Over 4 Years After Landmark Order, Supreme Court to Tweak ‘Living Will’ Guidelines

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More than four years after its landmark order on passive euthanasia, the Supreme Court said on Tuesday it is for the legislature to enact a law for terminally ill patients choosing to stop treatment but agreed to modify its 2018 guidelines on “Living Will”, an advance medical directive on end of life treatment.
The Supreme Court’s order notwithstanding, people wanting to get a “living will” registered have been facing problems due to cumbersome guidelines. Observing that the legislature is much more endowed with “skills and sources of knowledge” to enact a relevant law, the Supreme Court said it will limit itself to improving the guidelines it had laid down on “Living Will”.

A five-judge Constitution bench headed by Justice KM Joseph said there can only be a little tweaking of the guidelines or else it will become a review of its own 2018 judgement.

It said the advance directive can be applied only in the narrow area where patients become so terminally ill that they are not in a position to say that the treatment must stop.

“We are only here to consider improving the guidelines. We should realise the limitations of the court also. The judgment clarifies that till a law is made by the legislature…..Legislature is much more endowed with skills, talents and sources of knowledge. We are not experts in medicine. We have to be careful in that,” the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and Justice CT Ravikumar said.

The five-judge Constitution bench was considering a plea seeking modification of the guidelines for Living Will/Advance Medical Directive issued by it in 2018.

Senior advocate Arvind P Datar, appearing for The Indian Society for Critical Care, submitted that the procedure under the Supreme Court guidelines had become unworkable due to the involvement of multiple stakeholders in the process.

In accordance with the Supreme Court directions, he said, a medical board has to first declare that the patient has no scope of recovery or is brain dead. The procedure then enumerates that the district collector has to constitute an independent medical board to obtain a second opinion, after which the matter is referred to a judicial magistrate, first class, he said.

“What happened was initially the five-judge judge bench laid down certain directions as to how to issue the advance directive… A three-step process was spelt out which is very cumbersome… There are three broad parameters – contents, method of recording and implementation of advance directive,” Mr Datar said.

He suggested in a Living Will, there can be two witnesses and the role of judicial magistrate can be done away with.

“The Will is going to be acted upon on suggestions of the boards…Let us not retain the Magistrate,” he said.

The Supreme Court indicated it might set a time limit on the procedure involved as protracted delay will defeat the whole purpose of writing a Living Will.

Additional Solicitor General KM Nataraj told the bench a couple of meetings were held with the representative of AIIMS and other stakeholders where a chart of necessary safeguards was prepared.

Advocate Prashant Bhushan, appearing for NGO Common Cause, said everybody has an indefeasible right to refuse treatment.

“Here the question arises that if a person is unconscious and incapable of expressing his will as to whether he wants to be put on ventilator or not. The whole purpose of the advance directive is that no one, not even his next of kin, can force him to be put on a ventilator. The problem that has arisen now is that the execution of the Living Will is very cumbersome,” he said.

The bench asked Mr Datar to submit the chart he had mentioned before and apprise it about the manner in which the advance directive can be effected.

The hearing remained inconclusive and will resume on Wednesday.

The top 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 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 of the Constitution.

The Supreme Court had laid down principles related to the procedure for 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 are 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 PIL filed by NGO Common Cause seeking recognition of the “Living Will” made by terminally-ill patients for passive euthanasia.

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