Posted on 11.10.17 by Satya Prasoon
On 11.10.2017, arguments continued before the 5 judgde bench in Common Cause v UOI on whether a ‘living will’ (advanced directive) can be given legal recognition.
Additional Solicitor General (ASG) of India, Mr. P.S. Narasimha argued that a living will may have severe repercussions as it can be misused. Further, he argued that if later a cure is found to incurable diseases after making a living will, that would be detrimental to the patient himself. To this, the Chief Justice Dipak Misra replied that it will be the medical board will consider such a medical advancement and take an informed decision taking into regard such factors. The ASG stressed upon the social stigma associated with diseases that may influence individuals to write a living will with respect to diseases that might even be curable and is thus an important factor to be considered.
The Chief Justice throughout the hearing reiterated that the Advanced Directive (‘living will’) will be subject to the final decision of the Medical Board.
Justice Chandrachud observed that there are at least two fundamental rights that come into consideration: first, death should not take place in an undignified manner and second, right to self-autonomy. There is societal interest in preservation of life but no interest when life is prolonged in which there is pain and suffering. He also observed that a possible test for the Medical Board in order to come to a decision could possibly be: that the condition of the patient is found to be irreversible; that prolongation of life with such pain and suffering is inconsistent with intent of patient.
Mr. Arvind Datar appearing for Vidhi Centre for Legal Policy (Intervenor), began with definition of ‘euthanasia’ in the Oxford Dictionary: ‘the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma.’ He argued that advance directives should be declared as an extension of the right to refuse medical treatment and the right to die with dignity, and recognition of their legal validity is necessary to give effect to the rights of incompetent patients under Article 21.
Mr. Datar raised an issue as to at what stage of the process an ‘Advanced Directive’ would kick in to which Justice Chandrachud replied that the disease according to the Medical Board would have to be irreversible and incurable. The CJI also asked Mr. Datar whether he could suggest adequate safeguards so that Advanced Directives are not misused. Mr. Datar gave some examples of safeguards for Advance Directives in other Jurisdictions such as prescribing the form in which the directive must taken, by specifying who may act as witnesses, allowing the possibility of amendment and by allowing the validity of the directive to be challenged.
Mr. Sanjay Hegde, Sr. Counsel for intervenor, Indian Society of Critical Care Medicine (a society of doctors) commenced his arguments. He argued that even during prolongation of years of a person, there should be life in it. He also stressed that end of life care should be available to everyone. He submitted that advance directives, are expressions of autonomy and informed consent on the part of the patient and thus fall under Article 21.
Then, an advocate who had experience in medicine of over forty years also assisted the court. He submitted that incurability is a very misleading word. He argued that if passive euthanasia is accepted then right to die should be held to be a Fundamental Right as the former flows from the latter. Justice Chandrachud controverted his submission as he felt that passive euthanasia postulates the right to live and not right to die, “I want to live my life until I’m destined to. I do not want any artificial intervention to prolong it.” Thus, right to die is not the origin of passive euthanasia.
The hearing was concluded after the CJI reiterated that right to die is not right to life but right to dignified life and right to die with dignity is a Fundamental Right and the judgment was reserved.
(The post relies on contributions from Mr. Ayush Puri)
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