Making Supreme Court’s Living Will judgment work: Parties agree to propose safeguards

Common Cause's miscellaneous application filed in 2019 in the Living Will case points out several problems in the Supreme Court's 2018 judgment, which will now be resolved through discussions among the stakeholders, before the court gives its approval.

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THE Supreme Court constitution bench of Justices K.M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T Ravikumar, on Thursday, heard the public interest organisation Common Cause's miscellaneous application relating to concerns in implementing the Supreme Court's 2018 direction relating to the execution of Living Wills or Advance Medical Directive in its judgment in Common Cause (A Regd. Society) versus Union of India.

Senior advocate Arvind P. Datar explained to the bench that a living will or advance medical directive allows a person to terminate life support and die with dignity. However, he pointed out that the directions issued by the court in its 2018 judgment have turned out to be unworkable.

Datar explained that as per the Supreme Court's directions in the judgment, a medical board has to first declare that the patient has no scope of recovery or is brain dead. Then, the matter goes to the district collector, who constitutes an independent medical board to obtain a second opinion. After this, the matter is referred to a Judicial Magistrate of First Class, who has to go to the hospital to satisfy themself that the board's opinion, that the life support could be withdrawn to the patient, is correct. Datar explained that many stakeholders have found this procedure unworkable.

The Solicitor General of India, Tushar Mehta, submitted that the issue needs examination. He expressed his concern that some families may consider aged people as unwanted, and therefore, misuse the living will. There have to be some safeguards to protect against misuse, he stated.

He conceded, however, that certain genuine cases may arise in which a person does not want to suffer the agony or subject their family to the same. Mehta suggested that he could consult the Union Government and decide on this issue.

When the bench pointed out that the determination of this issue is a domain of the legislature, Datar told the court that this situation is similar to Vishaka & Ors. versus State of Rajasthan & Ors. (1997) in which the Supreme Court, in the absence of an existing statutory law prohibiting sexual harassment in the workplace, enacted directions for the same under Article 142 of the Constitution

The bench told the parties that the case is not adversarial. Agreeing to this, Mehta suggested that he could facilitate a joint meeting of the intervener with relevant public officials and discuss the issues, to find a solution.

Ironically, another Constitution bench had on January 22, 2020 asked the Union Government to file its response to Common Cause's application within ten days. When the counsel indicated that a joint meeting of all the stakeholders was being planned, the bench allowed it and asked to report if a consensus was reached. However, as the present hearing of the case indicates, such consensus has so far remained elusive.

Background

Common Cause was an intervener in Writ Petition (Civil) No. 215 of 2005 before the Supreme Court, which was decided by a Constitution bench of the court in 2018. This writ petition was filed seeking the grant of legal recognition to advance medical directives, known as living wills.

The Supreme Court's Constitution bench, in Common Cause, had granted legal recognition to advance medical directives and laid down directions for their operation. The court laid down directions for the withholding or withdrawal of life-sustaining treatment from patients who have made advance medical directives, but do not have the capacity to exercise their judgment or express their wishes.

Common Cause subsequently filed an application (Miscellaneous Application 1699/2019 in Writ Petition (Civil) No. 215/2005) seeking a clarification of this judgment, with reference to this paragraph:

"191. In our considered opinion, 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."

The bench then went on to enumerate various safeguards in subsequent paragraphs.

Common Cause's miscellaneous application sought the following modifications/clarifications in the directions laid down by the Supreme Court:

1. That an advance medical directive be permitted to be executed before a Notary, as an alternative to its execution before a Judicial Magistrate of First Class;
2. That an advance medical directive comes into operation only when its executor is incapable of exercising their judgment or expressing their wishes;
3. That the decision regarding withholding or withdrawal of life-sustaining treatment be permitted to be taken by the treating team of the patient comprising three senior doctors, after communicating with and taking into account the wishes of their family and/or next friend or guardian;
4. That the prior approval of the Medical Board constituted by the Collector, as well as the Judicial Magistrate of First Class not be required for the implementation of a decision to withhold or withdraw life-sustaining treatment, so long as all such decisions are reviewed post-facto by a Clinical Ethics Committee.
5. That the withdrawal of life-sustaining treatment from a person who has suffered brain-stem death be permitted, irrespective of whether such person or her family had consented to the donation of their organs.

Common Cause emphasised that these clarifications/modifications are necessary to remove the uncertainty regarding the withholding or withdrawal of life-sustaining treatment that currently prevails throughout the medical community in India. They are also necessary to ensure that the processes for the withholding or withdrawal of life-sustaining treatment are workable and give effect to the tenets of the Supreme Court's judgment, that is, the right to refuse life-sustaining treatment and to die with dignity, the application reads.

Specifically, the application points out that the requirement that the advance medical directive is to be executed in the presence of two attesting witnesses, preferably independent, and countersigned by a Judicial Magistrate of the First Class, is onerous. This is likely to discourage ordinary citizens from executing advance medical directives, thereby preventing them from exercising their rights to autonomy, dignity and privacy, the application claims.

The application also points to another inconsistency: when the executor is incapable of making a decision or communicating their wishes, there can be no question of the physician informing the executor of the nature of the illness, the availability of medical care, the consequences of alternative forms of treatment, and the consequences of remaining untreated. There can also be no question of ensuring that the executor has understood the information provided, thought over the options, and reached the conclusion that the withdrawal or refusal of medical treatment is the best choice. But the Supreme Court's 2018 judgment contemplates this in its directions in paragraph 191(d)(iii).

Common Cause's miscellaneous application is available here.

(with editorial inputs)