Summary
The Indian Society of Critical Care Medicine sought changes to the 2018 Constitution Bench guidelines on advance medical directives and withdrawal of life support. It said requirements such as a magistrate's countersignature had made them unworkable in practice. After discussions in which the Union also agreed to changes, a Constitution Bench modified paragraphs 198 and 199. Directives are now to be attested before a notary or gazetted officer and may name more than one guardian. A primary hospital board and a secondary board, each including experts with five years' experience, are to give opinions preferably within 48 hours. The magistrate's verification and endorsement steps were deleted, and the High Court remedy was retained.
Issues
- Whether, and how, the directions in paragraphs 198 and 199 of Common Cause v. Union of India (2018) 5 SCC 1 on advance medical directives and withdrawal of life-sustaining treatment for terminally ill patients should be modified because of practical difficulties in their working.
Provisions considered
- Articles 21 and 142, Constitution of IndiaThe 2018 directions, framed to give effect to the right to die with dignity and to operate until Parliament legislates, were modified in exercise of the Court's powers on an application styled as one for clarification, in view of the subsequent attempt by the Union, including its medical experts, to evolve agreed changes. (¶¶ 2, 3, 5, 6)
- Paragraphs 198.2.5, 198.3, 198.4, 198.5.1, 198.6.4 and 199, Directions in Common Cause (2018) 5 SCC 1The table of existing guidelines and modifications, appearing in the report only as page images, was read from the local PDF; paragraphs 198.4.2, 198.4.8, 198.5.2, 198.5.3, 198.6.1 to 198.6.3, 199 and 200 were left unchanged. (¶ 6)
Held
- For advance directives, the executor may name guardians or close relatives; the document is to be signed before two attesting witnesses and attested before a notary or gazetted officer, who record their satisfaction instead of a Judicial Magistrate; the requirements for the magistrate to preserve and forward copies and give them to the family physician were deleted; the executor informs and hands copies to the named persons and family physician and may incorporate the directive in digital health records; and the treating physician verifies genuineness from those records or the local-body custodian, the directive applying where the executor lacks decision-making capacity. (¶ 6)
- For decision-making, the hospital constitutes a Primary Medical Board of the treating physician and at least two subject experts with five years' experience, and on its certification itself constitutes a Secondary Medical Board of a registered medical practitioner nominated by the Chief Medical Officer of the district and at least two experts not on the primary board, each board preferably deciding within 48 hours; the hospital conveys both boards' decisions and the named persons' consent to the Judicial Magistrate before acting; and where the primary board declines to follow a directive the named persons may seek reference to the secondary board. (¶ 6)
- For patients without a directive, the primary board consults the family physician, if any, and the patient's next of kin, next friend or guardian, and the secondary board's concurrence is intimated by the hospital to the magistrate and the next of kin, the magistrate's visit and endorsement being deleted; if a board refuses, the named persons, family, treating doctor or hospital staff may approach the High Court under Article 226, which is to decide through a Division Bench at the earliest in the patient's best interests. (¶ 6)
Result
Miscellaneous Application No. 1699 of 2019 in W.P. (C) No. 215 of 2005 disposed of by modifying and deleting the directions in paragraphs 198 and 199 of the 2018 judgment as set out in the order; the Registry to send the order to the Registrars General of all High Courts for transmission to State and Union Territory Health Secretaries and Chief Medical Officers; no costs.