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Constitution of India – Art.21 – Passive Euthanasia – Rightto die with dignity – Held: The right to life with dignity includes thesmoothening of the process of dying when the person is in avegetative state or is living exclusively by the administration ofartificial aid that prolongs the life by arresting the dignified andinevitable process of dying – Here, the issue of choice also comesin – Such a right should come within the ambit of Art.21 of theConstitution – As part of right to die with dignity in case of dyingman who is terminally ill or in a persistent vegetative state onlypassive euthanasia would come within the ambit of Art.21 and notthe one which would fall within the description of active euthanasiain which positive steps are taken either by the treating physician orsome other person. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Constitution of India – Art.21 – Right to refuse treatment – Apatient (terminally ill or in a persistent vegetative state) exercisingthe right to refuse treatment may ardently wish to live but, at thesame time, he may wish to be free from any medical surgery, drugsor treatment of any kind so as to avoid protracted physical suffering– Any such person who has come of age and is of sound mind hasa right to refuse medical treatment – This right stands on a differentpedestal as compared to suicide, physician assisted suicide or eveneuthanasia – When a terminally ill patient refuses to take medicaltreatment, it can neither be termed as euthanasia nor as suicide – Apatient refusing medical treatment merely allows the disease to takeits natural course and if, in this process, death occurs, the causefor it would primarily be the underlying disease and not any selfinitiated act – All adults with capacity to consent have the right of self- determination and autonomy – The ‘Emergency Principle’ orthe ‘Principle of Necessity’ has to be given effect to only when it isnot practicable to obtain the patient’s consent for treatment andhis/her life is in danger – But where a patient has already made avalid Advance Directive which is free from reasonable doubt andspecifying that he/she does not wish to be treated, then such directivehas to be given effect to.(Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Constitution of India – Art.21 – Right to refuse treatment –Continuing treatment against the wishes of a patient is not only aviolation of the principle of informed consent, but also of bodilyprivacy and bodily integrity that have been recognised as a facetof privacy – Just as people value having control over decisionsduring their lives such as where to live, which occupation to pursue,whom to marry, and whether to have children, so people valuehaving control over whether to continue living when the quality oflife deteriorates. (Per Dr. D.Y. Chandrachud, J.)Constitution of India – Art.21 – Dignity of life must encompassdignity in the stages of living which lead up to the end of life –Dignity in the process of dying is as much a part of the right to lifeunder Art.21 – To deprive an individual of dignity towards the endof life is to deprive the individual of a meaningful existence – Hence,the Constitution protects the legitimate expectation of every personto lead a life of dignity until death occurs. Constitution of India – Art.21 – Right to refuse treatment –An adult human being of conscious mind is fully entitled to refusemedical treatment or to decide not to take medical treatment andmay decide to embrace the death in natural way.(Per Ashok Bhushan, J.)Constitution of India – Art.21 – Decision for withdrawal oflife saving treatment in case of a person who is incompetent to takean informed decision – Held: Right of patient who is incompetent toexpress his view cannot be outside of fold of Art.21 of theConstitution – When an adult person having mental capacity totake a decision can exercise his right not to take treatment orwithdraw from treatment, the above right cannot be negated for a person who is not able to take an informed decision due to terminalillness or being a Persistent Vegetative State (PVS) – When the rightof an adult person who expresses his view regarding medicaltreatment can be regarded as right flowing from Art.21 of theConstitution, the right of patient who is incompetent to express hisview cannot be outside the fold of Art.21 of the Constitution – Incases of incompetent patients who are unable to take an informeddecision, it is in the best interests of the patient that the decision betaken by competent medical experts and that such decision beimplemented after providing a cooling period at least of one monthto enable aggrieved person to approach the Court of Law – Thebest interest of the patient as determined by medical experts shallmeet the ends of justice – The medical team by taking decision shallalso take into consideration the opinion of the blood relations ofthe patient and other relevant facts and circumstances.(Per Ashok Bhushan, J.)Constitution of India – Art.21 – Right to life – As the processof dying is an inevitable consequence of life, the right to lifenecessarily implies the right to have nature take its course and todie a natural death – It also encompasses a right, unless theindividual so wishes, not to have life artificially maintained by theprovision of nourishment by abnormal artificial means which haveno curative effect and which are intended merely to prolong life.(Per A.K. Sikri, J.)Constitution of India – Art.21 – Concept of human dignity –Ideology of different religions – Hinduism doesn’t recognize humanbeings as mere material beings – Its understanding of human identityis more ethical-spiritual than material – That is why a sense ofimmortality and divinity is attributed to all human beings in Hinduclassical literature – Even in Islam, tradition of human rights becameevident in the medieval ages – Being inspired by the tenets of theHoly Koran, it preaches the universal brotherhood, equality, justiceand compassion – Islam believes that man has special status beforeGod – Because man is a creation of God, he should not be harmed– The Bhakti and Sufi traditions too in their own unique wayspopularized the idea of universal brotherhood – It revived andregenerated the cherished Indian values of truth, righteousness,justice and morality. (Per A.K. Sikri, J.) Constitution of India – Art.21 – Right to live with dignity –Dignity implies, apart from a right to life enjoyment of right to befree of physical interference – At common law, any physicalinterference with a person is, prima facie, tortious – When it comesto medical treatment, even there the general common law principleis that any medical treatment constitutes a trespass to the personwhich must be justified, by reference either to the patient’s consentor to the necessity of saving life in circumstances where the patientis unable to decide whether or not to consent. (Per A.K. Sikri, J.)Constitution of India – Art.21 – Right to receive or denymedical treatment and euthanasia – Rights with regard to medicaltreatment fall essentially into two categories: first, rights to receiveor be free of treatment as needed or desired, and not to be subjectedinvoluntarily to experimentation which, irrespective of any benefitwhich the subjects may derive, are intended to advance scientificknowledge and benefit people other than the subject in the longterm; secondly, rights connected incidentally with the provision ofmedical services, such as rights to be told the truth by one’s doctor– Having regard to this right of the patients in common law, coupledwith the dignity and privacy rights, it can be said that passiveeuthanasia, under those circumstances where patient is in PVS andhe is terminally ill, where the condition is irreversible or where he isbrain dead, can be permitted. (Per A.K. Sikri, J.)Constitution of India – Art.21 – Right to health – Held: It is apart of Art.21 of the Constitution – At the same time, it is also aharsh reality that everybody is not able to enjoy that right becauseof poverty etc. – The State is not in a position to translate into realitythis right to health for all citizens – Thus, when citizens are notguaranteed the right to health, the questions that arise are can theybe denied right to die in dignity - because of rampant povertywhere majority of the persons are not able to afford health services,should they be forced to spend on medical treatment beyond theirmeans and in the process compelling them to sell their house property,household things and other assets which may be means of livelihood– Secondly, when there are limited medical facilities available, shoulda major part thereof be consumed on those patients who have nochances of recovery – Judicial notice. (Per A.K. Sikri, J.) Constitution of India – Arts.14, 21 – Human dignity – Howphilosopher-jurist Dworkin perceived interpretative process adoptedby a Judge – Discussed – Interpretation of statutue.(Per A.K. Sikri, J.)Constitution of India – Art.21 – Gian Kaur case, analysis of –Reference to Airedale’s case – In Gian Kaur, validity of s.306 waschallenged – The Constitution Bench in Gian Kaur clearly held thatwhen a man commits suicide, he has to undertake certain positiveovert acts and the genesis of those acts cannot be tested to or beincluded within the protection of the expression “right to life” underArt.21 of the Constitution – It was also observed that a dignifiedprocedure of death may include the right of a dying man to also diewith dignity when the life is ebbing out – This is how thepronouncement in Gian Kaur has to be understood – It was also notthe ratio of the authority in Gian Kaur that euthanasia has to beintroduced only by a legislation – What was stated in paragraph 41of Gian Kaur is what has been understood to have been held inAiredale’s case – The Court has neither expressed any independentopinion nor has it approved the said part or the ratio as stated inAiredale – There was only a reference to Airedale’s case and theview expressed therein as regards legislation – Therefore, theperception in Aruna Shanbaug that the Constitution Bench hasapproved the decision in Airedale was not correct – Thus, GianKaur has neither given any definite opinion with regard toeuthanasia nor has it stated that the same can be conceived of onlyby a legislation – Euthanasia.(Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])Constitution of India – Art.21 – Aruna Shanbaug case, analysisof – The two-Judge Bench in Aruna Shanbaug noted that Gian Kaurhas approved the decision of the House of Lords in Airedale andobserved that euthanasia could be made lawful only by legislation– This perception is not correct as Gian Kaur does not lay down thatpassive euthanasia could be made lawful only by legislation. (PerDipak Misra, CJI [for himself and Khanwilkar, J.])Euthanasia – Passive euthanasia – Social Morality, medicalethicality and State Interest – Withdrawal of treatment in anirreversible situation is different from not treating or attending to apatient – Once passive euthanasia is recognized in law regard beinghad to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social moralitynor the doctors’ dilemma or fear will have any place – It is becausethe sustenance of dignity and self-respect of an individual is inheredin the right of an individual pertaining to life and liberty and thereis necessity for this protection – And once the said right comes withinthe shelter of Art.21 of the Constitution, the social perception andthe apprehension of the physician or treating doctor regarding facinglitigation should be treated as secondary because the primacy ofthe right of an individual in this regard has to be kept on a highpedestal – Constitution of India – Art.21. (Per Dipak Misra, CJI[for himself and Khanwilkar, J.])Euthanasia – Intention to cause death – Distinction betweenactive euthanasia and passive euthanasia – A distinction arisesbetween active and passive euthanasia from the provisions of thePenal Code – Active euthanasia involves an intention on the partof the doctor to cause the death of the patient – Such cases fallunder the first clause of s.300 – Mens rea requires a guilty mind;essentially an intent to cause harm or injury – Passive euthanasiadoes not embody an intent to cause death – A doctor may withholdlife support to ensure that the life of a patient who is in the terminalstage of an incurable illness or in a permanent vegetative state, isnot prolonged artificially – The decision to do so is not foundedupon an intent to cause death but to allow the life of the patient tocease at the end of its natural term – A decision not to prolong lifeby artificial means does not carry an intention to cause death – Ina case involving passive euthanasia, the affliction of the patient isnot brought about either by an act or omission of the doctor – Thecreation of the condition of the patient is outside the volition of thedoctor and has come about without a covert or overt act by thedoctor – The decision to withhold medical intervention is to preventpain, suffering and indignity to a human being who is in the endstage of a terminal illness or of a vegetative state with no reasonableprospect of cure – Thus, both in a case of a withdrawal of lifesupporting intervention and withholding it, the law protects a bonafide assessment of a medical professional – There being no intent tocause death, the act does not constitute either culpable homicide ormurder – Moreover, the doctor does not inflict a bodily injury –Death emanates from the pre-existing medical condition of the patient which enables life to chart a natural course to its inexorable end –The law protects a decision which has been made in good faith by amedical professional not to prolong the indignity of a life placed onartificial support in a situation where medical knowledge indicatesa point of no return – Neither the act nor the omission is done withthe knowledge that it is likely to cause death – Penal Code, 1860 –ss.299, 300. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Active and passive Euthanasia – Distinctionbetween – Legality of passive euthanasia – Held: There is an inherentdifference between active euthanasia and passive euthanasia asthe former entails a positive affirmative act, while the latter relatesto withdrawal of life support measures or withholding of medicaltreatment meant for artificially prolonging life – In active euthanasia,a specific overt act is done to end the patient’s life whereas in passiveeuthanasia, something is not done which is necessary for preservinga patient’s life – It is due to this difference that most of the countriesacross the world have legalised passive euthanasia either bylegislation or by judicial interpretation with certain conditions andsafeguards – Post Aruna Shanbaug, the 241st report of the LawCommission of India on Passive Euthanasia has also recognizedpassive euthanasia, however, no law as such has been enacted.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])Euthanasia –Protection under s.92 IPC – Withdrawing lifesupport to a person in a permanently vegetative state or in a terminalstage of illness is not ‘prohibited by law’ – Such an act would alsonot fall outside the purview of s.92 for the reason that there is nointentional causing of death or attempt to cause death – In a situationwhere passive euthanasia is non-voluntary, there is an additionalprotection which is also available in circumstances which give riseto the application of s.92 – Where an act is done for the benefit ofanother in good faith, the law protects the individual – Penal Code,1860 – s.92. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Active euthanasia in India, Legality of – Theintentional taking away of the life of another is made culpable bythe Penal Code – Active euthanasia falls within the expressprohibitions of the law and is unlawful. (Per Dr. D.Y. Chandrachud,J.) Euthanasia – Passive euthanasia – The decision by a treatingdoctor to withhold or withdraw medical intervention in the case ofa patient in the terminal stage of illness or in a persistently vegetativestate or the like where artificial intervention will merely prolong thesuffering and agony of the patient is protected by the law – Wherethe doctor has acted in such a case in the best interest of the patientand in bona fide discharge of the duty of care, the law will protectthe reasonable exercise of a professional decision.(Per Dr. D.Y. Chandrachud, J.)Euthanasia – Passive euthanasia – Legal principles governingcriminal law on passive euthanasia – Report by Justice MJagannadha Rao as Chairperson of 196th Report of LawCommission of India, elucidated. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – In Gian Kaur case, the Constitution Bench held,while affirming the constitutional validity of s.306 of the Penal Code(abetment of suicide), that the right to life does not include the rightto die – Gian Kaur case does not conclusively rule on the validity ofpassive euthanasia – The two Judge Bench decision in ArunaShanbaug proceeds on an incorrect perception of Gian Kaur –Moreover, Aruna Shanbaug has proceeded on the basis of the actomissiondistinction which suffers from incongruities of ajurisprudential nature – Aruna Shanbaug has also not dwelt on theintersection between criminal law and passive euthanasia, beyondadverting to ss.306 and 309 of the Penal Code – Aruna Shanbaughas subordinated the interest of the patient to the interest of othersincluding the treating doctors and supporting caregivers – Theunderlying basis of the decision in Aruna Shanbaug is flawed –Hence, it is necessary for this Court in the present reference torevisit the issues raised and to independently arrive at a conclusionbased on the constitutional position – Penal Code, 1860 –ss.306,309. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Restraints on judicial power – Active/Passiveeuthanasia - whether in the form of withholding or withdrawingtreatment - has the effect of removing, or as the case may be, notproviding supportive treatment – Its effect is to allow the individualto continue to exist until the end of the natural span of life – On theother hand, active euthanasia involves hastening of death: the lifespan of the individual is curtailed by a specific act designed to bring an end to life – Active euthanasia would in the light of penallaw as it stands constitute an offence – It is only Parliament whichcan in its legislative wisdom decide whether active euthanasia shouldbe permitted – Passive euthanasia on the other hand would notimplicate a criminal offence since the decision to withhold/withdrawartificial life support after taking into account the best interest ofthe patient would not constitute an illegal omission prohibited bylaw. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Voluntary passive euthanasia, where deathresults from selective non-treatment because consent is withheld, islegally permissible while voluntary active euthanasia is prohibited.(Per Dr. D.Y. Chandrachud, J.)Euthanasia – Impact of, at the institutional, governmental andsocietal level – Discussed. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Distinction between legality of active andpassive euthanasia – Discussed. (Per Dr. D.Y. Chandrachud, J.)Euthanasia – Passive euthanasia – Direction to set upcommittees to exercise a supervisory role and function – Besideslending assurance to the decision of the treating doctors, the settingup of committees and the processing of a proposed decision throughthe committees would protect the ultimate decision that is taken froman imputation of a lack of bona fides – Committees.(Per Dr. D.Y. Chandrachud, J.)Euthanasia – Law on Euthanasia in other countries –Discussed. (Per Ashok Bhushan, J.)Euthanasia – Passive euthanasia – Legality of – The decisionnot to take life saving medical treatment by a patient, who iscompetent to express his opinion cannot be termed as euthanasia,but a decision to withdraw life saving treatment by a patient who iscompetent to take decision as well as with regard to a patient who isnot competent to take decision can be termed as passive euthanasia– On the strength of the precedents in this country and weight ofprecedents of other countries, such action of withdrawing life savingdevice is legal – Thus, such acts, which are commonly expressed aspassive euthanasia is lawful and legally permissible in this country– The act of withdrawal from live-saving devices is an independent right which can lawfully be exercised by informed decision. (PerAshok Bhushan, J.)Euthanasia – Active Euthanasia – Legality of – No one ispermitted to cause death of another person including a physicianby administering any lethal drug even if the objective is to relievethe patient from pain and suffering. (Per Ashok Bhushan, J.)Euthanasia – Gian Kaur case – The Constitution Bench inGian Kaur case held that the “right to life: including right to livewith human dignity” would mean the existence of such right up tothe end of natural life, which also includes the right to a dignifiedlife upto the point of death including a dignified procedure of death– Gian Kaur case did not express any binding view on the subject ofeuthanasia – The Constitution Bench, however, noted a distinctionbetween cases in which physician decides not to provide or continueto provide for treatment and care, which could or might prolong hislife and those in which he decides to administer a lethal drug eventhough with object of relieving the patient from pain and suffering– The latter was held not to be covered under any right flowingfrom Art.21 – Constitution of India – Art.21. (Per Ashok Bhushan,J.)Euthanasia – Passive euthanasia and death with dignity areinextricably linked – The opportunity to die unencumbered by theintrusion of medical technology and before experiencing loss ofindependence and control, appears to many to extend the promiseof a dignified death – When medical technology intervenes toprolong dying like this it does not do so unobtrusively – Nowadayspatients insist on more than just a right to health care in general –They seek a right to choose specific types of treatment, able to retaincontrol throughout the entire span of their lives and to exerciseautonomy in all medical decisions concerning their welfare andtreatment.(Per A.K. Sikri, J.)Euthanasia – Morality of medical science – Hippocratic Oath,coupled with ethical norms of medical profession, stand in the wayof euthanasia – It brings about a situation of dilemma insofar asmedical practitioner is concerned – On the one hand his duty is tosave the life of a person till he is alive, even when the patient isterminally ill and there are no chances of revival – On the other hand, the concept of dignity and right to bodily integrity, whichrecognises legal right of autonomy and choice to the patient (oreven to his relations in certain circumstances, particularly whenthe patient is unconscious or incapacitated to take a decision) maylead to exercising his right of euthanasia – Medical science. (PerA.K. Sikri, J.)Advance Directives – Safeguards to be followed as to whocan execute the advance directive and how; what should it contain;how should it be recorded and preserved; when and by whom can itbe given effect to; what if permission is refused by the medical board;revocation or inapplicability of advance directive – Principlesrelating to the procedure for execution of Advance Directive andthe guidelines to give effect to passive euthanasia in bothcircumstances, namely, where there are advance directives and wherethere are none laid down in exercise of the power under Art.142 ofthe Constitution and the law stated in Vishaka case – The directiveand guidelines to remain in force till the Parliament brings alegislation in the field – Constitution of India – Art.142 – Legislation,need for. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])Advance Directives – Principles in vogue across the globegoverning Advance Health Directives – Various jurisdictions,discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar,J.])Advance Directives – A failure to legally recognize advancemedical directives may amount to non-facilitation of the right tosmoothen the dying process and the right to live with dignity – Astudy of the position in other jurisdictions shows that AdvanceDirectives have gained lawful recognition in several jurisdictionsby way of legislation and in certain countries through judicialpronouncements – Though the sanctity of life has to be kept on thehigh pedestal yet in cases of terminally ill persons or PVS patientswhere there is no hope for revival, priority shall be given to theAdvance Directive and the right of self-determination – In theabsence of Advance Directive, the procedure provided for the saidcategory shall be applicable. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.]) Advance Directives – If permission to withdraw medicaltreatment is refused by the Medical Board, it would be open to theexecutor of the Advance Directive or his family members or eventhe treating doctor or the hospital staff to approach the High Courtby way of writ petition under Art.226 of the Constitution.(Per DipakMisra, CJI [for himself and Khanwilkar, J.])Advance Directives – Meaning of – Held: Advance directivesare documents a person completes while still in possession ofdecisional capacity about how treatment decisions should be madein the event she or he loses decision making capacity in future –Mental Healthcare Act 2017. (Per Dr. D.Y. Chandrachud, J.)Advance Directives – Recognition of advance directives aspart of a regime of constitutional jurisprudence is an essentialattribute of the right to life and personal liberty under Art.21 –That right comprehends dignity as its essential foundation – Qualityof life is integral to dignity – As an essential aspect of dignity andthe preservation of autonomy of choice and decision-making, eachindividual must have the right on whether or not to accept medicalintervention – Such a choice expressed at a point in time when theindividual is in a sound and competent state of mind should havesanctity in the future if the individual were to cease to have themental capability to take decisions and make choices – Yet, abalance between the application of the substituted judgmentstandard and the best interest standard is necessary as a matter ofpublic interest – This can be achieved by allowing a supervisoryrole to an expert body with whom shall rest oversight in regard towhether a patient in the terminal stage of an illness or in a permanentvegetative state should be withheld or withdrawn from artificial lifesupport – The directions in regard to the regime of advance directiveshave been issued in exercise of the power conferred by Art.142 andshall continue to hold the field until a suitable legislation is enactedby Parliament to govern the area – Constitution of India – Art.142.(Per Dr. D.Y. Chandrachud, J.)Advance Directives – Forms of advance directive – A LivingWill which indicates a person’s views and wishes regarding medicaltreatment and a Durable Power of Attorney for Health Care orHealth care Proxy which authorises a surrogate decision maker tomake medical care decisions for the patient in the event she or he isincapacitated – Although there can be an overlap between these two forms of advance directives, the focus of a durable power is onwho makes the decision while the focus of a living will is on whatthe decision should be – A “living will” has also been referred as“a declaration determining the termination of life,” “testamentpermitting death,” “declaration for bodily autonomy,” “declarationfor ending treatment,” “body trust,” or other similar reference. (PerDr. D.Y. Chandrachud, J.)Advance Directives – When a patient is brought for medicaltreatment in a state of mind in which he or she is deprived of themental capacity to make informed choices, the medical professionalneeds to determine the line of treatment – One line of enquiry, whichseeks to protect patient autonomy is how the individual would havemade a decision if he or she had decision-making capacity – This iscalled the substituted judgment standard – An advance medicaldirective is construed as a facilitative mechanism in the applicationof the substituted judgment standard, if it provides to the physiciana communication by the patient (when she or he was in a fit state ofmind) of the desire for or restraint on being provided medicaltreatment in future – Conceptually, there is a second standard, whichis the caregiver standard – This is founded on the principle ofbeneficence – The second standard seeks to apply an objectivenotion of a line of treatment which a reasonable individual woulddesire in the circumstances – The difference between these twostandards is that the first seeks to reconstruct the subjective pointof view of the patient – The second allows for “a more generic viewof interests”, without having to rely on the “idiosyncratic valuesand preference of the patient in question”.(Per Dr. D.Y. Chandrachud, J.)Advance Directives – Meaning and purpose – An advancemedical directive is an individual’s advance exercise of his autonomyon the subject of extent of medical intervention that he wishes toallow upon his own body at a future date, when he may not be in aposition to specify his wishes – The purpose and object of advancemedical directive is to express the choice of a person regardingmedical treatment in an event when he looses capacity to take adecision – Use and operation of advance medical directive is toconfine only to a case when person becomes incapacitated to takean informed decision regarding his medical treatment – So long as an individual can take an informed decision regarding his medicaltreatment, there is no occasion to look into advance medicaldirectives. (Per Ashok Bhushan, J.)Advance Directives – Revocation of – A person has unfetteredright to change or cancel his advance medical directives looking tothe need of time and advancement in medical science – Hence, aperson cannot be tied up or bound by his instructions given at anearlier point of time. (Per Ashok Bhushan, J.)Advance Directives – Possibility of misuse – Autonomy of anindividual gives him right to choose his destiny and, therefore, hemay decide before hand, in the form of advance directive, at whatstage of his physical condition he would not like to have medicaltreatment, and on the other hand, there are dangers of misuse thereofas well – At the same time, possibility of misuse cannot be held to bea valid ground for rejecting advance directive, as opined by theLaw Commission of India as well in its 196th and 241st Report –Instead, attempt can be made to provide safeguards for exercise ofsuch advance directive – Mental Healthcare Act, 2017 – s.5 –Transplantation of Human Organs and Tissues Act, 1994 – s.3. (PerA.K. Sikri, J.)Doctrines/Principles – Sanctity principle – “life should notalways be maintained at any and all cost” – Euthanasia.(Per Dr. D.Y. Chandrachud, J.)Interpretation of Statutes – Liberal construction – Thelanguage employed in the constitutional provision should be liberallyconstrued, for such provision can never remain static – It is becausefixity would mar the core which is not the intent. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])Jurisprudence – Liberty impels an individual to change andlife welcomes the change and the movement – Life does not intendto live sans liberty as it would be, in all possibility, a meaninglesssurvival – There is no doubt that no fundamental right is absolute,but any restraint imposed on liberty has to be reasonable – Individualliberty aids in developing one’s growth of mind and assertindividuality – She/he may not be in a position to rule others butindividually, she/he has the authority over the body and mind. (PerDipak Misra, CJI [for himself and Khanwilkar, J.]) Jurisprudence – Dignity – If a man is allowed to or, for thatmatter, forced to undergo pain, suffering and state of indignitybecause of unwarranted medical support, the meaning of dignity islost and the search for meaning of life is in vain. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])Living Will – Specific guidelines laid down to test the validityof a living will, by whom it should be certified, when and how itshould come into effect, etc. – The guidelines also cover a situationwhere there is no living will and how to approach a plea for passiveeuthanasia – Guidelines. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Living Will – Whether a ‘living will’ or ‘advance directive’should be legally recognised and can be enforced – Held: It isundisputed that Doctors’ primary duty is to provide treatment andsave life but not in the case when a person has already expressedhis desire of not being subjected to any kind of treatment – It is acommon law right of people, of any civilized country, to refuseunwanted medical treatment and no person can force him/her totake any medical treatment which the person does not desire tocontinue with – Advance directives are instruments through whichpersons express their wishes at a prior point in time, when they arecapable of making an informed decision, regarding their medicaltreatment in the future, when they are not in a position to make aninformed decision, by reason of being unconscious or in a PVS orin a coma – A medical power of attorney is an instrument throughwhich persons nominate representatives to make decisions regardingtheir medical treatment at a point in time when the persons executingthe instrument are unable to make informed decisions themselves –Clause 11 of the draft Treatment of Terminally-III Patients(Protection of Patients and Medical Practitioners) Bill, 2016 statesthat advance directives or medical power of attorney shall be voidand of no effect and shall not be binding on any medical practitioner– This blanket ban, including the failure even to give some weightto advance directives while making a decision about the withholdingor withdrawal of life-sustaining treatment is disproportionate – Itdoes not constitute a fair, just or reasonable procedure, which is arequirement for the imposition of a restriction on the right to life (inthis case, expressed as the right to die with dignity) under Art.21.(PerA.K. Sikri, J.) Mental Healthcare Act 2017 – Advance directives for personswith mental illness – Held: The Act recognises an advance directive– The Act provides that while making an advance directive, the makershould be major and indicate the manner in which he or she wishesor does not wish to be cared for and treated for a mental illness;and the person he or she appoints as a nominated representative –An advance directive is to be invoked only when the person whomade it ceases to have the capacity to make mental healthcaretreatment decisions – It remains effective until the maker regainsthe capacity to do so. (Per Dr. D.Y. Chandrachud, J.)Medical profession – Medical ethics – History of ethicalprinciples – Discussed. (Per Ashok Bhushan, J.)Words and Phrases – Advance medical, living will, advancemedical power of attorney – Meaning of – Advance medical directiveis, “a legal document explaining one’s wishes about medicaltreatment if one becomes incompetent or unable to communicate” –A living will, on the other hand, is a document prescribing a person’swishes regarding the medical treatment the person would want if hewas unable to share his wishes with the health care provider –Another type of advance medical directive is medical power ofattorney – It is a document which allows an individual (principal)to appoint a trusted person (agent) to take health care decisionswhen the principal is not able to take such decisions.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])Words and Phrases – Killing and letting die – Differencebetween, discussed. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.]) |
