Passive Euthanasia : Doctors Body Tells Supreme Court About Practical Difficulties In "Living Will" Guidelines

Living Will/Advance Medical Directive is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.

At the request of the Indian Council for Critical Care Medicine (applicant), a 5-Judge Bench comprising Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar has now engaged in an exercise to make the directions passed in Common Cause with respect to Advance Medical Directives workable. In its application, the Council had pointed out how it has become difficult to enforce the Court’s directions, given the cumbersome process involved in implementation of the Advance Medical Directives. On Day 1 of the hearing, Advocate Prashant Bhushan, representing Common Cause had also apprised the Bench that the procedure is so incommodious that since the judgment in Common Cause, which was passed almost 5 years back, not a single case of Advance Medical Directive has been witnessed.

On a previous occasion Mr. Datar had elucidated upon some of the impediments in implementing the Living Will. The Living Will has to be signed by the executor in the presence of two attesting witnesses, and countersigned by jurisdictional Judicial Magistrate of First Class (JMFC). He had submitted that suppose subsequently after 10 years, the executor of the Will is admitted in a hospital and the team of doctors certify that there is no hope for recovery, as per the guidelines, the matter has to be, then, sent to the Collector, who would constitute another board of doctors who will give second opinion. Thereafter, the jurisdictional JMFC has to personally go to the hospital and authenticate the document. Mr. Datar had argued that this cumbersome process is not workable and therefore some suggestions have been made in the present application to modify the guidelines.

On Wednesday, taking the Bench though the suggestions put forth by the applicant, Mr. Datar informed it about the concept referred to by the Indian Council of Medical Research (ICMR) as ‘futility of treatment’, i.e., ‘though treatment is possible, it might be worth it’. He suggested if the same can be accommodated while modifying the direction. Additional Solicitor General, Mr. K.M. Nataraj vehemently objected to the suggestion. According to him, the concept is too wide and capable of being misused. Mr. Datar retorted that the suggestion had come in from doctors, but, it is ultimately the Court’s discretion.

Considering that the modifications sought might alter the initial directions substantially, Justice Ravikumar, reckoned, “A clarification cannot lead to review.”

Mr. Datar submitted that the exercise undertaken is to make the Apex Court’s directions workable. He added that if it is recorded in the order that a particular passage is creating a problem, then it can certainly be modified.

He informed the Bench that the applicant has suggestions with respect to digitisation of the Advance Medical Direction. Advocate, Dr. Dhvani Mehta, assisting Mr. Datar, informed the Bench about the initiative taken by the National Digital Health Mission (NDHM) to ensure all hospitals have interoperable electronic health records. For the Advance Directive to be effected upon, it is most important that it is made available to the doctors. She submitted that once the document is executed, the executor may voluntarily choose to integrate it with their patient records. Addressing the issue of privacy, she ensured the Bench that the NDHM has privacy standards for all electronic records.

While the Court went into the deliberation if it might be better that a review is sought instead of modification, Justice Rastogi pointed out, “Ultimately we are sitting in this composition to make it workable, not on technicalities.”

Subsequently, the Bench proceeded with hearing further suggestions for modification. Mr. Nataraj objected to the usage of the term ‘vegetative’ in the directions. He submitted that he had been informed that ‘vegetative’ is a subjective term, not a medical term.

Justice Joseph asked Dr. Kishore (Amicus in Common Cause), “How do you define vegetative state?”

Dr. Kishore responded, “In PVS (permanent vegetative stage), he cannot express himself, but in brain dead he cannot perceive also...Person in PVS can come back to life after 20 years also.” As per Dr. Kishore it would be best if the term is not included in the modified directions as PVS has an uncertain outcome.

With respect to the constitution of the Medical Board, Dr. Kishore suggested, “the Board should be of 3 doctors - treating physician, the Director of the particular hospital, a specialist from the speciality concerned”.

Justice Joseph noted that most of the hospitals have Medical Directors who are MD in general medicine, so in cases where the treating doctor is also MD in General medicine a multi-disciplinary Board would cease to exist. He was of the opinion that very consciously the previous directions were passed in this regard, where the Apex Court encouraged a multi-disciplinary Board. He suggested that the Board can have three members who are specialists.

The experience criteria for the doctors who are members of the Board was also deliberated upon. It was suggested by the applicant that the criteria of 20 years of experience is a difficult one to meet. Mr. Datar submitted, “Your lordships may say 10 years. If a lawyer can be a judge in 20 years, then why can’t this.”

Thereafter, Justice Joseph asked Dr. Kishore if experience in ‘critical care’ was required to be retained as a qualification for members of the Medical Board. Dr. Kishore thought that the same might not be needed. However, Justice Joseph opined it can be stated that one out of the three members of the Medical Board have knowledge of critical care. Mr. Datar seemed to be convinced that the inclusion of experience in critical care would make it ‘unworkable again’.

Mr. Datar is now supposed to apprise the Bench about the difficulties faced with respect to the Review Board, tomorrow. The Bench will engage in a similar exercise to resolve the issue.

[Case Status: Common Cause v. UoI MA 1699/2019 in WP(C) No. 215/2005]