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Report No. 241

Passive Euthanasia - A Relook

1. Introduction

1.1 The word 'Euthanasia' is a derivative from the Greek words 'eu' and 'thanotos' which literally mean "good death". It is otherwise described as mercy killing. The death of a terminally ill patient is accelerated through active or passive means in order to relieve such patient of pain or suffering.

It appears that the word was used in the 17th Century by Francis Bacon to refer to an easy, painless and happy death for which it was the physician's duty and responsibility to alleviate the physical suffering of the body of the patient. The House of Lords Select Committee on 'Medical Ethics' in England defined Euthanasia as "a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering".

The European Association of Palliative Care (EPAC) Ethics Task Force, in a discussion on Euthanasia in 2003, clarified that "medicalised killing of a person without the person's consent, whether non-voluntary (where the person in unable to consent) or involuntary (against the person's will) is not euthanasia: it is a murder. Hence, euthanasia can be voluntary only".

1.2 We are here concerned with passive euthanasia as distinct from 'active euthanasia'. The distinction has been highlighted in the decision of the Supreme Court of India in Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 Active euthanasia involves taking specific steps such as injecting the patient with a lethal substance e.g. Sodium Pentothal which causes the person to go in deep sleep in a few seconds and the person dies painlessly in sleep, thus it amounts to killing a person by a positive act in order to end suffering of a person in a state of terminal illness.

It is considered to be a crime all over the world (irrespective of the will of the patient) except where permitted by legislation, as observed earlier by Supreme Court. In India too, active euthanasia is illegal and a crime under Section 302 or 304 of the IPC. Physician assisted suicide is a crime under Section 306 IPC (abetment to suicide)1Ibid at 481. Passive euthanasia, otherwise known as 'negative euthanasia', however, stands on a different footing.

It involves withholding of medical treatment or withholding life support system for continuance of life e.g., withholding of antibiotic where without doing it, the patient is likely to die or removing the heart-lung machine from a patient in coma. Passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained (vide para 39 of SCC in Aruna's case).

The core point of distinction between active and passive euthanasia as noted by Supreme Court is that in active euthanasia, something is done to end the patient's life while in passive euthanasia, something is not done that would have preserved the patient's life. To quote the words of learned Judge in Aruna's case, in passive euthanasia, "the doctors are not actively killing anyone; they are simply not saving him". The Court graphically said "while we usually applaud someone who saves another person's life, we do not normally condemn someone for failing to do so".

The Supreme Court pointed out that according to the proponents of Euthanasia, while we can debate whether active euthanasia should be legal, there cannot be any doubt about passive euthanasia as "you cannot prosecute someone for failing to save a life". The Supreme Court then repelled the view that the distinction is valid and in doing so, relied on the landmark English decision of House of Lords in Airedale case Airedale NHS Trust v. Bland (1993)1 All ER 821., which will be referred to in detail later.

1.3 Passive euthanasia is further classified as voluntary and non-voluntary. Voluntary euthanasia is where the consent is taken from the patient. In non- voluntary euthanasia, the consent is unavailable on account of the condition of the patient for example, when he is in coma. The Supreme Court then observed:

"while there is no legal difficulty in the case of the former, the latter poses several problems, which we shall address". The Supreme Court was concerned with a case of non-voluntary passive euthanasia because the patient was in coma.

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