In Conversation with Dr. RR Kishore, amicus in the Passive Euthanasia case

Dr. RR Kishore has the unique distinction of being both a doctor and a lawyer. After practicing medicine for over two decades, he did an LL.B. course in 1989 and is currently practicing as a lawyer in the Supreme Court of India..He was appointed Amicus Curiae by the apex court in the case where the legality of passive euthanasia was recently recognized..In this interview, Dr Kishore reveals what drew him to law, offers his take on the Supreme Court’s euthanasia judgment, and talks about various medico-legal issues..What inspired you to take up law after practicing medicine for more than 20 years?.The desire to diversify and venture into newer areas. To test my endurance and ability to learn a new discipline. More importantly, I diversified in to law to fill the prevailing vacuum. When I graduated in Medicine in 1968, it was a highly personalized profession, reflecting a candid relationship between physician and patient, based on fiduciarism. Law was a distant neighbor. Its presence could only be felt in the areas like forensic medicine, and rarely in medical malpractice..Much has changed since then. Fast advancing biotechnology, longer life-span, increasing quest for well-being, wider human interaction, demographic transition, changing lifestyles, excessive dependence on artificial devices, entry of corporate sector in medical and health delivery system, evolving moral concepts, and a host of other factors have imparted a unique multidimensionality to the concept of human health and healthcare..Many players have descended on the scene, imparting human health a composite character, involving multiple disciplines and faculties. Conceptual inadequacy on vital issues, and the competing – and sometimes conflicting – interests, have enhanced the possibilities of ethical miscarriage. In such a pluralistic milieu, adequate understanding of law is necessary in order to harmonize legitimate interests of diverse parties, within the parameters of moral concepts and socio-economic constraints..Medical law is a fast-emerging discipline, with its own jurisprudence, at times vastly different from the doctrines governing the routine civil and criminal matters. Advancing biotechnology and expanding face of medicine have imparted new meaning to concepts like life, death, offspring, parentage, human identity, privacy, equity and distributive justice..On several occasions the courts of law, bereft of medical knowledge, find it difficult to distinguish between right and wrong. During such complex situations, confronted with conflicting perspectives, the person trained in both the disciplines – medicine and law – may provide a valuable input to the Court. In many developed countries such as the USA, Canada, the UK, and Australia, the combination of medicine and law is a much sought after and valued profession..You joined the LL.B. course at age 44. What was it like learning a completely new discipline at that stage?.It was of course difficult. The two subjects are fundamentally different. Medicine is empirical, the law is conceptual. However, in the human context, the goal of medicine and law is same, to ameliorate human suffering. The routes are different. Both deal with the individual, the former through flesh and blood, the latter through paper and files. What made the job easier was the determination and curiosity to learn something new. Eight years of medical education had tuned the mind to intense learning skills and that made the job easier..Could you briefly take us through your initial days of practice as a lawyer?.Initially, there was a problem of adjustment. It was difficult to deal with the clients because I was not used to charging money (I still have this problem). Most of those who come to court have high stakes and want assurance about relief which too I found difficult to handle, as the outcome in a court case is always unpredictable. It is very different from my earlier profession where I was the decision maker and, barring very few cases, I could assure the patients about a positive outcome. In my present profession, the decision lies with the judge. Anchored to my earlier psychology, I feel deep remorse when I lose a case despite being strong on merits..The Supreme Court recently determined the legality of passive euthanasia. How did you come to assist the Court in the matter?.I was not representing any party. After hearing the arguments, I found that some vital dimensions of the matter were not projected before the Court. To name the few: How to define ‘terminal illness’, ‘incurability’, ‘patient’s best interest’, ‘sanctity of life’, ‘limits of individual autonomy’, ‘human dignity’, ‘dignified death’, ‘power of surrogate decision maker’..An attempt has been made to define these expressions by the Courts in various judicial decisions across the world, particularly the courts in the USA, Canada, the UK, Australia, France, Italy, Germany, and Switzerland. I mentioned before the Court that being a person trained in both the disciplines, medicine and law, I wish to assist them at this juncture and the Court very kindly agreed to hear me..It has been a long fight in the Supreme Court. Why do you think it took so long to win it?.Yes indeed. The petition was filed in 2005. It has taken 13 long years to get a decision. This is partly because of a large number of cases being filed, the culture of adjournments, and partly because the subject matter was extremely complex and sensitive. However, when I compare with other jurisdictions where landmark decisions have been pronounced in a similar matter in a much shorter time, I feel there is a compelling need to evolve strategies for expeditious decisions..What are your thoughts on the judgment?.In view of heterogeneous judicial decisions in different jurisdictions of the world, the Indian Supreme Court’s judgment is a path-breaking pronouncement. It recognizes an individual’s inherent right to self-determination and clears the ambiguity reflected in the earlier decisions, namely P Rathinam, Gian Kaur and Aruna Shanbaug..The living will or advance directive, unfamiliar in India, has gained categorical legal recognition after the Supreme Court verdict. The judgment has adopted a pragmatic approach, free from antiquated and proscriptive laws, false notion of virtue and undue moral paternalism, saving many lives from lingering aimlessly..In the words of the Court, “Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity.” The Court has filled a long-standing legal void and provided a direction in the hitherto unchartered area of the country’s legal landscape. The judgment lays down a detailed and fine-tuned procedure to ensure its chaste implementation, impervious to abuse..Do you see any scope for misuse of passive euthanasia? If so, how would you suggest such attempts be prevented?.In view of the safeguards and elaborate procedure laid down by the Court, the chances of misuse are almost nil. The Court has categorically directed,.“Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.”.Informed consent of an individual has been made mandatory. The Advance Directive should be recorded in the presence of two witnesses and should be countersigned by the jurisdictional Judicial Magistrate of First Class. The Magistrate has to forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format..If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he has to constitute a Medical Board consisting of the Head of the treating Department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology. The hospital has to forthwith inform the jurisdictional Collector about the proposal..The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology. If they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive..Thus, the procedure involves a Magistrate, a District Judge, two different Medical Boards and a District Collector..Do you have faith that the government will pass a legislation soon, in tune with the Supreme Court judgment?.Judicial decisions may fill the vacuum for some time, but they cannot be a substitute for legislative wisdom. Since the issue of euthanasia is not merely scientific or medical but involves a wide range of disciplines, including religious, cultural, economic, ethical and legal perspectives, it is imperative that comprehensive and fine-tuned legislative strategy is evolved. The matter of enacting the law has been pending with the Government of India, and I hope, following the Supreme Court’s pronouncement, they will act fast..Parliament has sent the National Medical Commission Bill to a standing committee. What is your take on the legislation? Will the NMC succeed where the Medical Council of India has failed?.Formation of the National Medical Commission is a positive effort in view of the past performance of Medical Council of India. However, certain provisions in the Bill need review..The proviso to Clause 6 (6) allows the Central Government to permit the Chairperson or a Member of the National Medical Commission “to accept any employment in any capacity, including as a consultant or expert in any private medical institution whose matter has been dealt with by such Chairperson or Member”. This provision is fallacious per se and will open the doors of favoritism leading to loss of objectivity and impartiality of the Commission..Clause 10 (1) (i) limits the power of the Commission for determination of fees in the private medical institutions and deemed Universities only up to forty percent seats. This will lead to charging of exorbitant fees from the rest sixty percent, leading to commercialization of medical education..The Provisos to Clause 26(1)(c) with regard to hiring and authorizing third-party agency or persons for assessment and rating of medical institutions defeats the very purpose of the Bill. The Proviso to Section 26 (1) (f) is also deleterious to the interest of medical education. It is not intelligible as to why, in the event of continued failure, three opportunities should be given to substandard and delinquent medical institutions before withdrawing the recognition of the medical qualification. This provision will seriously jeopardize the interest of medical students who will be subjected to substandard and low-quality education..The Proviso to Clause 29, providing for relaxation of standards “for the medical colleges which are set-up in such areas as may be specified by regulations” is also misconceived, as there is no scope of substandard education in a discipline like medicine which deals with the health and lives of individuals..Provisions of Clause 49 (3) and (4) contemplating development of “bridges across the various systems of medicine and promote medical pluralism” and approval of “specific bridge course that may be introduced for the practitioners of Homoeopathy and of Indian systems of Medicine to enable them to prescribe such modern medicines” are also contrary to public interest as the modern medicine is not only distinct in terms of drugs and procedures but it is wholly different in its scientific foundations and concepts. The Homoeopathy and of Indian systems of Medicine do not have anything in common with the modern medicine..How, in your opinion, has the Oversight Committee set up by the Supreme Court to regulate the opening of medical colleges functioned thus far?.In the prevailing scenario of rank commercialization and mushrooming of substandard medical colleges in the country, a drastic regulatory mechanism is most imperative. Since the government and the MCI have miserably failed to ensure appropriate standards in medical education the Oversight Committee set up by the Supreme Court is the only option for regulation of medical education..What are some of the other medico-legal cases you are currently working on?.I am working on the evolution of law relating to many issues such as Patient’s Rights, Medical Tourism, Organ Transplantation, Abortion, Reproductive Rights, Surrogacy, Sale of Gametes, Posthumous Reproduction, Sex selection, Foetal Rights, Clinical Trial on Human Subjects, Informed Consent, Brain Death, PVS, Priorities in Health Care, Quality in Healthcare, Genetic Patentability, Medical Malpractice, Medical Negligence, Civil Rights in Human Body, Drug Abuse, Elderly & Handicapped, Disposal of Wastes, Intellectual Property Rights, DNA Sampling, Human Enhancement, Stem Cells, Cloning..In India, the awareness of these issues is gradually evolving. As and when I get a case relating to these subjects, I will argue the matter.