Right to Die: Supreme Court Makes It Easier For Persons To Opt For Passive Euthanasia; Simplifies 2018 Guidelines On Living Will/Advance Directive

The Supreme Court has modified the slew of directions relating to advance medical directives, or living wills issued in a 2018 judgement that had recognised the right to die with dignity as an inextricable facet of the right to live with dignity under Article 21 of the Constitution, and had, accordingly, upheld the legal validity of passive euthanasia. The modification order was passed by a Constitution Bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar that was considering an application by the Indian Council for Critical Care Medicine. The order dictated by the bench on January 24 was uploaded recently.Arguing that the directions had become virtually unenforceable owing to the complexity of the procedure prescribed by the top court, the non-profit association of Indian physicians, nurses, physiotherapists, and other allied healthcare professionals involved in the care of the critically ill sought necessary amendments to make the judgement ‘workable’. Accordingly, several changes were introduced by the five-judge bench in the guidelines laid down in 2018 with respect to the execution and enforcement of advance care directives, as well as the procedure for passive euthanasia. What is an advance medical directive? Advance directives are legal documents that extend a person’s autonomy and control over their healthcare decisions in the event they become incapacitated. These directives enable individuals to communicate preferences regarding medical treatment, end-of-life care and other aspects of care, as well as designate a surrogate decision-maker ahead of time, before being incapacitated. In simpler terms, an advance directive ensures that the wishes of the executor are honoured, even when they are incapable of making a decision or their decision-making capacity is severely impaired. It was noted in the 2018 judgement that unlike other countries, “there was no legal framework in our country as regards the advance medical directives”. However, the bench headed by the then-Chief Justice Dipak Misra observed, it was the constitutional obligation of the court to protect the right of the citizens as enshrined under Article 21 of the Constitution. It was, therefore, held, “An advance medical directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner.” However, as measures of abundant caution, the court also spelled out several safeguards relating to the competence of an individual to execute an advance directive and the procedure, its contents, how it ought to be recorded and preserved, when and by whom it could be enforced, where to prefer an appeal against a hospital medical board refusing permission, and the circumstances under which an advance directive could be revoked or would be inapplicable. What changes have been made? The bench led by Justice K.M. Joseph in January acknowledged that the earlier order resulted in ‘insurmountable’ obstacles that prevented the directions from being implemented. For instance, the court required advanced directives to not only be executed in the presence of two attesting witnesses, preferably independent witnesses, but also countersigned by a judicial first-class magistrate. “This clause has led the very object of this Court issuing directions being impaired, if not completely defeated,” the bench noted. Several other aspects were also highlighted in the application, in response to which the court issued a detailed order appropriately modifying the existing legal requirements for withdrawal of treatment being administered to terminally ill patients. These changes have been summarised below.Surrogate decision-makerPrevious guideline : Only one guardian or close relative was to be named, who would, at the time of the execution of the advance directive, be informed by the treating physician of the nature of illness, the availability of medical care, consequences of alternative forms of treatment, and the consequences of remaining untreated. Before a final opinion was formulated by the medical board constituted by the collector, and if the executor was incapacitated, the consent of the guardian or close relative would also be taken.Current guideline : More than one guardian or close relative can be named in the document, all of whom have to be informed of the nature of illness, the availability of medical care, consequences of alternative forms of treatment, and the consequences of remaining untreated by the treating physician at the time of the execution of the directive. Before a final opinion was...

Right to Die: Supreme Court Makes It Easier For Persons To Opt For Passive Euthanasia; Simplifies 2018 Guidelines On Living Will/Advance Directive

Awstika Das

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