Aruna Ramchandra Shanbaug v. Union Of India: Case Analysis

By Mounica Kasturi, Symbiosis Law School, Pune

Editor’s Note: Fundamental Rights are necessary for leading a dignified and fulfilling life. Probably the most important Fundamental Right in the Indian Constitution is the Right to Life under Article 21. It is a right that encompasses within its broad domain the right to legal aid, right to a clean environment, and a plethora of other rights. The question that came to be considered in the present case was whether inherent in this sacred right is the right to die-whether a person can be allowed to control his death and decide to end his life. Right to die has become important considering the advancement in medical jurisprudence and also the possibility of misuse of this right by family members. This case dealt with euthanasia in detail by distinguishing between active and passive euthanasia. Laws relating to euthanasia in different jurisdictions were considered. The court deleted into a scenario where the patient was incapable of giving consent and specified who could approach the Court on his behalf.  It also laid down guidelines prescribing the situation and procedure of administering passive euthanasia.”

INTRODUCTION

The Constitution of India guarantees ‘Right to Life’ to all its citizens. The constant, ever-lasting debate on whether ‘Right to Die’ can also be read into this provision still lingers in the air. On the other hand, with more and more emphasis being laid on the informed consent of the patients in the medical field, the concept of Euthanasia in India has received a mixed response.

The Hon’ble Supreme Court of India, in the present matter, was approached under Article 32 of the Indian Constitution to allow for the termination of the life of Aruna Ramchandra Shanbaug, who was in a permanent vegetative state. The petition was filed by Ms. Pinki Virani, claiming to be the next friend of the petitioner. The Court in earlier cases has clearly denied the right to die and thus legally, there was no fundamental right violation that would enable the petitioner to approach the court under Article 32. Nonetheless, the Supreme Court taking cognizance of the gravity of the matter involved and the allied public interest in deciding about the legality of euthanasia accepted the petition.

FACTS

It was stated that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day, a cleaner found her in an unconscious condition lying on the floor with blood all over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged.

Thirty six years had lapsed since the said incident. She had been surviving on mashed food and could not move her hands or legs. It wass alleged that there is no possibility of any improvement in the condition and that she was entirely dependent on KEM Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let her die in peace.

FINDINGS OF THE COURT APPOINTED DOCTORS

The respondents, KEM Hospital and Bombay Municipal Corporation  filed a counter petition. Since, there were disparities in the petitions filed by the petitioner and respondents, the court decided to appoint a team of three eminent doctors to investigate and report on the exact physical and mental conditions of Aruna Shanbaug.

They studied Aruna Shanbaug’s medical history in detail and opined that she is not brain dead. She reacts to certain situations in her own way. For example, she likes light, devotional music and prefers fish soups. She is uncomfortable if a lot of people are in the room and she gets distraught. She is calm when there are fewer people around her. The staff of KEM Hospital was taking sufficient care of her. She was kept clean all the time . Also, they did not find any suggestion from the body language of Aruna as to the willingness to terminate her life. Further, the nursing staff at KEM Hospital was more than willing to take care of her. Thus, the doctors opined that that euthanasia in the instant matter is not necessary.

ISSUES RAISED

  1. When a person is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies be permissible or `not unlawful’?
  2. 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?
  3. 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?

ANALYSIS

To be able to adjudicate upon the aforementioned issues, the court explained as to what is euthanasia. Euthanasia or mercy killing is of two types: active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

A further categorization of euthanasia is between voluntary euthanasia and non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non-voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in case of the former, the latter poses several problems. The present case dealt with passive non-voluntray euthanasia.

RIGHT TO DIE

In the case of State of Maharashtra v. Maruty Shripati Dubal,[i] the contention was that Section 309 of the Indian Penal Code was unconstitutional as it is violative of Article 19 and 21. It was held in this case by the Bombay high court that ‘right to life’ also includes ‘right to die’ and section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon and abnormal. In the case of P.Rathinam v. Union of India,[ii] 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. In the case of Gian Kaur v. State of Punjab,[iii]the validity of Section 306 of the IPC was in question, which penalised the abetment of suicide. This case overruled P.Rathinam  but the court opined that in the context of a terminally ill patient or one in the PVS, the right to die is not termination of life prematurely but rather accelerating the process of death which has already commenced.[iv] Further, it was also submitted that the right to live with human dignity[v] must also include a death with dignity and not one of subsisting mental and physical agony.

Reliance was placed on the landmark judgement of Airedale NHS Trust v. Bland,[vi] where for the first time in the English history, the right to die was allowed through the withdrawal of life support systems including food and water. This case placed the authority to decide whether a case is fit or not for euthanasia in the hands of the Court. Also, in the case of Mckay v. Bergsted,[vii] the Supreme Court of Navada, after due evaluation of the state interest and the patient’s interest, upheld the permission for the removal of respirator. However, in the instant case, Aruna could breathe by herself and did not need any external assistance to breath and thus, distinguished from the Mckay case.

MEDICAL ETHICS

The Supreme Court dealt with the aspect of informed consent and right to the bodily integrity of the patient as followed by the US after the Nancy Cruzan case[viii]. Informed Consent is the kind of consent wherein the patient is fully aware of all the future courses of his treatment, his chances of recovery, and all the side effects of all of these alternative courses of treatment. If a person is in a position to give a completely informed consent and he is still not asked, the physician can be booked for assault, battery, or even culpable homicide. The concept of informed consent comes into question only when the patient is able to understand the consequences of her treatment or has earlier when in sound conditions made a declaration.

In this case, the consent of Aruna could not be obtained and thus, the question as to who should decide on her behalf became more prominent. This was decided by beneficence. Beneficence is acting in the  patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. Public interest and the interests of the state were also considered. The mere legalisation of euthanasia could lead to a wide spread misuse of the provision and thus, the court looked at various jurisprudences to evolve with the safeguards.

GLOBAL APPROACH

The general legal position all over the world was that while active euthanasia is illegal unless there is legislation permitting it; passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained. Certain countries had passed legislations to allow for active euthanasia or doctor assisted suicide. In the former, the physician or someone else administers it, while in the latter the patient himself does so, though on the advice of the doctor.

Netherlands:

  • Euthanasia in the Netherlands is regulated by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act ,2002.
  • It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life.

Switzerland:

  • Article 115 of the Swiss Penal Code considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs.
  • The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia.

USA:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. Further, Washington and Montana also have similar legislations in place. Countries like Belgium, Canada have also joined the move. On the other hand, countries such as Spain, UK, do not express their solidarity towards euthanasia.

JUDGEMENT

The Hon’ble Division Bench of the Supreme Court of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on March 7, 2011. The Court opined that based on the doctors’ report and the definition of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. She could breathe without a support machine, had feelings and produced necessary stimulus. Though she is in a PVS, her condition was been stable. So, terminating her life was unjustified.

Further, the right to take decision on her behalf vested with the management and staff of KEM Hospital and not Pinki Virani. The life saving technique  was the mashed food, because of which she was surviving. The removal of life saving technique in this case would have meant not feeding her. The Indian law in no way advocated not giving food to a person. Removal of ventilators and  discontinuation of food could not be equated. Allowing of euthanasia to Aruna would mean reversing the efforts taken by the nurses of KEM Hospital over the years.

Moreover, in furtherance of the parens patriae principle, the Court to prevent any misuse in the  vested the power to determine the termination of life of person in the High Court. Thus, the Supreme Court allowed passive euthanasia in certain conditions, subject to the approval by the High Court following the due procedure. When an application for passive euthanasia is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not fit for the same. If at any time in the future, the staff of KEM hospital or the management felt a need for the same, they could approach the High Court under the procedure prescribed.

This case clarified the issues revolving around euthanasia and also laid down guidelines with regard to massive euthanasia. Alongside, the court also made a recommendation to repeal Section 309 of the Indian Penal Code. This case is a landmark case as it prescribed the procedure to be followed in an area that has not been legislated upon.

Edited by Kudrat Agrawal

[i] 1987 (1) Bom CR.

[ii] 1994 SCC (3) 394.

[iii] (1996) 2 SCC 648.

[iv] Supra Note 3,¶ 25.

[v] Vikram Deo Singh Tomar v. State of Bihar,1988 (Supp) SCC 734.

[vi] MHD (1993) 2 WLR 316.

[vii] 801 P.2d 617 (Nev. 1990).

[viii] Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841.

[ix] Supra note 2.

[x] Supra note 3.

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