Euthanasia, the Living Will and Dying with Dignity

In one line

A person may refuse in advance the treatment that would keep them alive, and a doctor who honours that refusal commits no crime.

In the wording a student can write in an exam: active euthanasia, the intentional taking of life, remains unlawful; passive euthanasia, the withholding or withdrawal of medical intervention from a patient in the terminal stage of illness or in a persistently vegetative state where artificial intervention will merely prolong suffering, is lawful; and a person of sound and competent mind may, by an advance directive in writing, specify the medical intervention which is not to be adopted should they lose the ability to decide, such a directive being entitled to deference by the treating doctor, who is protected against criminal liability for abiding by it in a good faith exercise of professional judgment.

Why this is the hardest question in the module

Every other chapter concerns what may be done to a person. This one concerns what may be stopped, and the difficulty is that the two look identical from outside the bed and are opposite in law.

Three propositions have to be held together, and they pull against each other.

Life is protected. Article 21 protects life, and the Penal Code makes the intentional taking of another's life culpable. No framework that treats a life as disposable can be right.

Treatment is an intervention, and interventions need consent. Everything in [Informed Consent: the Principle] applies. A competent adult may refuse treatment, including treatment without which they will die, and a doctor who treats over that refusal commits a trespass.

A person who has lost capacity cannot refuse now. So the question becomes whether their earlier refusal governs, which is the question the advance directive answers.

The case

Common Cause (A Regd. Society) v. Union of India, AIR 2018 SC 1665, (2018) 5 SCC 1, decided on 9 March 2018 by a Constitution Bench of five judges.

Facts. A writ petition by a registered society seeking a declaration that the right to die with dignity is a fundamental right within article 21, and directions permitting a person to execute a document giving instructions to withhold or withdraw medical treatment should they reach a stage where recovery is impossible. The matter went to a Constitution Bench because the two-judge decision in Aruna Shanbaug had permitted passive euthanasia on a reading of the Constitution Bench decision in Gian Kaur.

Held, on active euthanasia. The intentional taking away of the life of another is made culpable by the Penal Code. Active euthanasia falls within the express prohibitions of the law and is unlawful.

Held, on the advance directive. An individual who is in a sound and competent state of mind is entitled, by means of an advance directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such a directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment, abides by an advance directive is protected against the burden of criminal liability.