Medical Treatment of Terminally-Ill Patients Bill, 2016

What are advanced medical directives?

An advance medical directive, also known as a living will, personal directive, advance directive, medical directive, or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity.

What is euthanasia?

• Euthanasia is the termination of a very sick person’s life in order to relieve them of their suffering.
• In many cases, it is carried out at the person’s request but there are times when they may be too ill and the decision is made by relatives, medics, or, in some instances, the courts.

What are the types of euthanasia?

• Based on consent
• Voluntary Euthanasia – When euthanasia is conducted with the consent of the patient.
• Non-Voluntary Euthanasia – If the consent of the patient is unavailable. Examples include the patient in a coma or child euthanasia.
• Involuntary Euthanasia – Euthanasia is conducted against the will of the patient. Witnessed in autocratic regimes where the terminally ill, people with disabilities, or old people are “euthanized to eliminate undesirable defective people from society”. Involuntary euthanasia is widely opposed and is regarded as a crime in all legal jurisdictions.
• Based on the method of action
• Active euthanasia – The use of lethal substances or forces. e.g administering a lethal injection
• Passive euthanasia – The withholding of common treatments or means necessary for the continuance of life. e.g failing to keep their feeding tube going.
• Indirect euthanasia – This means providing treatment (usually to reduce pain) that has the side effect of speeding the patient’s death. Since the primary intention is not to kill, this is seen by some as morally acceptable.
• Euthanasia has always been fraught with moral, social, and religious tensions across jurisdictions.
• Ministry of Health and Family Welfare released a draft Medical Treatment of Terminally-Ill Patients (Protection of Patients and medical practitioners) Bill, 2016 regarding euthanasia.

What are the provisions of the bill?

• The bill states that every competent patient, including minors aged above 16 years, has a right to make a decision and express the desire to the medical practitioner attending on her or him.
• For withholding/withdrawing a medical treatment
• For starting or continuing a medical treatment on himself or her. This gives legal recognition to passive euthanasia.
• The Bill makes such a decision to be binding on the medical practitioner. The practitioner has to inform the spouse, parents, or any other close relative of the patient and
• The practitioner should abstain from carrying out the decision for a period of three days after informing them.
• The Director-General of health services should create a medical panel for the purposes of the act.
• If the decision was taken by the next of kin, including spouse, parents, or sibling of the competent/incompetent patient, should approach the High Court for the grant of permission for the intended decision. The confidentiality of the patient, the medical practitioner, the relatives are to be maintained throughout the course of the case.
• The Medical Council of India has been asked to provide guidelines for the medical practitioners with periodical reviews.

What are the shortcomings of the bill?

• Rights issue –The 196th report recommended that an advance directive in the exercise of the right to refuse medical treatment be overridden because of the fear that such directives would lead to unnecessary litigation.
• Rights are not wholly taken away because there is a danger that they will be misused, especially if this so-called danger involves is moving the courts frequently for their enforcement.
• The draft Bill negates the basic common law rights of a patient to autonomy over her own body and the determination of what treatment she is willing to undergo, thus denying the patient’s fundamental right to life and liberty.
• Therefore the solution lies in a strong law that pre-empts litigation, rather than in refusing to give effect to the right altogether.
• Absence of safeguards – A valid advance directive would have to be in writing and executed in the presence of witnesses and the audio-visual recording of the entire process should be done. If doubts about the validity of the directive were to arise, such a recording might prove useful in resolving them.
• Irrationality – The Bill creates an irrational distinction between patients who are competent and incompetent patients. The Bill states that the decision of competent patients to refuse such treatment is binding on their medical practitioners. But it requires medical practitioners or relatives to move the High Court for permission to withdraw treatment in case of incompetent patients. This totally ignores the decision of patients taken earlier when they are competent.
• 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. Therefore 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.
• Time frame – 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.
• Still, given that the Bill is in the draft stage, there is hope that the government will see the wisdom in recognizing advance directives made by individuals regarding their treatment, and put in place a mechanism for their enforcement.