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SC Dismisses Petition Seeking Recognition Of Living Will [Read Order]

LiveLaw Research Team
21 Oct 2016 5:40 PM GMT
SC Dismisses Petition Seeking Recognition Of Living Will [Read Order]
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The Supreme Court bench, comprising the Chief Justice T.S.Thakur, and Justices D.Y.Chandrachud and L.Nageswara Rao, on Friday, declined to consider a Public Interest Litigation,  seeking a declaration that any person, in a mental capacity to make decisions, has the right to choose or refuse any kind of medical treatment, which cannot be curtailed by any health care provider.

The petition was filed by Girish Gokhale, a senior advocate practicing in Bombay high court, Raj Kumar Mani, a resident of Delhi, S.L.N.Simha, a resident of Bengaluru, and Roopkumar Dayaram Gursahani, a resident of Mumbai.

The petition also sought appropriate guidelines for exercising of the patient’s rights to autonomy under Article 32 read with Article 142 of the Constitution, and issue a Writ of Mandamus, directing such guidelines to be enforced by all health care providers until such time appropriate legislation covering this field is put in place.

The petition, settled by senior advocate, Harish Salve, was argued by senior advocates, Shekhar Naphade, and Sanjay Hegde.

The Bench, which initially was inclined to consider the petition, however, changed its mind, when it came to know that a Bill on the subject is pending in Parliament.

“We see no reason to interfere in the matter at this stage with the on-going process when the Parliament is seized of the bill on the subject sought to be agitated in this petition”, the bench observed in its brief order.

The petitioners, however, pointed out that ‘The Medical  Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’, - a draft Government Bill – falls short of addressing some pressing concerns surrounding End of Life Care in India  and highlights a lack of trust in patients, their families, and most importantly, doctors.  The bill was annexed to the petition.

More important, the counsel submitted that since the bill  specifically says it does not recognize Living Will, the Court’s interference is justified. The Bill solely considers the practice of Euthanasia, and fails to provide a comprehensive framework for End of Life Care, the petitioners suggested to the Bench.

The petitioners claimed that on account of lack of clarity in the law, and the failure to draft appropriate legislation, the rights of patients’ autonomy stands denied by health care providers.

The bench’s order dismissing the petition is perhaps incorrect, as only a draft Bill has been uploaded by the Government inviting comments and suggestions, and Parliament is not  seized of the same, as it has not been introduced yet.  The petition further points out that the Government did not even bother to acknowledge or respond to the petitioners' suggestions to the draft Bill.

Therefore,  the petition appears to have been dismissed on an erroneous assumption.

Read the petition and order here.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.

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