Supreme Court of India
Common Cause (A Regd. Society) Director ... vs Union Of India (A) Ministry Of Health And ... on 24 January, 2023
Author: K.M. Joseph
Bench: C.T. Ravikumar, Hrishikesh Roy, Aniruddha Bose, Ajay Rastogi, K.M. Joseph
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
MISCELLANEOUS APPLICATION NO. 1699 OF 2019
IN
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) Petitioner(s)
VERSUS
UNION OF INDIA Respondent(s)
INDIAN SOCIETY OF
CRITICAL CARE MEDICINE Applicant
O R D E R
K. M. JOSEPH, J.
(1) This is an application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1. Signature Not Verified Digitally signed by Nidhi Ahuja Date: 2023.02.02 (2) A Constitution Bench came to be constituted on 17:19:33 IST Reason: the basis of a Reference made to it by a Bench of 1 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 three learned Judges. In the backdrop of certain earlier decisions of this Court, in particular, this Court was engaged with the question as to whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives. This Court also was concerned with the question as to whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn. The Court went on to dwell on the right of a person to die with dignity. Thereafter, this Court has proceeded to lay down the directives as follows:
"198. In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. We enumerate them as follows:2
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 198.1. Who can execute the Advance Directive and how?
198.1.1. 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. 198.1.2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
198.1.3. It should have characteristics of an informed consent given without any undue influence or constraint.
198.1.4. 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.
198.2. What should it contain?
198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
198.2.2. It should be in specific terms and the instructions must be absolutely clear and unambiguous.
198.2.3. It should mention that the executor may revoke the instructions/authority at any time.
198.2.4. It should disclose that the executor has understood the consequences of executing such a document.
198.2.5. It should specify the name of a guardian or close relative who, in the event of 3 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 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.
198.2.6. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient's wishes and will be given effect to.
198.3. How should it be recorded and preserved?
198.3.1. The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned.
198.3.2. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
198.3.3. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
198.3.4. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved.
Additionally, the Registry of the District Judge shall retain the document in digital format.
198.3.5. The JMFC shall cause to inform the immediate family members of the executor, if 4 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 not present at the time of execution, and make them aware about the execution of the document.
198.3.6. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
198.3.7. The JMFC shall cause to hand over copy of the Advance Directive to the family physician, if any.
198.4. When and by whom can it be given effect to?
198.4.1. 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 before acting upon the same.
198.4.2. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
198.4.3. If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences 5 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he beliefs on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
198.4.4. The physician/hospital where the executor has been admitted for medical treatment shall then constitute 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 with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
198.4.5. In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the district concerned as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is 6 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
198.4.6. The Board constituted by the Collector 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 guardian 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.
198.4.7. The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
198.4.8. It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
198.5. What if permission is refused by the Medical Board?
198.5.1. If permission 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 even the 7 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.
198.5.2. The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
198.5.3. Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.
198.6. Revocation or inapplicability of Advance Directive 198.6.1. 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.
198.6.2. An Advance Directive shall not be applicable to the treatment in question if 8 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
198.6.3. If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
198.6.4. Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
199. It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:
199.1. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the 9 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.
199.2. In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a 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 experience in critical care and with overall standing in the medical profession of at least twenty years.
The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
199.3. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally-ill patient.
199.4. There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek 10 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.
200. Having said this, we think it appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.
201. 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.” (3) The applicant has approached this Court within a short period.
The reason for approaching this Court all over 11 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 again appears to be that in the actual working of the directions, insurmountable obstacles are being posed. For instance, it is pointed out that this Court has provided in paragraph 198.3 that in the case of an Advance Directive which is devised by a person, it should not only be in the presence of two attesting witnesses who are preferably independent witnesses, but also it should have countersigned by a Judicial First Class Magistrate. It is pointed out that this clause has led the very object of this Court issuing directions being impaired, if not completely defeated.
There are other aspects which have been highlighted in the application.
(4) The respondent, viz., the Union of India, has filed a counter affidavit. We find from the contents of the counter affidavit that the stand of the Union of India was that it opposed the application.
(5) As we have noticed, this is an application seeking clarification. Ordinarily, be it an 12 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 application lodged in this Court blessed as it is with powers under Article 142 of the Constitution of India, we would have thought that the application should not receive further consideration. However, we notice that there has been a subsequent development. The development is in the form of orders evidencing an attempt being made by the respondent also to evolve/agree to certain changes.
Several rounds of discussions, it would appear, have taken place between officers of the respondent-Union who not unnaturally includes medical experts.
According to the applicant, the difficulties which are being encountered have been voiced by a large number of Doctors and it becomes absolutely necessary for this Court to revisit the directions so that this Court puts in place a mechanism which effectively carries out the object of this Court laying down the principles in the paragraphs which have already been adverted to.
(6) Having heard Shri Arvind Datar, learned senior counsel, appearing for the applicant, assisted by Dr. Dhvani Mehta and Ms. Rashmi Nandakumar, learned 13 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 counsel, Dr. R. R. Kishore, learned counsel, as also Mr. K. M. Nataraj, learned Additional Solicitor General appearing on behalf of respondent-Union of India, we are of the view that the directions contained in paragraphs 198 to 199 require to be modified/ deleted as hereinafter indicated:
Para Existing Modifications Guidelines Para It should specify It should specify the 198.2.5 the name of a guardian or close name of a guardian(s) or relative who, in the event of the close relative(s) who, in executor becoming incapable of the event of the executor taking decision at the relevant time, becoming incapable of will be authorised to give consent to taking decision at the refuse or withdraw medical treatment relevant time, will be in a manner consistent with authorised to give the Advance Directive. consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
Para The document The document should be 198.3.1 should be signed 14 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 by the executor in signed by the executor in the presence of two attesting the presence of two witnesses, preferably attesting witnesses, independent, and countersigned by preferably independent, the jurisdictional Judicial and attested before a Magistrate of First Class (JMFC) notary or Gazetted so designated by the District Judge Officer.
concerned.
Para The witnesses and The witnesses and the 198.3.2 the jurisdictional JMFC shall record notary or Gazetted their satisfaction that the document Officer shall record has been executed voluntarily and their satisfaction that without any coercion or the document has been inducement or compulsion and executed voluntarily and with full understanding of without any coercion or all the relevant information and inducement or compulsion consequences.
and with full understanding of all the relevant information and consequences.
Para The JMFC shall Deleted. 198.3.3 preserve one copy 15 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 of the document in his office, in addition to keeping it in digital format.
Para The JMFC shall Deleted.
198.3.4 forward one copy
of the document to
the Registry of
the jurisdictional
District Court for
being preserved.
Additionally, the
Registry of the
District Judge
shall retain the
document in
digital format.
Para The JMFC shall The executor shall
198.3.5 cause to inform
the immediate inform, and hand over a
family members of
the executor, if copy of the Advance
not present at the
time of execution, Directive to the person
and make them
aware about the or persons named in
execution of the
document. Paragraph 198.2.5, as
well as to the family
physician, if any.
Para A copy shall be A copy shall be handed
198.3.6 handed over to the
competent officer over to the competent
of the local
Government or the officer of the local
Municipal
Corporation or Government or the
16
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 Municipality or Municipal Corporation or Panchayat, as the case may be. The Municipality or aforesaid authorities shall Panchayat, as the case nominate a competent official may be. The aforesaid in that regard who shall be the authorities shall custodian of the said document. nominate a competent official in that regard who shall be the custodian of the said document.
The executor may also
choose to incorporate
their Advance Directive
as a part of the digital
health records, if any.
Para The JMFC shall Deleted.
198.3.7 cause to hand over
copy of the
Advance Directive
to the family
physician, if any.
Para In the event the In the event the executor
198.4.1 executor becomes
terminally ill and becomes terminally ill
is undergoing
17
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 prolonged medical and is undergoing treatment with no hope of recovery prolonged medical and cure of the ailment, the treatment with no hope of treating physician, when recovery and cure of the made aware about the Advance ailment, and does not Directive, shall ascertain the have decision-making genuineness and authenticity capacity, the treating thereof from the jurisdictional physician, when made JMFC before acting upon the same. aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof with reference to the existing digital health records of the patient, if any or from the custodian of the document referred to in Paragraph 198.3.6 of this judgement.
Para The instructions No change.
198.4.2 in the document
must be given due
weight by the
18
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
Para If the physician If the physician treating 198.4.3 treating the patient (executor the patient (executor of of the document) is satisfied that the document) is the instructions given in the satisfied that the document need to be acted upon, he instructions given in the shall inform the executor or his document need to be acted guardian/close relative, as the upon, he shall inform the case may be, about the nature of person or persons named illness, the availability of in the Advance Directive, medical care and consequences of as the case may be, about alternative forms of treatment and the nature of illness, the consequences of remaining the availability of untreated. He must 19 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 also ensure that medical care and he beliefs on reasonable grounds consequences of that the person in question alternative forms of understands the information treatment and the provided, has cogitated over the consequences of remaining options and has come to a firm untreated. He must also view that the option of ensure that he believes withdrawal or refusal of medical on reasonable grounds treatment is the best choice. that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
Para The The hospital where the 198.4.4 physician/hospital where the executor executor has been has been admitted for medical admitted for medical treatment shall then constitute a treatment shall then Medical Board 20 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 consisting of the constitute a Primary Head of the treating Medical Board consisting department and at least three of the treating physician experts from the fields of general and at least two subject medicine, cardiology, experts of the concerned neurology, nephrology, specialty with at least psychiatry or oncology with five years’ experience, experience in critical care and who, in turn, shall visit with overall standing in the the patient in the medical profession of at least twenty presence of his years who, in turn, shall visit guardian/close relative the patient in the presence of his and form an opinion guardian/close relative and form preferably within 48 an opinion whether to certify or not hours of the case being to certify carrying out the referred to it whether to instructions of withdrawal or certify or not to certify refusal of further medical treatment. carrying out the This decision shall be regarded instructions of as a preliminary opinion. withdrawal or refusal of further medical treatment. This decision shall be regarded as a 21 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 preliminary opinion.
Para In the event the In the event the Primary
198.4.5 Hospital Medical
Board certifies Medical Board certifies
that the
instructions that the instructions
contained in the
Advance Directive contained in the Advance
ought to be
carried out, the Directive ought to be
physician/hospital
shall forthwith carried out, the hospital
inform the
jurisdictional shall then immediately
Collector about
the proposal. The constitute a Secondary
jurisdictional
Collector shall Medical Board comprising
then immediately
constitute a one registered medical
Medical Board
comprising the practitioner nominated by
Chief District
Medical Officer of the Chief Medical Officer
the district
concerned as the of the District and at
Chairman and three
expert doctors least two subject experts
from the fields of
general medicine, with at least five years’
cardiology,
neurology, experience of the
nephrology,
psychiatry or concerned specialty who
oncology with
experience in were not part of the
critical care and
with overall Primary Medical Board.
standing in the
22
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 medical profession They shall visit the of at least twenty years (who were hospital where the not members of the previous Medical patient is admitted and Board of the hospital). They if they concur with the shall jointly visit the hospital initial decision of the where the patient is admitted and if Primary Medical Board of they concur with the initial the hospital, they may decision of the Medical Board of endorse the certificate the hospital, they may endorse the to carry out the certificate to carry out the instructions given in the instructions given in the Advance Advance Directive. The Directive.
Secondary Medical Board shall provide its opinion preferably within 48 hours of the case being referred to it.
Para The Board The secondary Board must 198.4.6 constituted by the Collector must beforehand ascertain the beforehand ascertain the wishes of the executor if wishes of the executor if he is he is in a position to in a position to communicate and is communicate and is capable of 23 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 understanding the capable of understanding consequences of withdrawal of the consequences of medical treatment.
In the event the withdrawal of medical
executor is
incapable of treatment. In the event
taking decision or
develops impaired the executor is incapable
decision-making
capacity, then the of taking decision or
consent of the
guardian nominated develops impaired
by the executor in
the Advance decision-making capacity,
Directive should
be obtained then the consent of the
regarding refusal
or withdrawal of person or persons
medical treatment
to the executor to nominated by the executor
the extent of and
consistent with in the Advance Directive
the clear
instructions given should be obtained
in the Advance
Directive. 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.
Para The Chairman of The hospital where the 198.4.7 the Medical Board 24 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 nominated by the patient is admitted, Collector, that is, the Chief shall convey the decision District Medical Officer, shall of the Primary and convey the decision of the Secondary Medical Boards Board to the jurisdictional and the consent of the JMFC before giving effect to the person or persons named decision to withdraw the in the Advance Directive medical treatment administered to to the jurisdictional the executor. The JMFC shall visit JMFC before giving effect the patient at the earliest and, to the decision to after examining all aspects, withdraw the medical authorise the implementation of treatment administered to the decision of the Board. the executor.
Para It will be open to No change.
198.4.8 the executor to
revoke the
document at any
stage before it is
acted upon and
implemented.
Para If permission to If permission to withdraw
198.5.1 withdraw medical
treatment is medical treatment is
refused by the
Medical Board, it refused by the Secondary
would be open to
the executor of Medical Board, it would
25
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 the Advance be open to the person Directive or his family members or or persons named in the even the treating doctor or the Advance Directive or even hospital staff to approach the High the treating doctor or Court by way of writ petition the hospital staff to under Article 226 of the approach the High Court Constitution. If such application by way of writ petition is filed before the High Court, under Article 226 of the the Chief Justice of the said High Constitution. If such Court shall constitute a application is filed Division Bench to decide upon grant before the High Court, of approval or to refuse the same. the Chief Justice of the The High Court will be free to said High Court shall constitute an independent constitute a Division committee consisting of Bench to decide upon three doctors from the fields of grant of approval or to general medicine, cardiology, refuse the same. The High neurology, nephrology, Court will be free to psychiatry or oncology with constitute an independent experience in critical care and committee consisting of with overall standing in the three doctors from the medical profession of at least twenty fields of general 26 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 years. medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.
Para The High Court No change.
198.5.2 shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
Para Needless to say No change. 198.5.3 that the High Court shall render its decision at 27 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.
Paras An individual may No change.
198.6.1 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.
Para An Advance No change. 198.6.2 Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the 28 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 time of the Advance Directive and which would have affected his decision had he anticipated them.
Para If the Advance No change.
198.6.3 Directive is not
clear and
ambiguous, the
Medical Boards
concerned shall
not give effect to
the same and, in
that event, the
guidelines meant
for patients
without Advance
Directive shall be
made applicable.
Para Where the Hospital Where the Primary Medical
198.6.4 Medical Board
takes a decision Board takes a decision
not to follow an
Advance Directive not to follow an Advance
while treating a
person, then it Directive while treating
shall make an
application to the a person, the person or
Medical Board
constituted by the persons named in the
Collector for
consideration and Advance Directive may
appropriate
direction on the request the hospital to
Advance Directive
refer the case to the
Secondary Medical Board
29
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 for consideration and appropriate direction on the Advance Directive.
Para It is necessary to No change.
199 make it clear that
there will be
cases where there
is no Advance
Directive. The
said class of
persons cannot be
alienated. In
cases where there
is no Advance
Directive, the
procedure and
safeguards are to
be same as applied
to cases where
Advance Directives
are in existence
and in addition
there to, the
following
procedure shall be
followed:
Cases where there is No Advance Directive Para In cases where the In cases where the 199.1 patient is terminally ill and patient is terminally ill undergoing prolonged and undergoing prolonged treatment in respect of ailment treatment in respect of which is incurable or where there is ailment which is no hope of being 30 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 cured, the incurable or where there physician may inform the is no hope of being hospital which, in turn, shall cured, the physician may constitute a Hospital Medical inform the hospital, Board in the manner indicated which, in turn, shall earlier. The Hospital Medical constitute a Primary Board shall discuss with the Medical Board in the family physician and the family manner indicated earlier.
members and record
the minutes of the The Primary Medical Board
discussion in
writing. During shall discuss with the
the discussion,
the family members family physician, if any,
shall be apprised
of the pros and and the patient’s next of
cons of withdrawal
or refusal of kin/next friend/guardian
further medical
treatment to the and record the minutes of
patient and if
they give consent the discussion in
in writing, then
the Hospital writing. During the
Medical Board may
certify the course discussion, the patient’s
of action to be
taken. Their next of kin/next
decision will be
regarded as a friend/guardian shall be
preliminary
opinion. apprised of the pros and
cons of withdrawal or
refusal of further
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MA No. 1699/ 2019 in WP (C) No. 215/ 2005 medical treatment to the patient and if they give consent in writing, then the Primary Medical Board may certify the course of action to be taken preferably within 48 hours of the case being referred to it.
Their decision will be regarded as a preliminary opinion.
Para In the event the In the event the Primary
199.2 Hospital Medical
Board certifies Medical Board certifies
the option of
withdrawal or the option of withdrawal
refusal of further
medical treatment, or refusal of further
the hospital shall
immediately inform medical treatment, the
the jurisdictional
Collector. The hospital shall then
jurisdictional
Collector shall constitute a Secondary
then constitute a
Medical Board Medical Board comprising
comprising the
Chief District in the manner indicated
Medical Officer as
32
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 the Chairman and hereinbefore. The three experts from the fields of Secondary Medical Board general medicine, cardiology, shall visit the hospital neurology, nephrology, for physical examination psychiatry or oncology with of the patient and, after experience in critical care and studying the medical with overall standing in the papers, may concur with medical profession of at least twenty the opinion of the years. The Medical Board constituted Primary Medical Board. In by the Collector shall visit the that event, intimation hospital for physical shall be given by the examination of the patient and, after hospital to the JMFC and studying the medical papers, the next of kin/next may concur with the opinion of the friend/guardian of the Hospital Medical Board. In that patient preferably within event, intimation shall be given by 48 hours of the case the Chairman of the Collector being referred to it.
nominated Medical
Board to the JMFC
and the family
members of the
patient.
Para The JMFC shall Deleted
199.3 visit the patient
at the earliest
and verify the
33
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally-
ill patient.
Para There may be cases There may be cases where
199.4 where the Board
may not take a the Primary Medical Board
decision to the
effect of may not take a decision
withdrawing
medical treatment to the effect of
of the patient or
the Collector withdrawing medical
nominated Medical
Board may not treatment of the patient
concur with the
opinion of the or the Secondary Medical
hospital Medical
Board. In such a Board may not concur with
situation, the
nominee of the the opinion of the
patient or the
family member or Primary Medical Board. In
the treating
doctor or the such a situation, the
hospital staff can
seek permission nominee of the patient or
from the High
34
MA No. 1699/ 2019 in WP (C) No. 215/ 2005 Court to withdraw the family member or the life support by way of writ treating doctor or the petition under Article 226 of the hospital staff can seek Constitution in which case the permission from the High Chief Justice of the said High Court to withdraw life Court shall constitute a support by way of writ Division Bench which shall decide petition under Article to grant approval or not. The High 226 of the Constitution Court may constitute an in which case the Chief independent committee to Justice of the said High depute three doctors from the Court shall constitute a fields of general medicine, Division Bench which cardiology, neurology, shall decide to grant nephrology, psychiatry or approval or not. The High oncology with experience in Court may constitute an critical care and with overall independent committee to standing in the medical profession depute three doctors from of at least twenty years after the fields of general consulting the competent medical medicine, cardiology, practitioners. It shall also afford neurology, nephrology, an opportunity to the State counsel. psychiatry or oncology The High Court in such cases shall with experience in 35 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 render its critical care and with decision at the earliest since overall standing in the such matters cannot brook any medical profession of at delay. Needless to say, the High least twenty years after Court shall ascribe reasons consulting the competent specifically keeping in mind medical practitioners. It the principle of “best interests of shall also afford an the patient”.
opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.
Para Having said this, No change. 200 we think it 36 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.
(7) Registry will communicate a copy of this Order to Registrar Generals of all the High Courts.
The Registrar Generals of the High Courts will dispatch a copy of this Order to the Health Secretaries in the respective States/Union Territories for onward communication to all the Chief Medical Officers in the States/Union Territories.
The miscellaneous application will stand 37 MA No. 1699/ 2019 in WP (C) No. 215/ 2005 disposed of as above.
No orders as to costs.
……………………………………………………., J. [ K.M. JOSEPH ] ……………………………………………………., J. [ AJAY RASTOGI ] ……………………………………………………., J. [ ANIRUDDHA BOSE ] ……………………………………………………., J. [ HRISHIKESH ROY ] ……………………………………………………., J. [ C.T. RAVIKUMAR ] New Delhi;
January 24, 2023.
38