Euthanasia, Doctrine Of Double Effect And The Growing Need For Effective Palliative Care

Somya Luthra
26 Sep 2020 3:40 PM GMT
Euthanasia, Doctrine Of Double Effect And The Growing Need For Effective Palliative Care
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Like most other philosophical doctrines and terms, the word 'euthanasia' has been derived from two Greek words, 'Eu' meaning 'well' and 'Thanatos' meaning 'death'. Thus, in simple terms, euthanasia means good death. It is a process of ending an individual's life in order to relieve him of any pain or suffering, which he is currently experiencing or is likely to experience in the future. Different types of euthanasia can be categorised based on the method of ending life and based on consent. The life that is ended by directly providing a lethal injection or a mocktail of drugs to the patient, having the knowledge and intention to kill him, is called active euthanasia. Passive euthanasia occurs when the treatment of keeping the patient alive, is withdrawn, where withdrawal will kill the patient. If the patient has decided to die, on his own for him, then it is called voluntary euthanasia. If someone else has decided on the patients' behalf, then it is a case of non-voluntary euthanasia.

The 'doctrine of double effect' is a principle often associated with euthanasia. According to the doctrine, an act is morally justifiable, if the intended good supersedes the harmful foreseen consequences attached to it. It is used in cases, where a patient is suffering from excruciating and uncontrollable pain, and the doctor prescribes him a drug which will help him control it and improve his quality of life, even though it has a side effect of shortening his span of life. For the doctrine to be morally permissible, four conditions have to be met at in all circumstances. First is that the intention, executed in the form of action, should be morally right. Second, the action should be the direct intention and not the adverse effect. Third, the good should overweigh the bad. Fourth, the doctor should give his best to minimise the harmful consequences.

The principle of euthanasia is not a twenty-one-century discovery. In Greece and Rome, it was considered morally permissible to assist in someone die to prevent further suffering. In Sparta, an ancient city, new-born children born with significant defects were put to death. It is even morally permissible for the old age to indulge involuntary euthanasia. 'Freedom to leave' was a recognised right under Roman laws. With the rise of Christianity, strong opposition against euthanasia began to arise. Renowned Christian scholars Augustine and Aquinas spoke widely against it. They believed that human life is a gift from God and must be preserved at all costs. It is for God to give and take human being; humans cannot make this decision for themselves. Therefore, by choosing our own life, or assisting someone in doing so is going against God. Katherine Young, in her study, explains how voluntary euthanasia for the elderly and children was practised throughout India before its invasion.[1] It was only discouraged in the modern period. In the present day, Hindus have conflicting views on euthanasia. Whereas one sect believes that by assisting someone in taking their miserable life, he's doing a good deed, the other thinks he is interfering in the God controlled 'cycle of karma', even if he is helping in relieving in the pain and suffering. Those belonging to the latter frame of mind, also oppose life-supporting systems. In Hinduism, therefore, the permissibility of euthanasia was limited to religious self-sacrifice and self-willed death.[2] In Sikhs, euthanasia is mostly discouraged. They derive their principles from the Guru Granth Sahib, which describes human life as a God's plan. Those who engage in voluntary euthanasia not only disturb it but should accept their sufferings as a part of their karma without complaining. Jainism, a relatively new religion, was probably the first to allow voluntary euthanasia. 'Sallekhana' or 'self-willed' death, is a religiously sanctioned practice and involves fast till end. Although suicide isn't permitted, those who wish to sacrifice their lives in a battle and die a hero's death and those want to attain salvation or enlightenment are allowed to do so. Also, in extreme cases involving the elderly and children, self-willed death was recognised.

In India as well as abroad, euthanasia has remained a hotly debated topic over the last century. In India, there is a poor quality of end life care due to a plethora of reasons. There is a lack of societal awareness, the grey areas haven't been adequately explored, and the legal status of euthanasia is still not sufficiently defined.[3] The physicians in India are vulnerable due to this inadequate knowledge and understanding of statutory provisions. Absence of legal guidance acts as important prevention in taking a life-ending decision in India. The right to life and personal freedom is guaranteed under the category of Right to Freedom (Articles 19-22) by the Indian Constitution in Part III. Article 21 of the Indian Constitution guarantees the right to life and personal liberty in accordance with the procedure laid down by law. In the Gopalan case, the court held that personal freedom extends to the individual's person or body. In 1973, the scope of personal liberty was expanded. The right to informed consent or refusal flows from this and refers to all medical interventions. That alone would be enough to decide to foregoing life-sustaining care (FLST).

In P. Rathinam's case,[4] the laws of suicide were invalidated, as the Supreme Court had allowed the right to die in the face of unbearable misery. This decision of the SC was overturned by the judgment of Gian Kaur[5] in which the court ruled that the fundamental right to life enshrined in Section 21 didn't take a right to make one's life in its ambit. The appeal was in question was about suicide and abetment to death (section 306 and 309), and didn't take in account terminally ill patients kept alive using artificial support. The judges made an exception to the dying patient's condition allowing for a "dignified death process" in the latter case.

According to the IPC, in order to constitute murder under Section 300, intention and knowledge are prerequisites. In order for the act to be classified as murder, the petitioner has to prove that the physician had a motive. In most of the doctor-patient relationship, the sole purpose of the doctors is to treat the patients and provide them they care, of course taking into account certain exceptions, the burden of proof rests with the appellant. In the case of a Foregoing Life Support Treatment (FLST) principle of prior knowledge is irrelevant as it is only used when all other options have been exhausted. Thus, the agency of death is not applicable to withdrawing artificial life support. Thus, the doctor will fall under exception (5) of Section 300 IPC. In India, abetment to suicide, given in Section 309 of the Indian Penal Code and attempt to commit suicide in Section 309 of Indian Penal Code are criminal offences. It is only applicable to the underlying disease condition. It is 'letting die' instead of directly killing a person. In the Airdale NHS Trust v. Bland, Lord Keith[6] it was held that "a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by a continuance of the treatment." This is the worldwide accepted position.

In the Aruna Ramchandra Shanbaug vs Union of India & Ors[7] case, passive euthanasia was legalised. Life support could be withdrawn from patients in a permanent vegetative state. The Supreme Court laid down guidelines for Passive Euthanasia.

The legal provisions surrounding euthanasia suffer from ambiguousness. The Supreme Court has upheld many suicide laws that can be misinterpreting and applied to mercy killing decisions. The law commission of India appears to not take into account the needs of the dying patient and his guardians, in spite of it clarifying many concepts.

As per the Stanford Encyclopaedia of Philosophy, Doctrine of Double effect has been defined as "The doctrine (or principle) of double effect is often invoked to explain the permissibility of an action that causes a serious harm, such as the death of a human being, as a side effect of promoting some good end. It is claimed that sometimes it is permissible to cause such a harm as a side effect (or 'double effect') of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end."

The four factors associated with the Doctrine of Double effect of euthanasia are:

1. The good outcome must be accomplished freely of the bad one.

2. The action must be corresponding to the cause.

3. The action must be fitting.

4. The patient must be in a terminal condition.

In the Doctrine of Double Effect of Euthanasia, the difficulty arises when we seek to differentiate between intentions and foreseen consequences. [8] The intuitive difference between the two can be explained in the following manner; M is our end goal. Then M is our intention. In order to reach M, we bring about N, then N is our intended means. In carrying out this plan, we foresee O as a consequence, even though we didn't choose the idea to bring about O, i.e. we didn't intend for O to occur, then O is merely foreseen and intended. As per the proponents of the doctrine, there exists a considerable difference between the intended and the foreseen consequences and that distinction allows us to judge the morality of the action. The absolutist version of the DDE states that foreseeing harm is morally worse than intending it. It is morally worse to intend to kill than foresee killing. [9]

There are many loopholes associated with the doctrine. Opponents argue that one has to take responsibility for all speculated consequences of our action. We can't cherry-pick the ones favourable to us and ignore the unfavourable ones. Hence, all of our actions should be morally permissible.

Palliative care is a specialized system and philosophy of care for delivering care to persons with life threatening diseases from the first stage of diagnosis to even after the death of the person i.e. bereavement care to the family. Palliative care improves the quality of life in three areas: the alleviation of physical and mental torment; improvement and reinforcing of the procedure of patient–doctor communication to avoid any logistics failure and coordination of continued care over various medicinal services—clinic, home, and hospitals.

What a distressed person wants is to ease his suffering through pain relief, not death. Palliative care is an often-neglected topic in the euthanasia debate. Adequate palliative care has the ability to prevent a person contemplating euthanasia. The intended end of palliative care is to improve the patient's life significantly till the time he's alive. Palliative care is the most prevalent in cases of cancer. One of the major reasons behind the rise of demand for euthanasia is the inability of provide sufficient palliative care. Palliative care for all patients is a distant dream in Indian health care sector. Only about 1% of the Indian receive adequate palliative care. India was one of the largest producers of opium, however, after passing of the Narcotic Drugs and Psychotropic Substances Act in 1985, the production fell down significantly. Hence, providing adequate palliative care can bring down the number of requests for mercy killing.

However, Palliative care is of no use to patients already in vegetative state and coma as they do not feel any physical pain or mental distress that palliative care seeks to control. In India, palliative care is not only remotely available, but is expensive too. Not everyone can afford it. Formulation of laws and policies on euthanasia should take into consideration the availability of palliative care in that particular area and time.

India is a country with a plethora of religions and cultures; the issue of euthanasia should be viewed from the lens of rationality, rather than morality and religion. Lack of clarity on the legal status of euthanasia in India is one of the most significant barriers in taking life limitation decisions. The physician faces the risk of lawsuits and other factors such as lack of awareness on the issue of euthanasia, compel the doctors to continue costly and burdensome treatments till the very end, while the patient suffers unbearable pain and his quality of life deteriorates. The 'end-of-life-care' is one of the poorest in India. A closer look at the constitutional provisions regarding euthanasia and analysing them would help in improving it.

Views are personal only.
(Somya Luthra, currently in the Vth semester of B.Com. LLB (Hons.) from Institute of Law, Nirma University. E-mail ID- [email protected])

[1] Katherine K Young, "Euthanasia : Traditional Hindu Views and the Contemporary

Debate," in Harold G. Coward et al. (eds.), Hindu Ethics 72 (Delhi : Sri Satguru Publications, 1989).

[2] Harold G. Coward, "Introduction" in Harold G Coward et al. (eds.), Hindu Ethics, id. at 5.

[3] Balakrishnan S, Mani RK. Constitutional and legal provisions in Indian law for limiting

life support. Indian J Crit Care Med. 2005; 9:108–14.

[4] Rathinam P. vs Union of India. Supreme Court Cases. 1994; 3:394–430.

[5] Gian Kaur vs State of Punjab. AIR, Supreme Court. 1996; 83:1257–65.

[6] Airedale NHS Trust v Bland. 1993

[7] Aruna Ramachandra Shanbaug vs The Union of India and Ors. WRIT PETITION

(CRIMINAL) no. 115 of 2009 (Supreme Court of India Proceedings) 2009

[8] Bratman, M. (1999): Intentions, Plans and Practical Reason, CSLI. Originally published: Cambridge, MA: Harvard University Press, 1987

[9] Fischer, J.M., Ravizza, M. and Copp, D. (1993): Quinn on Double Effect: The Problem of Closeness, Ethics 103, 707-725

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