In P. Rathinam vs. Union of India and Anr., 1994) SCC 394, by a Bench of two learned Judges of Supreme Court wherein Section 309, IPC has been held to be unconstitutional as violative of Article 21 of' the Constitution.In P. Rathinam it was held that the scope of Article 21 includes the 'right to die'. P. Rathinam held that Article 21 has also a positive content and is not merely negative in its reach. Reliance was placed on certain decisions to indicate the wide ambit of Article 21 wherein the term life' does not mean 'mere animal existence' but right to live with human dignity' embracing quality of life. Drawing analogy from the interpretation of freedom of speech and expression' to include freedom not to speak, freedom of association and movement' to include the freedom not to join any association or to move anywhere, freedom of business' to include freedom not to do business, it was held in P. Rathinam that logically it must follow that right to live would include right not to live, i.e., right to die or to terminate one's life. Having concluded that Article 21 includes also the right to die, it was held that Section 309. IPC was violative of Article 21. This is the only basis in P. Rathinam to hold that Section 309, IPC is unconstitutional.
'Right to die' - Is it included in Article 21?
This question directly came up before a (5 judge bench) Supreme Court of India
in Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996
Bench: Verma, Jagdish Saran (J), Ray, G.N. (J), Singh N.P. (J), Faizan Uddin (J), Nanavati G.T. (J)
in this case constitutional validity of 306 was challenged on basis of P rathi nam judgment
Supreme court held " The Bombay High Court in Naresh Marotrao Sakbre and Another vs. Union of India and others, 1895 Crl.L.J. 96, considered the question of validity of Section 306 I.P.C. and upheld the same. No decision holding Section 306 I.P.C. to be unconstitutional has been cited before us. We find no reason to hold either Section 309 or Section 306 I.P.C. to be unconstitutional.
We have earlier held that right to die' is not included in the `right to life' under Article 21. For the same reason, right to live with human dignity' cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death. We do not see how Article 21 can be pressed into service to support the challenge based on Article 14. It cannot, therefore, be accepted that Section 309 is violative either of Article 14 or Article 21 of the Constitution.
For the reasons we have given, the decisions of the Bombay High Court in Maruti Shri Pati Dubal vs. State of Maharashtra, 1987 Crl. L.J. 743, and of a Division Bench of this Court in P. Rathinam vs. Union of India and Anr., 1994 (3) SCC 394, wherein Section 309 I.P.C. has been held to be unconstitutional, are not correct. The conclusion of the Andhra Pradesh High Court in Chenna agadeeswar and another vs. State of Andhra Pradesh, 1988 Crl.L.J. 549, that Section 309 I.P.C. is not violative of either Article 14 or Article 21 of the Constitution is approved for the reasons given herein. The questions of constitutional validity of Sections 306 and 309 I.P.C. are decided accordingly, by holding that neither of the two provisions is constitutionally invalid."
In 1971, the Law Commission in its 42nd Report recommended the repeal of Section 309 IPC. The IPC (Amendment) Bill, 1978, was even passed by Rajya Sabha, but before it could be passed by Lok Sabha, Parliament was dissolved, and the Bill lapsed.
In ‘Gian Kaur vs State of Punjab’, 1996, a Constitution Bench of the Supreme Court upheld the constitutional validity of Section 309. However, in 2008, the Law Commission in its 210th Report, said that an attempt to suicide needed medical and psychiatric care, and not punishment. In March 2011, the Supreme Court too recommended to Parliament that it should consider the feasibility of deleting the section.
In 2014, repling to a question in Rajya Sabha, then Minister of State for Home Haribhai Parthibhai Chaudhary said the government had decided to drop Section 309 from the IPC after 18 states and 4 Union Territories had backed the recommendation of the Law Commission. The matter did not, however, reach its logical conclusion.
State Vs. Sanjay Kumar Bhatia, 1985 Crl.L.J.931, is the decision of the Delhi High Court. Sachar, J., as he then was, speaking for the Division Bench said that the continuance of Section 309 IPC is an anachronism unworthy of human society like ours. However, the question of its constitutional validity with reference to any provision of the Constitution was not considered. Further consideration of this decision is, therefore, not necessary.
Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549, is the decision by a Division Bench of the Andhra Pradesh High Court. The challenge to the constitutional validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the right to die' was rejected. It was also pointed out by Amarethwari, J. speaking for the Division Bench that the Courts have sufficient power to see that unwarranted harsh treatment or- prejudice is not meted out to those who need care and attention, This negatived the suggested violation of Article
RIGHT TO DIE WITH DIGNITY:-
Common Cause (A Registered Society) v. Union of India W.P. (Civil) 215 of 2005
In a landmark Judgment the Five Judge Constitution Bench of the Supreme Court of India has held that the right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity.
"With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty"
Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest".
WHAT IS LIVING WILL
Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.
It includes authorizing their families to switch off life support in case a medical board declared that they were beyond medical help.
here is no legal framework in our country as regards the Advance Medical Directive but we are obliged to protect the right of the citizens as enshrined under Article 21 of the Constitution. It is our constitutional obligation”.
“In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. We enumerate them as follows:-
(a) Who can execute the Advance Directive and how?
(i) 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.
(ii) It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
(iii) It should have characteristics of an informed consent given without any undue influence or constraint.
(iv) 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 and further put him/her in a state of indignity
(b) What should it contain?
(i) It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
(ii) It should be in specific terms and the instructions must be absolutely clear and unambiguous.
(iii) It should mention that the executor may revoke the instructions/authority at any time.
(iv) It should disclose that the executor has understood the consequences of executing such a document.
(v) 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 authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
(vi) In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be given effect to.
(c) How should it be recorded and preserved?
(i) 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.
(ii) 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.
(iii) The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
(iv) The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
(v) The JMFC shall cause to 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.
(vi) A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
(vii) The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.
(d) When and by whom can it be given effect to?
(i) 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 and authenticity thereof from the jurisdictional JMFC before acting upon the same.
(ii) 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.
(iii) If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian / close relative, as the case may be, 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, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
(iv) 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 the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
(v) 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 forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
(vi) The Board constituted by the Collector must beforehand 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 regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.
(vii) 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 administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
(viii) It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
(e) What if permission is refused by the Medical Board?
(i) If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to 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 from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.
(ii) The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
(iii) Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of "best interests of the patient".
(f) Revocation or in-applicability of Advance Directive
(i) An individual may withdraw or alter the Advance Directive at any time when he/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.
(ii) An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
(iii) If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
(iv) Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:-
(i) 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 in the manner indicated earlier. The Hospital Medical 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 and 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.
(ii) In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
(iii) The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient.
(iv) There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent Committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of "best interests of the patient"..
“It is appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.
Our directions with regard to the Advance Directives and the safeguards as mentioned hereinabove shall remain in force till the Parliament makes legislation on this subject” said the court.
Justice Misra also laid down the procedure for execution of an Advance Directive, and provided guidelines for passive euthanasia, both in the presence and absence of such directive. The two Judges then summarized the findings of the Court as follows:
"(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
(ii) The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation.
(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.
(v) There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to the withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.
(vi) In active euthanasia, a specific overt act is done to end the patient‘s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.
(vii) Post Aruna Shanbaug (supra), the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, but no law has been enacted.
(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.
(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as a component of right to life and liberty.
(x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.
(xi) A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.
(xii) Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
(xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
(xiv) When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest."
Justice Sikri's opinion
Justice Sikri agreed with the opinion authored by CJI Misra and ruled, "Having regard to the aforesaid right of the patients in common law, coupled with the dignity and privacy rights, it can be said that passive euthanasia, under those circumstances where patient is in PVS and he is terminally ill, where the condition is irreversible or where he is brain dead, can be permitted. On the aforesaid reasoning, I am in agreement with the opinion of the other members of this Bench in approving the judgment in Aruna Ramachandra Shanbaug."
He further observed that while it is a doctor's primary duty to provide treatment and save lives, it is not so "in the case when a person has already expressed his desire of not being subjected to any kind of treatment". He opined that it is a common law right of people of any civilized country to refuse unwanted medical treatment.
With regard to the Advance Directives, Justice Sikri cautioned that the system may be open to abuse, and observed, "At this juncture, we may again reiterate that on the one hand autonomy of an individual gives him right to choose his destiny and, therefore, he may decide beforehand, in the form of advance directive, at what stage of his physical condition he would not like to have medical treatment, and on the other hand, there are dangers of misuse thereof as well."
He ended his opinion with hope that the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’, in order to take care of the apprehensions expressed against euthanasia.
Justice Chandrachud's opinion
Justice Chandrachud wrote extensively on death, dignity, privacy, sanctity of life and the nuances involved in the "sanctity of life principle". Here are his thoughts on a few of these issues:
On sanctity of life: "The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the Constitution. The Constitution recognizes the value of life as its indestructible component. The survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and liberty."
On living a dignified life: "The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life. Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence."
On the right to refuse medical treatment: "The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compels an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity."
On Advance Directives: "An individual who is in a sound and competent state of mind is entitled by means of an advance directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such an advance directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment abides by an advance directive is protected against the burden of criminal liability."
On protection of doctors who withdraw treatment: "The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision."
Further, he agreed with the conclusions drawn by the other Judges on Gian Kaur and Aruna Shanbaug's cases.
Justice Ashok Bhushan's Opinion
In a separate concurring opinion, Justice Bhushan also contemplated on the concept of life and death, the relevant statutory provisions on the subject, and the legal position in other jurisdictions.
He then agreed with the three-Judge Bench that the Constitution Bench in Gian Kaur's case had not expressed any binding view on euthanasia. He further noted that the Court had, in Aruna Shanbaug's case ruled that it is the Court alone with is entitled to take decision on whether treatment for a terminally ill patient can be withdrawn. He, however, opined that such decision needs to be taken by medical experts instead.
Justice Bhushan explained, "We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, it is in the best interests of the patient that the decision be taken by competent medical experts and that such decision be implemented after providing a cooling period at least of one month to enable the aggrieved person to approach the Court of Law.
The best interest of the patient as determined by medical experts shall meet the ends of justice. The medical team by taking decision shall also take into consideration the opinion of the blood relations of the patient and other relevant facts and circumstances."
Justice Bhushan then summarized the findings of the Court as follows:
"(i) The Constitution Bench in Gian Kaur's case held that the "right to life: including right to live with human dignity" would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
(ii) We agree with the observation made in the reference order of the three-Judge Bench to the effect that the Constitution Bench in Gian Kaur's case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of Euthanasia.
(iii) The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The latter was held not to be covered under any right flowing from Article 21.
(iv) Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.
(v) An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in a natural way.
(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterize the action as Euthanasia. Euthanasia is also commonly called "assisted suicide" due to the above reasons.
(vii) We are thus of the opinion that the right not to take a life-saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.
(viii) The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, "the best interests principle" be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.
(x) An advance medical directive is an individual's advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.
(xi) Right of execution of an advance medical directive by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self-determination.
A STUDY AT INDIAN JOURNAL AT PSYCHIATRY RELEASED A RESEARCH PAPER TITLED
"PRACTICAL IMPLICATIONS OF SUICIDE AND ITS ATTEMPT" its relevant portion is reproduced below :
Attempt to die by suicide is discussed in Section 115 of MHCA 2017. Part 1 of the section states that “Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to die by suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”
Section 309 of IPC, which deals with those who attempt to die by suicide, was not only unsatisfactory but also discriminatory. In fact, it was a monstrous act that inflicted further suffering on the person who had already found the life so painful and unbearable and the chances of happiness so slender that the person decided to embrace death to end the life. If such a person failed in the attempt to die, inflicting torture and degradation by punishment would be unreasonable and unjust. In fact, such persons deserve compassionate and sympathetic treatment.
In State v. Sanjay Kumar Bhatia,the Division Bench of the Honorable High Court of Delhi observed “The continuance of Section 309 IPC is an anachronism unworthy of a human society like ours. The provision like Section 309 IPC which has no justification has no right to continue to remain on the statute book.”
The suicide attempt is decriminalized by Section 115 of MHCA 2017, superseding Section 309 of IPC. However, that does not absolve anyone from abetting an attempt to die by suicide. From the legal perspective, does overruling of Section 115 of MHCA over Section 309 leave no legal trail and address only the mental health care issues?
Part 2 of Section 115(2) of MHCA 2017 states that “The appropriate Government shall have a duty to provide care, treatment, and rehabilitation to a person, having severe stress and who attempted to die by suicide, to reduce the risk of recurrence of an attempt to die by suicide.”
Healthcare professionals in any hospital can use the following steps to manage a person who has attempted to die by suicide:
Step 1: Assessment and triaging in the emergency room
Step 2: Stabilize the patient medically and/or surgically by providing necessary treatment
Step 3: Medicolegal case registration, and depending on the severity, admission if required
Step 4: Mandatory psychiatric referral for required assessment (making a diagnosis and assessing the severity of stress and suicidal intent) and treatment
Step 5: Inform the patient regarding Section 115 of MHCA 2017
Step 6: Inquiry by the health team and police regarding Sections 108, 109, and 116 IPC
Step 7: Discharge planning and follow-up care with medical, surgical, and psychiatric teams as per guidelines.
Care and treatment
Once a patient is admitted in a general hospital following an attempt to die by suicide, emergency triaging and necessary medical or surgical management are mandatory to stabilize the person wherever required. Regardless of whether the self-injury incident is minor or major, medico-legal procedures and necessary paperwork have to be completed as early as possible after stabilizing the person. Detailed collateral information from caregivers, relatives, and concerned people has to be documented. A referral to the psychiatric team should be sent as early as possible. A comprehensive and clear history of the incident should be taken by the attending health professionals.
Role of psychiatric team
The psychiatric team as a part of its assessment has to ascertain whether the event is a deliberate self-harm or injury or an attempt to die by suicide. The key difference between deliberate self-harm or injury and attempt to die by suicide is in the intent to end one's life. For example, a person takes a small overdose of some tablets intending to kill oneself but does not die (nonfatal suicide attempt). Another person takes plenty of tablets because of being upset and impulsive; the person did not want to kill himself but wanted to de-escalate a stressful situation (nonsuicidal self-injury). Further, some nonsuicidal self-injurious behavior may actually result in death – either by ignorance, accident, delay in treatment, or just miscalculation (e.g., the latter person is not aware of the toxic effects of the tablets and actually dies as a result). Again, one has to keep in mind that both forms of self-harm can occur in the same individual, i.e., those with nonfatal suicide attempts can also exhibit nonsuicidal self-injurious acts and vice versa.
Assessment of stress and suicide intent
To ascertain the severity of stress and the intent objectively, the psychiatric team may administer the perceived stress scale and the suicide intent scale on person who has attempted to die by suicide or done nonsuicidal self-harm, irrespective of the lethality of the incident.
Risk assessment for high-risk suicidal behavior has to be done at hourly basis, two hourly basis, and in increased durations as per the decreasing risk, with necessary staff support at the general hospital till the person is stabilized medically or surgically.
MHCA 2017 and attempt to die by suicide
The psychiatric team has to inform the person and the caregivers about Section 115 of MHCA 2017. Police need to be involved in ascertaining the application of abetment laws and for further legal procedures wherever required.
Once the person who has attempted to die by suicide is undergoing treatment medically or surgically at the general hospital (not a licensed mental health establishment) but continues to suffer from severe stress or mental illness (substantial disorder and grossly impaired functioning), emergency psychiatric treatment can be started at the general hospital under Section 94 of the MHCA 2017 limited to 72 h or till the person is assessed at a mental health establishment. Once the same person has been medically or surgically stabilized, the same Section 94 of MHCA 2017 enables transfer and transport of the person to a licensed mental health establishment. All such persons with nonfatal suicidal attempts or nonsuicidal self-injuries, who have a mental illness, and hence, admitted in a mental health establishment have to be informed to the respective mental health review board under Section 89 of MHCA 2017. A registry of all persons who attempted to die by suicide admitted to the mental health establishment is desirable for future management and policy decision purposes.
In the scenario of a person attempting to die by suicide, doing nonsuicidal self-injury, or committing suicide in the premises of any general hospital or mental health establishment during the treatment of the current incident or during the admission or treatment of any medical illness or mental Illness, apart from the natural legal processes, we recommend the establishment to inform the mental health review board which may then conduct a detailed psychological and procedural autopsy. In such cases, after detailed inquiry, the mental health review board's role could be to recommend necessary measures to prevent recurrence of similar incidents.
Discharge planning - should be initiated once the risk of nonfatal suicide attempts or nonsuicidal self-injurious behavior is low. Discharge protocol should include detailed psychiatric assessment, including risk assessment of nonfatal suicidal behavior and nonsuicidal self-injury, management of comorbid medical and psychiatric issues in consultation with the liaison team, contingency supports for the precipitating stress factors, psychoeducation to the person as well as caregivers regarding the use of drugs or alcohol and about securing lethal substances, need for a supportive person at the destination place of discharge, community psychiatric team wherever available, and scheduled follow-up visit with the medical and psychiatric team wherever indicated. A 24-hour contact number for support has to be included along with commitments by the person to adhere to the treatment and contingency plans. The recurrence rate is around 10%, and subsequent management plans should be aimed at preventing this.
As per the recommendations of MHCA 2017, apart from the regular follow-up care in the community, the person can be provided rehabilitation that could include medical, surgical, and brief psychological interventionsor even cosmetic treatments. There should be a focus on the subsequent integration of the patients into applicable occupational, family, and social rehabilitation.