Living will for passive euthanasia: The right way to go

The Supreme Court recently indicated it might recognise the execution of living will in cases of passive euthanasia, a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally ill patient. But this only with adequate safeguards and implementation of living will which to be subject to medical board certifying that the patient’s comatose state is irreversible. This decision when it materialises in a Bill may be a welcome one, especially in our country which is undergoing epidemiological transition and persons with terminally illness rising along with ageing of the population and age related disabilities, chronic diseases and serious morbidities with no cure but progressive decline increasing. A living will gives the person the power to choose how she/he would like to be cared for in the days leading to her/his death.

A living will is a formal, legal written document that details a person’s end-of-life wishes that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. It is used when the person is still alive, but unable to make decisions about her/his care.

Even though a person shall have a living will, the court recommends the hospital to still discuss decisions with the designated representative, or proxy, making it important to choose wisely when designating a proxy. Having a living will removes some of the burden from the family caring for the affected person when the family knows that they are following the affected person’s wishes. Doctors may also be spared of any accusation of foul play or negligence in cases where patients had penned down a living will.

However, the government has reservations regarding the use of the living will, the apprehension being its misuse and thus being not a sound public policy. There is question about whether constituting a permanent medical board to take a call on passive euthanasia will be a viable option or should the decision be taken on case to case basis. NGOs and advocates supporting the provision of living will are of the opinion that individuals have the right to refuse medical treatment and the State should not interfere to safeguard their life. It becomes particularly pertinent in India where poverty and other kinds of limited resources for terminally ill patients becomes a health and social concern and a hindrance in providing quality care to the affected person. Many argue that people from the lower income groups and in fact even from middle and upper class go through very difficult situations in providing care to terminally ill person who could be totally bed-ridden and in unbearable pain. The carers have many a times to make compromises and fail to give quality medical and social care when required despite best intentions, especially as the country faces the situation of inadequate healthcare facilities. They believe that it should be legally acceptable to terminate life in order to avoid creating a hopeless situation for the affected suffering person who is in any case going to die, so why prolong suffering and not use limited resources for those who have a chance of recovery.

When the court allows passive euthanasia, why is living will not recognised? The supporters for living will from the legal fraternity quote constitutional provision in favour for it. For instance, advocate Prashant Bhushan in representing a case for living will in the court recently stated “Under Article 21 of Constitution, person has the right to die peacefully without any suffering and therefore he has right to create a living will that when he can’t recover from illness, his life should not be prolonged”.

The argument put forward is that forcing prolonged medical treatment on someone who does not want it amounts to assault, which should be curtailed and especially when a medical expert opines that the person afflicted with a terminal disease has reached a point of no return, for instance being in persistent vegetative state, or in irreversible coma, then clearly he should be given the right through living will to refuse life support system and not be given the chance of likelihood of going into a permanent vegetative state.

Many countries already have provision for passive euthanasia. The US, UK, Germany, Belgium and Netherlands allow intentional ending of life. As the court recently observed “one cannot say that you have a right to die, but you have a right to dignified death. If we recognise the right to dignity in death, then why not dignity in dying”, clearly meaning that life must be preserved but not prolonged in suffering. Right to life does not mean right to die but a dignified life would certainly include right to die with dignity. We should permit withdrawal of life-sustaining treatment from patients not in a position to make an informed decision.

Living will may permit right to die peacefully and it is constitutionally part of a fundamental right to life provided there are adequate safeguards, informed consent and medical board certifies that the health of the patient is irreversible given the knowledge of medical advancements and cannot be kept alive without artificial support, agony and pain.

Rightfully we should support with adequate precautions and sound safeguards against its abuse the “Management of Patients with Terminal Illness — Withdrawal of Medical Life Support Bill”, which is currently in draft form.

The author is a health sociologist and gerontologist