Supreme Court: In a miscellaneous application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment reported in Common Cause v. Union of India, (2018) 5 SCC 1, a 5-Judge Constitution Bench of K.M Joseph*, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar, JJ. viewed that the directions contained in paragraphs 198 to 199 (2018 Judgment) require to be modified/ deleted. Thus, it made the necessary amendments.
Issues:
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Whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives?
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Whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn?
The Court opined that Advance Medical Directive(‘AMD’) would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive will dispel many doubts at the relevant time of need during treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be able to ensure, after being satisfied, that they are acting in a lawful manner. However, AMD cannot operate in abstraction and there must be safeguards.
The Court noted that the reason for filing this application was that, in the actual working of the directions, insurmountable obstacles are being posed. For instance, in the case of an Advance Directive which is devised by a person, it should not only be in the presence of two attesting witnesses who are preferably independent witnesses, but also it should have countersigned by a Judicial Magistrate (First-Class). This clause has led to the very object of this Court issuing directions being impaired, if not completely defeated.
The applicant submitted that the difficulties which are being encountered have been voiced by many Doctors and it becomes necessary for this Court to revisit the directions, so that a mechanism can be put in place for effectively carrying out the object of the principles laid down in the 2018 Judgment.
Thus, the Court viewed that the directions contained in paragraphs 198 to 199 (2018 Judgment) require to be modified/ deleted as hereinafter indicated:
Cases where there is an Advance Directive
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Paragraphs |
Existing Guidelines |
Modifications |
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Para 198.2.5 |
It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive. |
This provision has been modified to “guardian(s) or close relative(s)” |
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Para 198.3.1 |
The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by thejurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned. |
“Countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned” has been substituted by and attested before a notary or Gazetted Officer. |
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Para 198.3.2 |
The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences. |
Jurisdictional JMFC has been substituted by the notary or Gazetted Officer. |
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Para 198.3.5 |
The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document. |
The executor shall inform, and hand over a copy of the Advance Directive to the person or persons named in Paragraph 198.2.5, as well as to the family physician, if any. |
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Para 198.3.6 |
A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document. |
This has been added: The executor may also choose to incorporate their Advance Directive as a part of the digital health records, if any |
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Para 198.4.1 |
In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same. |
In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, and does not have decision-making capacity, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof with reference to the existing digital health records of the patient, if any or from the custodian of the document referred to in Paragraph 198.3.6 of this judgment. |
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Para 198.4.3 |
If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he beliefs on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice. |
The executor or his guardian/close relative has been substituted by the person or persons named in the Advance Directive |
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Para 198.4.4 |
The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board.The hospital where the executor has been admitted for medical treatment shall then consisting 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 experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. |
The hospital where the executor has been admitted for medical treatment shall then constitute a Primary Medical Board consisting of the treating physician and at least two subject experts of the concerned specialty with at least five years’ experience, who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion preferably within 48 hours of the case being referred to itwhether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. |
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Para 198.4.5 |
In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal.The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the district concerned as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive. |
In the event the Primary Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the hospital shall then immediately constitute a Secondary Medical Board comprising one registered medical practitioner nominated by the Chief Medical Officer of the District and at least two subject experts with at least five years’ experience of the concerned specialty who were not part of the Primary Medical Board. They shall visit the hospital where the patient is admitted and if they concur with the initial decision of the Primary Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive. The Secondary Medical Board shall provide its opinion preferably within 48 hours of the case being referred to it |
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Para 198.4.6 |
The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive. |
The Board constituted by the Collector has been substituted by Secondary Board. The consent of the guardian has been substituted by the consent of the person or persons. |
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Para 198.4.7 |
The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board. |
The hospital where thepatient is admitted, shall convey the decision of the Primary and Secondary Medical Boards and the consent of the person or persons named in the Advance Directive to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. |
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Para 198.5.1 |
If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such an application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. |
Secondary has been added before Medical Board. “the executor of the Advance Directive or his family members” has been substituted by the person or persons named in the Advance Directive. |
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Para 198.6.4 |
Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive |
Where the Primary Medical Boardtakes a decision not to follow an Advance Directive while treating a person, the person or persons named in the Advance Directive may request the hospital to refer the case to the Secondary Medical Boardfor consideration and appropriate direction on the Advance Directive. |
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Para 198.3.3 |
The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format. |
Deleted |
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Para 198.3.4 |
The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format. |
Deleted. |
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Para 198.3.7 |
The JMFC shall cause to hand over copy of the Advance Directive to the family physician, if any. |
Deleted. |
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Para 198.5.3 |
Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”. |
No change. |
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Paras 198.6.1 |
An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing. |
No change. |
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Para 198.6.2 |
An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them. |
No change. |
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Para 198.6.3 |
If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable |
No change |
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Para 199 |
It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed: |
No change. |
Cases where there is no Advance Directive
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Paragraphs |
Existing Guidelines |
Modifications |
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Para 199.1 |
In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion. |
The “Hospital” has been substituted byPrimary. “and the family members” has been substituted by if any, and the patient’s next of kin/next friend/guardian preferably within 48 hours of the case being referred to it has been added after “then the Hospital (now Primary) Medical Board may certify the course of action to be taken. |
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Para 199.2 |
In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient. |
The “Hospital” has been substituted byPrimary. Secondary has been added before “Medical Board”. “the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years” has been substituted by in the manner indicated hereinbefore. Secondary has been added before “Medical Board”. “constituted by the Collector” has been deleted “Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient” has been substituted by hospital to the JMFC and the next of kin/next friend/guardian of the patient preferably within 48 hours of the case being referred to it |
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Para 199.4 |
There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Collector nominated Medical Board may not concur with the opinion of the Hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”. |
Primary Medicalhas been added before “Board”. Secondary has been added before “Medical Board” “Hospital” has been substituted by Primary. |
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Para 200 |
Having said this, we think it appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient |
No Change |
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Para 199.3 |
The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient. |
Deleted |
Also read:
[Common Cause (A Regd. Society) v. Union of India, 2023 SCC OnLine SC 99, decided on 24-01-2023]
*Order by: Justice KM Joseph
Advocates who appeared in this case :
For Petitioner(s): Senior Advocate Arvind P. Datar, Advocate Dr. Dhvani Mehta, Advocate –On-Record Rashmi Nandakumar, Advocate Shreya Shrivastava;
For Respondent(s): Additional Solicitor General K.M. Nataraj, Advocate –On-Record Gurmeet Singh Makker, Advocate Mohd. Akhil, Advocate Adit Khorana, Advocate Shailesh Madiyal, Advocate Udai Khanna, Advocate Vinayak Sharma, Advocate Anirudh Bhat, Advocate Sanjay M Nuli, Advocate Nakul Chengappa K.K., Advocate Chitransh Sharma, Advocate Anuj S. Udupa, Advocate Dr. R. R. Kishore
∗Apoorva Goel, Editorial Assistant has reported this brief.
