In a unanimous judgment by a constitution bench headed by Chief Justice Dipak Misra, the Supreme Court accorded primacy to the constitutional values of liberty, dignity, autonomy and privacy as it laid down procedural guidelines governing the advance directive of a living will. The guidelines will operate till a legislation is put in place.
“The right of an individual to refuse medical treatment is unconditional. Neither the law nor the constitution can compel an individual who is competent and able to take decisions to disclose reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity," said Justice D.Y. Chandrachud.
A living will is a document prepared by a person in their healthy/sound state of mind under which they can specify in advance whether or not they would like to opt for artificial life support, if he/she is in a vegetative state due to an irreversible terminal illness in the future.
“It is an extraordinary ruling by the apex court. People now will be allowed to grant a living power of attorney to another. Meanwhile, a law on passive euthanasia is on the ambit", additional solicitor general, P.S. Narasimha, who had represented the Centre, said after the ruling.
In a 538-paged ruling, it was held that such advance directive must be in writing and indicate in clear terms the decision relating to circumstances in which withholding or withdrawal of medical treatment could be resorted to.
The document would bear signatures of the executor in the presence of two attesting witnesses, and the jurisdictional judicial magistrate of first class (JMFC). In case a person has two living wills, the one most recently signed would prevail.
In the event of the executor becoming terminally ill with no hope of recovery, the physician treating the patient after informing the executor/his guardian about the nature of illness and consequences of alternative forms of treatment will set up a hospital medical board.
This would consist of the head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with at least twenty years of experience in the medical profession. Their decision would serve as preliminary opinion on whether or not to certify carrying out the instructions in the living will.
If the hospital medical board opines on executing the advance directive, another medical board will be set up, which may endorse the its execution if it concurs with the initial decision of the medical board of the hospital. This decision would then be conveyed to the jurisdictional JMFC who after visiting the patient and examining all aspects would authorise its implementation.
If the medical board refuses to allow withdrawal of medical treatment, it may be challenged by the executor or his family members before the concerned high court.
The court also settled any ambiguity on allowing passive euthanasia as it cited the landmark Aruna Shanbaug case on 11 March 2011, which held that a specific category of relatives could seek permission from the court to opt for passive euthanasia on behalf of the person in cases of a terminally-ill patient as being “internally inconsistent and having relied on an erroneous premise".
It was also seen to have adopted a misconstrued construction of the decision of the 1998 Gian Kaur case where a constitutional bench had held that the right to life did not include the right to die. Further the Aruna Shanbaug ruling accepted that euthanasia could be made lawful only through legislation, yet the court accepted the permissibility of passive euthanasia and laid down the procedure for it.
The court’s ruling was pronounced on a 2005 plea filed by Prashant Bhushan on behalf of NGO Common Cause that sought recognition of a living will so that an individual could exercise the right to refuse medical treatment at a terminally-ill stage of life.
While the centre was on board on allowing passive euthanasia, it opposed the concept of living will. Additional solicitor general P.S. Narasimha, representing the centre, told the court that consent for removal of artificial support may not be an informed one and could be misused in cases of the elderly.
He added that the government had already accepted the apex court’s ruling in the landmark Aruna Shanbaug case on 11 March 2011, which held that a specific category of relatives could seek permission from the court to opt for passive euthanasia on behalf of the person in cases of a terminally ill patient.
Prashant Bhushan, appearing for the NGO, had said that under Article 21 (right to life) a person had the right to die peacefully without any suffering and must be allowed to create a living will for a time when he cannot recover from an illness. His life should not be prolonged, Bhushan added.
The 241st report of the Law Commission states that passive euthanasia should be allowed with certain safeguards and there is a proposed law—Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006 in this regard.
Passive euthanasia entails a patient being allowed to die by limiting medical intervention, not escalating already aggressive treatment, withholding or withdrawing artificial life support in cases that are judged to be medically futile.