“Just as I choose a ship to sail in or a house to live in, so I choose a death for my passage from life”-L.A. Seneca

Even speaking of euthanasia may spark a wave of hostility in some quarters as many will find it hard to stomach the idea. However, reason should give way to emotions and the “bien pensant” opinion should prevail. The word “euthanasia” refers to the means of inducing or bringing about a gentle and easy death; death without suffering. One form of euthanasia, characterized as “mercy killing” is used where somebody, usually a relative, deliberately and specifically performs some act, such as administering a drug, to accelerate death and terminate suffering. Such cases of mercy killing where doctors are not usually directly involved, can also be termed active, voluntary or positive euthanasia in contrast to the term “passive euthanasia” which might describe, for example, the withholding of life-support treatment so that nature is allowed to take its course.

Once reconciled to the inevitable, most people would want to die with dignity, not tethered to a battery of machines in an intensive care unit like a laboratory specimen under glass. Comatose patients, whether breathing spontaneously or on life-support machine, who have no hope whatsoever of regaining consciousness-frequently described as “human vegetables”- are still regarded as living beings because, although irreversible brain damage has occurred, some activity of the brain stem is retained; they are not brain dead in accordance with current medical definitions. In preserving and sustaining the life of the patient with a helpless prognosis, it is in the true interests of neither the patient, the family nor the doctor, always to prolong his suffering. Unlimited access to high technology medicine may sometimes be as cruel as the illness itself and result in a many months’ funeral.

In the 1976 American Karen Quinlan case, Karen Quinlan, a young woman suddenly stricken with illness, lay in a coma attached to a life support machine and presented a terrible dilemma to her family and the hospital authorities. She was characterized as being in a ‘chronic, persistent, vegetative condition’, with no hope of recovering and kept alive only with the assistance of the respirator. In those circumstances, the parents of Karen Quinlan decided that it would be best for her to be removed from the life-support machine. Accordingly, her father applied to the court to be appointed her guardian to be entitled to authorize the discontinuance of all ‘extraordinary’ medical procedures sustaining Karen Quinlan’s vital processes and hence her life. The Supreme Court of New Jersey upheld the father’s claim and held that had Karen Quinlan been conscious and lucid, she would have had a right by virtue of her constitutional right to privacy, to decide to discontinue life-support treatment in circumstances where it was simply prolonging for a short period a terminal condition. The Court further applied a ‘substituted judgment’ test and decided that if, upon the concurrence of the guardian and the family of the patient, the attending physicians should conclude that there was no reasonable possibility of her ever emerging from her comatose condition to a cognitive state and that the life-support apparatus should be discontinued, they should consult the Hospital Ethics Committee and, if that body agreed, the life-support system might be withdrawn, without any civil or criminal  liability on the part of any participant.

In France, passive euthanasia is legal through the ‘ Loi Léonetti’ which determines that if the terminally ill person is conscious and able to take a decision of his own, then, he can request a limitation of the treatment prescribed to him or refuse treatment entirely. However, the doctor must have fully informed the patient of the consequences of such choice and must record it in the patient’s medical file. The doctor has also an obligation to set up palliative care in order to prevent and relieve physical pain, uncomfortable symptoms as well as psychological suffering. It is thus stated that by respecting the wishes of the patient and performing palliative care on them the doctor is safeguarding the dignity of the dying person and ensuring the quality of his end of life. On the other hand, if the terminally ill person is unconscious and/or unable to express himself, French law requires that the usual doctor-patient dialogue be substituted for that between doctor and his peers. The Court could act parens patriae in certain cases.

In India, passive euthanasia is legal since 09 March 2018, when the Supreme Court of India declared in  Common Cause (A Regd Society) v Union of India that the right to passive euthanasia was ensured  by Article 21 of the Indian Constitution which states that no person shall be deprived of his life or liberty except in cases of procedures established by law. An adult human being, therefore, having mental capacity to take an informed decision has the right to refuse medical treatment including withdrawal from life saving devices. In Pretty v United Kingdom (2002) ECHR 427, Lord Hope interestingly stated that the way the applicant chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too be respected.

Belgium, Luxembourg, Switzerland, Canada, Netherlands, Germany and several states in the United States allow some form of euthanasia. Satyajit Boolell, SC, Director of Public Prosecutions stated recenlty: Under our law assisted dying is illegal. Those who choose to defy the law, run the risk of facing a term of imprisonment up to a maximum of sixty years, and the fact that it was done on compassionate grounds is not an excuse. In truth and in fact we are faced with a daunting reality in Mauritius where some form of passive euthanasia has been practiced for several years. We often hear of terminally ill patients being taken to their residence to take their last breath. Would it be right that some doctors, under a screen of silence, but acting with the best intentions are doing things which they consider may be unlawful? If what is taking place in medical practice is acceptable to society, should not the law be changed to set out clearly the parameters within which they should be acting? A Dr.Mair in his autobiography, Confessions of a Surgeon admitted to carrying out a series of mercy killings on incurable patients during his career. Mauritius cannot close its eyes to the obvious and a regulatory framework is needed. We can draw inspiration from other countries like America and France as long as we do not get lost in the sterile dialogue of the ideologically deaf.

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