Passive euthanasia: Supreme court removes red tape, sets 48-hour timeframe

Earlier, passive euthanasia was a three-tier process and cumbersome for all involved

By Taran Deol
Published: Wednesday 25 January 2023
Passive euthanasia: SC removes red tape, sets 48-hour timeframe
Photo: iStock Photo: iStock

Strengthening the right to die with dignity, the Supreme Court of India simplified the rules on passive euthanasia in cases of terminal illness by removing red tape and constituting a time-bound process.

The move, hailed by medical professionals as necessary, was preceded by a judgement in 2018 by a Constitution bench headed by justice KM Joseph. It recognised the right to die with dignity, noting that a person can draft a living will, detailing how they don’t wish to be put on life support in the event they slip into an incurable coma. 

The five-judge bench included Chief Justice of India DY Chandrachud, who, in a separate judgement, argued: 

Dignity in the process of dying is as much a part of the right to life under Article 21. To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence.

Earlier, passive euthanasia was a three-tier process and cumbersome for all involved. Once the treating physician had confirmed that nothing more can be done to save the patient, a primary board was constituted by the hospital which gave its review. Then, a review board was put together by the collector, followed by approval or rejection from the district magistrate after verifying the facts. 

Doctors have repeatedly argued that beyond the first step, patients and their families tend to hit a wall, news website Scroll reported.

The process is too legalised. There is no human touch. Such a procedure does not exist anywhere in the world. Can you expect a family to go to court when their loved one is in the intensive care unit?” Dr Raj Mani, a Delhi-based intensivist who is also a member of Indian Society of Critical Care Medicine, was quoted as saying by Scroll

Since the 2018 judgement, there has not been a single case of euthanasia, even though there are provisions for it. 

Key changes have been introduced on five fronts. According to the 2018 judgement, only a judicial magistrate could attest or countersign a living will, which would remain with the district court. 

In the apex court’s new judgement, this power has been given to a notary or a gazetted officer and the document will now be in the national health records accessible by hospitals. 

Requirements of what constitutes the primary board has been changed from at least four experts from general medicine, cardiology, neurology, nephrology, psychiatry or oncology with an overall 20 years of experience to three experts including the treating physician and two doctors with specialties and five years of experience. 

The 2018 judgement made no mention of any stipulated time within which a decision had to be made. Now, a secondary board must immediately be constituted by the hospital and the primary / secondary board must arrive at a decision within 48 hours on withdrawal of further treatment. Also, both boards will now be constituted by the hospital itself, removing the role of the collector.

Dr Sanjay Nagral, a Mumbai-based surgeon, wrote in his Twitter analysis that “our discomfort with what is in (the) realm of ethical humane practice was lobbed to courts. The Supreme Court has put (the) onus on hospitals.”

Simplifying the process of seeking passive euthanasia is necessary, especially for those running out of money to keep up with providing care, he added. “Will hospitals actually take on what the SC has offered? Few may, but (it is) likely to be ignored.” 

The onus will be on the family to push for withdrawing futile care, the surgeon said. “If there was no case of passive euthanasia after the previous judgement it’s because the old opaque way suits the system,” he said, hoping for change.

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