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Report No. 241

11. Passive euthanasi.- issues discussed.

11.1 At the risk of repetition, we shall first deal with the case of a competent patient who is terribly suffering from terminal illness of grave nature. What is the doctor's duty and does the content of the right in Art. 21 preclude the doctor and the patient from facilitating passive euthanasia?

11.2 The discussion in the foregoing paras and the weighty opinions of the Judges of highest courts as well as the considered views of Law Commission (in 196th report) would furnish an answer to the above question in clearest terms to the effect that legally and constitutionally, the patient (competent) has a right to refuse medical treatment resulting in temporary prolongation of life. The patient's life is at the brink of extinction. There is no slightest hope of recovery.

The patient undergoing terrible suffering and worst mental agony does not want his life to be prolonged by artificial means. She/he would not like to spend for his treatment which is practically worthless. She/he cares for his bodily integrity rather than bodily suffering. She/he would not like to live like a 'cabbage' in an intensive care unit for some days or months till the inevitable death occurs. He would like to have the right of privacy protected which implies protection from interference and bodily invasion.

As observed in Gian Kaur's case, the natural process of his death has already commenced and he would like to die with peace and dignity. No law can inhibit him from opting such course. This is not a situation comparable to suicide, keeping aside the view point in favour of decriminalizing the attempt to suicide. The doctor or relatives cannot compel him to have invasive medical treatment by artificial means or treatment.

If there is forced medical intervention on his body, according to the decisions cited supra (especially the remarks of Lord Brown Wilkinson in Airdale's case), the doctor / surgeon is guilty of 'assault' or 'battery'. In the words of Justice Cardozo, In 211 NY 125, (1914) "every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages." Lord Goff in Airedale's case places the right to self determination on a high pedestal.

He observed that "in the circumstances such as this, the principle of sanctity of human life must yield to the principle of self determination and the doctor's duty to act in the best interests of the patient must likewise be qualified by the wish of the patient." The following observations of Lord Goff deserve particular notice:

"I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient's wishes."

11.3 As noticed earlier, the line of thinking is the same in Gian Kau.- which aspect has been highlighted by Law Commission (in 196th report).

11.4 To accede to the choice and volition of a competent patient in a state of terminal illness, far from being invasive of the fundamental right under Art.21 (built on the premise that sanctity of life cannot be jeopardized), will be more conducive to the promotion of that right. This would be so, whether we approach 'life', and its definition or meaning from the natural law perspective or a rationalist or a positive law angle. While life cannot be extinguished or its attributes decimated or taken away, provisions of canvas of choice, when life's elements have ebbed away cannot be critiqued.

Even in respect of incompetent patient, as pointed out earlier by reference to the various passages in the weighty pronouncements in our country, U.K., and U.S.A., the violation of Art.21 does not really arise when the decision to withdraw the life support measures is taken in the best interest of the incompetent patient, especially when the evaluation of best interests is left to a high judicial body, i.e., the High Court. For instance, in case of dysfunctional bodily organs, or decapacitated limbs, decisions are taken to transplant or amputate in the best interests of the patient. Again, abortion laws, or Medical Termination of Pregnancy Laws, are similar instances of best interest concept.

11.5 In Cruzan's case (497 US 261), the US Supreme Court observed that the due process clause undoubtedly protected "the interests of a person in life as well as an interest in refusing life sustaining medical treatment."

11.6 What is the proper approach to the case of an incompetent patient, such as a patient who may be in a PVS or irreversible coma? Should (involuntary) passive euthanasia be allowed in his case? Will the discontinuance of life-prolonging treatment by artificial measures result in violation of Art. 21? Here again, we cannot adopt an abstract or disintegrated view of Art.21 and record the conclusion that the withdrawal of life-sustaining systems would automatically amount to violation of Art.21.

As stated by Hoffman L.J. in Airdale case, supra, note 3 the 'sanctity of life' and 'respect for life' should not be carried "to the point at which it has become almost empty of any real content and when it involves the sacrifice of other important values such as human dignity and freedom of choice".

11.7 The fact that he is helpless, unconscious and uncommunicativ.- should it come in the way of withdrawing life-support systems if it is considered to be in his best interests and a rational person in his position, would most probably have opted for withdrawal? As the patient is not in a position to exercise the right of self-determination, should artificial life-support be thrust on him throughout the span of his short life?

Should he be in a worse position because he cannot express, communicate or take informed decision? In this context, we may quote what the Supreme Judicial Court of Massachusetts in Supdt. of Belhcertown State School v. Saikewicz, 370 NE 2d 417 (1977) pertinently observed:

"To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality."

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