INDEX / TABLE OF CONTENTS
WE express thanks to everybody who helped us by their direct or indirect contribution, which has helped us in converting our thoughts into reality.
It is impossible for all the help we have received in preparing this paper. We take this opportunity to express our gratitude towards our PROFESSOR HASSANA QUADRI & PROFESSOR AMRITA SANYAL for their encouragement and guidance to prepare this paper.
Furthermore, we express heartfelt gratitude to all the moderators and all others who have been instrumental in bringing the present paper to its final state.
When we talk about life, it is impossible to not talk about death. People talk about ‘living their lives’ without much difficulty but the discussion around death is not much appreciated. The lack of discussion around the topic comes from the various cultures and religions that are followed in India, specifically because of how these factors affect a person’s vulnerability. While everyone has the right to live a dignified life, the same isn’t the case for a dignified death. In the present society, many favour that individuals should be allowed to choose their death in different or critical situations. Thus, through this paper, we want to portray what is the concept of the right to die and how it could be administered.
Whether Physician-Assisted Suicide should be legalized in India.
The researchers’ objective through this paper is to compare different international states and their laws regarding Physician-Assisted Suicide and how the right to die is promulgated, and whether it can be implemented in India. It is also to start a discussion around this topic and how equally important the right to die is compared to the right to life.
- What is the difference between active and passive euthanasia?
- What is the dimension of the right to life? Can the right to die be included in it?
- What is the status in countries where active euthanasia is performed?
- Whether Physician-Assisted Suicide can be implemented in India?
The tentative hypothesis were:
- The default position that should guide healthcare providers when treating patients at the end of life is that patients opt for life.
- It is hypothesized that the recognition of the right to physician-assisted suicide is a protection of individual civil liberties.
- The researchers want to start a discussion with the masses.
- Study of guidelines related to physician-assisted suicide and it is believed that India is miles apart from this topic of discussion.
Some of the literature on the topic had been reviewed as follows:
In You Don’t Know Jack (HBO Films, 2010), a look at the life and work of doctor-assisted suicide advocate Dr. Jack Kevorkian, who was the first practitioner in the US to assist Physician-Assisted Suicide (PAS), which earned him the nickname Dr. Death during the 1990s. It was estimated by him that he assisted in approximately 130 suicides over 8 years. He was a medical pathologist who was practicing in Michigan, which had not, and still has not, legalized PAS. While the state did not have any laws against or any medical assistance for suicide, he was very careful with how he practiced in order to remain within the limits of the law. He always ensured his patients clearly expressed their desire to die and that the patients themselves were the ones to administer the medication. Kevorkian had built his own “death machine” that allowed the patients to self-administer medication by pulling a string (HBO Films, 2010). After the death of his patients, he would call the police up and was arrested after the deaths but the authorities were unable to charge him due to the lack of specific laws against what he was doing. What he was doing was considered by many as morally wrong but it was not technically illegal. Although on one such instance, where he had to administer the drug himself to the patient, by the patient’s request, for which Kevorkian was charged with second-degree murder and was convicted in 1999 after only a 2-day trial (HBO Films, 2010). The reason he was
convicted was because of a videotape he submitted to a show called ‘60 Minutes’. This is a perfect example for which PAS needs to be regulated as a legitimate medical practice.1
Since PAS is a complex topic where medical, spiritual, and emotional issues are brought up, it also has been met with a lot of opposition.2
Research has shown that patients choose physician-assisted suicide for four main reasons: wanting to die at home, worries about loss of dignity and future losses of independence, quality of life, and self-care ability (Ganzini et al., 2007).3
As per the objectives of this paper, doctrinal research methodology is adopted. This methodology is used to study different laws, developments, case laws, statutes, judgements, etc. to depict the advancement and dimension of the rights of an individual given by the state regarding the right to life and death to answer the research problem.
In the medical and healthcare field, there is a lack of self-determination which requires a lot of social work practice. It has been observed that, since the 1970s, the self-determining right to choose end-of-life care decisions or the right to die movement in a social work commitment setting has increased. In India, the right to choose one’s death could be seen as a sign of ungratefulness when religion and spirituality come into the picture. In this paper, we try to study the laws of California, USA to understand how the right to choose one’s death is administered and how euthanasia is assisted.
1 Understanding Physician Assisted Suicide: A Literature Review, Gabrielle Sollecito, (2018)3, https://digitalcommons.brockport.edu/cgi/viewcontent.cgi?article=1207&context=honors, accessed 28/08/21.
- What is Euthanasia?
- Dimension of Article 21 of the Constitution.
- Study of Specific laws in California.
- Possibility of Implementation in India.
I. WHAT IS EUTHANASIA?
Euthanasia is a practice of painlessly putting to death of an individual suffering from a long, incurable disease or terminal illness. It could be done by the use of lethal injection or some other drug prescribed by doctors. It is also known as mercy killing. More technically, euthanasia is when the attending medical or nurse practitioner, takes an action with the singular intention of causing a patient’s death4.
This practice has its controversies, where people call this murder or suicide as it’s against the laws of nature. The argument against these statements is the concept of ‘Death with Dignity, ending one’s suffering and pain, should be an individual’s right.
Assisted suicide is also known as physician-assisted suicide (PAS). PAS is when an attending medical or nurse practitioner helps a person to end their life5. It is when an individual is prescribed drugs that they must take themselves in order to die. This is done to end a person’s persistent and prolonged suffering and is the most effective and painless method.
4 H Graham and J Prichard, Voluntary Euthanasia and Assisted Dying in Tasmania: A response to Giddings and McKim, (2013)6,
https://www.academia.edu/4726630/Voluntary_Euthanasia_and_Assisted_Dying_in_Tasmania_A_Response_to_Giddings_and_McKim_-_by_Hannah_Graham_and_Jeremy_Prichard_2013_, accessed 26/08/21.
ACTIVE EUTHANASIA & PASSIVE EUTHANASIA
There is a thin line of difference between active and passive euthanasia. Active Euthanasia is when a doctor deliberately does an action, with the intention of death of a patient.
Passive Euthanasia is when a doctor lets a patient die. When a doctor switches off the life support or the ventilator which eventually leads to the death of the person6.
Active euthanasia is the commission of an act whereas passive euthanasia is the omission of an act that leads to the death of a patient. Active and passive are two different ships that lead to the same destination. Our research is concerned whether this ship is capable to sail in India.
Let’s take a case to understand better: (This is a fantasy example)
“X is a middle-class man having two children and a housewife. One fine day they find out that X is suffering from incurable cancer, the doctor does all the necessary tests and concludes that the patient has a maximum of 1 year to live. X is in more pain each passing day. The treatments are expensive for a middle-class man.”
This is where euthanasia comes into the picture. If the family decides to take it as an option: (we do not emphasize euthanasia being the only option, this is just to elaborate on how euthanasia is applicable in more practical life scenarios).
II. DIMENSION OF ARTICLE 21 OF THE CONSTITUTION
Article 3 of the Universal Declaration of Human Rights7 and Article 21 of the Indian Constitution8 is a vital right for any person, where it guarantees the right to life and personal liberty. Over the years, this right has been interpreted in many different ways, increasing its reach and dimension. The judiciary has played an important role in the same. While Article 21 has some reasonable restrictions when it comes to any other procedures established by law, the Supreme Court in Olga Tellis v. Bombay Municipal Corporation9, held that any procedure that would deprive a person’s fundamental rights should conform to the norms of fair play and justice. The landmark case, in which the expansion of the interpretation of Article 21, was upheld in Unni Krishnan v. State of Andhra Pradesh10 where the Supreme Court gave a list of
6 Active and Passive Euthanasia, Ethics guide, https://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1.shtml, accessed 26/08/21. 7 Article 3, Universal Declaration of Human Rights, United Nation General Assembly, 1948. 8 Article 21, The Constitution of India, 1950.
9 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
10 Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.
rights that Article 21 covers. Some of them are the right to privacy, the right to pollution-free water and air, the right to health and medical aid, the right to doctor’s assistance, etc.11
The affirmation that the right to die comes under the ambit of the right to life came in Maruti Shripati Dubal v. State of Maharashtra12, where the Bombay High Court held that the right to life guaranteed by Article 21 includes the right to die. And along with this, the High Court struck down Section 309 of the Indian Penal Code, which provided punishment for an attempt to commit suicide by a person13 as unconstitutional. This was proclaimed again in P. Rathinam
v. Union of India14 by the Supreme Court where it held that the right to life also embodies the right to not live a forced life. The court stated that “the attempt to commit suicide is, in reality, a cry for help and not for punishment.” Followed by this ruling, it was reviewed and held by the Supreme Court in the case of Gian Kaur v. State of Punjab15, how Section 306 of the Indian Penal Code talking about punishment for abetment of suicide16 is merely assisting in the enforcement of one’s fundamental right under Article 21.17 These judgements state and clarify the vast dimension of Article 21 and how the right to die is included in it.
11 Right to Life and Personal Liberty, Constitutional Law, https://www.lkouniv.ac.in/site/writereaddata/siteContent/202003281533580196varun_Right_to_Life.pdf, accessed 26/08/21.
12 Maruti Shripati Dubal vs State of Maharashtra, 1987 (1) BomCR 499.
13 S. 309, The Indian Penal Code, 1960.
14 P. Rathinam v. Union of India, AIR 1994 SC 1844.
15 Gian Kaur v. State of Punjab, AIR 1996 SC 946.
16 S. 306, The Indian Penal Code, 1960.
17 Supra 12
III. STUDY OF SPECIFIC LAWS IN CALIFORNIA
The first country to accept and acknowledge the need for an “END OF LIFE” option is the Netherlands and since then many States and Countries have come forward to enact necessary laws and regulations to govern when an individual wants to end their life.
There are about 10 states in the United States where the “END OF LIFE” option is legal. As of April 2021, aid in dying statutes has been passed in: California, Colorado, District of Columbia, Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington. In Montana, physician-assisted dying has been legal by the State Supreme Court ruling since 2009.
Narrowing the scope to help understand the procedure and implementation of laws, in this research paper, the researchers are only dealing with California, US; for comparing the statutes, data and analyzing the effects it might have in India.
California has a well-established law that deals with the end of life of an individual. The End of Life Option Act (EOLA) became effective on June 9, 2016.
The Act is specific and prohibits certain actions18:
- A provision in a contract, will, or other agreement from being conditioned upon, or affected by, a person making or rescinding a request for the above-described drug.
- The sale, procurement, or issuance of any life, health, or annuity policy, health care service plan contract, or health benefit plan, or the rate charged for any policy or plan contract, from being conditioned upon or affected by the request.
- An insurance carrier from providing any information in communications made to an individual about the availability of an aid-in-dying drug absent a request by the individual or his or her attending physician at the behest of the individual.
- Any communication from containing both the denial of treatment and information as to the availability of aid-in-dying drug coverage.
- The physicians or doctors suggesting this option to patients until they come up with a choice.
This Act would give a person immunity from civil and criminal liability only on the ground that the person has a right and it was the individual’s right to choose the end-of-life option and no liability would arise out of this. The Act also protects the rights of healthcare workers, as we are dealing with a sensitive and crucial aspect of a person’s life, the duties and rights of healthcare providers and their role is evidentially mentioned in the said Act.
There need not be any undue influence and pressure in obtaining the individual’s consent. If any third person tries to influence and force an individual to end their life it would amount to a felony.
This Act would require physicians to submit specified forms and information to the State Department of Public Health after writing a prescription for an aid-in-dying drug and after the
18 California End of Life Option Act (2016), AB-15, Chapter 1, Statutes of 2015, USA.
death of an individual who requested an aid-in-dying drug. The Act authorizes the Medical Board of California to update those forms and would require the State Department of Public Health to publish the forms on its website. The Act would require the department to annually review a sample of certain information and records, make a statistical report of the information collected, and post that report to its website19.
SECTION 1. PART 1.85. End of Life Option Act: states that
- (a) An individual who is an adult with the capacity to make medical decisions and with a terminal disease may make a request to receive a prescription for an aid-in-dying drug if all of the following conditions are satisfied:
- Terminal illness that will, within reasonable medical judgment, lead to death within six months.
- Voluntary wish for an aid-in-dying drug.
- A resident of California with proper documentation.
- Mentally competent, i.e. capable of making and communicating your health care decisions.
An individual seeking to obtain a prescription for an aid-in-dying drug shall submit two oral requests, a minimum of 15 days apart, and a written request to his or her attending physician. The request form should be signed and dated by two adult witnesses. Only one witness can be related by blood or would be entitled to the person’s property after his/her death. The individual has a right to reject or cancel the process at any point in time and any manner before injecting the drug.
According to the California End of Life Option Act, 2020 Data Report20, there is a huge difference in the number of written prescriptions written and the number of EOLA deaths. It shows that throughout 2016-2020, there were more prescriptions written than the EOLA deaths. Between 2016-2017, there was a sudden rise in the written prescriptions but compared to them the deaths were significantly lower. The same was the case between 2018-2010, with a high number of written prescriptions but compared to them lower deaths. This report shows that many people opted out of the option and how one could choose not to administer the drug.
20 California End of Life Option Act 2020 Data Report, (July 2021)3, https://www.cdph.ca.gov/Programs/CHSI/Pages/End-of-Life-Option-Act-.aspx, accessed 28/08/21.
IV. POSSIBILITY OF IMPLEMENTATION IN INDIA
India is a developing, democratic, and culturally vast country with an accepting and positive attitude towards change. Euthanasia is not a new arena for India, there have been numerous debates and cases dealing with this issue. Aruna Shanbhag is one of those cases resulting in the following guidelines.
In March 2018 Supreme Court’s landmark judgment legalized passive euthanasia with proper guidelines. The Court gave clear guidelines stating when passive euthanasia can be used in India:
- The brain-dead for whom the ventilator can be switched off.
- Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to laid-down international specifications.
Taking these discussions further and comparing the laws and guidelines in California, whether these laws would be applicable in India?
Certain guidelines could easily be applicable in India to administer Physician-Assisted Suicide (PAS) with respect to:
- any type of contract being conditioned for the End to Life option.
- any sale, procurement, or issuance of any life, health, or annuity policy, health care service plan contract, or health benefit plan.
- Physicians or doctors to suggest this option to the patient till they come up with a choice.
Also, certain more sections could be applicable like the rights and duties of health care workers, immunity from civil and criminal liability from any patient being prescribed the drug. The concept of undue influence in obtaining consent. The involvement of the Central Government to make sure the smooth and proper working of the Health Care Authority. The eligibility criteria are explained in the above Chapter.
In India, the crucial aspect isn’t the law-making process it’s the implementation of the said law. Implementation of the End of Life in India would be difficult because of the huge population and also the misuse of the same could lead to the death of any individual.
In India, the misuse of the said Act could be more than its actual purpose that is for the concept of Death with Dignity. In India, it has been estimated that 50% of family spending on healthcare is on unnecessary medications or investigations. This, combined with the wide availability of medications, has seemingly contributed to increasing rates of antibiotic resistance and further impoverishment21.
The healthcare service is the most corrupt service sector in India, as gauged by people’s actual experiences, according to a new survey released by the Indian office of Non-Governmental Organisation Transparency International, ranks India as one of the 30 most corrupt countries in the world. Payment to staff to gain hospital admission is the commonest corrupt practice in health care. “The key actors leading to corruption in this sector across zones are allegedly doctors (77%) followed closely by hospital staff (67%),” says the report22.
Even though India needs an upgrade in the Healthcare Department, the hard work and determination that the doctors have towards the betterment of a patient’s life cannot be neglected.
How can California Laws be implemented in India?
- India needs stringent laws with a high penalty amount and imprisonment as this issue deals with an individual’s life.
- There needs to be a special authority dealing only with PAS cases and monitoring each step with proper verification, involvement of police protection, and close observation with each step.
- An individual needs to make a request to his physician. (At least 2-3 minimum physician’s written consent).
- After obtaining the written consent, an application needs to be filled which will directly go to the PAS authority.
21 Medication misuse in India: A major public health issue in India, Gillian Porter and Nathan Grills, (2015), www.researchgate.net/publication/278044663_Medication_misuse_in_India_A_major_public_health_issue_in_ India, accessed 29/08/21.
22 Health care is among the most corrupt services in India, Sanjay Kumar, (2003), www.ncbi.nlm.nih.gov/pmc/articles/PMC1168938/, accessed 29/08/21.
- Verification: The concerned authority needs to verify the following points:
- The physician’s consent to proceed with the aid-in-dying drug.
- The medical condition of the patient i.e. terminally ill and mentally stable to take the decision.
- Consent of the patient is not by undue influence, coercion, or any kind of pressure.
- Written application: Another written application with the consent and knowledge of the family members and at least two witnesses on the form who have no blood relation, or won’t inherit any property or get any advantages directly or indirectly because of the death of that individual.
- Prescription: After the completion of all the steps, the PAS authority prescribes the drug and after prescription, there are two options:
- The authority gives the drug to the individual who chooses the time and place to inject the same; the police could help with this process to make sure no misuse is done after taking the drug from the authority.
- The PAS authority in itself provides the room and facility for patients to take the drug and be with their loved ones in the final hours.
- Final Attestation Form: The Final Attestation Form, 48 hours prior to taking the medication ensures that the individual is still willing to go through the process. The patient can at any point or step cancel the process in any manner. Standard care should be taken that the patients approaching the said faculty are informed and made aware of the consequences of each step.
Even though there are numerous difficulties in the implementation of this plan, if implemented properly it would make sure that the patients suffering from terminal illness could at least die with dignity and need not suffer in their last hours. This process is not just for the patients but also for the families who watch their loved ones suffering and try their best to save them by giving expensive treatments when in reality nothing could save the patient.
With the advancement of society, when to change the law is a necessity of the society and laws are being codified day by day. Steadily, when the new areas of rights are emerging and consequently the new dimensions of law are being established. There was a time when most of the aspects of the law were based on customs and not codified but under the due process of law, such laws are also framed. There are also instances wherein the absence of legislation claims is recognized as a right with the help of judicial decisions as to the precedent. The Right to die may seem hard to contemplate at first but with proper legislation and administration, this too can be implemented in India.
- The Constitution of India
- The Indian Penal Code, 1960
- California End of Life Option Act, 2016, USA
- www.researchgate.net/publication/278044663_Medication_misuse_in_India_A_majo r_public_health_issue_in_India
- https://www.academia.edu/4726630/Voluntary_Euthanasia_and_Assisted_Dying_in_ Tasmania_A_Response_to_Giddings_and_McKim_-
- https://digitalcommons.brockport.edu/cgi/viewcontent.cgi?article=1207&context=hon ors
|THIS RESEARCH PAPER HAS BEEN AUTHORED BY –|
Aparna G. Achary Sayli P. Patil
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