Bombay High Court Pulls Up Maharashtra Govt Over Inadequate Mechanism For Enforcing Living Wills

The Bombay High Court on Thursday pulled up the state government for not establishing a sufficient mechanism to enforce living wills, highlighting the lack of a secondary medical board necessary for the execution of these directives.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar was hearing a PIL filed by Dr. Nikhil Datar, a Mumbai-based gynaecologist, seeking the proper implementation of the Supreme Court's directive on passive euthanasia.

“This is unfortunate that a person has to file a petition seeking a direction from this court to comply with the directions issued already by the Supreme Court. This judgment is already there. This judgment is to facilitate your functions. Why can't you have a permanent secondary board? What's the difficulty?” Chief Justice Upadhyaya asked the state.

Dr. Nikhil Datar, along with two other professors, have sought the enforcement of the Supreme Court's January 24, 2023 order, which aimed to streamline the procedure for passive euthanasia. This includes the creation of a robust mechanism for citizens to complete living wills, also known as advance medical directives (AMD). A living will is a legal document in which a person specifies their preferences for medical treatment in scenarios where they may be unable to communicate their wishes, such as during terminal illness or medical emergencies.

In previous hearings, the state government informed the court that it had appointed over 400 officials across various local bodies to act as custodians for living wills.

Despite these appointments, Dr. Datar contended that the state had not established the necessary secondary medical boards, which are crucial for affirming the opinions of the primary medical boards regarding the execution of living wills.

The Supreme Court's order mandates that once a primary medical board, consisting of three doctors from the hospital where the patient is admitted, certifies that the instructions in an advanced directive (living will) should be carried out, the hospital must then immediately form a secondary medical board. This secondary board should include one registered medical practitioner (RMP) nominated by the district's Chief Medical Officer (CMO) and at least two subject experts with a minimum of five years of experience. The secondary board visits the hospital to confirm the primary board's decision. If they agree, they endorse the certificate to implement the advanced directive.

Dr. Datar argued that the absence of the secondary board means the advanced directive cannot be executed, rendering the whole system ineffective. This means that without the RMP and the secondary board, the state cannot fulfil the Supreme Court's order, he said.

Chief Justice Upadhyaya questioned the state government's failure to establish a permanent secondary medical board, suggesting that every district's Chief Medical Officer (CMO) could nominate a doctor to fulfil this role. He emphasized the simplicity of the task and expressed frustration over the state's need for repeated instructions and court orders to implement straightforward measures.

“Every single doctor in a government hospital is a registered medical practitioner. You nominate somebody? Every CMO should nominate in each district that this doctor will be the regular member of the secondary board. Why don't you do this? Simplest of things.”

Dr. Datar also shared his personal experience of visiting a custodian to submit his living will, where he found that the certifying officer was unable to explain how the will could be retrieved after 20 years. This issue, he said, was common among others who had submitted their living wills.

In light of these issues, the court sought a detailed response from the state government on the petitioner's submissions within two weeks. The court also allowed Dr. Datar to include the National Medical Commission (NMC) and the Union Health Ministry as respondents in the case.

The court scheduled the next hearing after three weeks.

Case no. – PIL/3/2024 [Civil]

Case Title – Prof Dr. Nikhil D. Datar v. State of Maharashtra