Right To Die : How To Make Directions On "Living Will" Workable? Supreme Court Constitution Bench Discusses

A Constitution Bench of the Supreme Court, on Tuesday, commenced with the hearing of the Miscellaneous Application seeking modification of the guidelines for Living Will/Advance Medical Directive that was issued by way of its judgment recognizing 'passive euthanasia' in Common Cause v. Union of India And Anr.During the course of the hearing, it was made abundantly clear that the directions issued by the Court are to be in effect only till law is enacted by the Legislature. The same had also been clearly stated in the Common Cause judgment. Justice K.M. Joseph, leading the 5-JudgeBench, was of the opinion that the Legislature is much more ‘endowed with multiple talents, skills, sources of knowledge’, which the Court lacks. He, very candidly, disclosed the limitation of the Court in specialised issues like the present one. In this context, Justice Aniruddha Bose asked the Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government - “Have you thought of legislation in this field? It has been 5 years (since Common Cause judgment).”Mr. Nataraj sought time to come back with his response. Justice Bose emphasised that it is essentially a legislative function. A Bench comprising Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar was apprised by Senior Advocate, Mr. Arvind Datar representing the applicant, Indian Council for Critical Care Medicine, that the directions previously issued by the Apex Court have become unworkable. He attempted to explain the impediments in implementing the directions. Modifications were sought under three broad parameters - contents, method of recording and implementation of advance directive. Additional Solicitor General, Mr. K.M. Najaraj, at the outset, submitted that the legal issues in the matter have already been settled. Only the procedure pertaining to the implementation of the directions have to be looked into by the 5-Judge Bench at the present stage. Advocate, Dr. R.R. Kishore, who was the Amicus Curiae in Common Cause (supra) supplied the Bench with a small brief which covers all the legal issues pertaining to Advance Directive - the concept, the challenges; how the use and misuse are managed in different jurisdictions. He apprised the Bench that the first legislation on Advance Directive came in the year 1997, in Oregon. For the first time a person’s right to end his life was recognised in law. Justice Joseph inquired whether there exists a legal bar if, in the alternative, a person refuses treatment. Dr Kishore responded that in such cases the patient would have to sign a number of bonds. Justice Bose was concerned that, how an advance directive would come handy to a person who chooses not to go to the hospital at all. Advocate, Mr. Prashant Bhusan answered Justice Bose’s query stating that the law is settled on the issue. Every person has an indefeasible right to refuse treatment. According to him the only issue is, what would happen if a person is unconscious and incapable of expressing their will as to whether they want to be put on a ventilator or not. He added - “The whole purpose of the advance directive is that no one, not even his next of kin, can force him to put on a ventilator. The problem that has arisen now is that the execution of the living will is very cumbersome.”Mr. Datar submitted that even without advance directives, AIIMS has a form, ‘patient’s wish for withholding life support' which can be availed by the patient, who is conscious to choose not to be out on the ventilator. Mr. Nataraj submitted that the Common Cause judgment clarifies that till appropriate legislation is made, the directions issued by the Apex Court would be followed. It appears that it was supposed to be a stop-gap arrangement. Justice Joseph expressed concern that if a person signs an advance directive today, but when the person is actually afflicted with the disease, there are huge advancements in the field of medical sciences and the disease becomes curable. He reckoned that if a person is permitted to refrain from getting treated, even when the disease is curable it might be so that they are devaluing the value of life itself. Addressing the Judge, Mr. Datar submitted that personal decision is not the ‘be all and end all’. The treating doctors, the medical Board and the review Board have to also look into the possibility of survival of the patient. The follow up query of Justice Joseph was if the same was actually mentioned in the direction issued by the Court. Mr. Datar responded in the negative. He submitted -“What is contingent is that the person must have terminal illness.”Almost all the Judges were concerned that it cannot be said with certainty that a person would not survive a disease. The Bench referred to several instances where the doctor’s opinion that the patient would not survive beyond a certain period has been proven wrong. Justice Bose said -“If you follow the life of Stephen...

Right To Die : How To Make Directions On "Living Will" Workable? Supreme Court Constitution Bench Discusses

Sohini Chowdhury

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