THE LIFE AND DEATH CONUNDRUM

The English poet William Ernest Henley ends his poem “Invictus” with the lines "I am the master of my fate, I am the captain of my soul."

?THE UK House of Commons on November 29, 2024 voted in favour of the Terminally Ill Adults (End of Life) Bill which, if enforced, will allow patients with terminal illnesses to request assistance to end their own life. A highly debated issue, assisted dying refers to a process by which a person can end their own life with a doctor’s assistance. It is not the same as euthanasia, as will be discussed later. ?

?Currently, the UK does not permit any form of assisted dying or euthanasia, with the offence of “assisted suicide” punishable with upto14years in prison.

?The present UK Bill restricts the availability of legally assisted dying to terminally ill persons above the age of 18 with the mental “capacity” to make such a decision. The Bill lays out a comprehensive process which a patient must go through before being given the choice. This begins with the signing of a “first declaration” in the presence of a qualified “coordinating doctor” and one other person. This doctor will make the “first assessment” to ensure that the patient is qualified to make a request for assisted dying, and has done so voluntarily. If she is satisfied, the doctor will refer the request to a second “independent” doctor who will repeat the process after a seven day-long “first period of reflection”. If both doctors are satisfied, the request will then be sent to the High Court of Justice in London, which will determine if all requirements are being met. The court can question the patient and both doctors. After the court decides to grant the request, a 14-day-long “second period of reflection” will begin. After this period, the patient will have to sign a “second declaration” confirming their request, which will be witnessed by both doctors and a third person. It is only after this that the coordinating doctor will provide the patient with an “approved substance”, the specifics of which will be provided in a separate regulation, which the patient will have to “self-administer”.?

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Position in India

?Whether Right to Life includes Right to Die

?The erstwhile Section 309 IPC provided the punishment for “Attempt to Commit Suicide”.

?In the year 1994, a two-judge bench of the Hon’ble Supreme Court had held in P.Rathinam vs Union Of India that the right to life includes the right to die and held Section 309 IPC unconstitutional. It held that? an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for.

?Two years later, in Gian Kaur Vs State of Punjab, a Constitutional Bench of the Hon’ble Supreme Court overturned it’s earlier decision and held that the right to life does not include the right to die and hence Section 309 IPC was valid.

?The Court explained that there are fundamental rights of a positive kind, for example, freedom of speech, freedom of association, freedom of movement, freedom of business etc. which were held to include the negative aspect of there being no compulsion to exercise that right by doing the guaranteed positive act. Those decisions merely held that the right to do an act includes also the right not to do an act in that manner. In those decisions it is the negative aspect of the right that was invoked for which no positive or overt act was required to be done by implication. This difference in the nature of rights has to be borne in mind when making the comparison for the application of this principle.

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When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the 'right to life' under?Article 21.?The significant aspect of 'sanctity of life' is also not to be overlooked.?Article 21?is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to be included in protection of life'. 'Right to life' is a natural right embodied in?Article 21?but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life'. ?Therefore, there is no similarity in the nature of the other rights, such as the right to freedom of speech' etc. to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'.

?It is important to note at this point that Section 115(1) of the Mental Healthcare Act 2017 states that “Notwithstanding anything contained in Section 309 of the Penal Code (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”

?Section 115(2) of the Mental Healthcare Act 2017 provides that “The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

Active Euthanasia and Passive Euthanasia

?In the landmark judgment of Aruna Ramchandra Shanbaug vs Union Of India (2011), the Apex Court while allowing passive euthanasia clearly distinguished between active and passive euthanasia.? Active euthanasia is taking specific steps to cause the patient's death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in this deep sleep.

A distinction needs to be drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor.

?The difference between "active" and "passive" euthanasia is that in active euthanasia, some positive act is done to end the patient's life' while in passive euthanasia, something is not done that would have preserved the patient's life.

??An important idea behind this distinction is that in "passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him.?

?Though not permitting withdrawal of life support at the case in hand, the Hon’ble Supreme Court did permit passive Euthanasia after stringent procedures were complied with, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, and held that it is the High Court, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

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Right to Life includes the Right to Die with dignity

?In another landmark judgment of Common Cause (A Regd. Society) vs Union Of India (2018), the Hon’ble Supreme Court? held that the “right to die with dignity” formed a part of the right to life with dignity under Article 21 of the Constitution of India, and recognized the legality of? “passive euthanasia” — the withdrawal of life support from terminally ill patients or patients in a “permanent vegetative state”. The Supreme Court provided stringent guidelines to give effect to this decision, both for cases when the family of a patient consents to passive euthanasia, or when the patient themselves leaves behind a “living will” authorising the withdrawal of life support in certain situations. These guidelines include the need for multiple approvals from a local physician, qualified medical boards, and local administration. Living wills must be signed in the presence of two witnesses, and signed by a Judicial Magistrate.

?It will be apposite to understand that India does not legally permit assisted dying or active euthanasia. This path requires us to tread cautiously.

This does lead us to a question though-legally assisted dying entails self administration of drug where the person dying has a choice whereas in passive euthanasia it is persons other than the person dying (in absence of a living will ) who is taking the decision.

Will others always have the best interest at heart? Let us hope so.

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