Right To Die : How To Make Directions On "Living Will" Workable? Supreme Court Constitution Bench Discusses

During the course of the hearing, it was made abundantly clear that the directions issued by the Court are to be in effect only till law is enacted by the Legislature. The same had also been clearly stated in the Common Cause judgment. Justice K.M. Joseph, leading the 5-JudgeBench, was of the opinion that the Legislature is much more ‘endowed with multiple talents, skills, sources of knowledge’, which the Court lacks. He, very candidly, disclosed the limitation of the Court in specialised issues like the present one. In this context, Justice Aniruddha Bose asked the Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government -

“Have you thought of legislation in this field? It has been 5 years (since Common Cause judgment).”

Mr. Nataraj sought time to come back with his response.

Justice Bose emphasised that it is essentially a legislative function.

A Bench comprising Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar was apprised by Senior Advocate, Mr. Arvind Datar representing the applicant, Indian Council for Critical Care Medicine, that the directions previously issued by the Apex Court have become unworkable. He attempted to explain the impediments in implementing the directions. Modifications were sought under three broad parameters - contents, method of recording and implementation of advance directive.

Additional Solicitor General, Mr. K.M. Najaraj, at the outset, submitted that the legal issues in the matter have already been settled. Only the procedure pertaining to the implementation of the directions have to be looked into by the 5-Judge Bench at the present stage.

Advocate, Dr. R.R. Kishore, who was the Amicus Curiae in Common Cause (supra) supplied the Bench with a small brief which covers all the legal issues pertaining to Advance Directive - the concept, the challenges; how the use and misuse are managed in different jurisdictions. He apprised the Bench that the first legislation on Advance Directive came in the year 1997, in Oregon. For the first time a person’s right to end his life was recognised in law.

Justice Joseph inquired whether there exists a legal bar if, in the alternative, a person refuses treatment. Dr Kishore responded that in such cases the patient would have to sign a number of bonds. Justice Bose was concerned that, how an advance directive would come handy to a person who chooses not to go to the hospital at all.

Advocate, Mr. Prashant Bhusan answered Justice Bose’s query stating that the law is settled on the issue. Every person has an indefeasible right to refuse treatment. According to him the only issue is, what would happen if a person is unconscious and incapable of expressing their will as to whether they want to be put on a ventilator or not. He added -

“The whole purpose of the advance directive is that no one, not even his next of kin, can force him to put on a ventilator. The problem that has arisen now is that the execution of the living will is very cumbersome.”

Mr. Datar submitted that even without advance directives, AIIMS has a form, ‘patient’s wish for withholding life support' which can be availed by the patient, who is conscious to choose not to be out on the ventilator.

Mr. Nataraj submitted that the Common Cause judgment clarifies that till appropriate legislation is made, the directions issued by the Apex Court would be followed. It appears that it was supposed to be a stop-gap arrangement.

Justice Joseph expressed concern that if a person signs an advance directive today, but when the person is actually afflicted with the disease, there are huge advancements in the field of medical sciences and the disease becomes curable. He reckoned that if a person is permitted to refrain from getting treated, even when the disease is curable it might be so that they are devaluing the value of life itself.

Addressing the Judge, Mr. Datar submitted that personal decision is not the ‘be all and end all’. The treating doctors, the medical Board and the review Board have to also look into the possibility of survival of the patient. The follow up query of Justice Joseph was if the same was actually mentioned in the direction issued by the Court. Mr. Datar responded in the negative. He submitted -

“What is contingent is that the person must have terminal illness.”

Almost all the Judges were concerned that it cannot be said with certainty that a person would not survive a disease. The Bench referred to several instances where the doctor’s opinion that the patient would not survive beyond a certain period has been proven wrong. Justice Bose said -

“If you follow the life of Stephen Hawking. At a very early age there was a prediction.”

Justice Joseph added -

“One of my relatives was diagnosed with a brain condition and the doctor said he has 6 months. Now he has been alive for the last 14 or 15 years. They (doctors) say it is according to our understanding. Doctors are not gods..they go by science.”

In this regard, Mr. Datar submitted -

“There is a case where the person has recovered after 21 years. Like Michael Schumacher, he is still in coma, we don’t know what will happen, if some stem cell research will revive him. He is still alive.”

Mr. Kishore was of the opinion that the real challenge would be in defining terminal illness. He submitted that ‘definition of terminal illness’ is a grey area in the whole debate of euthanasia. The Second grey area is the ‘definition of death’.

“Earlier definition was cardio-respiratory failure. In 1968, Harvard Medical School debated the whole issue and came out with the brain dead criteria.”

Justice Joseph suggested if the Court should clarify that withdrawal of treatment may be made only when the disease reaches terminal stage. Mr. Datar opined that ‘as certified by doctor’ may be added to the clarified proposed by the Judge.

To explore all possibilities, Justice Joseph enquired, if a person had an absolute right to death, irrespective of whether the disease is terminal or not. In cases where there exists treatment, but it is costly or is accompanied by excruciating pain, can an advance directive be agreed upon or implemented in those cases?

According to Mr. Datar ‘it would be risky or dangerous to say that even when a person is capable of being cured they say that they do not want treatment’. He speculated that the same might lead to a series of difficulties.

Mr. Datar shared an anecdote -

“I know a case of a distant relative, the man was in corona, on the ventilator. They were supposed to sign the form the previous evening. Wife and daughter said we’ll sign it the next morning. At 2 in the night his fingers started twitching. Man is walking today.”

Justice Joseph further enquired, if the declaration in the advance directive would be disease specific or condition specific.

Mr. Nataraj responded, “It can be specific or general. But it would be acted upon depending on the Medical Board. In a particular situation he may give a directive for a particular disease...he can also give a general directive. But if it is a particular directive then it would only be for the said disease.”

Mr. Datar suggested ‘advance directive can be given for withholding life-support in the event of terminal illness where the changes of his recovery is deemed to be remote by a panel of doctors’. Reading from AIIMS declaration, he submitted -

“Advance directive can be made by a person indicating that he wishes withdrawal of life support, as the language of AIIMS form goes, when he has critical/terminal illness where disease modifying options are no more applicable.”

It was Justice Rastogi’s opinion that the declaration form like the one provided by AIIMS is more workable, as a person in critical condition who is admitted in a hospital would be the one who is more likely to seek withdrawal of life-support. A person who is fit and fine would not be the one seeking an advance directive.

Mr. Datar pointed out that two witnesses are required for attesting the Will. He asked if the cumbersome process of getting the Living Will attested from the Magistrate can be removed and the procedure for attesting a Will be also followed for Living Will. He submitted that there can be two witnesses - one independent witness, who is not a relative and a doctor.

Justice Joseph stated, “It perhaps can be applied only in the narrow area where he becomes so terminally ill that he is not in a position to say, stop the treatment. Otherwise he is a man of free choice. It is applicable only when he cannot take the call…”

Justice Roy suggested that the Advance Directive can be a part of a person’s Will. Justice Joseph, however, was not convinced with the same. He noted that a person making a Will might keep it somewhere and no-one would know about it, because, essentially, a Will is taken up only after the testator is dead. So, when they are taken to the hospital, no one would be able to enforce the advance directive.

The Bench thereafter enquired if an age bar is to be imposed for person’s eligible to sign an Advance Direction. Mr. Datar requested the Bench if no age limit is set out by the Court.

Justice Joseph asked if the requirement can be relaxed with respect to two medical boards. The Officiating Director, National Organ and Tissue Transplantation addressed the Judges query as under -

“Once the treating team decides that medical treatment will not help in any way, it is better to take opinion from another board. That is why we should have two boards…We need to trust the medical community. One person is not taking the decision. It is a team, then their decision is also reviewed.”

Justice Joseph observed that in the present case, the Court can only ‘do a little tweaking’ or else it would be a review of the judgment in Common Cause.

Mr. Bhushan submitted, “The safeguards have become so onerous that they have become totally impractical to the extent that there is not a single case in the country in the 5 years which has really happened.”

The Court will hear the matter again on 18.01.2023 (Wednesday) .

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