The Supreme Court's constitutional bench, which is comprised of Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar, has modified the string of directives concerning advance medical directives, also known as living wills, that were issued in a 2018 decision that recognised the right to die with dignity as an integral part of the right to live with dignity under Article 21 of the Constitution.

A Constitution Bench that was debating a request from the Indian Council for Critical Care Medicine passed the amending order. Recently, a copy of the order issued by the bench on January 24 was released.

The non-profit association of Indian physicians, nurses, physiotherapists, and other allied healthcare professionals involved in the care of the critically ill argued that the directions had virtually become unenforceable due to the complexity of the procedure prescribed by the top court and requested necessary amendments to make the judgement "workable." The five-judge bench thus made a number of amendments to the rules established in 2018 regarding the execution and enforcement of advance care directives as well as the process for passive euthanasia.

In contrast to other nations, "our country has no legislative structure regarding advance medical directives," according to the 2018 ruling. However, the court was required by the Constitution to uphold individuals' rights as stated in Article 21 of the Constitution, according to the bench led by the then-Chief Justice Dipak Misra. Thus, it was decided, “An 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.”

In January, the bench presided over by Justice K.M. Joseph admitted that the earlier ruling had created "insurmountable" barriers to the implementation of the directives. For instance, the court mandated that advanced directives be signed by a judicial first-class magistrate and performed not only in the presence of two attesting witnesses, preferably independent witnesses. The bench stated, "This clause has resulted in the whole purpose of this Court issuing directions being hampered, if not completely subverted." 

Other issues were also brought up in the application, and in response, the court issued a thorough decision that modified the rules now in place for stopping the treatment of terminally sick patients. The following is a summary of these modifications.

Surrogate decision-maker

The directive may designate more than one guardian or close relative, and each of them must be informed by the treating physician prior to the directive's execution of the nature of the patient's illness, the availability of medical care, the consequences of alternative forms of treatment, and the consequences of not receiving treatment. If the executor was incapable of giving consent and before the secondary medical board issued its final opinion, all candidates must agree.

Role of judicial magistrate of first class

An advanced directive only needs to be attested once in front of a notary or gazetted official. It is no longer necessary for it to be countersigned or kept on file by a judicial magistrate.

Role of district court registry

This requirement has been deleted.

Informing family members and family physician

The executor has to hand over a copy of the advance directive to the designated decisionmaker(s) and the family physician, if any.

Informing the government

In addition to this, the executor can now also incorporate the document as a part of their digital health records, if any.

Ascertaining authenticity

When the executor develops terminal illness, with no chance of recovery, and loses capacity to make decisions, the treating physician must execute the advance directive after confirming its validity and authenticity with reference to the executor's digital records or from the document custodian designated by the local government body.

Preliminary opinion

A primary medical board will be established, comprising the treating physician and at least two subject matter experts in the relevant field with at least five years of experience. Ideally, this board will formulate a preliminary opinion within 48 hours after receiving the case referral.

Final opinion

The hospital will immediately establish a secondary medical board following the primary medical board's approval, consisting of a registered physician chosen by the district's chief medical officer and at least two subject matter experts who were not on the primary medical board and have at least five years of experience in the relevant specialty. Ideally, this board will offer its judgement no later than 48 hours after being referred the case.

Withdrawal of treatment

Before putting into action the decision to stop providing the executor with medical care, the hospital just needs to inform the court magistrate of the decision of the primary and secondary medical boards as well as the approval of the person or persons mentioned in the advance directive. The requirement to wait for the judicial magistrate's approval has been removed.

Refusal by first medical board

The candidates for the executor may ask the hospital to refer the case to the secondary medical board for review and the issuance of necessary instructions if the primary medical board decides not to abide by an advance directive. 

before the High Court 

The executor's nominees, the treating physician, or the hospital staff may file a writ petition at the relevant High Court if the secondary medical board refuses to allow the executor to stop receiving treatment.

Case Title: Common Cause v. Union of India 
Citation: Miscellaneous Application No. 1699 of 2019 in Writ Petition (Civil) No. 215 of 2005

Appearance of the Advocates

For Petitioner(s)
Mr. Arvind P. Datar, Sr. Adv.
Dr. Dhvani Mehta, Adv.
Ms. Rashmi Nandakumar, AOR
Ms. Shreya Shrivastava, Adv.

For Respondent(s)
 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. Udai Khanna, Adv.
Mr. Vinayak Sharma, Adv.
Mr. Anirudh Bhat, Adv.
Mr. Sanjay M Nuli, Adv.
Mr. Nakul Chengappa K.K., Adv.
Mr. Chitransh Sharma, Adv.
Mr. Anuj S. Udupa, Adv.
Dr. R. R. Kishore, Adv.