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Passive Euthanasia and Advance Directive: Supreme Court judgment explained
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Passive Euthanasia and Advance Directive: Supreme Court judgment explained

Murali Krishnan

A Constitution Bench of the Supreme Court yesterday ruled in favour of Passive Euthanasia, holding that the Right to Life under Article 21 includes easing the process of dying in case of a terminally ill patient or a person in persistent vegetative state with no hope of recovery.

The Court facilitated Passive Euthanasia by allowing enforcement of an ‘Advance Directive’, which has been synonymously used with the term “living will”. In its judgment the Court held,

“A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity…”

Thus, it gave legal sanction to this Advance Directive. But how exactly has the Court defined Passive Euthanasia and Advance Directive?

Passive Euthanasia relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. In Active Euthanasia, a specific overt act is done to end the patient‘s life, whereas in Passive Euthanasia, something which is necessary for preserving a patient’s life is not done.

An Advance Directive is a document that persons with deteriorating health or the terminally ill can execute in advance, whereby such a person can choose not to remain in a vegetative state on a life support system if she goes into a state when it will not be possible to express her wishes. It did not have the sanction of law, until yesterday.

Since there is no law governing the execution and enforcement of the Advance Directive, the Court laid down exhaustive guidelines on how to execute and enforce the same.

Below are the guidelines:

Who can execute the Advance Directive and how?

  • The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
  • It must be voluntarily executed and without any coercion or inducement
  • It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering.

What should it contain?

  • It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
  • It should mention that the executor may revoke the instructions/authority at any time.
  • It should disclose that the executor has understood the consequences of executing such a document.
  • 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 authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

How should it be recorded and preserved?

  • The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • 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.
  • The JMFC shall 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 JMFC shall handover copy of the Advance Directive to the family physician, if any.
Passive Euthanasia and Advance Directive: Supreme Court judgment explained

When and by whom can it be given effect to?

  • 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 of the same from the jurisdictional JMFC before acting upon it.
  • The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
  • If the physician treating the patient (executor) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, 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 believes on reasonable grounds that the person in question understands the information provided and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
  • The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from different fields, with experience of at least twenty years. This Medical Board shall visit the patient in the presence of his guardian/close relative and form an opinion whether 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.
  • 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 inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then constitute a second Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors with experience of at least twenty years. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the first Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
  • The Board constituted by the Collector must 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.
  • 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. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
  • It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

What if permission is refused by the Medical Board?

  • If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can approach the High Court by way of writ petition under Article 226 of the Constitution.
  • If such 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 with experience of at least twenty years.
  • The High Court shall hear the application expeditiously after affording opportunity to the State counsel.

Revocation of Advance Directive

An individual may withdraw or alter the Advance Directive at any time 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.

When there is no Advance Directive

What is noteworthy about the judgment is that it provides for carrying out Passive Euthanasia even in the absence of an Advance Directive. The Court has said that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed in this event. However, the Court has prescribed an additional procedure to be followed in such cases.

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. This 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. 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 rest of the procedure will remain the same as is followed in case there is an Advance Directive.

Passive Euthanasia and Advance Directive: Supreme Court judgment explained

Parliament might enact law soon

The above procedure will remain in force only till Parliament enacts a law to govern the field. The Central government has already mooted a bill governing Passive Euthanasia and “living power of attorney”. Once the bill becomes law, the said law will take over from the procedure laid down by the Supreme Court.

Read the judgment below.

common-cause-v.-union-of-india.pdf
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