Wednesday, July 16, 2014

Should a person in vegetative state be forced to live on?

Can a man on deathbed be forced to live on?

Dhananjay Mahapatra,TNN | Jul 16, 2014, 05.21 AM IST

Supreme Court on Tuesday took up the adjudication of the emotive issue of permitting removal of life support system from a person on deathbed if doctors unanimously agree that there is no chance of survival.

NEW DELHI: The Supreme Court on Tuesday did not shy away from taking up for adjudication the emotive issue of permitting removal of life support system from a person on the deathbed if doctors unanimously agree that there is no chance of survival. 

Petitioner 'Common Cause' has sought judicial sanction for the process where a person, who has 'willed' in sound health and mind that if he ever slips into a vegetative state in future and doctors feel that he has zero chance of survival, he should not be kept alive with the help of a ventilator. 

A five-judge constitution bench of Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman was willing to refer the matter to the Law Commission of India for gathering expert opinion and public view before giving its recommendation to the Centre. 

But solicitor general Ranjit Kumar pointed out to the court that the commission, by its 241st report submitted to the government on August 11, 2012, had given a draft — Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) — which did not agree with the concept of 'living will'. 

The commission, after the apex court judgment in Aruna Shanbaug case in 2011, had reversed its earlier opinion and recommended medically guided passive euthanasia for terminally ill patients after putting in place a series of safeguards. 

However, in the recommended draft bill, the commission had said, "Every advance medical directive (called living will) or medical power-of-attorney executed by a person shall be void and of no effect and shall not be binding on any medical practitioner." 

In 1994, a two-judge bench of the Supreme Court in P Rathinam vs Union of India had struck down Section 309 of IPC (attempt to suicide) as unconstitutional, saying right to live with dignity allowed the person to die with dignity. 

However, a constitution bench of the apex court in 1996 in Gian Kaur's case reversed the 1994 decision saying right to life did not include right to die. However, it had sparked a debate on passive euthanasia by observing that it could be permitted only if the legislature enacted a law authorizing it. 

The March 7, 2011 verdict in Aruna Shanbaug's case relied on observations in Gian Kaur's case to permit passive euthanasia. This was followed by Law Commission's recommendations. 

Attorney general Mukul Rohatgi said the issue before the court in Gian Kaur case was whether suicide was legally permissible and the observations relating to euthanasia were wrongly made. "It is a complicated, emotive, socially sensitive and legally intertwined issue that needs to be examined carefully on the touchstones of Constitution," he said. 

The AG said such a huge issue could not have been decided by the apex court in Aruna Shanbaug's case just by hearing the Union government and a party concerned. The bench appeared to agree with the suggestion for a wider debate and told the NGO's counsel Prashant Bhushan that it would surely need response from state governments and concerned players. 

The court too had its doubt whether any person could be legally entitled to execute a will for deciding the manner in which he should die. "Would it not amount to an indirect suicide? Would the doctor advising removal of life support system be not liable for abetting suicide," the AG asked. 

The bench asked Bhushan to inform the court about the course of action to be adopted on this issue - whether the issue be referred to a larger bench of seven or nine judges or seek response from the states.


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