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 Table of Contents  
REVIEW ARTICLE
Year : 2021  |  Volume : 7  |  Issue : 1  |  Page : 3-9

Advance directives for euthanasia in India: Role of psychiatrist


Department of Psychiatry, Malla Reddy Institute of Medical Sciences, Hyderabad, Telangana, India

Date of Submission29-Apr-2021
Date of Decision10-May-2021
Date of Acceptance13-May-2021
Date of Web Publication18-Jul-2021

Correspondence Address:
Dr. Bhogaraju Anand
Department of Psychiatry, Malla Reddy Institute of Medical Sciences, Suraram, Hyderabad - 500 055, Telangana
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/tjp.tjp_19_21

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  Abstract 


This review article starts by defining Good death, Euthanasia, and Advance Directives (ADs). Most of the religions in India do not support self-annihilation although exceptions are made in cases of “Samadhi” by saints. Indian law permits the donation of organs in brain dead patients, while Euthanasia is viewed as a criminal act. The case of Aruna Shanbaug and a plea for Euthanasia resulted in the Honorable Apex court of India permitting passive euthanasia and also issued ADs. It is now for the parliament to debate and enact. The role of a psychiatrist at present appears limited in the context of Euthanasia and Advanced Directives, but in future, importance might increase with psychiatric comorbidities being higher in incurable conditions and suffering. Literature from foreign countries shows that patients with mental illness have also undergone Euthanasia which is of grave concern.

Keywords: Advance directives, Euthanasia, psychiatrist's role, Supreme Court of India


How to cite this article:
Anand B. Advance directives for euthanasia in India: Role of psychiatrist. Telangana J Psychiatry 2021;7:3-9

How to cite this URL:
Anand B. Advance directives for euthanasia in India: Role of psychiatrist. Telangana J Psychiatry [serial online] 2021 [cited 2021 Oct 23];7:3-9. Available from: http://www.:tjpipstsb.org/text.asp?2021/7/1/3/321767




  Some Concepts and Definitions Top


Principles of “good death”

According to the principles of good death laid down by Smith,[1] the dying person should be able:

  1. To know that death is near, to understand what happens at this time
  2. Have control of pain and other symptoms
  3. Maintain dignity and privacy
  4. To decide the desired place of death
  5. To access specialist care and emotional/spiritual support
  6. To get admitted to hospice services
  7. To say farewell near and dear
  8. To have a choice of making advance directives (ADs) so that the patient's wishes are followed
  9. Choice of not having unnecessary prolonging of life.


Euthanasia

Euthanasia is the intentional premature termination of a person's life either by active euthanasia that is a direct intervention or by passive euthanasia by withholding life-prolonging measures and resources. This could be either at the express or implied request of that person called voluntary euthanasia or in the absence of such approval/consent called nonvoluntary euthanasia.

An AD or living will (LW) “is a document prepared by a person to instruct doctors and caregivers on what must be done and not done if and when that person is no longer able to make decisions on their health on account of illness or incapacity.”[2] Such a document is important because a person's life may reach a point at which attempts to prolong it are futile and may only compromise the dignity and quality of life.[3] An AD is not to be confused with a normal “will,” which becomes operational after the death of an individual. An AD becomes operational when the individual is still alive, albeit incapacitated, and is, therefore, also known as the “LW.”


  Indian Culture on Voluntary Method of Dying Top


In the epic Mahabharata under the MahaprasthanaParva, Pandavas along with Draupadi chose the abode of the Himalayas for their final exit. In Indian mythology, a boon of “ichhamruhtyu” (voluntarily choosing death) was sought and they could choose the time and place of their death. Saints took “Samadhi,” inviting death by voluntarily withholding food and water or burying themselves alive and is a respected method of dying that is never equated with suicide. The mainstream Hinduism however does not support the concept of euthanasia. Dharmasutras prohibited suicide. Islam forbids human interference in the wish of God and ending the life of a terminally ill person, by active euthanasia or physician-assisted suicide, is considered to be an act of disobedience against God. Christians do not believe in euthanasia as it is contrary to the death and resurrection of Jesus Christ. According to the Jain community, “the vow of Santhara/Sallekhana is taken when all purposes of life have been served, or when the body is unable to serve any purpose of life. It is not the giving up of life, but taking death in its stride.” Buddhism expresses that the intentional precipitation of death is ethically inadmissible in every condition one is presented in.[4],[5],[6],[7]

Thus, it can be seen that religious beliefs have a deep impact on the legislation about euthanasia.


  Medical Council of India and World Medical Association Stand Top


The Medical Council of India, in a meeting of its ethics committee in February 2008 concerning euthanasia, opined that practicing euthanasia amounts to unethical conduct.[8]

The resolution on euthanasia adopted by the World Medical Association affirms that a physician should abstain from participating in the practice of euthanasia as this is unethical for a medical professional.[9]


  Indian Penal Code and Constitution of India Position Top


In India, euthanasia is a crime. The Indian Penal Code (IPC) Section 309[10] deals with the attempt to commit suicide and Section 306 with the abetment of suicide and both actions are punishable. Only those who are brain dead can be taken off life support with the help of family members. Similarly, the Honorable Supreme Court of India is also of the view that the right to life is guaranteed under Article 21 of the constitution of India, but it does not include the right to die. Article 21 of the Indian Constitution states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”[5]

Changes in status on suicides and Euthanasia

Indian Constitution and the IPC consider both suicide and euthanasia as acts of crime. The constitution does not include a right to die; rather it highlights the right to life and liberty. IPC, Section 306 addresses the abetment of suicide. As there is no law on euthanasia, all such acts of passive euthanasia or such suggestions to the subjects would fall under this section. It needs a mention here however remote the information about the topic being discussed that the Supreme Court of India proposed to Parliament to consider the possibility of removing Section 309 from the IPC (12, page: 22). IPC Section 309 now reads: “any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.” Mental Health Care Act (7 April 2017) was successful in decriminalizing suicides.[11]


  Honorable Court'S Deliberations and Rulings Top


The supreme court of India, ruling on March 9, 2018

Writ: Under Article 32 of the Constitution of India by the petitioner, a registered society, seeks to declare – “right to die with dignity” as a fundamental right within the fold of – “right to live with dignity” guaranteed under Article 21 of the Constitution.[12]

Counter affidavit

  1. Hippocratic oath is against intentional/voluntary killings of patients
  2. Progression of medical science to relieve pain, suffering, rehabilitation, and treatment of so-called diseases will suffer a setback
  3. A person's wish to die at a certain point of time may be a fleeting desire out of a transient depression state or illness which can be addressed to the medical fraternity for treatment
  4. Suffering is a state of mind and a perception
  5. Difficult to quantify suffering
  6. Can doctors say that the disease is incurable and the patient is permanently invalid?


Case of Aruna Shanbaug

A sweeper of the hospital wrapped a chain around the neck of Ms. Aruna Ramachandra Shanbaug,[13],[14] a nurse working in a hospital in Mumbai, and sexually assaulted her. She was found unconscious the next morning and had suffered an irreversible brain damage. From November 11, 1973, onward, she was in a Persistent Vegetative State. She was cared for well by the hospital staff throughout her stay. After 36 years of her being in a persistent vegetative state, in 2009, Ms. Pinky Virani, a human rights activist, petitioned to the Supreme Court that her artificial feeding be stopped so that she may die in dignity. On March 7, 2011, Court though rejected the plea of Ms. Pinky Virani, initiated a discussion on euthanasia and related case laws of other countries. On March 7, 2011,[15] a judgment was delivered by the Honorable Apex court not to permit passive euthanasia in the case of Aruna Shanbaug because she was not deemed to be brain dead and came out against active euthanasia. However, it gave a direction, that if at any time in future, the staff or management of the hospital felt a need for Passive Euthanasia, they could approach the High Court and prescribed the procedure. On May 18, 2015, after 42 years in a persistent vegetative state, Ms. Aruna Shanbaug breathed her last, more than 4 years after the plea of euthanasia was rejected by the Supreme Court of India. She died a natural death. However, this case was a stimulus in issuing a landmark judgment on passive euthanasia.


  Supreme Court Verdicts Top


Court judgments opposing verdicts

The Supreme Court judged that “right to life” does not include “right to die.”[12] “Extinction of Life” is not included in “Protection of Life.” Dying a natural death with dignity at the end of life must not be confused or equated with the “right to die an unnatural death curtailing the natural span of lifeS230;”

Court judgments supporting verdicts

In 1994,[12],[16] the Honourable Supreme Court of India, in P. Rathinam v. Union of India case quoted and approved the view taken by the Bombay High Court (year, 1987) in MarutiShripatiDubal case,[17] where it was stated that the right to live includes the trail of right not to live a forceful life. On March 7, 2011, the court decided not to permit passive euthanasia in the case of Aruna Shanbaug as the patient was not brain dead but gave a chance for the hospital if they wanted to approach in future and laid down procedure. The order clearly came out against active euthanasia.

The Honorable Apex court ruled that it is the Court alone, as “parenspatriae” (in the role of Father of the subject), which ultimately must make this decision in all such cases of euthanasia. It also ruled that High Courts have the right to permit passive euthanasia before the passing of a law by Parliament. On March 9, 2018,[12] the honorable Supreme Court of India (a five-judge Constitution bench) gave a ruling which had ruled that the right to life includes the right to die and legalized passive euthanasia by allowing the creation of a “LW” which is also called as Advanced Directive. This could provide terminally ill patients or those in a persistent vegetative state, with no hope of recovery can be given a dignified exit by refusing medical treatment or a life support system.


  Private Euthanasia (Regulation) Bills Top


The Euthanasia (Regulation) Bill, 2002, on February 21, 2003,[18] was introduced by Shri Uttam Rao Dhikale, a Member of Parliament before the Lok Sabha. The request to introduce this bill was made “to provide compassionate termination of the life of persons completely and permanently invalid or bed-ridden by an incurable disease.” Later, The Euthanasia (Regulation) Bill, 2019 (Bill No: 136 of 2019) was introduced in Parliament by Shri BhartruhariMehtab, Member of Parliament, “to regulate termination of life of persons who are in a permanent vegetative state or terminally ill and facing unbearable suffering and for matters connected therewith or incidental thereto.”[19] However, the fate of the bills is not clear to me for lack of reliable information at this point.


  Law Commission of India Reports and Bill on Passive Euthanasia in Lok Sabha Top


Law Commission of India on March 2006 produced a report (196th report)[20] on Medical Treatment of Terminally Ill Patients Bill (for protection of patients and medical practitioners). Based on this report, the Ministry of Health and Family Welfare decided not to produce any bill at all. Law Commission in August 2012 issued a report, 241[21] known as the Medical Treatment of Terminally Ill Patients Bill (for protection of patients and medical practitioners) which describes passive euthanasia and LW. Then, the Ministry Of Health and Family Welfare published the draft bill in May 2016 to solicit comments from the public so that decisions about the bill would be informed.[22]

Honorable Supreme Court of India: Directives and procedure for execution of AD and guidelines to give effect to passive euthanasia: (12, pages 169–186).

The honorable apex court directions on advance directive or living will

This is a document prepared by a person to instruct doctors and caregivers on what must be done and not done if and when that person is no longer able to make decisions on their health on account of illness or incapacity. A person's life may reach a point at which attempts to prolong it are futile and may only compromise the dignity and quality of life. Normal “will,” which becomes operational after the death of an individual. AD becomes operational when the individual is still alive, incapacitated, also known as the “LW.”

Who can execute the advance directive and how? (12, pages 169–186)

An adult of sound and healthy state of mind and in a position to communicate, relate, and comprehend the purpose and consequences of executing the document. That person should voluntarily execute with full knowledge or information, without any undue influence or constraint. It should 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.

What should it contain? (12, pages 169–186)

Circumstances of withholding or withdrawal of medical treatment. Instructions are absolutely clear and unambiguous. They may revoke the instructions to the authority at any time. The most recent AD is accepted. They must understand the consequences of executing the document. Further, they have to state the name of a guardian or close relative who, in the event of the executor becoming incapable of deciding at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment.

How should it be recorded and preserved? (12, pages 169–186)

Executor Signs pus two attesting witnesses. This has to be countersigned by a judicial first Class magistrate (JMFC) appointed by the concerned District Judge.

JMFC preserves one copy of the document in his office and another in digital format.

JMFC will forward one copy of the document to the Registry of the Jurisdictional District Court for being preserved in digital format.

JMFC will inform the immediate family members and family physician.

A copy will be sent to the competent officer of the Local Government or the Municipal Corporation or Municipality or Panchayat.

Condition of the patient

The patient is terminally ill and undergoing prolonged treatment concerning an ailment that is incurable or where there is no hope of being cured.

Constitution of a medical board

Three doctors from general medicine, cardiology, neurology, nephrology, psychiatry, or oncology shall constitute this board. Experience in critical care and with overall standing in the medical profession of at least 20 years is necessary to be a member of this board.

Who can constitute a medical board?

Hospital, District Collector, JFMC, Chief Justice of High Court are all permitted to constitute the medical board.

Process of execution of advance directive: (12, pages 169–186)

AD is available and the patient is terminally ill.

  • A physician must ascertain the genuineness of AD from JFMC
  • Inform Relatives about the condition of the Patient
  • Constitute Medical Board
  • Board Examines Patient and gives Preliminary Opinion
  • Informs Jurisdictional Collector
  • Collector forms Medical Board with District Medical and Health Officer as chairman
  • The board visits the patient and gives an Opinion
  • Board will send the report to the JFMC
  • JFMC will visit the Patient and will decide the future course of action.


Revocation or inapplicability of advance directive (12, pages 169–186)

  • Hospital Medical Board takes a decision not to follow an AD while treating a person
  • They have to file an application to the Medical Board which is constituted by the Collector, for consideration and appropriate direction on the AD
  • In cases where there is no AD
  • The patient is terminally ill
  • The physician informs the Hospital Medical Board about all such above stated cases
  • Hospital Medical Board will discuss with the family physician and the family members and form a preliminary opinion
  • The procedure is similar as before, i.e. Jurisdictional Collector then JFMC.


What if permission is refused by the medical board? (12, pages 169–186)

  • 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 a writ petition, under Article 226 of the Constitution of India
  • Then High Court may constitute Medical Board
  • Medical Board has to submit a report about the feasibility of acting upon the instructions contained in the AD
  • The Chief Justice of the designated High Court constitutes a Division Bench which shall decide to grant approval or not of the Advanced Directive
  • High Court then has to give a decision at the earliest of the “best interests of the patient.”


Supreme court directions if life supports withdrawn: (12, pages 169–186)

Magistrate intimates the High Court as to the course of action. The entire documentation is kept in a digital format by the Registry of the High Court keeps the hard copy, which is destroyed after the expiry of 3 years from the death of the patient.

Active Euthanasia plea for a rabies patient

Recently, Anjali Gopalan, the petitioner for NGO “All Creatures Great and Small,” pleaded that rabies patients with 100% fatality. They lie in a hopeless state of suffering and do not have the option of having a medical intervention to prolong their lives. The 2018 judgment has a provision for passive euthanasia, making it difficult in cases of rabies where medical intervention is futile. The petitioner was seeking active euthanasia as the only have the option in such cases. Having failed to get an order from the Delhi High Court the petitioner approached the apex court, challenging the high court's refusal to allow its demands.

The honorable Supreme court of India sought the central government's response on a petition demanding that rabies patients be allowed to opt for “physician-assisted dying” from willing physicians or active euthanasia by their consent or through their guardian's opinion of their best interest”.

Role of psychiatrists in Euthanasia – World over

McCormack and Fléchais[23] reviewed international literature on the role of a psychiatrist in mental illnesses and assisted dying practices. It was found that a psychiatry referral was recommended only in certain conditions such as “exclusive mental disorder,” but there is no mandatory requirement of psychiatry assessment in any country. Even in India in the medical board for euthanasia, a psychiatrist may be a member, but it is not mandatory.

Conflicts for psychiatrist

  • Psychiatrists are trained in the concept of assisting patients and their relatives. They are actively involved in the prevention of suicide programs, while the role in a medical board for euthanasia is contrary to his training to aid in ending a life. This legal obligation for him to perform in the interest of a patient in a terminal state
  • There are no criteria to assess the rationality of any person's decision to execute an AD and it is that person's personal choice. Decisional incapacity is not a natural phenomenon such as cancer or psoriasis or even delirium. It is a social construct used to determine whether a patient retains decisional authority when he appears to have some brain or psychological impairment
  • The psychiatrist may play the role of a mediator between patient, family, and medical staff in all such life-terminating decisions which could be stressful
  • If and when mandatory psychiatric assessment is warranted, then it places the psychiatrist in the problematic position of “gatekeeper” for Physician-Assisted Suicide
  • At least, at present, it is difficult to describe any psychiatric illness as incurable, exception of progressive neurodegenerative disorders such as Alzheimer's disease and Huntington's disease. Whenever such an issue crops up, he may have to take the help of current evidence-based medicine.


International Laws on Euthanasia.[24]


  Netherland, Belgium and, Luxemburg Top


There are laws on euthanasia in the Netherlands which are found in “Dutch Euthanasia Act.” Castro et al. 2017 point out that the legislation of Belgium and Luxemburg share some common features with the Netherlands.[25] In the Netherlands, the physician reports the decision to a review committee that scrutinizes the report of the physician and may direct to supplement the report with written or verbal testimony. The Netherlands Association for the voluntary end of life (NVVE), “right to die group” has taken initiatives to provide doctors as freelancers to aid in assisted suicides.[26]

The “Groningen Protocol” was introduced in the Netherlands for legalizing “Child or Infant Euthanasia” that evoked severe reactions across the country and initiated a moral debate about bioethics in pediatric practice.[27],[28]

In 2014, Belgium formulated a law for euthanasia of terminally ill children and chronic degenerative diseases such as dementia.[29],[30],[31]

In Luxembourg: A “hopeless medical condition” has to be established for euthanasia.

Switzerland

Switzerland allows assisted suicide by patients themselves, but it criminalizes active euthanasia. Foreigners come to the country for executing the act of suicide, which is forbidden in their countries[32] and has been referred to as “suicide tourism.”[33],[34] In Switzerland, the Federal Supreme Court has laid protocols for assisted suicide in individuals who suffer from some psychiatric illness.[35]

United States

Certain states of Washington, Vermont, Oregon, New Mexico, and California have enacted laws for Passive euthanasia.

Germany, Ireland. Columbia and Individual states of Canada and Japan. have strict laws and riders regarding Euthanasia.

Studies where Euthanasia was executed in psychiatric conditions[36],[37],[38],[39],[40],[41]

In a study of 66 patients with psychiatric conditions who received euthanasia or assisted suicide for psychiatric reasons were depression (35%); GAD, phobias, OCD, panic disorder, and social phobia (13%); PTSD or posttraumatic residua (11%); psychotic disorders including schizophrenia, schizoaffective disorder, psychosis NOS, and psychosis due to medical condition 9 (8%); somatoform disorders, pain disorders, somatization disorder, and hypochondria (7%); bipolar depression (6%); substance abuse (5%); eating disorders (3%); mental retardation, incipient dementia, brain tumor surgical sequelae, and stroke (3%); prolonged grief (2%); autism spectrum (2%); and alexithymia, Cotard syndrome, dissociative disorder, factitious disorder, reactive attachment disorder, and kleptomania (5)%. Requests for euthanasia or physician-assisted suicide in the Netherlands for psychiatric consultations were 4% out of an annual total of 9700 subjects. Lack of knowledge about the extent to which mental or emotional disorders play a role in patients' requests for assistance in dying was not a consideration is appalling.


  Conclusions Top


The topic of Euthanasia remains highly debated or taboo in the political, social, ethical, and legal contexts that in some very genuine cases possibly is the only solution for a dignified exit from this world. It is required is to have a consensus among all the stakeholders on the issue of euthanasia and clear guidelines are generated for all to follow. The Supreme Court of India has been proactive in issuing guidelines for the execution of ADs for passive Euthanasia. The ball is now with the Indian government to enact laws, but it is in an endless waiting period due to various compulsions. We have to watch for developments in the legal field and legislature of India whether discreet law on euthanasia in the near future or not? At present, psychiatrists have a limited role to play as nonmandatory members in a medical board for euthanasia but with changing times a bigger role is possible.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
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Law Commission o...
Netherland, Belg...
Conclusions
References

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