Supreme Court proposes safeguards on 'living will' for terminal patients

The Supreme Court today came out with safeguards on "advance medical directive" or 'living will' which would enable a terminally-ill patient to refuse medical treatment.

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NEW DELHI: The Supreme Court today came out with safeguards on "advance medical directive" or 'living will' which would enable a terminally-ill patient or a person in persistent vegetative state (PVS) to refuse medical treatment.

A five-judge constitution bench, which recognised that a terminally-ill patient or a person in PVS can execute an "advance medical directive" to refuse medical treatment, spelt out the safeguards saying such a directive "cannot operate in abstraction".

The safeguards would remain in force till Parliament adopts a legislation on the matter, it said.

"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," the bench headed by Chief Justice Dipak Misra said, stressing that the directive must be "voluntarily executed" without any coercion and should have characteristics of informed consent without undue influence.

"It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish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 and further put him/her in a state of indignity," the CJI, writing the judgement for himself and Justice A M Khanwilkar, said.

Three other judges - Justices A K Sikri, D Y Chandrachud and Ashok Bhushan - wrote separate but concurring judgements and agreed with the directives and safeguards penned by the CJI.

"Our directions with regard to the advance directives and the safeguards as mentioned hereinabove shall remain in force till Parliament makes legislation on this subject," the court said, adding the directive should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment could 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 authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the advance directive," it said.

In case where more than one advance directive is valid, the most recently signed directive would be considered as the "last expression" of the patient's wishes.

It said the advanced directive should be signed by the executor in the presence of two attesting witnesses, preferably independent, and would be countersigned by a judicial magistrate who shall preserve its copy along with its digital format.

The bench said the magistrate shall inform the immediate family members of the executor, if not present at the time of execution, and make them aware about it and hand over its copy to a competent officer of local government.

"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 (magistrate) before acting upon the same," the bench said.

The hospital where such patient is admitted, would set up a medical board 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 having at least 20 years of experience.

"It will be open to the executor to revoke the document at any stage before it is acted upon and implemented," the court said.

It said if nod 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 doctor or hospital staff to approach the High Court, where the Chief Justice shall constitute a division bench to decide it expeditiously after affording opportunity to the state.

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.

Regarding cases where there are no advance directive, the top court spelt out the procedure which should be adopted, in addition to the safeguards to be applied in cases where there are advance directives.

It said that in cases where a patient is terminally-ill and undergoing prolonged treatment for an ailment which is incurable or where there is no hope of being cured, the doctor may inform the hospital which would set up a medical board.

If the board certifies it, the hospital shall inform the Collector who would then set up another 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 minimum experience of 20 years.

In the event of difference of opinion, the patient's nominee, his family member, treating doctor or hospital staff can move the high court for permission to withdraw life support, it said.