LEGAL IMMUNITY TO PHYSICIANS: AN ANALYTICAL STUDY ON THE FUNDAMENTAL RIGHT OF THE PATIENT IN PHYSICIAN ASSISTED SUICIDE
Manusri S.R.N, BBA; LLB second year, School of Law, SASTRA University, Thanjavur. Email: ralabama2310@gmail.com
Abinaya Sankaran, BBA; LLB second year, School of Law, SASTRA University, Thanjavur. Email: abinayaakshu0718@gmail.com
ABSTRACT:
In India, Physician-Assisted Suicide (PAS) is illegal and the physician will be punished under Section 306 of IPC as there is no fundamental right to die. Even though there is no right to die, it is still a debatable subject and the right to die with dignity avails as a fundamental right to all citizens. The authors, despite the fact of not allowing the practice of PAS in India, elucidates the need for permitting the terminally- ill patients to undertake the right enshrined under art. 21 of the Constitution. Corresponding to the Indian Penal Code, the authors prove that the act of the physician does not fall under the category of abetment to suicide (S.306) as the intention and consent of the victims play a major rule.
A clear analogy has also been made with other practices guarding their elemental rights being practiced in India to have an ethical approach towards the legalization of PAS. Apart from drawing divergent from the other practices, the legality of PAS in other countries is also justified to make progress towards legalizing PAS in India.
The positive views of medical practitioners and common people in opting for PAS further substantiate that it can be practiced safely in India providing certain restrictions and guidelines to the Physicians and patients culling it.
KEYWORDS – Physician-Assisted Suicide – Die with dignity – Abetment – legalized practices in India – Guidelines.
INTRODUCTION:
Medicine is a gift to humankind and its field has reached significant achievements in protracting the lives of human beings. It extends to those people who have a chance to recover from illness or accident but for the people who are terminally ill, it does not lessen the suffering or pain that a patient goes through. But what the medical expertise does for a dying patient is gives them more pain, agony, suffering day after day. (The Right to assisted suicide, Lone Star College, Jun 28, 2020, 3.30 PM),https://www.lonestar.edu/rightto-assist-suicide.htm,) In such a scenario, the patients in those stages approach doctors to get some lethal drugs to end their life through suicide with the assistance of the physician.
"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality."(Aruna Shenbaug v. Union of India, (2011) 4 SCC 454)
“Physician-assisted suicide involves a physician prescribing life-ending medication to a patient, who then self-administers that medication.” (Bryan A. Garner, Black’s Law Dictionary, (10th ed. 2014)) It is an illegal practice in India.
Despite PAS being a controversial subject, this paper emphasizes the reasons for considering it as a legal act in India as “death with dignity” is a part of “meaningful existence” under Article 21 of the Indian constitution. On the other hand, some people fear that there may be potential abuse of PAS if it is legalized. For this issue, the legalization of PAS should be incorporated with some restrictions, guidelines, and proper checks on the system.
Restrictions can be of such that PAS can be advised to the patients who are suffering from prolonged physical illness because amongst 1.84 million people, 21% committed suicide because of terminal illness between 2001 and 2015 has been noted from the annual reports of NCRB (National Crime Records Bureau,https://ncrb.gov.in/.).
This paper will also brief about the actuality of PAS, why the physicians will not fall as an offender under the abetment to suicide, and the ethical approach as to why PAS can be a legal act.
To consider the legal status of PAS it is necessary to understand the process of dying, how it is different from the other illegal activities of dying in India.
PAS IS DIFFERENT FROM EUTHANASIA:
Physician-assisted suicides are often confused with euthanasia. The term Euthanasia is defined by J. Lodha, in Naresh Marotrao Sakhre v. Union of India, (Naresh Marotrao Sakhre v. Union of India, 1996 (1) BomCR 92.) as “Euthanasia or mercy killing means & implies the intervention of other human agency to end the life.”
Euthanasia is illegal in India when the excessive dose is given by the doctors (other human agencies) to kill the patient and he can be punished by the I.P.C. for committing murder (I.P.C. Sec.302.) or culpable homicide not amounting to murder (I.P.C. Sec.304.) but physician-assisted suicide does not cross this line. The ultimate end may be the same but it differs based on the involvement and the manner it is being carried out. It involves making lethal means of access to the patient at his own choice.
The foremost ingredient of PAS is that it should be the patient who takes the medicine to die and any member of the family or friends or doctors should not influence it. Euthanasia can be differentiated as the death of the person is due to an act of the third party. On the contrary, PAS deals with the death of the patient - taking place by their action of swallowing overdosed drugs or by pushing a fatal injection in the assistance of the doctor.
It is totally about the self-administration of drugs that provides the opportunity for the patient to change his or her mind up to the last moment. In euthanasia, the drugs are administered by the doctors and there are fewer difficulties when compared to the former in revoking the acceptance.
Therefore, they are the species of the same genre but they are conceptually different, and in many countries, both the theories are dealt with distinctly.
LEGAL STATUS OF PAS IN OTHER COUNTRIES
Presently, the PAS or assisted death is legal in countries like Switzerland, Netherlands, Canada, Luxemburg, Belgium, and a few states in the United States.
Switzerland:
As soon as suicide was decriminalized in Switzerland, assisted suicide is not considered a crime. However, a person assisting suicide for his selfish motives is penalized under Article 115 of the Swiss Federal Criminal Code. The patient who exercises his choice of having prolonged illness must be an adult and must be fully competent to know the nature of his act. This is the only country that allows PAS even to other foreign citizens.
Netherlands:
Although the practice of assisted suicide in terminally ill patients dated back to the 1970s, it was legalized only in the year 2001. Because of long debates, the "Law for Termination of Life on Request and Assisted Suicide" was passed to codify assisted suicide in the country. They follow the Dutch law and the minors between the ages of 12 to 16 can request suicide as long as they have their parental consent. The physicians have certain criteria to follow while assisting the patient for suicide.
Belgium:
The country legalized Euthanasia and Assisted Suicide by the Belgian Act on Euthanasia in the year 2002. Unlike the Netherlands, Belgium allows assisted suicide even to persons who are not terminally ill with a one-month waiting period if there is any change in their decision.
Canada:
Suicide was decriminalized in 1972 but the provisions related to assisted suicide remained in the Code. Later in the landmark case of Carter v. Canada, (Carter v. Canada, SCC 5 (2015) (Supreme Court of Canada) the Court unanimously held that the doctors have a right to help the patient to die. The patient must be a Canadian citizen of above 18 years who is mentally competent and must have intolerable suffering to undergo PAS.
Luxemburg:
The country passed a bill in the Parliament, which legalized voluntary euthanasia, and assisted suicide in 2008 and the law came into effect in 2009. The physicians and doctors gain legal immunity for performing assisted suicide if a patient is in an incurable condition, has no prospect of improvement, and has asked repeated consideration for the procedure.
The United States:
· California: End of Life Option Act was passed in 2015. The patient must make two oral (15 days apart) and written consent to the physician.
· Colorado: End of Life Option Act was passed in 2016. The patient must make two oral (15 days apart) and written consent to the physician.
· DC: Death with Dignity Act came into effect from 2016. The patient must make two oral (15 days apart) and written consent to the physician.
· Hawaii: Hawai'i Our Care, Our Choice Act was passed in the year 2018. The patient must make two oral (20 days apart) and written consent to the physician.
· New Jersey: Aid in Dying for the Terminally Ill Act came into force from 2019. The patient must make two oral (15 days apart) and written consent to the physician.
· Oregon: Oregon was the first state to legalize assisted suicide by the Death with Dignity Act, 1997. The patient must make two oral and written consent to the physician.
· Vermont: End of Life Choices Act was introduced in 2013. The patient must make two oral (15 days apart) and written consent to the physician.
· Washington: Following Oregon, Death with Dignity Act was adopted in 2008. The patient must make two oral (15 days apart) and written consent to the physician.
In all the above- mentioned States, the patient deciding to choose PAS must be above 18 years of age and should be a resident of the respective states. The patient must be capable of giving his repeated consent to the physician and he should be capable of administering the aid-in-dying drugs. The Physician must be a licensed person in the same state and must confirm the patient's terminal illness with a diagnosis that he might live only for 6 months or less than that. Physicians have to inform the patient about various methods and alternative usage of drugs through his prescription.
Montana is the only state in the U.S. to approve PAS de facto legal in 2009 in the case of Baxter v. Montana. (Baxter v. Montana, MT 449(2009) (Supreme Court of Montana).) The question involved was whether the State's Constitution allows termination of ill patients' life by a doctor's lethal prescription to die. The Supreme Court ruled in the favor of Baxter and held that there was no provision indicating any measure in aiding the patient to die is against public policy. Thus, the State legalized PAS as a way of practice from 2010 onwards.
LEGAL STATUS OF PAS IN INDIA:
Indian lawmakers did not practice and legalize the concept of Active Euthanasia and Physician-Assisted Suicide (PAS). One of the common reasons why PAS harms society is the failure of the patient’s will power to fight the disease. The patients might adopt this as a means to put an end to the hardships in their life and most people consider the act of killing and being killed out of mercy infringes their religious beliefs.
In India, abetting a person to commit suicide is considered as an offense punishable under section 306 of I.P.C. The Indian Constitution believes that a Physician providing a prescription to the patient’s request is treated as an abetment to suicide (sec.306 of IPC).
There are a plethora of cases turned down by several courts on the ground that the right to choose one’s death cannot be constitutionally guaranteed under Article 21. Moreover, the Indian Constitution protects “Right to life” and avoids the concept of Self- Destruction. Adopting the doctrine of Parens Patriae, the legislation acts as a guardian and protects the life of the citizen. The Indian Constitution and Indian Penal Code are codified general laws applicable to all people. Any violation in the provisions of the acts is considered an offense and punished accordingly.
Hence, PAS to date has no legislative competence to be recognized as a practice in India for the above- mentioned reasons and there is no legal stand to support the same.
ACTUALITY OF PAS
Although PAS is illegal in India for various grounds, they can be rebutted for the reasons stating:
· PAS is not an unnecessary one to get legalized: All pain and distress at the very end of life cannot be treated with medications. Some diseases cannot be cured, it can only be treated, in such scenarios the patients have to live with the pain. (Lauren Weiler, Schizophrenia and 9 Other Diseases That Are Incurable, Showbiz Cheat Sheet, (Jun 28, 2020, 3.40 PM), https://www.cheatsheet.com/health-fitness/diseases-that-have-no-cure.html/.) During their worst stages of life, they are dependent on others, which may affect the patient’s psychology and they might feel even more depressed. When a person ends his life through PAS due to his inability of living, he need not compromise his relationship with his family and others.
· PAS is not dangerous: The non – supporters say that the execution of PAS is dangerous as the patient carries the act of PAS, but the doctor through his assistance reduces the dangerous part. The lethal drugs are assisted by the doctors who are well versed in the field of medicine with the utmost care and good faith to reduce the imminent danger. When compared to suicide, PAS is not that dangerous, so PAS could function as an effective form of suicide prevention.
· It does not make any person weak or vulnerable: The decision to carry out PAS is sole with the person who commits, it cannot be decided by anyone or no one can be forced and the drive for pursuing it is most often a concern about living with a disability. PAS is for those who are sick, disabled, and is not about dying with ability.
· No Betrayal of human dignity: Every Indian citizen has the right to live with dignity as a fundamental right (The Constitution of India, art. 21). Through pain or suffering, or loneliness they lose their right to live with dignity. PAS addresses the dying due to suffering and helps such people to die with human dignity. The constitution provides equality before the law, (The Constitution of India, art.14.) on that note the patient's right not to suffer will be safeguarded by practicing PAS.
There may be many other reasons given by the people who are against PAS but the challenge is to consider the reasonable ones, before bringing the concept of legalization of PAS. Other such reasons should mostly include the view of the doctors or the physician as the most important relationship is the doctor-patient one.
MEDICAL PRACTITIONER'S VIEW:
There always exists a controversial debate for the legalization of Active Euthanasia and Physician-Assisted Suicide and however, the physicians are more likely to encourage PAS when compared to Euthanasia.
Surveys conducted by the Central Institute of Psychiatry at Ranchi revealed that more than 55% of the psychiatrists supported the legalization of PAS. A similar sample survey by the Society for the Right to Die with Dignity at Bombay notified that 78% of the doctors viewed that people should have their right to choose in case of a terminal illness (Vinod K. Sinha, S. Basu and S. Sarkhel, Euthanasia: An Indian Perspective,54(2) Indian Journal of Psychiatry 177, 183 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3440914/).
Quite some physicians do not opt PAS since they feel that by assisting a patient in suicide is against the moral of Hippocratic Oath (Ronald W.Pies, How does assisting with suicide affects physicians?, the Conversation, (Jun 28, 2020 3.50PM) https://theconversation.com/how-does-assisting-with-suicide-affect-physicians-87570.). However, most of the physicians feel that the Hippocratic Oath was originated around 4th C.E. and this must be adjustable depending on the developmental change in the society.
The Doctors emphasize that the patient suffering from any disease is more painful and it affects both the mentality of the patient as well as the fellow beings. Allowing the patient to choose to end his life is a good medicine rather to have prolonged suffering; therefore, PAS does not promote false ideas about prognosis. In addition to that, if a person autonomously wishes to die himself instead of bearing the pain, and any delay in access to the treatment will stir the patient's emotions and adds up to his tortures, the least possible thing that a doctor could do is to help him in alike situation (Physician Assisted Suicide, American Medical Association, (Jun 28, 2020, 3.50 PM), https://www.ama-assn.org/delivering-care/ethics/physician-assisted-suicide).
By honoring the patient's decision, the patient-physician relationship grows up. The physicians can actively help to make a patient's last days free from pain and anxiety (Karen Porterand Katharine G Warburton,Physicians' views on current legislation around euthanasia and assisted suicide: Results of surveys commissioned by the Royal College of Physicians,5(1) Future Healthcare Journal 30,34 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6510045/.).
There is neither an operative involvement nor an emotional barrier to the physicians since they are not the agents who cause death to the patient. Thus instead of making the patient endure the pain and dying out of it, accelerating his death upon his interest would save him from further hurt and also reduces the bitterness amongst the victim's friends and family.
PEOPLE’S OPINION:
Physician-assisted suicide is largely supported by the public and also by many voluntary organizations similar to" death with dignity" foundation (Sinha, Vinod & Basu, S & Sarkhel, Sujit, Euthanasia: An Indian perspective. Indian journal of psychiatry, 54, Indian Journal of Psychiatry 177, 182 (2012), http://www.indianjpsychiatry.org/article.asp?issn=00195545;year=2012;volume=54;issue=2;spage=177;epage=183;aulast=Sinha). Any modification in the law concerning PAS is preferred for terminally ill, mentally competent adults.
“If there is a right to life, there should be a right to die. We have lived our life satisfactorily” says a couple in Mumbai. They wrote a petition to the President of India seeking authorization for active euthanasia or assisted suicide on December 21, 2018 (Mumbai couple seeks President Ram Nath Kovind's nod for assisted suicide, The Indian Express, Jan 10, 2018, https://indianexpress.com/article/india/assisted-suicide-couple-seeks-presidents-nod-5018311/).
However, the Supreme Court held in the case, Gian Kaur v. State of Punjabthat “the right to life guaranteed by Article 21 of the constitution does not include the right to die.” But the public is also of the view that they have the right to live with dignity guaranteed under Article 21. Adding to that in Common Cause v. UOI, (Gian Kaur v. State of Punjab,(1996)2 SCC 648) declared that “death with dignity” is a part of “meaningful existence”.
It can be argued that the Indian legislature does not give the impression that, they are sensitive to these, where the fundamental right of an individual are at an issue. Therefore, to address the views of the people and to consider the legal status of PAS, it can be differentiated from abetment to suicide.
DISTINGUISHING PAS FROM ABETMENT TO SUICIDE:
PAS is a crime under the Abetment to suicide - section 306 which is read with section 107 of I.P.C. (Abetment of a thing).
The very word "Abet" means to aid another person in the commission of an act. In I.P.C,
abetment of a thing is constituted by
• Instigating a person to commit an offense; or
• Engaging in a conspiracy to commit it; or
• Intentionally aiding a person to commit it (I.P.C. Sec. 107)
Abetment of suicide—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine (I.P.C. Sec.306).
Concerning these two sections with the definition of PAS, the physicians, doctors, or even his relatives and friends do not instigate the patient to commit suicide. The patient opts for PAS only under the full control of his mind (compos mentis) and knows the nature of the act.
Secondly, the doctors do not engage with the person in committing suicide. Unlike Euthanasia, there is no active involvement or direct contact of the physician to the patient who is undergoing such high dosages drugs.
In the case of intentionally aiding, the doctors do not have the intention to kill their patients by doing an act of assisting. The patients are the persons who are in the intention to murder themselves by the act of suicide.
Moreover, the act of the physician must involve mens rea (guilty mind) for the commission of an illegal act. Mere advice or suggestion to the patient will not be deliberated as an abetment. The physician cannot be interpreted as an abettor, since, the physician aids a patient in committing suicide by giving prescription only to the patient who wilfully agrees and seeks the physician's help to undertake the act. Here, there is no guilty mind on part of the physician. So punishing a physician for an act in which he does not possess a guilty mind is unreasonable. All the more, the practitioners are not charged guilty for practicing similar medical forms that are legal in India.
LEGALIZED PRACTICES IN PAR WITH PAS:
· PASSIVE EUTHANASIA:
In India, passive euthanasia is legalized in the landmark cases of Aruna Shenbaug (Supra 2) and Common Causes (Supra 19), allowing a patient the fundamental right to die with dignity. Along with the legalization, certain guidelines were prescribed by the Supreme Court in Aruna Shanbaug's case. Passive euthanasia was differentiated from active euthanasia as “letting to die” is different from “killing”. A similar distinction can also be drawn for the consideration of legalizing PAS that the doctors are not killing their patients, but they are merely letting their patients die.
One of the vital preconditions in Medical ethics for aiding a patient is the consent given by him. Such consent must be voluntary and under free will. The consent distinguishes a physician from committing a medical crime.
In the case of Aruna Shenbaug, the victim was unable to give consent yet allowed for passive euthanasia. On the other hand, in PAS, only with the patient's consent, the physician is obliged to provide legal medication. Performing an act in the absence of consent (Passive Euthanasia) is made legal in India. Whereas the consent of the patient to end his life from further sufferings (PAS) is considered illegal and the physician is punished for abetting suicide under section 306 of I.P.C.
· WITHHOLDING AND WITHDRAWAL OF LIFE-SUSTAINING TREATMENT (WWLST): is
Life-sustaining treatment is helping someone to stay healthy and alive with any treatment. When such treatment is withdrawn or withheld, the patient will most likely experience death. The decision to withhold or withdraw life supports are guided by the principle of autonomy (Linda L. Emanuel and Lawrence Librach, Palliative Care: Core Skills and Clinical Competencies, 318 (2nd ed., 2011).). The decision solely relies on the patient's response to such treatment and the burden undergone by him.
The Supreme Court has also made a distinction that Euthanasia is different from Withholding and withdrawing life-sustaining treatment and that ‘withdrawal of life support’ is permissible in respect of a patient in a persistent vegetative state as it is no longer beneficial to the patient that ‘artificial measures’ be started or continued merely for ‘continuance of life’ (Supra18). The "Treatment of Terminally Ill Patients Bill, 2016" (Treatment of Terminally Ill Patients Bill, 2016 (pending)) also allow patients to decide to withhold medical treatment.
The main composition of crime involves both knowledge and intention. Mere knowledge of an action does not make a person guilty. The practitioner so performing this act (WWLST) to end the patient’s life for his benefit without the intention to kill him is being protected under the general defenses of I.P.C. Whereas in PAS the physician also does not have an intention to kill and merely shares his knowledge to the patient through his prescription but is held punishable under the Code.
A withdrawal or withholding process is made, after completing a life support limitation form duly signed by the patient's family and the treating team (R. K. Mani, J. V. Divatia, Guidelines for end-of-life and palliative care in Indian intensive care units: ISCCM consensus Ethical Position Statement, 16(3), Indian J Crit Care Med, 166–181, (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3506078/#:~:text=A%20withdrawal%20or%20withholding%20decision,emotional%20needs%20of%20the%20family). On the same foot, PAS can also be considered to have legal status in India.
· ABORTION:
Abortion is defined as “the expulsion of the fetus at a period of utero- gestation so early that it has not acquired the power of sustaining an independent life.” (Henry C. Black, Black's Law Dictionary, 20 (4th ed., 1968)). The termination of pregnancy is done by various means, including medical surgery. In many cases, doctors conduct the act of abortion where the life of the fetus is put to an end.
The law of abortion is legal and governed in India by the Medical Termination of Pregnancy (MTP) Act. It allows women to seek abortions as part of reproductive rights and gender justice.
In the instance of abortion, consent and good faith play a prominent role in categorizing the legality of the act. The consent can be sought from the woman, parents, or her family members. When both, consent from the mother and good faith of the practitioner has complied, then the practitioner gains legal immunity under the I.P.C. and the MTP Act. Drawing analogous to the PAS, the patient with a competent mind gives his unprejudiced consent to the physician and the physician acts in good faith to fulfill the patient's wish to unfasten him from further suffering. The medical practitioners by performing abortion infringe either the woman's right to privacy or the fetus' right to life yet protected under the MTP Act. Similarly, the physician in PAS is merely assisting the patient to guarantee his right to die with dignity, which falls within the gamut of Article 21.
When the medical practitioners are allowed to perform the act of abortion under the rules prescribed by the MTP act, why can't a person be guarded in supporting to accomplish one's fundamental right (PAS) through certain guidelines?
Thus by considering the above justifications and by drawing an analogy to these, PAS shall also be legalized in India even in the absence of any unprecedented law along with restrictions and guidelines.
CONCLUSION:
The moral values on Physician-Assisted Suicide focus mainly on emphasizing the good motive on the part of the physician by eliminating the patient's sufferings according to his will because the proposal for committing PAS can be initiated only with the victims' consent who is neither insane nor minor.
Allowing a patient to die from illness does not lead to the expansion in any vulnerable group. Pain is considered as a compelling factor that leads a patient to choose PAS and Euthanasia. Normally, the person chooses PAS only due to the sufferings and deterioration caused to him resulting from medical pain and agony. The person has reached a stage where he cannot bear or tolerate such intense pain. Prolonging the life of such a patient is cruel and it is inhumane to refuse the plea from such person.
“A patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death.” (Washington v. Glucksberg, 52, US 702 (1997))
Rather it helps in protecting his fundamental right to die with dignity as embodied under article 21. Further, “normalization” of the practice of physicians ending life will contribute to a conscious or unconscious feeling of redundancy or inferiority among elderly people, people with chronic diseases, or people with physical disabilities, who will, as a result, more easily ask for physician assistance in dying (James L. Bernat, H. Richard Beresford, Ethical and Legal issues in Neurology, 184 (vol. 118, 2013)).
Thus, anew convention can be addressed in legalizing PAS by providing certain norms and guidelines and can facilitate obligatory consultation about certainty in patient's due sufferings. Using this approach as an ethical frame, it can be concluded that PAS can be safely practiced in the society with stringent restrictions that it will not be exploited and PAS shall not be treated as an illegal act under Section 306 of I.P.C.