A case on similar line, filed by an NGO ‘Common Cause’ was
also going on whose plea was to make it legal for people to make Advance
Directive for passive euthanasia. On March 9, 2018 Supreme Court of India
upholds passive euthanasia and issued regulations for executing Advance
Directive for passive Euthanasia. The
regulation passed through this judgement will remain binding across the country
till the time, Parliament of India comes up with a bill or law on this subject.
The hospitals and medical fraternity (specially those that provide end-of-life care) need to make themselves
aware about the legally correct way of handling advance medical directives for passive
euthanasia. This post explains the legal directives in simple language for its
correct implementation. The information presented here is derived directly from
the 538-page official judgement report of the Supreme Court of India.
(Check - Advance Medical Directive Form for Passive Euthanasia)
(Check - Advance Medical Directive Form for Passive Euthanasia)
1. What is Euthanasia and what is India’s
legal stand on it?
WHO has defined Euthanasia as “A deliberate
act undertaken by one person with the intention of either painlessly putting to
death or failing to prevent death from natural causes in cases of terminal illness or
irreversible coma of another person”.
Euthanasia has been classified as of two
types, active and passive euthanasia. In active Euthanasia, an overt act is
performed to put an end to life, by the person himself/herself or by another
person on his/her behalf, so that the person does not remain in vegetative
stage. For example, conducting euthanasia by administering a lethal dose of
medicine in patient’s blood vessel.
Passive euthanasia on the other hand is not
doing something, which could be done to save patient’s life and let him/her die
due to the natural disease progression. For example, avoiding giving CPR, when
patient gets a cardiac arrest.
In India, after the judgement of 2011 and
2018, the Passive Euthanasia, given through due legal process is legal. Active
Euthanasia still stands to be illegal in India. By allowing passive euthanasia,
citizens of India also get the right to die with dignity (read - rights of a patient).
2. What is Advance Directives and what is
India’s legal stand on it?
Advance Directive (also called as Advance
Care Directive or Advance Medical Directive) is a mechanism of communicating
the decisions of patients about his/her own healthcare in case he/she becomes
incapable of taking decisions. Black’s Law dictionary defines it as “a legal
document explaining one's wishes about medical treatment if one becomes
incompetent or unable to communicate”
Advance directive in context of passive
euthanasia, is the decision of a patient, communicated in advance, about the
situations under which those medical treatment should be withdrawn or withheld,
that just has an effect of delaying the process of death and cause the patient
pain and suffering for an extended time.
The current legal stand in India is that it
is permitted for Indian citizen, who are capable of decision making, to issue advance
directives for passive euthanasia for themselves. The law, however, does not
permits giving advance directive for active Euthanasia.
3. Is
advance directive same as ‘Do Not Resuscitate’ (DNR) orders?
The DNR term was first used in Florida
where it was used as a tool for identifying patients who do not want to be
resuscitated in case of a cardiac arrest. The patient signs the DNR consent
form in advance, similar to advance directive. However, the advance directive
is wider in its scope and not limited only for cardiac arrest situation. It
contains details about what medical decisions to be taken and when. For
example, the patient can specify what medical treatment to continue and what
not.
4. Who can give advance directives for Passive Euthanasia?
It can be given only by an adult, in a
sound mind and in a position to communicate his/her wishes. Children of age
less than 18, person who are not in stable mind and person who cannot
communicate such as unconscious, semi-conscious patients etc. cannot give
advance directives. No-body else can give advance directives for passive
euthanasia on some-one else behalf. However, in cases where no advance
directive is available, the issue of passive euthanasia can be addressed
through a different process, as explained in question number 10.
5. How can an advance directive be given and what
details should it contain?
Advance directive must be given
voluntarily, without any compulsion or coercion. The person must have full
information about his/her medical condition, treatment alternative with its
probable outcomes and consequences of advance directives. It should fulfil all
requirements of an informed consent.
It
should specifically contain following details
·
Clearly specified decision of the patient
relating to circumstances under which withdrawal or withholding of medical
treatment can be resorted to.
·
Specific terms and instructions in advance
directives must be absolutely clear. It should not contain any ambiguous
statement
·
It should mention that the patient giving the
advance directive may revoke it at any time and make it null and void
·
It should mention that the patient giving the
advance directive has understood the consequences of it
·
It should specify the name of a guardian or
close relative who, in the event of the patient becoming incapable of taking
decision, will be authorized to give consent to refuse or withdraw medical
treatment in a manner consistent with the Advance Directive.
This sample advance directive form can be
used as a reference for documentation purpose
6. What process must be followed for recording
and preserving advance directive for passive euthanasia?
The document of advance directive must be
recorded and preserved in following manner
·
The document must be in written form
·
It should be signed by the person giving
directive (i.e. the patient wanting to undergo passive euthanasia, in specific
situation)
·
The signature should be done in presence of
witness, preferably independent. The witnesses should attest the document
through their signatures
·
Such document must then be countersigned by the
jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the
concerned District Judge
·
The witness and JMFC should document in the
form, stating that they are ‘satisfied that the document has been
executed voluntarily and without any coercion or inducement or compulsion and
with full understanding of all the relevant information and consequences’
·
The JMFC must keep one copy of the completed
advance directive document in his/her office. In addition, a digital copy of
the same document must be kept
·
The JMFC shall forward one copy of the document
to the Registry of the jurisdictional District Court for being preserved.
Additionally, the Registry of the District Judge shall retain the document in
digital format
·
The JMFC must inform the immediate family
members of the concerned patient, if they were not present at the time of
recording advance directive, and make them aware about it. JMFC shall also
handover a copy of the document to the patient’s family physician, if any.
·
A copy of the document shall be handed over to
the competent officer of the local Government or the Municipal Corporation or
Municipality or Panchayat, as the case may be. The aforesaid authorities shall
nominate a competent official in that regard who shall be the custodian of the
said document
7. When and how can the directive be given
effect to?
When?
- The advance directive should be given effect when the concerned patient
becomes terminally ill and is undergoing prolonged medical treatment with no
hope of recovery and cure of the ailment. This must be first satisfied by the treating physician,
who must also confirm the authenticity of advance directive from JMFC, to
initiate action on it.
How?
– When the above condition is satisfied following steps must be followed
·
The treating physician must inform the patient and/or
the guardian about the medical condition and that there is no hope of recovery
and medical treatment can only prolong the process of death
· The patient / guardian, after understanding the
situation shall have to agree to the option of withdrawal or refusal of medical
treatment
·
The physicians / hospital shall constitute a
medical board consisting of head of the treating department and at-least three
experts from the field of General Medicine, Cardiology, Neurology, Nephrology, Psychiatry or Oncology with experience in Critical Care and with overall
standing in the medical profession of at least twenty years
·
The medical board must examine the patient in presence
of the guardian and form an opinion about whether to certify or not to certify
passive euthanasia. The opinion must be based upon the medical condition of the
patient, possibility of recovery, instructions in advance directives and views
of family/guardians. This opinion is regarded as a preliminary decision.
· If the preliminary decision is that passive
euthanasia shall be given, the physician/hospital must inform jurisdictional
collector about the same
·
The jurisdictional collector will form another
independent medical board comprising of Chief District Medical Officer (Chairman),
and three expert doctors from the fields of General Medicine, Cardiology, Neurology, Nephrology, Psychiatry or Oncology with experience in Critical Care and with
overall standing in the medical profession of at least twenty years. All
members in this board must be different from the medical board constituted
earlier by the hospital.
·
This board must jointly visit the patient and
concur with the preliminary decision taken by the hospital’s medical board. The
endorsement of this board on the decision is mandatory to carry out passive
euthanasia.
·
If this board upholds the decision of Passive
Euthanasia, the chairman of the board (Chief District Medical Officer) must
communicate the decision to JMFC.
·
The JMFC shall then visit the hospital, meet the
patient/guardians and after ascertaining that all due process has been followed
and completed, authorise the implementation of decision.
·
At any point of the time during this process,
the patient can withdraw the advance directive and consent of passive
euthanasia
8. What if any medical board refuse the permission
to execute Passive Euthanasia?
If permission for passive euthanasia is
denied by medical board and patient/guardian is not satisfied and want to go
ahead with it, the concerned patient or the guardian or even the treating
doctor on patient’s behalf can approach High Court and file a petition under
Article 226 of the constitution. The court can then undertake due process to permit
or deny the request. The court can form another expert independent committee and
decide based on their views.
9. When can Advance Directives become inapplicable?
The advance directive can become
invalid/inapplicable in following situation
·
The it has been withdrawn by the patient who
issued it. Revocation has to be in writing
·
An Advance Directive shall not be applicable to the
treatment in question if there are reasonable grounds for believing that
circumstances exist which the person making the directive did not anticipate at
the time of the Advance Directive and which would have affected his decision
had he anticipated them
·
If the advance directive is not clear or
ambiguous, it cannot be given effect to
·
If subsequent advance directive has been made,
only the latest will be applicable. All previous directives become null and
void.
·
Specific terms and conditions stated in advance
directive must be comply for it to be effective
10. What happens in cases where no advance
directive is available?
In cases where advance directive is not
available, same process can be followed as in the case of advance directives
with these additional steps
·
When the medical condition criteria are met the
physician must inform the patient, who if is in decision making state, can
decide about passive euthanasia
·
If patient is not in situation of making
decision and not expected to be in that condition in future, the family can
take decision on behalf of patient
·
In these situation the high court must be
informed about the decisions taken
