Bombay High Court Seeks Govt's Response On Plea For Appointment Of Custodians To Receive Living Wills

The Bombay High Court today directed the Maharashtra government, the Union and the BMC to file their responses to a public interest litigation (PIL) highlighting the State's failure to create proper mechanisms for people to complete the process of making living wills and to die with dignity.

The bench comprising Justices Devendra Kumar Upadhyaya and Arif Doctor sought for responses to be filed within six weeks.

“It's a good public cause,” the court observed.

The PIL filed by city-based gynaecologist Dr Nikhil Datar and two other professors seeks enforcement of the Supreme Court's order dated January 24, 2023 in the Common Cause case.

The SC set norms for advanced medical directives and simplified the process for living wills. The Court reiterated that the right to die with dignity is a fundamental right, and declared that an adult human being, having the mental capacity, to take an informed decision, has the right to refuse medical treatment including withdrawal from life saving devices.

Dr Datar's petition specifically seeks compliance of paragraphs 198.3.6 and 198.4.15 of the SC order which directs local municipal bodies to appoint a custodian for receiving and keeping citizens' living will documents safe. Paragraph 198.4.15 directs state governments to nominate a registered medical practitioner in each district to be appointed to a secondary medical board verifying living wills.

The petition states that the SC order aims to make the process of withholding life support for terminally ill patients easier for patients, families and doctors. However, even after a year, compliance is lacking.

Dr Datar executed his own living will on February 23, 2023. In absence of a custodian appointed by the Municipal Corporation of Greater Mumbai (MCGM), he submitted it to the Municipal Commissioner on February 24, requesting nomination of a custodian.

Despite reminders in July 2023, Dr Datar has received no concrete information from MCGM on appointment of a custodian, the petition states. His RTI application was forwarded to various departments but no custodian has been appointed till date.

The petition prays for the High Court to direct MCGM to appoint a custodian and the state government to create a panel of registered medical practitioners for verifying living wills. It also seeks digitization of living wills and raising public awareness and therefore has made the Union a party.

The plea states that many senior citizens executed living wills after awareness campaigns and submitted them to municipal commissioners in Mumbai and Navi Mumbai. But they remain unsure of the status of their wills.

The plea states that the order of the Hon'ble Supreme Court is infructuous in absence of mechanism and will amount to violation of fundamental rights.

“In absence of a custodian the advanced medical directive executed by the citizens will not have the sanctity of law. It will not be possible for the doctors to confirm the authenticity. Thus, no further process will be carried out by the doctors / hospitals in this regard making the directive of the Hon'ble Supreme Court infructuous. The very purpose of the order in Common cause v. Union will be defeated. The petitioner would reiterate the obligation to protect the rights of the citizens enshrined under article 21 of the constitution.”

The matter will now be heard on March 8, 2024. Aprt from Dr. Datar the two other petitioners are Dr. Anand Raut and Dr. Garima Pal.