Euthanasia ethical and legal issue

Legal and Ethical issueBy

Dr Faiz Ahmad

Euthanasia • Euthanasia comes from the Greek words: Eu (good) and

Thanatosis (death) and it means "Good Death, "Gentle and

Easy Death." This word has come to be used for "mercy

killing.

• It is the act or practice of ending a life of a person either by a

lethal injection or suspension of medical treatment.

• The word "euthanasia" was first used in a medical

context by Francis Bacon in the 17th century, to refer

to an easy, painless, happy death, during which it was

a "physician's responsibility to alleviate the 'physical

sufferings' of the body

REVIEW

According to the historian N. D. A. Kemp, the origin of the

contemporary debate on euthanasia started in 1870.

Nevertheless, euthanasia was debated and practiced long

before that date --

Hippocrates (ca. 460 BC - ca. 370 BC)- Euthanasia was

practiced in Ancient Greece and Roman civilizations as they

opined that there was no need to preserve the life of a person

who had no interest in living, or who thought life as a burden.

1300s- According to the English jurisdiction of the suicide as

well as helping people to kill themselves were considered as a

criminal act. Mercy killing was also not supported by the

ascendancy of Christianity (12th till 15th century).

1828-The first law against assisted killing, known as anti-

euthanasia was passed in New York.

1870- In this year, Samuel Williams suggested the use of

morphine and analgesic medications for assisting quick and

painless death.

1885- Exactly 15 years after Samuel Williams raised the

proposal, the American Medical Association strongly denied

the use of analgesic for euthanasia.

Beginning of 20th century - mercy killing and assisted killing

already entered the minds of the public.

1905-A bill for making it legal was circulated in Ohio, but it failed. A

similar bill was introduced in the next year, which also failed.

1935-The first group for legalization of euthanasia, called Voluntary

Euthanasia Legislation Society (VELS), was founded by a group of

doctors in London.

1938- A similar organization, known as National Society for the

Legalization of Euthanasia (NSLE) came into existence. Till date,

many cases of physician-assisted suicide have been fought in the

court.

1940- Non-voluntary euthanasia was practiced for the first

time by German physicians, to eliminate the diseased and

disabled Germans in closed gas chambers. The main purpose

of the program was to get rid of handicapped children and

people with psychiatric problems.

1945- It was estimated that 300,000 Germans had been killed.

20th century- Marked the formation of several organizations

for addressing the concerns regarding euthanasia.

1986- Doctor Joseph Hassman was charged guilty for administering a

lethal dose of Demerol to his mother-in-law. He was fined and

sentenced to two years imprisonment for the act.

1994-Netherlands it is the first country where euthanasia has been

allowed.

1999- Euthanasia became a public issue, with the imprisonment of Dr.

Jack Kevorkian for conducting voluntary euthanasia on Thomas Youk ,

who was in the final stage of ALS . Kevorkian was charged with

second-degree murder, and he served eight years in prison . It was

claimed that he had exercised euthanasia for at least 130 other patients.

• 2001: The euthanasia law was adopted in Belgium -this law

defines conditions for doctors to avoid penal punishment.

• 2008: U.S. state of Washington legalizes assisted suicide

The debate on euthanasia and assisting suicide is still

going on, and is expected to continue in the coming years.

There are both pros and cons of euthanasia and whether to

stand for or against mercy killing depends on the ideology

and understanding of each individual.

In a survey, approximately 60 - 80 percent people in the

western countries favor physician-assisted suicide for

terminally ill patients.

Types of euthanasia

Passive

Active

Voluntary

Involuntary

Assisted

Indirect

• Active euthanasia

o It is when death is brought by an act for example taking a high dose

of drugs, lethal injection.

o To end a person’s life by the use of drugs, either by oneself or by the

aid of a physician.

• Passive euthanasia

o When death is brought by an omission eg: When someone lets the

person die, this can be done by withdrawing or withholding

treatment.

• Withdrawing treatment: For example switching off a machine

that keeps the person alive.

• Withholding treatment: For example not carrying out a surgery

that will extend life of the patient for a short time.

• Voluntary euthanasia is committed with the willing or

autonomous cooperation of the subject. This means that the

subject is free from direct or indirect pressure from others.

• Non voluntary euthanasia occurs when the patient is

unconscious or unable to make a meaningful choice between

living and dying, and an appropriate person takes that decision

for him/her.

• This is usually called murder, but it is possible to imagine

cases where the killing would count as a favor for the patient.

• Indirect euthanasia

o This means providing treatments -mainly to reduce pain- that has a side

effect of shortening the patient’s life.

o Since the primary intent wasn’t to kill, it is morally accepted by some

people.

• Assisted suicide

This usually refers to cases where the persons who are going to die need help

to kill themselves and ask for it.

o It may be something as simple as getting drugs for the person, and putting

those drugs within their reach.

Laws• In Europe, Euthanasia is only legal in the Netherlands and Belgium, provided certain

conditions are met.

The patient’s request must be voluntary and well considered.

The patient must be suffering unbearable physical or mental suffering, with no prospect of

relief.

The patient must be informed about their situation and prospects.

At least one other, independent, doctor must be consulted.

• In Belgium euthanasia is only allowed if the patient is an adult.

• However, in the Netherlands euthanasia is allowed for children aged between 12 and 16

years of age, with the consent of their parents/guardians and for individuals aged 16 years

and over.

• Assisted suicide is legal in the Netherlands , Switzerland and the state of

Oregon in the US but have certain conditions eg : the patient must be

considered competent and aware of their situation .

• In Japan : Only “ passive euthanasia” is permitted for patients who have

been in a Coma for more than 3 months.

• While in Egypt , or in Islamic countries in general , the popular Egyptians'

Scholar Sheikh , recently issued a fatwa . equating euthanasia with murder

but allowing the with-holding of treatment that is deemed useless.

Religions

Those in favor of euthanasia argue that a civilized society should allow

people to die in dignity and without pain.

They add that as suicide is not a crime, euthanasia should not be a crime.

Most religions disapprove of euthanasia for a number of reasons:

1- God has forbidden it ( that says 'you must not kill').

2- Human life is sacred.

3- Human beings are made in God's image.

4- God gives people life, so only God has the right to take it away.

Religious views on euthanasia

Islam

• Muslims are against euthanasia. They believe that all human

life is sacred because it is given by Allah, and that Allah

chooses how long each person will live. IMANA ( the Islamic

Medical Association of America ) say that turning off life

support for deemed to be in a persistent vegetative state is

permissible. This is because they consider all mechanical life

support procedures as temporary measures.

ChristianityChristians are mostly against euthanasia. The arguments are

usually based on the beliefs that life is given by God, and that

human beings are made in God's image. Some churches also

emphasize the importance of not interfering with the natural

process of death. Life is a gift from God Christianity requires us

to respect every human being.

Judaism Jewish medical ethics have become divided, over euthanasia

and end of life treatment since the 1970s.

Generally, Jewish thinkers oppose voluntary euthanasia, often

vigorously, though there is some backing for voluntary passive

euthanasia in limited circumstances. 

Shinto

In Japan, where the dominant religion is Shinto, 69% of the religious

organizations agree with the act of voluntary passive euthanasia. In Shinto,

the prolongation of life using artificial means is a disgraceful act against life.Buddhism

• An important value of Buddhism teaching is compassion. Compassion is

used by some Buddhists as a justification for euthanasia because the person

suffering is relieved of pain.

•  However, it is still immoral "to embark on any course of action whose aim is

to destroy human life, irrespective of the quality of the individual's motive."

Euthanasia and code of medical ethics

• Euthanasia presents a paradox in the code of medical ethics.

• It involves a contradiction within the Hippocratic oath, which is

essentially the promise to prolong and protect life even when a patient is in

the late and most painful stages of a fatal disease.

• The paradox lies in the fact that while an attempt to prolong life violates

the promise to relieve pain, relief of pain by killing violates the promise to

prolong and protect life.

• This argument of ‘conflict of duties’ was used by the defence in a crucial

case decided by the Dutch High Court in 1984, known as the Alkmaar

case.

In this case, a 95 years old lady was unable to eat or drink and

subsequently lost consciousness. On regaining consciousness, she pleaded

with her doctor several times to put an end to her suffering. After

discussing with his assistant physicians and the son of the patient, the

doctor agreed to her request for euthanasia. Later, charged with mercy

killing,

in his defence, the doctor argued that his legal duty to preserve and prolong

life had been in conflict with his duty as a physician to relieve his patient’s

unbearable suffering.

Though the lower court and the court of appeals rejected this argument,

the High Court suggested that this matter should be considered taking into

account ‘responsible medical opinion’, measured by the ‘prevailing

standards of medical ethics’.

The Concept of Living Will

• What if the person doesn’t want to die?

• What if his relatives or family members who are trusted to make a reasonable

and informed decision on the patient’s behalf are impregnated with malicious

and selfish motives?

In order to keep these possibilities at bay, many countries have adopted concept

of living will.

o A living will is a document wherein a person specifies as to how would he as

a patient want to be treated or what actions should be taken for their health if

they become seriously ill or are no longer in a position to make decisions for

themselves or communicate them because of their illness or incapacity.

o Living wills are also called active declarations.

o A living will is thus not an instrument of euthanasia, but a

request to the doctors in advance to give or not to give certain

medical treatments.

Living will has certain advantages –

a) Respects a patient’s right to reject certain medical treatment.

b) They guide family members and relatives in taking difficult

yet crucial decisions.

c) Knowing what the patient wants helps doctors give

treatment accordingly.

Euthanasia And Law of Torts

The only assurance that a professional can render to the patient is that he possesses the required skill and competence while performing the task undertaken.A medical professional owes certain duties towards the patient – 1. A duty of care in deciding whether to undertake a particular case. 2. A duty of care in deciding what treatment to give. 3. A duty of care to be exercised while administering that treatment properly.A breach of any of these duties can give the patient a right to sue under negligence.• Under common law, a doctor cannot lawfully operate on an adult person of sound

mind without their consent.• But if the person is incapable due to some reasons to give consent the doctor can

undertake the treatment if that is in the best interests of the patient or can save his life.

• Same is the case of an insensate person who has no chance of recovery if that patient gives his consent through a living will or otherwise for removal of the crucial life support system.

Euthanasia in torts –

• Imposing a tortuous liability in euthanasia cases can lead to

recovery for assault, battery or intentional infliction of mental

stress.

• Involuntary euthanasia is a battery no matter whether the

person administering it is a specialist or not.

• In action under tort law for euthanasia, it is not always that the

physician is liable.

Legal Status of Euthanasia In India

• In India euthanasia in any form wasn’t legal until the very recent Aruna Shaunbaug Case which reignited the

long existing debate in India between right to life and right to die.

•  Article 21 has been one of the most controversial elements in the Indian Constitutional history. It states that –

“No person shall be deprived of his life and personal liberty except according to the procedure established by

law”

The whole debate revolves around the single question whether right to life as provided under Article 21 also

includes right to die? If the provision provides for right to a dignified life, then it should also include right to

die. But inclusion of right to die under Article 21 would contradict with Section 309 of IPC which states-

“Whoever attempts to commit suicide and does any act towards commission of such offence shall be punished with simple imprisonment of a term which may extend to one year”

• 'Right to Die' is not a fundamental right under Article 21.

• Right to die is included in Article 21 of Constitution came up

for consideration for the first time in Maruti Shripathi Dubal

v. State of Maharashtra Case.

• The Court held that the right to life also includes the right to

die, but did not clearly explain how, life includes death.

Apparently the two cannot coexist. Death is the absence of life.

On 26 April 1994 in P. Rathinam v. Union of India, a two-judge

bench of the Supreme Court through Justice B.L. Hansaria

invalidated section 309 of IPC, on the ground that it ‘violet Article

21’.

On March 21, 1996 in Gian Kour v. State of Punjab, a five

judge Bench of the Court overruled Rathinam and upheld the

validity of section 309 .

It held that 'right to life, under Article 21 of the Constitution, does

not include right to die or right to be killed.

• The court made it clear that the 'Right to Life,' including the right to live with

human dignity, would include the existence of such a right till the end of natural life.

• This also includes the right to a dignified life up to the point of death, including a

dignified procedure of death.

• This may include the right of a dying man to die with dignity, when his life is

ebbing out.

• However, according to the court, the ‘Right to Die’ with dignity at the end of life is

not to be confused with the 'Right to Die' an unnatural death.

• The Court support the views of permitting the termination of life in such cases (e.g.

a dying man, who is terminally ill and is totally dependent on life support systems),

by accelerating the process of natural death, when it was certain and imminent.

Aruna Shanbaug case• Aruna Shanbaug was a nurse working at

the King Edward Memorial   Hospital in Mumbai on 27 November 1973 when she was strangled and sodomized by Sohanlal Walmiki,a sweeper.

• During the attack she was strangled with a chain, and the deprivation of oxygen has left her in a vegetative state ever since.

• She has been treated at KEM since the incident and is kept alive by feeding tube.

• On behalf of Aruna, her friend Pinki Virani, a social activist, filed a petition in the Supreme Court arguing that the "continued existence of Aruna is in violation of her right to live in dignity

• The Supreme Court made its decision

on 7 March 2011.

• The court rejected the plea to

discontinue Aruna's life support but

issued a set of broad guidelines

legalising passive euthanasia in India.

• The Supreme Court's decision to

reject the discontinuation of Aruna's

life support was based on the fact the

hospital staff who treat and take care

of her did not support euthanizing her.

• For 42 years, she lived as a comatose patient under ventilation

in an almost vegetative state under the care of KEM hospital,

Mumbai.

• She died on 23 May 2015 on removal of life support system.

• She became the face of Indian Euthanasia debate.

• In January 2016 on the PIL(Public interest litigation) filed by the NGO ‘Common

Cause’ which emphasized on the ‘living will’ option to be provided to patients, a

constitutional bench of Supreme Court sat down to solve the prevailing inconsistencies

on euthanasia legislation.

• It was argued that ventilators can be torturous and financially draining and possibly

against the patient’s will too.

• The Constitution Bench, led by Justice Anil R. Dave, said it will wait till 20 July for

the government or Parliament to finalize a law on passive euthanasia.

• Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical

Practioners) Bill, 2006 is still pending in the parliament.

• 241st Law Commission also recommended passive euthanasia to be “allowed with

certain safeguards”.

Recommendations State considers saving lives of its citizens as its duty and ultimate responsibility for it

being a welfare state.

Deliberately keeping someone alive in utmost painful condition against his or her

wishes, they are doing no welfare.

For people who are terminally ill but are mentally conscious, it becomes a horror to see

the quality of their lives deteriorate to worst in front of their eyes and also of their loved

ones who keep on spending lakhs and crores on their treatment only to see them die

ultimately.

• It would be more correct to look at it as a way to end the consistent pain,

suffering and torture in a person’s life.

• In India, life of a person has always been considered as most sacred of all

as per its scriptures but the same scriptures mention practices like Jauhar,

etc.

• Jauhar, was the Hindu custom of mass self-immolation by women in

parts of the Indian subcontinent, to avoid capture, enslavement and rape

by invaders, when facing certain defeat during a war.

• Even in Mahabharata, Bheeshma had a boon to live as long as he wished

but then why is he allowed to die on a death bed of arrows as Pandavas

watch him die, is it not suicide? Or murder?

• Here are few recommendations that can prove useful in the current Indian legal environment –

# Section 309 should be deleted from Indian Penal Code as there is nothing that can hold back those who want to end their lives due to some reason or the other.

# Those who survive an attempt to commit suicide are mentally and emotionally distressed and require medical and psychological help rather than punishment.

# Passive euthanasia and Physician Assisted suicide should be legalized as recommended by 241st Law Commission.

# Advance healthcare directives and the facility of living will should be provided to citizens in India. Through living will a person would be able to easily specify his or her decision in relation to the treatment administered to him and will thus be able to make an informed consent regarding the same.

# Like United Sates, living wills should be made a legal document in India, that is, enforceable in the court of law. It should be signed in the presence of a qualified physician and should be attested by a lawyer.

• # In order to counter the misuse of euthanasia option by relatives or near kin or even the doctors for that matter, a euthanasia panel must be set up comprising of skilled doctors, lawyers and a representative from the government who can give proper decision on case to case basis.

# If a person is no longer in the position to give an informed consent for euthanasia, the legal guardian or near and dear ones and family members should decide on his behalf and in their absence, the matter should go to the court.

# Before euthanasia is finalized for a patient a final recommendation should be taken from at least 2 doctors who are not related to each other or to the patient. So that it can be assured that apart from euthanasia, there does not exist any other option through which the patient’s life could be saved.

Every person who has a Right to Life should also have a universal right to relief from pain and suffering.