In the case of the brain-damaged
woman Aruna Shanbaug India’s Supreme Court has created an important legal
precedent, but it may have failed to clarify some important issues. At the
beginning of their judgement, Justices Markandey Katju and Gyan Sudha Misra acknowledged that
“we feel like a ship in an
uncharted sea, seeking some guidance by the light thrown by the legislations
and judicial pronouncements of foreign countries”.

The main outcome was two conditions for
legal “passive euthanasia”. In this they basically followed the reasoning of
the UK House of Lords in the famous 1993 Anthony Bland case (Airedale National Health Service
Trust v Bland [1993] AC 789) which allowed doctors to
withdraw all life support from a person in a permanent vegetative state,
including nutrition and hydration.

As for the case in hand, they decided that Aruna
Shanbaug’s surrogate decision-maker was the King Edward Memorial Hospital which
had adamantly supported continuing palliative care for the woman. Therefore,
they dismissed a petition to withdraw Aruna’s hydration and nutrition so that she
would die through starvation.

In the future, they said, “life support”
can be withdrawn provided that a close relative or “next friend” or even the
doctors request it. However, approval must be sought from one of India’s 21
High Courts to ensure that the decision is in the best interest of the patient.
This, the justices insisted is essential. “We cannot rule out the possibility that
unscrupulous persons with the help of some unscrupulous doctors may fabricate
material to show that it is a terminal case with no chance of recovery. There
are doctors and doctors. While many doctors are upright, there are others who
can do anything for money.”

Surprisingly, in a judgement of such
importance, the justices insisted on using the ambiguous and controversial term
“passive euthanasia”. They apparently mean withdrawal of treatment to allow a
patient to die of the underlying cause of his or her disease. Many authorities
would simply call this withdrawal of burdensome treatment rather than
euthanasia, in which the intention is to kill the patient. And does “life
support” include simple hydration and nutrition? The Indian Supreme Court may have
to revisit this thorny issue to settle these questions.

Michael Cook

Michael Cook is the editor of MercatorNet.