Experts Explain: The right to die with dignity — SC rulings and what the law says in India

• Setting up of Primary and Secondary Medical Boards at the level of the hospital, which will determine when further medical treatment may not be beneficial to a terminally ill patient;
• Nomination of doctors by the district Chief Medical Officer or equivalent to hospital-level Secondary Medical Boards, which will confirm or reject the opinion of the Primary Medical Boards.

There is no dedicated legislation in India on withholding/ withdrawing life-sustaining treatment. But the Supreme Court’s judgment, and now the draft guidelines published by the Ministry, make it clear that withholding/ withdrawing life-sustaining treatment is legal in India under a defined framework.

What is meant by withholding/ withdrawing life-sustaining treatment?

Withholding or withdrawing life-sustaining treatment refers to discontinuing life-sustaining medical interventions such as ventilators and feeding tubes, etc., when these no longer help the condition of the patient or prolong their suffering.

Life-sustaining treatments are medical treatments that artificially replace bodily functions essential to the life of the person. These interventions are withheld or withdrawn with the intention of providing comfort care, allowing the underlying illness to take its course, while providing symptomatic relief.

The right to refuse medical treatment has always existed in common law, even if it results in death. Following the Supreme Court’s decision in Common Cause vs Union of India (2018), it is also recognised as a fundamental right under Article 21 (Right to life and personal liberty) of the Indian Constitution.

The withholding or withdrawal of life-sustaining treatment takes place either through informed refusal by a patient with decision-making capacity or through an advance medical directive (or a ‘living will’, which is a document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future).

For a person without decision-making capacity who does not have a living will (details below), the decision to withhold or withdraw treatment can be considered when the treating physician determines that there is no reasonable medical probability of recovery from a terminal or end-stage condition, or vegetative state — and that any further medical intervention or course of treatment would only artificially prolong the process of dying.

What then, is euthanasia, the so-called ‘mercy killing’ of a patient?

Euthanasia is the intentional killing of a terminally ill patient by the doctor for the good of the patient.

The expression “passive euthanasia” is often used in India to refer to the withholding or withdrawal of life-sustaining treatment. The use of this term is one of the major reasons for the misconception and apprehension towards the idea of the right to die with dignity. A glossary of definitions by the Indian Council of Medical Research (ICMR) in 2018 demonstrated that “passive euthanasia” is misinterpreted, and does not have social acceptability.

The withholding or withdrawal of life-sustaining treatment also includes ‘do-not-attempt-resuscitation’ orders. The order is issued by the treating physician, who is well versed with the medical condition of the patient, in consultation with the patient or their family or surrogate decision-maker.

It is crucial to note that when a do-not-attempt-resuscitation order is in place, every effort should be made to continue treating the underlying condition of the patient. The order is limited to not initiating resuscitation efforts.

Is withholding/ withdrawing treatment akin to giving up on the patient?

Withholding or withdrawing life-sustaining treatment does not mean that the doctor is abandoning the patient. It is about recognising when medical interventions are no longer beneficial, and will only lead to the prolongation of suffering. Withholding or withdrawal will lead to palliative care aimed at managing pain and suffering to ensure that the patient is made as comfortable as possible.

In fact, it is the current practice of ‘discharge against medical advice’ that causes more suffering. Doctors practise it under the mistaken belief that they cannot withhold/ withdraw life-sustaining treatment. As a result, patients are left to die without appropriate care, which adds to their suffering, and to the emotional distress of caregivers.

How is a living will drawn up, and how does it work?

To enforce the right to die with dignity, the Supreme Court in its 2018 judgment also laid down the framework for making advance medical directives or living wills. However, the process was complex, and the court simplified it in its 2023 judgment.

Just like wills on how one’s property is to be distributed, living wills are written documents made by a person of age 18 years or older with decision-making capacity, expressing their will on how they would wish to be treated if they lose such capacity.

The document should detail at least two surrogate decision-makers — anyone whom the person trusts, from family to neighbours, who can make decisions on behalf of the person if they lose decision-making capacity.

The document becomes legal when it is signed in the presence of an executor and two witnesses, and attested before a notary or gazetted officer.

What is the medical procedure for withholding or withdrawing life-sustaining treatment (laid down by the SC and reaffirmed by the guidelines)?

The legal framework recognises the rights and duties of both doctors and patients, and allows for extensive independent expert opinion and the informed consent of next-of-kin/ surrogate decision-makers.

• The treating hospital constitutes a Primary Medical Board to assess the patient’s condition, and to recommend the appropriateness of withholding/ withdrawing life-sustaining treatment. The board is composed of the treating doctor and two subject-matter experts with at least five years of experience.
• To ensure another level of checks, a Secondary Medical Board, also set up by the hospital, reviews the decision of the Primary Medical Board. The Secondary Medical Board comprises a registered medical practitioner nominated by the district Chief Medical Officer, along with two subject-matter experts with at least five years of experience. All these members must be different from those on the Primary Medical Board.
• The persons nominated by the patient in the advance medical directive or surrogate decision-makers (where there is no directive) must consent to the withholding or withdrawal of treatment.
• The hospital must notify decisions on withholding/ withdrawing life-sustaining treatment to the local judicial magistrate.

Will doctors be required to play God?

No. Making assessments about the appropriateness of medical treatment is a routine part of medical practice, and the ethical responsibility of doctors.

In any case, the procedure envisages “shared decision-making”, which requires the treating team and family/ surrogate decision-makers to agree jointly to withhold/ withdraw life-sustaining treatment. This protects doctors, advances the autonomy of patients, accounts for the wishes of near-and-dear ones, and provides legal clarity.

Dhvani Mehta is Co-Founder and Lead, Health at Vidhi Centre for Legal Policy. Shireen Yachu is a Research Fellow, Health at the Vidhi Centre for Legal Policy.