Supreme Court Notes Insurmountable Obstacles in the Implementation of Living Wills, Eases Procedure To Make It Workable

Taking note of the “insurmountable obstacles” in the implementation of advance medical directives of terminally-ill patients, the Supreme Court has eased the procedure to make it more workable.

A living will is an advance medical directive on end-of-life treatment.

The Supreme Court’s 2018 order on passive euthanasia, wherein it recognised the right to die with dignity as a fundamental right and an aspect of Article 21 (right to life) of the Constitution, notwithstanding, people wanting to get a “living will” registered were facing problems due to cumbersome guidelines, prompting a reconsideration by the apex court.

Issuing a slew of modifications, a five-judge Constitution bench, headed by Justice KM Joseph, has made the role of doctors and hospitals more important in the mechanism.

The court has said the difficulties being encountered have been voiced by a large number of doctors and it has become absolutely necessary for the apex court to revisit its directions.

The court said a living will now be signed by the executor in the presence of two attesting witnesses, preferably independent, and attested before a notary or gazetted officer.

“It should specify the name of a guardian(s) or close relative(s) who, in the event of the executor becoming incapable of taking decisions at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the advance directive.

“The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and attested before a notary or gazetted officer,” the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, said.

The witnesses and the notary or the gazetted officer shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences, it added.

According to the top court’s 2018 order, a living will was needed to be signed by the person making it, in the presence of two witnesses and a judicial magistrate of first class (JMFC).

The top court also agreed to the suggestion that the executor shall inform and hand over a copy of the advance directive, if any, to the family physician.

The executor may also choose to incorporate the advance directive as a part of the digital health records, if any, it said.

The court also okayed the suggestion that in the event of the executor becoming terminally ill and undergoing prolonged medical treatment with no hope of recovery, the treating physician, when made aware of the advance directive, shall ascertain the genuineness and authenticity of the document.

“The hospital where the executor has been admitted for medical treatment shall then constitute 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, who, in turn, shall visit the patient in the presence of his guardian/close relative.

“They shall form an opinion, preferably within 48 hours of the case being referred to it, whether to certify or not to certify carrying out the instructions’ withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion,” the bench said.

The court further said if the primary medical board certifies that the instructions contained in the advance directive ought to be carried out, the hospital shall immediately constitute a secondary medical board.

The secondary board would comprise 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 of the specialty concerned, who were not part of the primary medical board.

“They shall visit the hospital where the patient is admitted and if they concur with the initial decision of the primary medical board of the hospital, they may endorse the certificate to carry out the instructions given in the advance directive. The secondary medical board shall provide its opinion, preferably within 48 hours of the case being referred to it,” it said.

The top court had earlier chastised the Union government for not enacting a law on passive euthanasia as laid down in its 2018 judgment, saying it was abdicating its legislative responsibility and passing the buck to the judiciary.

Observing that this is a matter on which the chosen representatives of the country should debate, the court had said it lacked the requisite expertise and was dependent on the information provided by the parties.

More than four years after its landmark order on passive euthanasia, the top court agreed to modify its 2018 guidelines on “living will”.

It was considering a plea seeking modifications in the guidelines for the Living Will/Advance Medical Directive issued by it in 2018.

The court had, in its March 9, 2018 judgment, recognised that a terminally-ill patient or a person in a persistent vegetative state may execute an advance medical directive or a “living will” to refuse medical treatment, holding that the right to live with dignity also included “smoothening” the process of dying.

It had observed that the failure to legally recognise advance medical directives might amount to “non-facilitation” of the right to smoothen the dying process and that dignity in that process was also part of the right to life under Article 21.

The court had laid down principles related to the procedure for the execution of advance directives and spelt out guidelines and safeguards to give effect to passive euthanasia in both circumstances — where there are advance directives and where there is none.

“The directive and guidelines shall remain in force till Parliament brings a legislation in the field,” it had said.

The verdict had come on a public interest litigation (PIL) matter filed by NGO Common Cause, seeking the recognition of the “living wills” made by terminally-ill patients for passive euthanasia.

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