Passive Euthanasia: Supreme Court modifies 2018 judgment, does away with Magistrate nod for living will/ advance directive

The Supreme Court last month modified its 2018 judgment on passive euthanasia and living wills, to do away with the role of Judicial Magistrate First Class (JMFC) in giving sanction and validity to the living will/ advance directive executed by a person [Common Cause vs Union of India]..A Constitution bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar in its January 24 order specified that the document expressing the living will/ advance directive would need to be attested only by a notary or a gazetted officer to record their satisfaction that the same was signed willingly. As per the 2018 judgment, for a living will to be considered authentic, the JMFC had to attest same and record his satisfaction that it was executed voluntarily. The directions to that effect was modified by the top court in its January 24 order..A living will/advance directive is a document that persons with deteriorating health or the terminally ill can execute in advance, through which they can choose not to remain in a vegetative state with life support system if they enter into a state when it will not be possible for them to express their wishes. Such a document could then be presented to a hospital for appropriate action in the event the executant’s health worsens.In 2018, a five-judge Constitution Bench had recognised and given sanction for passive euthanasia and living will/advance directives.In that judgment, the top court had ruled that the right to life under Article 21 includes the right to live with dignity, and the same includes the smoothening of 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 had laid down guidelines governing execution and enforcement of advance directive, as well as the procedure to be followed for passive euthanasia, after distinguishing it from active euthanasia, in case there is no living will/advance directive.With respect to an advance directive, the judgment had given specific guidelines on the following:Who can execute the Advance Directive and how?What should it contain?How should it be recorded and preserved?When and by whom can it be given effect to?What if permission is refused by the Medical Board?Revocation or inapplicability of Advance DirectiveThe matter was then listed again to address some legal questions surrounding the practice as well as guidelines towards enforcement..What the other modifications to the 2018 judgmentThe January 24 order introduced the following changes to the earlier judgment:.- The authorisation of the advance directives can now be granted by one among multiple guardians or close relatives, compared to the earlier limit of only one of each being able to;- The JFMC or district court registry need not preserve copies of the advance directive; only the concerned local body will have the same;- Instead of the JFMC, the executor will now hand over copies of the document to the family physician, apart from the guardians/relatives;- The executor may make the advance directive a part of his digital health record;- The process regarding the need to execute the directive can be evaluated and initiated by the physician once the patient loses decision-making capabilities;- The minimum number of specialist doctors in the primary medical board to act on the physician's evaluation has been reduced from three to two, with at least five years' experience needed apart from taking a call on the directive within 48 hours of such referral;- In the event the primary board agrees that the advance directive has to be acted upon, a secondary medical board (rather than the District Collector) will provide its opinion within 48 hours- The secondary board 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 person or persons 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 hospital where the patient 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- The nominees can directly approach the High Court under Article 226 if passive euthanasia is denied at the secondary board stage; the court will be free to form a medical board of its own to help it take a call;- Where the primary medical board takes 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 board for consideration and appropriate direction on the advance directive- Similar guidelines are to be applied in cases where a terminally-ill patient with no hope of recovery had not pre-signed an advance directive, with the nominees in such cases as well as hospital staff free to move the High Court if the boards do not concur in their views or agree to withdraw life support; such cases are to be disposed of at the earliest keeping in mind the best interests of the patient.The order was directed to be communicated to all the Chief Medical Officers in all States through the Health Secretaries, who are to receive the new guidelines through the Registrar-Generals of the High Courts. .Senior Advocate Arvind Datar with advocates Dhwani Mehta, RR Kishore, and Prashant Bhushan appeared for the petitioners. Additional Solicitor General KM Nataraj appeared for the Union government. Follow our coverage of arguments in the case, here. .[Read order]