A Constitution Bench of the Supreme Court has removed “insurmountable obstacles” for the implementation of advance medical directives of terminally-ill patients, who are beyond cure or hope, to withdraw medical treatment and die with dignity.
The treating doctor and the hospital caring for the patients play central roles in the court order.
The five-member Bench led by Justice K.M. Joseph had broadly outlined the order in court on January 24. The final order was published on February 3.
The court simplifies certain directions of an earlier Constitution Bench, while allowing passive euthanasia, on how to implement advance medical directives. The case had come back to the court after pleas were made that the directions in the 2018 judgment were near impossible to implement on the ground.
For one, an advance medical directive (AMD), according to the 2018 judgment, required not only the signatures of two independent witnesses, but had also to be counter-signed by a Judicial Magistrate.
In its current order authored by Justice Joseph, the court said it need to be signed by the executor/patient and independent witnesses in the presence of a notary or gazetted officer who would record his/her satisfaction that the AMD was voluntary and executed without coercion. Copies of the AMD would be handed over to the close relatives, the family physician and a competent officer of the municipal corporation or panchayat concerned. The AMD, if the executor chooses, may be made part of the digital health records.
At the time of its implementation, that is when the executor is terminally ill with no hope of cure or recovery after a prolonged treatment, the treating doctor at the hospital would ascertain the genuineness of the AMD, compare it with the copy in the digital health records, consult with the relatives about the option that withdrawal of care would be the “best choice”.
The hospital would then form a primary medical board with the treating doctor and two specialists who would verify the condition of the patient within 48 hours. Then a secondary medical board would be constituted with the Chief Medical Officer of the district nominating the members. This board would again re-ascertain the patient’s condition within 48 hours and give its findings on whether or not to withdraw medical care or life support.
The hospital would then have to convey the findings of both the primary and secondary board along with the consent of the relatives to the Judicial Magistrate before giving effect to the AMD.
In case, the boards refuse to give effect to the AMD, the person named in it or the treating doctor or the hospital could approach the High Court concerned. The Chief Justice of the High Court would constitute a Division Bench, which can set up an independent committee of expert medical doctors in the fields of general medicine, nephrology, neurology, oncology, radiology and critical care.
The court has also provided for cases in which there is no AMD.
In such cases, the treating doctor could inform the hospital, which would constitute a primary medical board. The board would meet with the patient’s family or next friend or guardian and discuss consent. The meeting should be recorded in writing. Then the same course of action as followed in cases in which there is an AMD would follow.
The court has directed its order to be circulated to all the Health Secretaries, Registrar Generals of High Courts and Chief Medical Officers in States and union Territories.
Published - February 03, 2023 12:22 pm IST
