The Supreme Court also permitted execution of a living will of persons suffering from chronic terminal diseases and likely to go into a permanent vegetative state.
In a unanimous judgment by a constitution bench headed by Chief Justice Dipak Misra, the Supreme Court accorded primacy to the constitutional values of liberty, dignity, autonomy and privacy as it laid down procedural guidelines governing the advance directive of a living will. The guidelines will operate till a legislation is put in place.
“The right of an individual to refuse medical treatment is unconditional. Neither the law nor the constitution can compel an individual who is competent and able to take decisions to disclose reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity,” said Justice D.Y. Chandrachud.
Who can execute the Advance Directive and how?
It can be executed only by an adult of a sound and healthy state of mind. It must be voluntarily executed and without any coercion or compulsion. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will have the effect of delaying the process of death that may otherwise cause pain and suffering.
What should it contain?
It should clearly indicate the decision relating to the circumstances in which withdrawal of medical treatment can be resorted to. It should mention that the executor may revoke the authority at any time. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking a decision, will be authorised to give consent for withdrawal of treatment.
How should it be recorded and preserved?
The document should be signed by the executor in the presence of two attesting witnesses and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC). The witnesses and JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion. The JMFC shall preserve one copy of the document in his office and shall forward one copy to the registry of the jurisdictional district court for being preserved. The JMFC shall inform the immediate family members of the executor, if not present at the time of execution. A copy shall be handed over to the competent officer of the local Government.
When and by whom can it be given effect to?
In the event, the executor becomes terminally ill with no hope of recovery and cure of the ailment, the treating physician shall ascertain its authenticity from the jurisdictional JMFC.
If the physician is satisfied that the instructions need to be acted upon, he shall inform the executor or his guardian /close relative about the nature of the illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated.
The hospital shall then constitute a Medical Board consisting of the head of the treating department and at least three expert doctors with at least twenty years experience who, in turn, shall visit the patient in the presence of his relative and form an opinion whether medical treatment should be withdrawn or not.
Medical Board certifies that the instructions be carried out, the hospital shall inform the collector about the proposal. The collector shall then immediately constitute another Medical Board comprising the Chief District Medical Officer and three expert doctors. The board shall examine the patient and may allow withdrawing treatment after ascertaining the wishes of the executor or his family members if the patient is not in a position to communicate.
The board shall convey the decision to JMFC before allowing to withdraw the treatment. The JMFC shall visit the patient and, after examining all aspects, may permit to implement the directive.
What if permission is refused by the Medical Board?
If permission is refused by the Medical Board, it would be open to the executor or his family members or even the treating doctor or the hospital staff to approach HC. The court shall take a call on the plea at the earliest.
Revocation or inapplicability of Advance Directive
A person may withdraw the Advance Directive at any time. Withdrawal or revocation of Directive must be in writing. If the Directive is not clear and ambiguous, the Medical Boards shall not give effect to the same and when the Hospital Medical Board declines the plea then an application shall be made before the Medical Board constituted by the Collector for appropriate direction.
In case where there is no Advance Directive
When a patient is terminally ill which is incurable, the hospital shall constitute a Medical Board which shall discuss with the family members and record the minutes of the discussion in writing. The family shall be apprised of the pros and cons of withdrawal of further medical treatment to the patient and if they give consent in writing, then it may certify the course of action to be taken.
(Extracted from LiveMint and The Times of India)