The Union Ministry of Health and Family Welfare (MOHFW) has recently published a draft Bill to provide legal sanction to a process known all over the world as “Passive Euthanasia” and has invited comments from members of the public. The Bill is the result of a lengthy debate over the past many years, arising from two important cases. One was the case of Aruna Shanbagh, a nurse in Mumbai’s KEM Hospital, who remained in a vegetative state for over three decades, and went all the way to the Supreme Court. The other was Gian Kaur Vs State of Punjab, which revolved around the distinction between Right to Die with Dignity and Section 309 (attempted suicide).

The Bill seeks to provide legal sanction to something that many doctors have occasionally had to do, namely, withdraw life support or avoid giving heroic therapies to a terminally ill patient, who has no hope of recovery. Senior doctors have often admitted in private conversations that they have in truly rare cases withheld treatments in a patient with severe burns, or massive trauma (following a traffic accident, for example).

But they have always kept these incidents as a closely guarded secret, lest they face allegations of medical negligence or even murder! If the latest Bill is enacted into law, they will then be able to come out of the closet and discuss their experiences openly, at least with their professional colleagues. This has happened in many countries and perhaps should become part of Indian law as well.

The enabling provision of the proposed legislation permits a patient who is terminally ill, but mentally competent to decide for himself, to instruct the doctor not to administer therapy for the sole purpose of extending life. In case the patient is either too young (below 16 years of age) or too far gone to make his own decision, the next of kin or even the treating physician can approach the High Court for an order to withdraw life support.

If the proper procedures are followed, the new law will protect the doctor from penal action for medical negligence or first degree murder and shield the patient against patient himself from prosecution for attempted suicide (under Section 309, IPC).

The draft Bill in its current form however does offer the sanctity of law to the concept of a Living Will, which is permissible in many western countries. Through a Living Will, a completely healthy individual can place on record his desire that whenever he becomes terminally ill, later in life, he should not be administered life-extending therapies.

In a sense, therefore, most of the circumstances in which someone would become terminally ill, are therefore ruled out by this deficiency. The only set of medical conditions where a patient would be terminally ill and beyond the pale of treatment, but nevertheless mentally sound, would be the various forms of cancer. In every other medical syndrome, the patient would be either unconscious or heavily sedated or otherwise incompetent to make his own decision!

But in dozens of potentially fatal medical conditions, the onus would either be on the treating physician(s) or on the relatives to make the first move. For both of these categories, there would be immense danger of wild allegations, because the families of today are more complex than ever before. Even the supposedly simple task of determining the ‘next of kin’ can be fraught with danger in many families. The only solution is to allow the provision of a Living Will. And it can be given the same safeguards that are currently used for deciding a Will concerning a deceased person’s property and assets.

 

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Author profile:

Dr Sumit Ghoshal is a professional journalist with an MBBS qualification and almost three decades of experience. He has been writing all along on health issues in various mainstream publications and is currently a Contributing Editor with Business India magazine.

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