Editorial Today – Medical Treatment of Terminally-ill Patients Bill

Issue  The Medical Treatment of Terminally Ill patients (protection of patients and medical practitioners) Bill is up for public debate.

What is euthanasia? Practice of intentionally ending a life.

Types of euthanasia Passive euthanasia and active euthanasia.

Background After several cases of euthanasia, such as Aruna Shanbaug a nurse who spent 42 years in a vegetative state as a result of sexual assault, the issue gained attention.

Is there any provision of active euthanasia in the bill? Active euthanasia has not been recommended.

What is there in the Bill? According to the draft Bill, a terminally ill patient above the age of 16 years can decide on whether to continue further treatment or allow nature to take its own course.

Criticism of the Bill Child rights activists are also not too happy about it because the bill allows a child to decide something as important as life and death. 

Issue

• The debate over mercy killing may soon end as the Union Health Ministry has prepared a legislation on the contentious issue of euthanasia.
• The Medical Treatment of Terminally Ill patients (protection of patients and medical practitioners) Bill is up for public debate.

Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill 

• Based on the recommendations of the Law Commission, and after examination of the draft Bill in Health Ministry, government is contemplating to enact a law on passive euthanasia.

What is euthanasia?

• Euthanasia is the practice of intentionally ending a life in order to relieve pain and suffering.

Types of euthanasia

• Passive euthanasia and active euthanasia
• Passive euthanasia entails withholding of common treatments in terminally ill patients such as antibiotics, necessary for the continuance of life, active euthanasia involves the use of lethal substances or forces, such as injections to kill, and is the most controversial.

Background

• After several cases of euthanasia, such as Aruna Shanbaug a nurse who spent 42 years in a vegetative state as a result of sexual assault, the issue gained attention.
• Recently the Supreme Court heard a public interest litigation filed in 2005 by NGO Common Cause which said when a medical expert opines that the person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life support as it would only prolong the agony.
• SC had, two years ago, issued notices to states and Union Territories on the issue. The Centre had also strongly opposed the petition earlier saying it is a form of suicide.
• Formulation of regulatory provision for euthanasia was earlier examined in Health Ministry in 2006 based on the 196th report of the Law Commission of India in consultation with experts. However, based on their opinions, Health Ministry at that time had opted not to make any law on it.

Is there any provision of active euthanasia in the bill?

• Active euthanasia has not been recommended in The Medical Treatment of Terminally Ill patients (protection of patients and medical practitioners) Bill.
• Active Euthanasia is not being considered by Health Ministry as it is more likely to be misused by unscrupulous individuals to attain their ulterior motives

What is there in the Bill?

• The draft Bill, proposed in 241st report of Law Commission deals with passive euthanasia and living will, a document in which a person states his or her desire to have or not to have extraordinary life prolonging measures used when recovery is not possible from a terminal condition.
• According to the draft Bill, a terminally ill patient above the age of 16 years can decide on whether to continue further treatment or allow nature to take its own course.
• The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.
• When a patient communicates her or his decision to the medical practitioner, such decision is binding on the medical practitioner,” the draft Bill says. However, it also notes that the medical practitioner must be “satisfied” that the patient is “competent” and that the decision has been taken on free will.
• There will be a panel of medical experts to decide on case by case basis.
• The medical practitioner has to maintain all details of the patient and ensure he/she takes an informed decision. He is also required to inform the patient whether it would be best to withdraw or continue treatment. If the patient is not in a conscious state, he/she needs to inform family members. In the absence of family members, the medical practitioner needs to inform a person who is a regular visitor.
• The draft also lays down the process for seeking euthanasia, right from the composition of the medical team to moving the high court for permission.
• If approved, the Medical Council of India (MCI) will have an active role in the law. The MCI would prepare and issue guidelines for medical practitioners in the matter of withholding or withdrawing of medical treatment to competent or incompetent patients suffering from terminal illness.

Criticism of the Bill

• The draft has disappointed experts who wanted complete clarity on the concept of a living will. A living will is defined as “a document in which a person states his/her desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from his/her terminal condition”.Paragraph 11 of the draft Bill said that any “advance medical directive (living will) or medical power of attorney executed by the person shall be void and of no effect and shall not be binding on any medical practitioner’
• There are several safeguards that the Bill could have incorporated from laws in other countries to ensure that advance directives are properly executed by medical practitioners. For example, a valid advance directive would have to be in writing and executed in the presence of witnesses.
• The Bill creates an irrational distinction between patients who are competent at the time at which a decision has to be made about refusing or withdrawing life-sustaining treatment, and those who are incompetent at such time, even though they might have expressed their decision earlier in the form of an advance directive.
• Clause 3 of the Bill states that the decision of the former category of patients to refuse such treatment is binding on their medical practitioners.
• For the second category of patients, Clause 9 of the Bill requires medical practitioners or relatives to move the High Court for permission to withdraw treatment. The time at which the decision was made to refuse or request the withdrawal of treatment cannot be a rationale for distinguishing between these categories of patients, so long as such decisions were taken freely, fully informed, and not altered fundamentally since. Apart from being an infringement of the right to life under Article 21, the classification stands the risk of being struck down as unreasonable and therefore a violation of the right to equality under Article 14.
• The choice of the High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives and does not take into account the fact that High Courts are unlikely to be able to deliver swift judgment in such cases.
• Child rights activists are also not too happy about it because the bill allows a child to decide something as important as life and death.