Supreme Court Verdict on Advance Directives and Passive Euthanasia: A Catholic Response
Bioethics Forum, Archdiocese of Bangalore
I. Why are we discussing Euthanasia at this point of time?
Subsequent to its judgment in the Aruna Shanbaug1 case in 2011, the Supreme Court has made further statements on “Passive Euthanasia” on 9th March 2018. This was in response to the Writ Petition2 filed by the NGO3, Common Cause.
In summary Common Cause petitioned the Court to allow the following:
1. The right of terminally ill patientsto execute a legal document called the Living Will/ Advance Directive
2. The right of the patient to make decisions about continuance and discontinuance of life supporting treatments at the end of life.
3. The right to refuse unnecessary advanced technological interventions that prolong the dying process. 4. The right to relief from pain and suffering at the end of life allowing the patient to die with dignity
II. What does the Supreme Court ruling actually say?
The following is a list of the salient points emerging from the Supreme Court ruling of 9th March 2018 supported by quotes from the original judgment:
1. Active Euthanasia and Physician Assisted Suicide is clearly prohibited.
“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.”4
Passive euthanasia“…is lawful and legally permissible in this country”.5
“There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.”6
2. The Supreme Court is concerned with respect for autonomy and dignity at the end of life.
“Dignity of life must encompass dignity in the stages of living which lead up to the end of life. Dignity in the process of dying is as much a part of the right to life under Article 21.7 To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence. Hence, the Constitution protects the legitimate expectation of every person to lead a life of dignity until death occurs.”8
“Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS9 patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination”10
3. The Supreme Court permits Passive Euthanasia, which it describes as withdrawing and withholding life sustaining treatments when they are inappropriate or burdensome.
“We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices.”11
“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.”12
“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.”13 “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 JMFC14 before acting upon the same.”15
4. Advance Directives or Living Will is legally acceptable.
“A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.”16 “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.”17
“…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.”18
”… 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.”19
“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.”20
“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.”21
5. In the absence of Advance Directives surrogate decision makers may have to decide whether or not to withhold or withdraw treatments in the terminally ill. The legal procedure for this has been described in detail in the judgment.
“….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.”22
“When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.”23
III. Reflections on the Supreme Court Judgment in the light of Catholic Teaching
In this section we look at the salient points of the Supreme Court Judgment from the perspective of Catholic Magisterial Teaching.
1. The Catholic Church prohibits Euthanasia and physician assisted suicide
The Supreme Court has unequivocally rejected active euthanasia and physician assisted suicide. This is in keeping with Catholic teaching. However, its use of the term “passive euthanasia” is problematic because it is open to misinterpretation.
In this context, the Catholic Church provides a clear definition of euthanasia,
“By euthanasia is understood an action or an omission which, of itself or by intention causes death, in order that all suffering may in this way be eliminated. Euthanasia’s terms of reference, therefore, are to be found in the intention of the will and the methods used.”24
The definition speaks of an action or an omission. This calls for further explanation. Euthanasia by action refers to those positive acts of commission whose purpose is to kill a dying (or even non-dying) person for relief of suffering. Euthanasia by omission refers to a refraining from action, whose direct intention is death by “benign neglect”. “Passive euthanasia” is an ambiguous term and misleading. Often it is mistakenly applied to what in the Catholic tradition comes under the category “allowing to die”. As Richard McCormick warned, “one way to soften resistance to the unacceptable is to confuse it with the acceptable”.25 In the Catholic tradition, allowing to die is only the refusal or cessation of useless or disproportionately burdensome treatment. There is no intention of bringing about death.26 “To forego extraordinary or disproportionate means is not the equivalent of suicide or euthanasia; it rather expresses acceptance of the human condition in the face of death.”27 As the Declaration on Euthanasia says, the terms of reference are to be found in the intention of the will and the methods used. The direct intention of bringing about death (by action or omission) in order to eliminate suffering, constitutes the very core of euthanasia.
Support for this view comes from the Indian Council for Medical Research, which clearly states, “The term passive euthanasia is an obsolete terminology and should be avoided as euthanasia cannot be passive and withholding or withdrawing of potentially inappropriate treatment in a patient dying with terminal illness that only prolongs, the dying process cannot be construed as an intention to kill.”28 Furthermore, it emphasizes, “…allowing natural death, withholding and withdrawing life sustaining treatment to limit harm and suffering in a dying patient should not be construed as euthanasia”29
2. Respect for autonomy of the patient
The Supreme Court has made the patient and the patient’s best interest a central point in the discussion. In this context it speaks of Autonomy. The Church approves of the autonomy of the patient, but this autonomy has limits. A terminally ill patient cannot, for example, in the name of autonomy demand that a physician assist him/her in committing suicide. Only God has dominion over life. Human beings have stewardship only. That is why the right to autonomy is limited.
Persons at end of life should be offered truthful and adequate medical information to allow them to address the morally legitimate choices available to them.
3. Death with Dignity
While the Catholic Church understands the Supreme Court’s statement that the Constitution protects the legitimate expectation of every person to lead a life of dignity until death, there are some serious concerns, which are listed below:
1. The Supreme Court’s acceptance of the concept of human dignity including the right to dignity at the time of dying is laudable. However, the concept of human dignity according to the Catholic faith is much deeper. It stems from the understanding of Imago Dei – the fact that as humans we are created in the image and likeness of God, and that this human dignity thus extends from the moment of conception to the point of natural death.
2. The concept of dignity needs to be understood more clearly, lest it becomes ambiguous, and allows for misuse. Dignity, as most widely understood, often points either inward to certain subjective attitudes or outward to extrinsic standards of usefulness, productivity or measurable achievement. Both these extremes are problematic. The Catholic Church teaches us that human dignity has an intrinsic value that cannot be taken away – neither can it be conferred by society.
3. Proponents of euthanasia make dignity one of the grounds for demanding euthanasia. This runs counter to the intrinsic value of human dignity. While some forms of treatment in medical institutions can be depersonalizing, dying or killing to protect one’s dignity makes no
sense, because the most definitive and irreversible way to turn a person into a thing, to reduce a person to an object, to negate existing personal reality, is to kill a person.30
4. When value and dignity are thus reduced to subjective feelings or external qualities, nothing is valued for its own sake.
5. “Dignity is worth, not worth for something but inherent worth. It is not an achievement but an endowment, something one has which is very close to one’s simply being what and who one is. To the dignity of one corresponds the attitude of respect on the part of others.”31
4. On Withholding or Withdrawing Treatment
The Supreme Court has indicated that treatment of patients who are terminally ill or in a persistently vegetative state where intervention will merely prolong the suffering and agony of the patient may be withdrawn or withheld. This is in keeping with Catholic teaching.
There has been a long standing Catholic tradition in dealing with ethical issues in death and dying. Traditionally it has been expressed in terms of “ordinary and extraordinary means.” They have been described as follows, “Ordinary means of prolonging life are all medicines, treatments and operations which offer a reasonable hope of benefit for the patient and/or which can be obtained or used without excessive expense, pain or burden; extraordinary means are all medicines, treatments and operations which cannot be used or obtained without excessive expense, pain or other burden.”32 If the means are considered ordinary they are obligatory. If they are deemed extraordinary they may or may not be employed. But there is always the obligation to provide ordinary care.
But we must bear in mind that these categories are moral and not medical categories. They help us to deal with the agonizing question of
i. whether we should always do all that is possible to keep a person alive,
ii. whether there is a moral limit to our attempts to find a cure,
iii. whether we can cease treatment at some point.
The Declaration on Euthanasia clearly states the following.33
1. “It is also permitted, with the patient’s consent, to interrupt these means, where the results fall short of expectations”,
2. “The healthcare workers in particular may judge that the investment in instruments and personnel is disproportionate to the results foreseen and they may also judge that the techniques applied impose on the patient strain or suffering out of proportion to the benefits which the patient may gain from such techniques,”
3. “Treatments may be withdrawn or withheld “to avoid the application of a medical procedure disproportionate to the results that can be expected, or a desire not to impose excessive expense on the family or the community.”
4. Such a withdrawal is not killing the patient, but, “on the contrary, it should be considered as an acceptance of the human condition”. In the Catholic Tradition this is termed “Allowing to Die” and can never be termed “passive euthanasia” as the Supreme Court done.
5. Advance Directives.
Documents such as Advance Directives may be used by patients as a means of informing family and physician and as help in preparing for death34 Although such documents are not in themselves wrong, they do not always solve the problems of decision-making.
Every human life created by God is precious and medical decisions have to reflect this belief. Every human person is unique, irreplaceable and unrepeatable. Patients respond differently to treatment options in different conditions and diseases. Therefore, advance planning of the type of care that one wishes to receive especially at end of life is praiseworthy. Perhaps a good way to approach advance care is to appoint a surrogate decision maker in the event a person may become incapable of decision-making due to advancing age or illness. Advance directives allows one to draw out a document in advance on what type of medical treatments one would like to receive or refuse.35 Central to making a right decision at end of life situations is to communicate with loved ones and friends about what one would prefer if they had to make a decision on one’s behalf. This has been a long-standing practice in medicine. Unfortunately, it would appear that the regulations proposed make a cumbersome procedure and could be open to misuse and exploitations.
6. Implications for Catholics
From all that has been stated above, we may draw certain practical conclusions for Catholics.
i. Euthanasia or the deliberate and intentional killing of the patient is always morally wrong, whether it be by some lethal action or by wilful neglect.
ii. If there is any hope of curing the patient or checking the progress of the illness, the physician should use available remedies if the patient or legal representative so desires. The patient may refuse or withdraw any treatment that he/she finds useless or burdensome.
iii. At all times, the patient and patient’s best interests are of primary importance. The patient is the decision maker. If, however, the patient is impeded or incapable of making a decision, the legal representative must act on his/her behalf always keeping in mind the desires and best interests of the patient.
iv. When a treatment applied to a particular patient fails to achieve medicine’s goals, then that treatment is not beneficial to the patient. Such treatments are termed futile and may be ethically withdrawn or withheld after the patient has consented. If the patient is incapable of making the decision then the legal representative can make the decision.
v. Sometimes treatments can be burdensome and may involve an intense experience of physical pain, and revulsion due to side effects. Treatments can also be excessively expensive, according to the individual’s financial status. Such expenses may jeopardize the livelihood of the entire family of the patient. These treatments are extraordinary or disproportionate and therefore not obligatory, and the patient may ethically refuse such treatments
vi. Advance directives or “living wills” do not raise any moral problems insofar as they are a means of informing the family or physician about his/her preferences regarding treatment during terminal illness.
vii. If Catholics have any doubts about being faithful to the Church’s teachings with regard to end of life decisions and Advance Directives, they should be encouraged to discuss this with the clergy and others more knowledgeable about the issues and to prayerfully contemplate their decisions in the light of the teachings of the Church. People writing their Advance Directives must be aware that comfort care, hygiene measures and alleviation of pain are not medical treatments but basic care accorded by one human being to another in respect of human dignity.
It is the duty of Christian health professionals and caregivers to ensure that the patient live as meaningfully as possible through the process of dying. In this context Palliative Care is important as it provides relief of pain and suffering. This implies that the patient never feels abandoned and is in fact accompanied with appropriate comfort care, hygiene, pain relief and counselling and, importantly, is provided with spiritual and sacramental help in order to prepare well for death. “The dying person should not be dismissed as incurable and abandoned to his own resources and those of the family, but should be re-entrusted to the care of doctors and nurses. These, interacting and integrating with the assistance given by chaplains, social workers, relatives and friends, allow the dying person to accept and live out his death.”36
1. Current practice
In everyday clinical practice at the hospitals, health professionals strive to understand and respect the wishes of terminally ill patients at end of life, or surrogate decision makers in order to provide a pain-free and peaceful process of dying. Decisions about withdrawal and withholding burdensome or futile treatment are ethical situations encountered frequently by medical professionals. Such decisions are made routinely after taking consent. Therefore, the Supreme Court’s judgment on such withdrawal and withholding of treatment, is essentially legalizing what is already common practice.37 While this might appear to be a good thing, the Supreme Court goes on to describe a lengthy medical and legal process which needs to be followed to ensure that withdrawal and withholding of treatment is done appropriately and in the best interests of the patient. Physicians involved in the terminal care of patients are likely to find these procedures burdensome and the timelines involved in the process, inappropriate in situations where clinical decisions need to be made rapidly. However, doctors can draw comfort the Supreme Court ruling, “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”38
2. Possibility of misinterpretation
Advocates, media professionals and commentators have interpreted the judgment in different ways. Sushila Rao in The Hindu has opined, “If passive euthanasia is guaranteed fundamental right, a rigid ‘active’ versus ‘passive’ euthanasia distinction is analytically unsustainable.” It is “…a morass of legal fictions about intentionality and the ‘ultimate’ causation of death which don’t withstand scrutiny.” She goes on to say that the judgment could result in abuse by unscrupulous individuals, or unjust criminal prosecution of benign doctors and families.39
Pinky Anand, Addl. Solicitor Gen. of India says, “…the courts have handed us the right to choose our death with dignity, but the line has to be trodden carefully. Another step in this direction could result in killing as opposed to ‘mercy killing’.”40
Dhvani Mehta, a legal policy expert says, “using passive euthanasia to describe withholding or withdrawing of treatment wrongly suggests that there is something unnatural about the process. Instead such withholding or withdrawal ought to be seen as allowing death to take its natural course. The Court also sees it this way, despite its use of the term passive euthanasia.” She continues, “The court has expounded on the rights to autonomy, dignity, liberty and privacy while recognizing the right to a dignified death. If these rights are to be given their full effect, it would be hard to justify why ‘passive euthanasia’ is permitted while ‘active euthanasia’ is not.”41
1 Writ Petition No. 115/2009 reported in 2011 (4) SCC 454.
2 Writ Petition (Civil) No. 215/2005 – Common Cause V/s. Union of India and Another – dated 9th March 2018
3 Non-Governmental Organization
4 Writ Petition (Civil) No. 215/2005
7 Protection of Life and Personal Liberty
8 Writ Petition (Civil) No. 215/2005
9 Persistent vegetative state.
10 Writ Petition (Civil) No. 215/2005
14 Junior Magistrate First Class.
15 Writ Petition (Civil) No. 215/2005
24 Congregation for the Doctrine of Faith, Iura et bona: Declaration on Euthanasia. (5 May 1980) ActaApostolicaeSedis72 (1980): Part II
25 Richard M. Gula, Euthanasia: Moral and Pastoral Perspectives, (New York: Paulist Press, 1994), p.5
26 John Paul II, Evangelium vitae: On the value and inviolability of Human Life. Encyclical Letter (25 March 1995) Acta Apostolicae Sedis 87 (1995): 65.
28 Indian Council of Medical Research, “Definition of Terms Used in Limitation of Treatment and Providing Palliative Care at End of Life” New Delhi: March 2018): no. 9.
30 John F. Kavanaugh, Who Count as Persons? Human Identity and the Ethics of Killing (Washington,D.C.Georgetown University Press, 2001), p. 119.
31 G. Grisez and J. M. Boyle, Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (Notre Dame: University of Notre Dame Press, 1979), p.179.
32 G. Kelly, “The Duty of Using Artificial Means of Preserving Life,” Theological Studies (June 1950): 230. 33 Congregation for the Doctrine of Faith, Declaration on Euthanasia. Part IV.
34 United States Conference of Catholic Bishops, “Ethical and Religious Directives For Health Care Services,” 5th edition (Washington D. C.: November 2009): no. 25.
36 Pontifical Council for Pastoral Assistance to Health, “Charter for Healthcare Workers” (Vatican City:1995): no. 116.
37 See. Priyan Naik. 'Passive Euthanasia' and the 'Living Will' Deccan Herald. April 4 2018.
38 Writ Petition (Civil) No. 215/2005
39 Sushila Rao, Opinion:Is active euthanasia the next step? THE HINDU. OPED March 16, 2018
40 Pinky Anand, Opinion:Is active euthanasia the next step? THE HINDU. OPED March 16, 2018
41 Dhvani Mehta, Opinion:Is active euthanasia the next step? THE HINDU. OPED March 16, 2018