A week back, I had written about how the Supreme Court (SC) is reconsidering its decision on the procedural guidelines for PASSIVE EUTHANASIA for terminally ill patients, who in medical terms have no chance of recovery. They had admonished the Central government for not bringing the law on passive euthanasia, as mentioned in their order of August 2018 on this issue.
Now yesterday (24th January 2023), the SC agreed to issue a revised order on the subject of passive euthanasia. A Constitution Bench of the SC consisting of five judges agreed that modifications are required to be made to the guidelines for the Living Will/Advance Medical Directive that was issued by the SC in the earlier judgment recognizing passive euthanasia. The said bench was considering a Miscellaneous Application filed by the Indian Council for Critical care Medicine, seeking modifications in the guidelines.
To make India’s Living Will process—an advanced written statement that details a person’s desire regarding future medical procedures-less cumbersome, the SC removed a condition that mandated a magistrate’s approval for withdrawal or withholding of life support to a terminally ill patient. Now the said document would now be signed by the executor of the will in the presence of two attesting witnesses, preferably independent, and attested before the notary of Gazetted Officer.
The SC also approved the suggestion that in the event of the executor becoming terminally ill and undergoing prolonged medical treatment with no hope of recovery, the treating Physician/Doctor when made aware of the Advance Directive, shall ascertain the genuineness and authenticity of the document.
After this, the matter has to go to Primary Medical Board and Review Board, (there were two suggestions one by the Senior advocate and the other by Union Government), and the time allotted should be 24 hours by each board one suggestion by the senior advocate, and 48 hours by Union Government. As per one judge’s opinion, 48 hours is a reasonable time frame, the advocate wanted that it should be within 48 hours. Regarding the question, of when this time frame of 48 hours would begin, Solicitor General suggested that time should start from when the board is constituted, but the senior advocate submitted that it would be considered from the time the treating doctors know that end is inevitable.
There was also discussion with respect to the case where there is no Living Will/Advance Medical Directive, that in all such cases, the consent of the kith and kin is to be taken into consideration. It was also said that without the advanced medical directive, passive euthanasia is being practiced. In the 2018 order, the doctors in the Medical Board were prescribed to have at least 20 years of experience. Citing the difficulty in finding doctors with such long experience, especially in rural areas, the modification sought was to reduce the requirement to a minimum of 5 years of experience. There was also one suggestion that in the Medical Board, there should be doctors with ‘subject-experts of the specialty concerned.
The SC will issue a detailed order with specific directions shortly. Once the order is ready and issued, the Registry of the SC had been directed to make available a copy of the order to Registrar Generals of High Courts, who will, in turn, provide a copy of the same to the Health Secretaries of the States/Union Territories, for onward communications to the Chief Medical Officers in the States/UTs.
In my opinion, one must make Living Will, specifying that in case of falling terminally ill, the person has the right to go in for passive euthanasia and the family should apply for the same.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
25th January 2023