On January 18, the Supreme Court's constitutional bench, led by Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy, and Justice C.T. Ravikumar, continued hearing the Miscellaneous Application seeking modification of the guidelines for Living Will/Advance Medical Directive that were issued by way of its judgement recognising 'passive euthanasia' in Common Cause v. Union of India.

In addition, 5- The Judge Bench is now working to make the directions issued in Common Cause Case regarding Advance Medical Directives workable. In its application, the Council noted how difficult it has become to enforce the Court's orders due to the time-consuming process of implementing Advance Medical Directives. On Day 1 of the hearing, Advocate Prashant Bhushan, representing Common Cause had also apprised the Bench that the procedure is so incommodious that since the judgment in Common Cause, which was passed almost 5 years back, not a single case of Advance Medical Directive, has been witnessed.

Mr. Datar had previously discussed some of the obstacles to implementing the Living Will. The executor must sign the Living Will in the presence of two attesting witnesses, and it must be countersigned by a jurisdictional Judicial Magistrate of First Class (JMFC). He had submitted that if, after ten years, the executor of the Will is admitted to a hospital and the team of doctors certifies that there is no hope for recovery, the matter must be sent to the Collector, who will form another board of doctors to provide a second opinion. Following that, the jurisdictional JMFC must personally visit the hospital to authenticate the document. Mr. Datar argued that this time-consuming process is unworkable, so some changes to the guidelines have been proposed in the current application. The Bench then proceeded to hear additional suggestions for changes. Mr. Nataraj objected to the term "vegetative" being used in the directions. He claimed that he was told that "vegetative" is a subjective term, not a medical term. Justice Joseph stated that because the majority of hospitals have Medical Directors who are MDs in general medicine, a multi-disciplinary Board would no longer exist in cases where the treating doctor is also an MD in general medicine. He believed that the previous directions, in which the Apex Court encouraged a multi-disciplinary board, were issued very consciously. He suggested that the Board can have three members who are specialists.

Thereafter, Justice Joseph asked Dr. Kishore if experience in ‘critical care’ was required to be retained as a qualification for members of the Medical Board. Dr. Kishore thought that the same might not be needed. However, Justice Joseph opined it can be stated that one out of the three members of the Medical Board have knowledge of critical care. Mr. Datar seemed to be convinced that the inclusion of experience in critical care would make it ‘unworkable again’.

Mr. Datar is now supposed to apprise the Bench about the difficulties faced with respect to the Review Board, tomorrow. The Bench will engage in a similar exercise to resolve the issue.

Case Status: Common Cause v. UoI 
Citation: MA 1699/2019 in WP(C) No. 215/2005

The appearances of Advocates:-

For Petitioner(s)

Mr. Arvind P Datar, Sr. Adv.
Ms. Rashmi Nandakumar, AOR
Ms. Dhvani Mehta, Adv.
Ms. Shreya Shrivastava, Adv.

For Respondent(s)

Mr. Tushar Mehta,ASG
Mr. K.M. Nataraj, A.S.G.
Mr. Gurmeet Singh Makker, AOR
Mr. Mohd. Akhil, Adv.
Mr. Adit Khorana, Adv.
Mr. Shailesh Madiyal, Adv.
Mr. Uday Khanna, Adv.
Mr. Vinayak Sharma, Adv.
Mr. Aniruddh Bhatt, Adv.
Mr. Sanjay M. Luli, Adv.
Mr. Nakul Chengappa K.K.,Adv.
Ms. Akriti A.Manubarwala,Adv.
Dr. R.R.Kishore,Adv.