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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
4 Feb 2023 3:30 AM GMT
Right to Die: Supreme Court Makes It Easier For Persons To Opt For Passive Euthanasia; Simplifies 2018 Guidelines On Living Will/Advance Directive
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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-maker

Previous 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 formulated by the secondary medical board, and if the executor was incapacitated, the consent of all the nominees will be taken.

Role of judicial magistrate of first class

Previous guideline : Countersign of jurisdictional judicial magistrate of first class was required. The officer was further required to record their satisfaction that the document has been executed voluntarily and without fear or favour. The judicial magistrate would also preserve a copy of the document in both paper and digital formats.

Current guideline : It is sufficient for an advanced directive to be attested before a notary or a gazetted officer. The requirements for it to be countersigned or preserved by a judicial magistrate has been dispensed with.

Role of district court registry

Previous guideline : The judicial magistrate was required to forward a copy of the document to the registry of the jurisdictional district court, which would have to retain the document in the original format.

Current guideline : This requirement has been deleted.

Informing family members and family physician

Previous guideline : The judicial magistrate was required to inform the immediate family members of the executor and their family physician, if any.

Current guideline : The executor has to hand over a copy of the advance directive to the designated decisionmaker(s) and the family physician, if any.

Informing the government

Previous guideline : A copy of the advance directive had to be handed over to a competent official of the local government. The aforesaid authorities would then nominate an official as its custodian.

Current Guideline : In addition to this, the executor can now also incorporate the document as a part of their digital health records, if any.

Ascertaining authenticity

Previous guideline : When the executor became terminally ill, with no hope of recovery, the treating physician had to execute the advance directive after ascertaining its genuineness and authenticity from the judicial magistrate.

Current Guideline : When the executor becomes terminally ill, with no hope of recovery, and no longer possesses decision-making capacity, the treating physician will have to execute the advance directive after ascertaining its genuineness and authenticity with reference to the digital records of the executor, or from the custodian of the document appointed by the local government body.

Preliminary opinion

Previous guideline : A medical board, comprising the head of the department, and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years, had to be constituted. This board had to form a preliminary opinion.

Current Guideline : A primary medical board, consisting of the treating physician and at least two subject experts of the concerned specialty with at least five years’ experience, will be constituted. This board will form a preliminary opinion preferably within 48 hours of the case being referred to it.

Final opinion

Previous guideline : After receiving the hospital medical board’s approval, the treating physician or hospital had to inform the jurisdictional collector, who would then constitute another medical board comprising the chief district medical officer and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry, or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The members of the hospital medical board would not be eligible to be a part of the medical board formed by the collector.

Current guideline : After the primary medical board gives its sanction, the hospital will immediately constitute a secondary medical board comprising a registered medical practitioner nominated by the chief medical officer of the district and at least two subject experts with at least five years’ experience in the concerned speciality who were not part of the primary medical board. This board will provide its opinion preferably within 48 hours of the case being referred to it.

Withdrawal of treatment

Previous guideline : The decision of the medical board constituted by the collector had to be conveyed by the chairman, i.e., the chief district officer, to the judicial magistrate, who would then authorise the withdrawal of treatment after visiting the executor at the earliest and examining all aspects.

Current guideline : It is sufficient for the hospital to simply convey the decision of the primary and secondary medical boards and the consent of the person or persons named in the advance directive to the judicial magistrate before giving effect to the decision to withdraw the medical treatment administered to the executor. It is no longer necessary to wait for the judicial magistrate’s authorisation.

Refusal by first medical board

Previous guideline : If the hospital medical board took a decision not to follow an advance directive, it had to make an application to the medical board constituted by the collector for considering and passing appropriate directions with respect to the document.

Current guideline : If the primary medical board takes a decision not to follow an advance directive, the nominees of the executor can request the hospital to refer the case to the secondary medical board for consideration and for passing appropriate directions.

Appeal before High Court

Previous guideline : If permission to withdraw treatment being administered to the executor was denied by the medical board, it would be open to the executor, his nominee, the treating physician, or the hospital staff to file a writ petition at the jurisdictional High Court.

Current guideline : If permission to withdraw treatment being administered to the executor is denied by the secondary medical board, it is open to the nominees of the executor, the treating physician, or the hospital staff to file a writ petition at the jurisdictional High Court.

Can treatment be withdrawn if no advance directive has been executed?

In its 2018 judgement, the Supreme Court also prescribed the procedure to be followed in cases where a terminally ill patient with no hope of recovery did not execute an advance directive ahead of time. “It is necessary to make it clear that there will be cases where there is no advance directive. The said class of persons cannot be alienated,” the bench noted. Thus, under such circumstances, in excess of the usual safeguards, additional requirements also have to be met. Not unlike the procedure to be followed where a terminally ill patient has executed an advance directive, necessary changes were also made to the guidelines with respect to the withdrawal of treatment in the absence of an advance medical directive. The newly prescribed procedure has been summarised below:

Before withdrawing treatment, a primary medical board would have to be constituted by the hospital on being apprised by the treating physician as to the nature of the ailment. The board would consult with the patient’s next of kin, next friend, or guardian and record the minutes of the discussion as well as their consent, if they choose to furnish it, in writing. The primary board would be required to certify the proposed course of action within 48 hours. The preliminary opinion would be examined by the secondary medical board formed by the hospital. If they agree with the primary medical board, the judicial magistrate as well as the next of kin, next friend, or guardian of the patient would be informed preferably within 48 hours of the case being referred to it. Where there is a divergence of opinion, and the secondary medical board does not approve the plan to withdraw treatment, the family members, treating physician, or hospital staff may approach the High Court.

The Constitution Bench has directed the Registry to communicate the order to Registrar Generals of all the High Courts, who in turn ,should dispatch a copy to the Health Secretaries in the respective States/Union Territories for onward communication to all the Chief Medical Officers in the States/Union Territories.

Case Title

Common Cause v. Union of India | Miscellaneous Application No. 1699 of 2019 in Writ Petition (Civil) No. 215 of 2005

Citation : 2023 LiveLaw (SC) 79

For Petitioner(s) Mr. Arvind P. Datar, Sr. Adv. Dr. Dhvani Mehta, Adv. Ms. Rashmi Nandakumar, AOR Ms. Shreya Shrivastava, Adv.

For Respondent(s) Mr. K.M. Nataraj, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Mohd. Akhil, Adv. Mr. Adit Khorana, Adv. Mr. Shailesh Madiyal, Adv. Mr. Udai Khanna, Adv. Mr. Vinayak Sharma, Adv. Mr. Anirudh Bhat, Adv. Mr. Sanjay M Nuli, Adv. Mr. Nakul Chengappa K.K., Adv. Mr. Chitransh Sharma, Adv. Mr. Anuj S. Udupa, Adv. Dr. R. R. Kishore, Adv

Constitution of India- Article 21- Right to die with dignity- passive euthanasia- Supreme Court Constitution Bench simplifies the procedure for executing living will/advance directive by modifiying the he judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1- the Court allows the application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment

Click here to read/download the judgment

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