Aruna Shanbaug v. Union of India

While health and medicine usually look at improving and extending life, increasingly medical professionals and society are being forced to ask how far those efforts should go. Perhaps the most pressing ethical medical dilemma concerns whether an individual has the right to die. Euthanasia, or mercy killing, means the deliberate killing of a patient who is terminally ill and/or in severe and chronic pain. More recently, “physician‐assisted suicide” has superseded the term euthanasia as terminally ill patients take more assertive roles in expressing their wishes and requesting physician support.

Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). Euthanasia is defined as the act of bringing the death of a person (patient) for the purpose of relieving the patient’s intolerable and incurable suffering. Typically, the physician’s motive is merciful and intended to end suffering. In voluntary euthanasia, a consent from the patient is taken. In non-voluntary euthanasia, the consent of patient is unavailable due to some reason.

In active euthanasia, the death of patient is brought directly by giving him a lethal dose of poisonous drug. In passive euthanasia, the life supporting system to the patient is discontinued and ultimately patient dies. In Aruna Shanbaug v. Union of India, the Supreme Court opposed active euthanasia but has given nod to passive euthanasia.

Aruna Shanbaug v. Union of India, AIR 2011 SC 1290

Petitioner	Pinki Virani on behalf of Aruna Ramchandra Shanbaug
Respondent	Union of India
Lawyers for Petitioner
Lawyers for Respondent:
Decided on	7th March 2011
Judges/Quorum:	Justice Markandey Katju and Justice Gyan Sudha Misra

The Facts of Cases:

The petitioner in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in King Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th November 1973 a sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and yanked her back with it. The sweeper also tried to rape her but when he found out that she was menstruating he sodomized her. To prevent her from moving or creating any chaos, he twisted that chain really hard around her neck. Next day, a cleaner found her body lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the constitution alleging that there is no possibility for her to revive again and get better. So, she should be allowed to go with the passive euthanasia and should be absolved from her pain and agony.

To this petition the respondent parties i.e., KEM Hospital and Bombay Municipal Corporation filed a counter petition. This led to a rise in the disparities among both the groups. Since there were disparities, the Supreme Court in order to get a better picture of the situation appointed a team of 3 eminent doctors to investigate and provide a report of the exact mental and physical condition of Aruna Shanbaug. During this study doctors investigated her entire medical history and opined that her brain is not dead. She has her own way of understanding and reacting to situations. Also, Aruna’s body language did not show any sign of her willingness to terminate her life. Neither the nursing staff of the hospital showed any carelessness towards taking care of her. Thus, it was believed by the doctor that the euthanasia in the current matter is not essential. She stayed in this position for 42 years and died in 2015.

Issues Raised:

• When a person is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies be permissible or `not unlawful’?
• If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his/ her wishes be respected when the situation arises?
• In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

Respondent’s Arguments:

The dean of the Hospital contended that Ms. Shanbaug was being fed and taken care of by the nurse and hospital staff for as many as 36 years. The staff had exceptionally and with utmost responsibility and willingness to take care of her. Therefore, they oppose and resent the idea of Ms. Shanbaug being euthanized. Now that the patient has crossed as many as 60 years of age she might naturally succumb to death.

They begged the court to not permit the act of killing. The staff has been diligently and with respect taking care of all her fundamental necessities and prerequisites. On the off chance that this is legitimized, the act of euthanasia can be profoundly inclined to abuse. One of the medical attendants has even been willing to take care of her without being renumerated. The petitioner unlike the clinic staff neglects to have such a close-to-home association with the patients and lacks the necessary emotional attachment.

Since the staff diligently and with utmost dignity took care of Mrs. Shanbaug for many years. They looked after her basic needs and requirements. Legalization of passive euthanasia can be prone to misuse by family members, relatives, etc. they pleaded with the court to reject the allowance of practice of euthanasia. The hospital staff has an emotional connection with the patient to the extent that one of the nurses is ready to look after Mrs. Shanbaug for the rest of her life without being renumerated.

Terminating Ms. Shanbaug’s life would be immoral and inhuman since she has a right to live. Moreover, the hospital’s staff’s exceptional and selfless service must also be taken into consideration. Furthermore, since the patient herself is not in a condition to give consent for withdrawal from the life support system the next big question to come into the picture Is who would consent for Ms. Shanbaug.

Petitioner’s Arguments:

A petition was filed by Ms. Shanbaug’s friend under article 32 of the Indian Constitution. The counsel for the petitioner contended that the right to life guaranteed under article 21 includes the right to life with utmost dignity. It must therefore also include the right to die with dignity. Any individual suffering from any terminal illness or is in a permanent vegetative state must be included under the ambit of the “right to die” in order to end the prolonged suffering and agony. She lacks any awareness of her surroundings, is even devoid of the ability to chew her food, can’t express anything on her own, and is just bedridden for the past 36 years with no scope of improvement. The patient is virtually dead and the respondents by not feeding Ms. Shanbaug won’t be killing her.

Opinion of Amicus Curiae:

The Court appointed Mr. T. R. Andhyarujina as amicus curiae. He submitted that in common law, it is the right of every individual to control of his own free will. He submitted that a patient has a right to consent and even the right not to consent. This is known as self-determination. He clarified that this applies when a patient of a sound mind requires for discontinuation of life support. He was also in favour of passive euthanasia provided the decision was taken by a responsible medical practitioner. He submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. He also said that withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. He also requested the Court to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who may not appreciate the withdrawal of the life support.

Judgement:

The court declared that Aruna is not brain dead and for its judgement relied on the doctor’s report and definition of brain death given under the Transportation of Human Organs Act, 1994. She was able to breathe on her own without a machine’s support, she had feelings and used to show some symptoms. Though she was in a PVS but still her condition was stable. So, the grounds presented here are not sufficient for terminating her life. It would be unjustifiable. Further, the court while addressing the issue opined that in the present case next to the kin of the patient would be the staff of the KEM Hospital not Pinki Virani. Thus, the right to take any such decision on behalf of her is vested in KEM Hospital. In the present case it was the food on which she was surviving. Thus, removal of life saving techniques would here mean depriving her of food which is not justified in Indian Law in any way.

The Supreme Court allowed passive euthanasia in certain conditions. But the court decided that in order to prevent misuse of this provision in the future, the power to determine the termination of a person’s life would be subjected to High Court’s approval following a due procedure.

Whenever any application will be filed in High Court for passive euthanasia, the Chief Justice of the High Court should constitute a Bench of at least two judges deciding the matter that whether such termination should be granted or not. The Bench before laying out any judgement should consider the opinion of a committee of 3 reputed doctors. These doctors are also nominated by the Bench after discussing with the appropriate medical practitioners. Along with appointing this committee, it is also the duty of the court to issue a notice to the state, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors, as soon as it is possible. And after hearing all the sides, the court should deliver the judgement. This procedure is to be followed in India everywhere until any legislation is passed on the subject.

In the Ultimate decision of this case, by keeping all the important facts of the case in consideration, Aruna Shaunbaug was denied euthanasia. Court also opined that if at any time in the future, the hospital staf feels a need for the same, they can approach the High Court under these prescribed rules. The verdict of this case has helped in clarifying the issues relating to passive euthanasia in India by providing a broad structure of guidelines which are to be followed. The court also recommended the repealing of section 309 of the IPC. We have discussed all about the case. Now let’s discuss the emergence of two important features which came out in this case and have been discussed a lot in subsequent events.

Guidelines for Advance Directives:

In Aruna Shanbaug’s case Supreme Court laid down guidelines for passive euthanasia. These guidelines provided for withdrawal of life support system which can ultimately lead to a person’s death. This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court. Later in the year 2018, Supreme Court passed another order in the case of Common Cause v. Union of India, in which right to die with dignity was again recognized and passive euthanasia was legalized and permit was given to withdraw the life support system of those who are terminally ill and are in life long coma.

Along with this the Court also provided with the concept of “living wills” i.e. Advance Directives. Living will mean a document that allows a person to make decisions in advance with regard to what course of treatment he wants in case he gets seriously ill in the future and becomes unable to take decisions.

The Court noticed that there is no legal framework regarding Advance Medical Directives in India and therefore in order to protect the rights of citizens as enshrined in Article 21 of the Constitution, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka v State of Rajasthan and Others it issued comprehensive guidelines and safeguards pertaining to Advance Directives. The said guidelines are to remain in force till the Parliament introduces legislation in this regard. The guidelines are as follows:

Who can execute the Advance Directive and how?

• The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
• It must be voluntarily executed and without any coercion or inducement
• It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering.

What should it contain?

• It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
• It should mention that the executor may revoke the instructions/authority at any time.
• It should disclose that the executor has understood the consequences of executing such a document.
• It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

How should it be recorded and preserved?

• The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
• The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
• The JMFC shall inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.
• The JMFC shall handover copy of the Advance Directive to the family physician, if any.

When and by whom can it be given effect to?

• In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness of the same from the jurisdictional JMFC before acting upon it.
• The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
• If the physician treating the patient (executor) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
• The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from different fields, with experience of at least twenty years. This Medical Board shall visit the patient in the presence of his guardian/close relative and form an opinion on whether or not to certify carrying out the instructions of withdrawal / refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
• In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then constitute a second Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors with experience of at least twenty years. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the first Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
• The Board constituted by the Collector must ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained.
• The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
• It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

What if permission is refused by the Medical Board?

• If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can approach the High Court by way of writ petition under Article 226 of the Constitution.
• If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent Committee consisting of three doctors with experience of at least twenty years.
• The High Court shall hear the application expeditiously after affording opportunity to the State counsel.

Revocation of Advance Directive

• An individual may withdraw or alter the Advance Directive at any time she has the capacity to do so, and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Where there is no Advance Directive

• The Court has held that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed when there is no Advance Directive. However, the Court has prescribed an additional procedure to be followed in such cases.
• In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board. This Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient. If they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.
• The rest of the procedure will remain the same as is followed in case there is an Advance Directive.

Other Judgments:

• In State of Maharashtra v. Maruti Sripati Dubal, 1987 (1) Bom CR  case, the Bombay High Court stated that Right to life under Article 21 also includes Right to die. It was contended that Section 309 of Indian Penal Code (attempt to commit suicide) is thus unconstitutional, as it is violative of Article 21 of the Constitution. Court clearly stated in this judgement that Right to die is just uncommon not unnatural.
• In P. Rathinam v. Union of India, case, the Supreme Court also accepted that Right to live also includes Right not to live under Article 21 of our Constitution. 

Conclusion:

The court drew the distinction between active and passive euthanasia. Active euthanasia can be seen as the positive and deliberate termination of one’s life by injecting and administering lethal substances. It is considered to be a crime worldwide except permitted by legislation. In India, active euthanasia is a straight infringement of section 302 ² and section 304³ of the IPC. Moreover, physician-assisted suicide is an offense under section 309 ⁴ of IPC. Passive euthanasia on the other hand is the withdrawal of life-supporting systems or medical treatment. The main distinction between active and passive euthanasia is that in “active” something is done deliberately to end life whereas in “passive” something is not done. A proper procedure and guidelines were enlisted by the apex court for granting passive euthanasia in the “rarest of rare circumstances” while rejecting the plea made by the petitioner.

In Gian Kaur v. State of Punjab, AIR 1996 SC 946 case, the Supreme Court overruled the P .Rathinam’s judgement and declared that Right to life does not include Right to die but at the same time court also stated that Right to life will include live with human dignity and the right to die with dignity. The court held that the right to die with dignity should be distinguished from Right to die. As right to die is an unnatural death which takes away natural span of a person’s life, on the other hand the right to die with dignity is a subsistence provided to a person. For instance, a person who is in a condition of PVS, if provided the right to die, it will end his suffering, physical and mental agony.