Tuesday, June 6, 2023

Medical Mummification

A simple, enabling legal provision is needed to prevent mummification of the living and to guarantee the right to a dignified life, including death.

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By PK Malhotra and CKG Nair

On February 26, 2023, the media reported the first instance of sending a registered “living will” to the Municipal Commissioner, Mumbai, for record. This was five years after the Supreme Court issued guidelines allowing passive euthanasia on a prayer by Common Cause, an NGO, filed in 2005. Their prayer was for a declaration that the fundamental right to live with dignity under Article 21 of the Constitution of India is inclusive of the “right to die with dignity” and sought directions for adoption of a suitable procedure for executing a living will. This will allow a person, in sound mind and good health, to record his wish that he should not be kept alive with the help of life support systems.

A five-judge Constitution bench of the Supreme Court gave a landmark judgment in 2018 paving the way for passive euthanasia and holding that the right to die with dignity is a fundamental right. It declared that an adult human, having the mental capacity to take informed decisions, has the right to refuse medical treatment, including withdrawal of life support systems. However, stringent conditions were imposed for exercising this right.

The Indian Society of Critical Care Medicine filed an application seeking modification of the guidelines for living will. A Constitution bench of the Supreme Court on January 24, 2023, agreed and modified some of the guidelines “to make it workable”. Despite the modifications, the proposition appears to be unworkable to many who are interested in taking benefit of the process of “living will” for a peaceful exit.

The core issue here is whether, and under what conditions, a person has the right to call it a day either by him or through caregivers. This debate, covering different dimensions, has been in vogue in various jurisdictions for several decades. The basic debate is on passive euthanasia, which is when a person permanently goes into a vegetative state. Higher levels of discourse are on having a proactive living will wherein any person can prepare a will in advance, stating under what conditions he does not want to prolong life.

Switzerland, which tops ease of living, is also the most “liberal” country for ease of dying. It allows its citizens as well as foreign nationals to voluntarily seek medically assisted suicide, subject to certain minimum conditions. Even existential suffering is a legitimate reason for seeking this assistance. A few other countries and two provinces of the US allow passive euthanasia without any major constraints.

Article 21 of Indian Constitution protects life as a fundamental right. The Supreme Court has reiterated several times, including in Common Cause, that the right to life means the right to a dignified life which includes the right to a dignified death. However, while upholding this high principle, the conditions laid down fall far short of the aspirations of persons opting for dignified death.

The conditions at the stage of executing, registering, preserving and enforcing are onerous. The very involvement of local governments, both in preserving a copy and retrieving it when needed by the hospital authorities would frustrate the process.

Two medical boards—primary and secondary (the latter with a representative of the District Medical Authority)—are another bureaucratic hurdle. Differences of opinion between the two boards give filing a writ petition with the High Court under Article 226 of the Constitution as the remedy. This is a tall order for many. It is uncertain that when the time comes, all these steps will be followed and the will gets enforced.

Setting such rigorous conditions are the combined result of biases embedded in subconscious minds through centuries of socio-cultural-religious rigidities and fear of misuse of law.

Fear of misuse of law is a Damocles’ sword perpetually hanging against enacting simple laws. It forces lawmakers and judges to put multiple provisos/conditions, complicating the provision itself. Misuse of law has to be treated as a violation and dealt with accordingly. Fortifying a legal provision by several provisos would only increase the incidence of violation, while plain and simple laws might minimise them. Other disturbing ground realities of life (and death) are not taken into account while allowing only passive euthanasia and that too under rigorous conditions.

The elderly, needing maximum medication and hospitalisation, are the prime milch cows for the pharma-medical industry. This industry loves costly death and opposes the right to a will-based dignified death. An example of pharma profiteering is the reported hike in the price of the euthanasia medicine from $200 to $3,000 after two states in the US legalised euthanasia.

A voluntary legal provision is an enabler for those who like to use that right. Opposition to voluntary rights is a major restriction against individual liberty. A classic example is the overturning of the Roe vs Wade ruling in the US. Our approach to voluntary laws needs a paradigm shift in its favour.

The cost and consequences of geriatric medical care at the individual and national levels are well-known. Some 19.6% of India’s population will be above 60 by 2050. Dignified medical care to such multitudes will be a fiscal and logistics nightmare.

Look at the irony of life-death dignity. A crumbling life is so dear to the State as not to allow a simple will-based, medically assisted death. However, most of the nations allow capital punishment and abortion.

Living will is about a citizen’s right to live and die with dignity. The citizen should have the right to choose any stage/condition, not just vegetative stage, for seeking medically assisted death. A will should be executable in a simple manner with two witnesses and a registered medical practitioner/hospital. A small medical board should decide and enforce it when the specified conditions are met.

“Medical Mummification” of the living, at enormous agony and cost to the people and the nation, is not the way to uphold the fundamental right to dignified life of citizens. Serious thinking on this issue is imperative. 

—PK Malhotra is a former Union Law Secretary, while CKG Nair is a former Member of the Securities Appellate Tribunal. Their views are personal.

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