Question on 'living will' goes to govt - The toughest decision families face
R. Balaji and G.S. Mudur
New Delhi, Jan. 15: The Supreme Court today asked the Centre to place its stand on permitting a "living will" that a patient can execute to facilitate a conditional withdrawal of life support systems in case he or she reaches a permanent vegetative state.
"It (putting a patient on ventilator) is also a torture for the family. It is very expensive," a five-bench constitution bench said today, addressing an issue that poses one of the toughest challenges to countless families as well as the health care system.
The bench has been set up to deliberate on "passive euthanasia" after consensus eluded two smaller benches in the case of Aruna Shanbag, a nurse who had then been in a vegetative state for nearly 38 years after being raped and choked with a dog chain.
A three-judge bench, which disagreed with a two-judge bench ruling that suggested passive euthanasia may be permitted under strict regulations, had referred the matter to the five-judge constitution bench that took up the matter today.
The constitution bench is dealing with a PIL by the NGO, Common Cause, to declare the "right to die" as a fundamental right for patients in a permanent vegetative state.
Advocate Prashant Bhushan, appearing for the NGO, listed the three types of euthanasia - positive, passive and living will. He underscored the option of "living will". Common Cause wants patients to be allowed to execute a will that allows the withdrawal of life support systems if he or she slips into a permanent vegetative state and if there is no real hope of survival.
The five-judge bench headed by Justice A.R. Dave felt that although it was ultimately for doctors to decide whether to withdraw life support, the government should make its position clear.
"Whether a person can survive or not is (something) only a team of doctors can decide.... Do you have any objection to the petitioners if the doctors decide one can't survive without life support?" the bench asked additional solicitor-general P.S. Patwalia, who appeared for the Centre.
The other judges on the bench are Justices Kurian Joseph, Shiva Kirti Singh, A.K. Goel and R.F. Nariman.
Patwalia told the court that under the prevailing rules of the Medical Council of India (MCI), if a patient is "brain dead", it was for doctors to withdraw the life support systems. He sought time for placing the Centre's position on record.
However, in 2014, the UPA government had taken the stand that the primary duty of a doctor is to save patients and referred to regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, which explicitly prohibits doctors from practising euthanasia.
It now remains to be seen whether the Narendra Modi government will adopt a contrary stand and support passive euthanasia.
The court will take up the matter again on February 1.
Sections of doctors view the prevailing rules and guidelines as ambiguous and say decisions on how to manage terminally ill patients are quietly taken in consultation with family members, at times necessitated in unfortunate situations where relatives can no longer afford life support.
A senior specialist in critical care medicine said the decision to withdraw life support depends on specific details such as patients' illness and health condition when such a decision needs to be made.
"Broadly, there are three options," said Dr. Rajesh Pande, Director of Critical Care at the BLK Superspeciality Hospital, New Delhi, and an executive member of the Indian Society for Critical Care Medicine.
Some hospitals let the relatives take patients home and write "left against medical advice" on their discharge sheets on the ground that a patient cannot be forced to remain in hospital.
When a patient is already on ventilator support, some hospitals' legal cells advise against such a discharge. Then, there are two options - which of the two options can be followed depends on the specific illness and health status of the patients.
Some patients on ventilators require life-saving drugs such as those that maintain blood pressure or life-saving antibiotics. In such cases, the option is to withhold the drug, Pande said. "For instance, if a blood-pressure maintenance drug is stopped, it could lead to a precipitous fall in blood pressure and loss of life. The patients' relatives can ask doctors to withhold specific drugs."
Another option is to partially withdraw ventilator support. Hospitals may disconnect the full ventilator machine which supports both breathing and oxygen, and provide only oxygen support instead, that will not help patients who cannot breathe on their own. This is called partial withdrawal.
"The decision is jointly taken by doctors and relatives, but because of lack of clarity in the law, the paperwork on such decisions may not always reflect exactly what is done," said a critical care medicine specialist in a Delhi hospital.