J Indian Acad Forensic Med. April-June 2012, Vol. 34, No. 2
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Review Research Paper Euthanasia Revisited: The Aruna Shanbaug Verdict
*Arsalaan. F. Rashid, **Balbir Kaur, ***O.P. Aggarwal
Abstract
Euthanasia and its procedure have long history of locking horns as a vexed issue with laws of countries across the world. Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body. It is unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. In patients with Permanently Vegetative State (PVS) and no hope of improvement, the distinction between refusing life saving medical treatment (passive euthanasia) and giving lethal medication is logical, rational, and well established. It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient. An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of lifesustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated.
Key Words: Consent, Permanent Vegetative State, Passive Euthanasia, Parens patriae Introduction:
Euthanasia is the intentional premature termination of another person’s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia), either at the express or implied request of that person (voluntary euthanasia), or in the absence of such approval (non-voluntary euthanasia). 3. Netherlands: Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. [1] 4. Switzerland: Switzerland has an unusual position on assisted suicide; it is legally permitted and can be performed by nonphysicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it. 5. Belgium: Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002. Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under "constant and unbearable physical or psychological pain" resulting from an accident or incurable illness.
Euthanasia and Physician Assisted Dying:
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. In many countries/States the latter is legal while the former is not.
Global Situation:
1. United States: Active Euthanasia is illegal in all states in U.S.A but physician assisted dying is legal in the states of Oregon, Washington and Montana. 2. Canada: In Canada, Physician Assisted Suicide is illegal vide Section 241(b) of the Criminal Code of Canada.
Corresponding Author:
*Junior Resident, Dept. of Forensic Medicine MMIMSR, Mullana (Ambala), Haryana -133207 E-mail: afrashid@gmail.com **Professor ***Professor and Head DOR: 17.2.12 DOA: 19.3.12
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Aruna Ramachandra Shanbaug Case:
Shanbaug, 60, a former nurse, was beaten and sexually assaulted in 1973 by a coworker, a hospital janitor at Mumbai's King Edward Memorial Hospital, where she remains today. She suffered severe brain damage and paralysis after her attacker, Sohanlal Bhartha Valmiki, reportedly choked her with a chain. Valmiki was convicted of robbery and assault in 1974 and imprisoned for seven years. After his release, he reportedly moved, changed his name and found another hospital job. The petition asking that Shanbaug be allowed to die was brought by Pinki Virani, an author and right-to-die activist, after Shanbaug's family abandoned her. Virani argued that with the patient unable to see or speak properly, keeping her alive violated her basic dignity. Virani expressed regret that the court didn't put an end to Shanbaug's force-feeding. "She still does not, after more than three and a half decades, receive justice, the bizarre postscript to Aruna's story is that those who claim to 'love' her and 'look after her' are the ones who want her not to rest in peace."
The Verdict
Refusing mercy killing of Aruna Shanbaug, a two-judge bench of Supreme Court comprising of justices Markandey Katju and Gyan Sudha Mishra, in a landmark judgement th on 7 March 2011, allowed "passive euthanasia" of withdrawing life support to patients in (PVS) but rejected outright active euthanasia of ending life through administration of lethal substances. The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue. The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become "anachronistic though it has become constitutionally valid.” “A person attempts suicide in a depression, and hence he needs help, rather than punishment," Justice Katju writing the judgement said. The Apex Court noted that though there is no statutory provision for withdrawing life support system from a person in PVS, it was of the view that "passive euthanasia" could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings. [2]
The Way to Verdict:
The Airedale case [3] In the Airedale case [3] decided by the House of Lords in the U.K., the facts were that one Anthony Bland aged about 17 went to the
Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. For three years, he was in a condition known as PVS. One of the judges on jury noted that it was unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person in anticipation of his entering into a condition such as PVS, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive. He observed that the principle of sanctity of life is not an absolute one. For instance, it does not compel the medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does not, according to the express wish of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand, it forbids the taking of active measures to cut short the life of a terminally-ill patient (unless there is legislation which permits it). Lord Keith observed that although the decision whether or not the continued treatment and cure of a PVS patient confers any benefit on him is essentially one for the medical practitioners in charge of his case to decide, as a matter of routine the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the said decision. This is in the interest of the protection of the patient, doctors, and for the reassurance of the patient’s family and the public. Lord Goff another judge on jury observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer’s rope, or severing the air pipe of a deep sea diver. The true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life. Lord Browne-Wilkinson was of the view that removing the nasogastric tube in the case of Anthony Bland cannot be regarded as a positive
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J Indian Acad Forensic Med. April-June 2012, Vol. 34, No. 2 act causing the death. Its non removal itself does not cause the death since by itself, it does not sustain life. Hence removal of the tube would not constitute the actus reus of murder, since such an act would not cause the death. Lord Mustill observed: “…. Anthony Bland’s life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.” Thus all the Judges of the House of Lords in the Airedale case were agreed that Anthony Bland should be allowed to die. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.
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brought by terminally ill patients and their physicians. In Glucksberg’s case,[6] the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed: “The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct.” In Vacco’s case [7] the U.S. Supreme Court again recognized the distinction between refusing life saving medical treatment and giving lethal medication. The Court disagreed with the view of the Second Circuit Federal Court that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide. The Court held that “the distinction between letting a patient die and making that patient die is important, logical, rational, and well established”. The Court held that the State of New York could validly ban the latter.
The Cruzan Case:
In Cruzan v. Director, MDH [8] decided by the U.S. Supreme Court. In that case, the petitioner Nancy Cruzan sustained injuries in an automobile accident and lay in a Missouri State Hospital in what has been referred to as a PVS, a condition in which a person exhibits motor reflexes but evinces no indication of significant cognitive function. The State of Missouri was bearing the cost of her care. Her parents and co guardians applied to the Court for permission to withdraw her artificial feeding and hydration equipment and allow her to die. While the trial Court granted the prayer, the State Supreme Court of Missouri reversed, holding that under a statute in the State of Missouri it was necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. The only evidence led on that point was the alleged statement of Nancy Cruzan to a housemate about a year before the accident that she did not want life as a ‘vegetable’. The State Supreme Court was of the view that this did not amount to saying that medical treatment or nutrition or hydration should be withdrawn. Chief Justice noted that in law even touching of one person by another without consent and without legal justification was a battery, and hence illegal. The notion of bodily integrity has been
Court as Parens patriae:
The question, however, remains as to who is to decide that what is the patient’s best interest where he is in a PVS? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive. [4] It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by J Balcombe [5] the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.
The Glucksberg and the Vaccov Cases: [6, 7]
The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to assisted suicide arose from challenges to State laws banning physician assisted suicide
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J Indian Acad Forensic Med. April-June 2012, Vol. 34, No. 2 embodied in the requirement that informed consent is generally required for medical treatment. As observed by Court of Appeals of New York “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” [9] Thus the informed consent doctrine has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent that is to refuse treatment.
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Consent in Permanent Vegetative State: Re Quinlan Case:
Karen Quinlan suffered severe brain damage as a result of anoxia, and entered into PVS. Her father sought judicial approval to disconnect her respirator. The New Jersey Supreme Court granted the prayer, holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate treatment. The Court concluded that the way Karen’s right to privacy could be exercised would be to allow her guardian and family to decide whether she would exercise it in the circumstances. [10]
required clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn. In Cruzan’s case the learned Chief Justice observed: “Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations.” The learned Chief Justice further observed: “An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction.”
Indian Legal Scenario:
In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab held that both euthanasia and assisted suicide are not lawful in India. [12] That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India. [13] The Court held that the right to life under Article 21 of the Constitution does not include the right to die. In Gian Kaur’s case the Supreme Court approved of the decision of the House of Lords in Airedale’s case, and observed that euthanasia could be made lawful only by legislation.
Re Conroy Case:
In Conroys case, a case of an 84 year old incompetent nursing home resident who had suffered irreversible mental and physical ailments, however, the New Jersey Supreme Court, contrary to its decision in Quinlan’s case, decided to base its decision on the common law right to self determination and informed consent. This right can be exercised by a surrogate decision maker when there was clear evidence that the incompetent person would have exercised it. Where such evidence was lacking the Court held that an individual’s right could still be invoked in certain circumstances under objective ‘best interest’ standards. Where no trustworthy evidence existed that the individual would have wanted to terminate treatment, and a person’s suffering would make the administration of life sustaining treatment inhumane, a pure objective standard could be used to terminate the treatment. If none of these conditions obtained, it was best to err in favour of preserving life. [11] It is important to note in Cruzan’s case [8] that there was a statute of the State of Missouri, unlike in Airedale’s case [3], which
Conclusion:
Aruna Ramachandra Shanbaug case was landmark case because it came to important conclusions: 1. The Supreme Court of India in its verdict recommended to the Indian Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code. 2. The Supreme Court of India also noted that in Gian Kaur’s case [12] although the Court in its previous judgement has quoted with
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J Indian Acad Forensic Med. April-June 2012, Vol. 34, No. 2 approval the view of the House of Lords in Airedale’s case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. 3. Allowing “passive euthanasia” or withdrawing life support to patients in PVS. 4. Laying down strict procedural guidelines for “passive euthanasia” to prevent persons from taking undue advantage. 5. Rejection of “active euthanasia” or ending life through administration of lethal substances as in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, such legislation can prove counter productive. 6. Since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection the honorable judges of the Supreme Court have given the example of an Arkansas man Terry Wallis, in a recent news
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item, who was 19 years of age and newly married with a baby daughter when in 1984 he went into coma which lasted 24 years after which he regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash.
References:
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. Aruna Ramchandra Shanbaug petitioner(s) vs. Union of India & Ors. Writ petition (crl.) no(s). 115 of 2009, date: 07/03/2011 SC Airedale NHS Trust v Bland. [1993] 1 All ER 821 HL. Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally ill Patients. Balcombe LJ in Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930. Washington v. Glucksberg (96-110) 521 U.S. 702 (1997). Vacco v. Quill, 521 U.S. 793 (1997). Cruzan v. Director, Missouri Department of Health. 497 U.S. 261 (1990). Schloendorff v. Society of New York Hospital. 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Re Quinlan 70 N.J. 10, 355 A.2d 647 (NJ 1976) Re Conroy 98 NJ 321, 486 A.2d 1209 (1985). Gian Kaur vs. State of Punjab. 1996(2) SCC 648 (1996). P. Rathinam vs. Union of India. 1994(3) SCC 394(1994) http://www.nature.com/news/2006/060703/full/news060703-5.html
Book Review Review of Forensic Medicine & Toxicology
Including Clinical & Pathological Aspects By Dr.Gautam Biswas
Second Edition of Review of Forensic Medicine & Toxicology: Including Clinical & Pathological Aspects written by Dr.Gautam Biswas, an young and dynamic Forensic Medicine Expert, a good teacher, researcher and an author contributed a large number of research papers to national and international scientific journals. He is currently serving as Professor and Head of Department of Forensic Medicine & Toxicology at Dayanand Medical College and Hospital, Ludhiana, Punjab. Coverage of contents is extensive in all most all the Chapters from Undergraduate student’s point of view. Presentation of study material is excellent to the point, diagrammatic representations enhancing the value of content for memorizing by the students. Language used is simple, easily understandable and lucid. Clarity of subject matter is very nice. Flow charts and excellent quality of photographs make it favorite among students especially during examination hours. The special feature of this book is the up-to date MCQs along with answers put together from various P.G. entrance examinations after most of the chapters.it helps the students for prepration for forthcoming competitive entrance examinations as well as in viva-voce. This book is easily understandable by the student. It is also useful for medical officers, police personals, lawyers and judges working in the medico-legal field and involved in crime investigation. It is my pleasure to write a review of this textbook, a treasure of an exemplary piece of communication skill conglomerated with experiences and intellectual potentials. Mukesh Yadav Editor, J. Indian Acad Forensic Med.
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