal Code. It means that a person cannot seek a physician-assisted death.  In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, the Canadian Supreme Court by five is to four majority Uphheld it holding that it did not violate section 7 of the Canadian Charter of Rights and Freedoms and that if it violated section 15 of the charter then it was justified under section 1, as there was 'no halfway measure that could be relied upon with assurance' to protect the vulnerable. However this has been reversed.

In Carter Vs Canada (Attorney General) 2015 SCC 5 = [2015] 1 SCR 331, the Canadian SC on 6..2.2015 declared that sections 241 (b) and s. 14  of the Criminal Code  unjustifiably infringe s. 7  of the Charter  and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. This declaration was suspended for 12 months. This was done to allow the Canadian parliament to draft a new, constitutional law to replace the existing one.

The Government requested six months extension to draft the law. This was decided on 15.1.2016 Carter Vs Canada (Attorney General) 2016 SCC 4. The court unanimously granted four months extension to the suspension of the declaration of invalidity  from the date it was set to expire. However  Quebec was exempted from the four-month extension in view of the fact that it had legislated on the subject. During the four-month extension period, exemption was also granted by the same majority to those who wished to exercise their rights by applying to the superior court of their jurisdiction for relief in accordance with the criteria set out in paragraph 127 of the original judgement.

In England, a voluntary Euthanasia legalisation society was formed in 1935. But a bill introduced by the society was defeated in the House of Lords the next year and again in 1950. Between 2003 and 2006, bills were again introduced to legalise assisted suicide in England but were rejected by the Parliament. In a recent decision, a majority of the Supreme Court of the United Kingdom accepted that the absolute prohibition on assisted dying breached the claimants’ rights, but found the evidence on safeguards insufficient; the court concluded that Parliament should be given an opportunity to debate and amend the legislation based on the court’s provisional views (see R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843).

The Legislative Assembly of the Northern Territory of Australia had enacted Rights of the Terminally Ill Act 1995 providing that a medical practitioner may assist a terminally ill patient to end his life. But it was overridden by Euthanasia Laws Act 1997 enacted by the Australian Federal Government. 

Netherlands is a country where the doctors, courts and the general public more openly debate about it than anywhere else.  In the aftermath of 'the Postma case' (see Endnote-1),  the court also set out criteria, when a doctor would not be required to keep a patient alive contrary to their will. This set of criteria was formalised in the course of a number of court cases during the 1980's.

In times to follow, Netherlands enacted ‘Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002'.  

Belgium, and Luxembourg also legalised euthanasia. The Belgian parliament legalised it by 'Law Concerning Euthanasia 2002' and Luxembourg legalised it by 'Legislation Regulating Palliative Euthanasia And Assistance To Suicide Act 2009'. 

It is also legal in Switzerland, Germany, Albania, Colombia, Japan

REMOVING HEALTH SUSTAINING SYSTEM
In the US 
Cruzan Vs Director, 497 US 261
Nancy Cruzan was in a vegetative state for the last eight years in a hospital. Her parents asked the doctors to remove the tubes feeding her. The parents' claim that decision end to Nancy’s life should rest with them as it is based on intimate knowledge of Nancy’s views and preferences. But her medical expenses were being borne by the state that maintained the hospital and not by her parents.

Missouri Supreme Court refused to remove the tubes feeding Nancy Cruzan.  This decision was upheld by the US Supreme Court by six to three in Cruzan Vs Director, Mo. Health Dept. 111 LEd 2nd 224. (see Endnote-2)

In India 
Aruna Ramachandra Shanbaug Vs Union 2011(4) SCC 454 = 2011 CrLJ (Supp) 301 (the Shanbaug case) and reference to the larger bench
Aruna Ramachandra Shanbaug was a staff nurse working in King Edward Memorial Hospital, Mumbai (the Hospital).   On 27.11.1973, she was chained by a sweeper of the hospital.  He tried to rape her and finding that she was menstruating,  sodomised her.  During this act the chain around her neck was twisted and she went into coma.

Shanbaug survived but never recovered from the damage to the brain resulting from the assault and strangulation.  Since then, she is confined to a bed in the hospital.  She is being provided nursing care and looked after by the nurses of the hospital.  A writ petition was filed before the Supreme Court on her behalf by a person claiming to be her best friend to stop feeding and to let her die peacefully.

The Supreme Court accepted that they did not have jurisdiction under Article 32 of the Constitution to decide the petition, yet they chose to decide and dismiss the petition on merits.  

The Court, while dismissing the petition, observed that passive euthanasia should be permitted in the country and laid down the guidelines to follow till the law is made by the parliament on the subject. The guidelines are as follows:
  1. A decision to discontinue life support should be taken by the parents or the spouse or other close relatives, or in the absence of any of them, by a person or body of persons acting as a next friend.  It can also be taken by  the doctors attending the patient, but should be bona fide in the best interest of the patient.
  2. The decision should have approval of the concerned High Court.
  3. The approval can be granted by a Bench of at least 2 Judges, who may do so after seeking the opinion of a committee of three reputed doctors out of which one may preferably be a neurologist, the second may be psychiatrist and the third may be a physician.  

Nevertheless, in Common Cause vs Union of India 2014 SC (Supp) 1456 = 2014(5) SCC 338, a three judge bench referred the matter to the constitution bench holding that in the Shanbaug case, the court wrongly understood the Gian-Kaur case; and its reasoning was inconsistent. The court did not frame any question but invited the constitutional bench to go into all aspects of the matter and lay down guidelines in this regard.

CONSCIENCE TO KEEP
Sometime ago, my relatives had gone into coma, I had taken my son to see them. On my way back, I advised him to put me in the eternal sleep, if I was in any such condition.

I have also written a registered will, donating all my organs to the needy person and my body for medical purpose. In the will, it is also mentioned that in case I go in coma, my family members and friends will take decision to put me in the eternal sleep as I believe that it is better to die than to live a helpless life.

I hope, if the need be, they will take that decision to put me into eternal sleep but I am no longer so sure.

People said I loved my dog more than any one else, he was suffering. On two earlier occasions when the veterinary doctor had advised me to put him to sleep,  I had refused. And he recovered and was moving about. But this was the third time. He was old and blind. Then, broke his legs and had bleeding wounds. I could not bear to watch his sufferings. I had him, lethally injected. Within seconds, he went off to  the eternal sleep.  In any case, he might have died may be within a few days. We buried him in the backyard of our house.

Now I often go to the place, where he is buried and  ponder.  Was my decision right? Could he be well again? After all on the two earlier occasions he did get well. That was despite the Vet’s opinion. I feel guilty.

Still I know, what will I do, if I am in such a situation: without remorse, without guilt, I will put myself to eternal sleep. I am sure that in my rebirth, it will be a stronger me. But I am not sure what others will do. They too have a conscience to keep.

Endnote-1: In the Postma case, Dr. Gertruda Postma's mother was 78 year old; she was deaf and partially paralysed; she repeatedly requested euthanasia in 1971 and was euthanised by her son Dr. Postma. He reported the incident and other MD’s confessed to committing similar acts. He was found guilty of mercy killing but was sentenced only to one week imprisonment and a year’s probation.

Endnote-2: A comment on this case and debate on the issue is available in form of an article 'Do we have a Right to Die' in the Book 'Freedom's Law The Moral Reading of The American Constitution' by Ronald Dworkin.
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