Draft Bill on passive euthanasia

• The Union Health Ministry has drafted and put up ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’ in the public domain for consultation. This bill deals with only passive euthanasia.
• Passive euthanasia entails withholding of common treatments in terminally ill patients such as antibiotics, necessary for the continuance of life, while active euthanasia involves the use of lethal substances or forces, such as injections to kill, and is the most controversial.

Highlights of the bill

• Every competent patient, including minors aged above 16 years, has a right to take a decision and express the desire to the medical practitioner attending on her or him.
• When a patient communicates her or his decision to the medical practitioner, such decision is binding on the medical practitioner. However, it also notes that the medical practitioner must be “satisfied” that the patient is “competent” and that the decision has been taken on free will.
• There will be a panel of medical experts to decide on case by case basis.
• The medical practitioner has to maintain all details of the patient and ensure he/she takes an informed decision. He is also required to inform the patient whether it would be best to withdraw or continue treatment. If the patient is not in a conscious state, he/she needs to inform family members. In the absence of family members, the medical practitioner needs to inform a person who is a regular visitor.
• In case any patient is not competent enough to take a decision then his or her next of kin, including spouse, parents or sibling, can approach the High Court, which will have to take a decision within a period of one month.
• This bill only include legalizing of passive euthanasia only.
• The Medical Council of India has been given the authority to formulate guidelines from time to time for the guidance of medical practitioners and might review and modify the guidelines periodically.

Analysis:

• Medical expert opines that the person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life support as it would only prolong the agony.
• Moreover, if a life is not functional, it is not worth continuing. How long you can actively keep intervening to prolong a life is the question. There should be a point where we should be able to stop intervening
• However, Euthanasia is difficult to regulate and laws allowing it can be vulnerable to malicious intent. At the very least, moral pressure could be exerted on the terminally ill to choose this option.
• Relatives, medical personnel and the like can apply to the relevant high court for “witholding or withdrawing medical treatment of a competent patient who has not taken an informed decision”. This is dangerous.
• Also in this bill, there is no complete clarity on the concept of a living will. A living will is defined as "a document in which a person states his/her desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from his/her terminal condition''. But paragraph 11 of the draft bill said that any "advance medical directive (living will) or medical power of attorney executed by the person shall be void and of no effect and shall not be binding on any medical practitioner''.
• The Bill creates an irrational distinction between patients who are competent at the time at which a decision has to be made about refusing or withdrawing life-sustaining treatment, and those who are incompetent at such time, even though they might have expressed their decision earlier in the form of an advance directive. Clause 3 of the Bill states that the decision of the former category of patients to refuse such treatment is binding on their medical practitioners. The time at which the decision was made to refuse or request the withdrawal of treatment cannot be a rationale for distinguishing between these categories of patients, so long as such decisions were taken freely, fully informed, and not altered fundamentally since. Apart from being an infringement of the right to life under Article 21, the classification stands the risk of being struck down as unreasonable and therefore a violation of the right to equality under Article 14.
• The choice of the High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives and does not take into account the fact that High Courts are unlikely to be able to deliver swift judgment in such cases.

By: Vishal