MODIFICATIONS IN EXECUTION OF AN ADVANCE DIRECTIVE

In 2018 in the case of Common Cause v. Union of India [W.P. [C] No. 215 of 2005], the Supreme Court of India has held that right to die with dignity is a fundamental right. The Constitutional Bench of the then Chief Justice Dipak Misra and A.K. Sikri J., A.M. Khanwilkar J., D.Y. Chandrachud J., and Ashok Bhushan J., held that passive euthanasia and an advance directive or the living will also be legally valid. The Court had issued detailed guidelines in this regard.

Constitutional Bench of Supreme Court of India comprising of K.M. Joseph J., Ajay Rastogi J., Aniruddha Bose J., Hrishikesh Roy J., and C.T. Ravikumar J., again came across the question of whether the Apex Court can make mutatis mutandis to the previously laid down guidelines in accordance of law, in the Miscellaneous Application No. 1699 of 2019 filed in the case of Common Cause v. Union of India [W.P. [C] No. 215 of 2005]. The court, after considering the circumstances of the ill-implementation of the guidelines, modified and deleted certain ground breaking procedures in paragraphs 198 to 199 of the 2018 guidelines. Before getting into the changes, let's take a quick look into the concept of an Advance Directive.

WHAT IS AN ADVANCE DIRECTIVE?

Advance Directives [“A.D.”] also known as the living will are legal documents that allow a person to retain independence and control over their medical choices if they become incompetent. People can use these directives to convey their choices for medical treatment, end-of-life care, and other elements of care, as well as appoint an alternate decision-maker in advance before becoming incompetent. In layman's words, an advance directive guarantees that the executor's intentions are carried out, even if they are unable to make a decision or their decision-making capacity is significantly affected.

In the 2018 judgement the constitutional bench remarked that unlike other countries, “there was no legal framework in our country as regards the advance medical directives However, the bench headed by the then-Chief Justice Dipak Misra observed, it was the constitutional obligation of the court to protect the right of the citizens as enshrined under Article 21 of the Constitution. It was, therefore, held, “An advance medical directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. “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 doubts 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.”

Moreover, as a precaution, the court also outlined numerous safeguards pertaining to a person's competence to execute an advance directive and the process, its contents, how it should be documented and retained, when and by whom it could be enacted, where to prefer an appeal against a hospital medical board denying authorization, and the situations under which an advance directive could be rescinded or would be inapplicable. 

COMPARITIVE ANALYSIS OF THE MODIFICATIONS

PARA No.	CHALLENGED GUIDELINES LAID DOWN IN 2018	MODIFIED GUIDELINES LAID DOWN IN 2023
198.2.5	Specification of name of one guardian or close relative who will give consent to withdrawal of medical treatment where executor is indecisive.	Inclusion of more than one guardian and close relative for providing consent.
198.3.1	A.D. to be signed by the executor in the presence of two witnesses and counter signed by the Judicial Magistrate of First Class.	Attestation of A.D. by the Notary or Gazette Officer replacing the role of the Judicial Magistrate of First Class.
198.3.2	Recorded reasons of voluntary and non-coercive execution of the A.D. by the witnesses and the Judicial Magistrate of First Class.	Recorded reasons of voluntary and non-coercive execution of the A.D. by the witnesses and the Notary or Gazette Officer replacing the role of the Judicial Magistrate of First Class.
198.3.3	Preservation of a hard and digital copy of A.D. in the office of the Judicial Magistrate of First Class.	Requirement Deleted.
198.3.3	Hard and soft copy of A.D. to be forwarded to the Registry of the jurisdictional District Court.	Requirement Deleted.
198.3.3	Duty of the Judicial Magistrate of First Class to inform the immediate family members of the executor regarding the execution of the document in their absence.	Executor replaces the duty of the Judicial Magistrate of First Class to provide a copy of the A.D. to guardian(s) and close relative(s) and the family of the physician, if any.
198.3.6	Competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat to receive the copy of the A.D.	Discretionary power added to the executor to incorporate A.D. as a part of the digital health records of the competent officer.
198.3.7	Duty of the Judicial Magistrate of First Class to provide a copy of the A.D. to the family of the physician, if any.	Requirement Deleted.
198.4.1	Duty of the treating physician to ascertain the genuineness of the A.D. from the Judicial Magistrate of First Class, in case of prolonged medical treatment of the executor with no hope of and cure ailment.	Addition of duty of the treating physician of verifying whether the executor no longer has the capacity to make decision along with his/her prolonged medical treatment by the physician.
198.4.3	Duty of the physician to inform the executor or guardian/close relative of the patient about the illness and consequences of remaining treatment being untreated.	Any person(s) named in the A.D. replaces the executor to be informed about the illness of the patient and consequences of remaining treatment being untreated.
198.4.4	Constitution of a Medical Board consisting of the Head of the treating department and at least three experts from the fields of general medicine with 20 years of experience, who shall certify possibility of the withdrawal of the treatment of the patient in the in presence of guardian/close relative in absence of the executor of the A.D.	Constitution of a Primary Medical Board consisting of the treating physician and at least two subject experts of the concerned specialty with at least five years' experience replacing the Medical Board in to perform the visit and certification of possibility of the withdrawal of the treatment of the patient within 48 hours from the case being referred.
198.4.5	Jurisdictional Collector to be informed about the proposal to carry out the instruction provided in the A.D. by the Hospital’s Medical Board along with formation of another Medical Board to certify and endorse the instructions.	Constitution of a Secondary Medical Board comprising one registered medical practitioner nominated by the Chief Medical Officer of the District and at least two subject experts with at least five years of experience replacing the role of Jurisdictional Collector. The board shall provide its opinion within 48 hours of the case being referred.
198.4.6	Duty of the board constituted by the Collector to ascertain wishes of the executor and verify the capability of the executor of making sound decisions. If he/she is indecisive then seeking consent from the guardian nominated by the executor is necessary.	Secondary Medical Board replaces the board constituted by the Collector. In case if executor is indecisive then seeking consent from the any person(s) nominated by the executor is necessary replacing the role of guardian.
198.4.7	Duty of the Chairman of the Medical Board to convey the decision of withdrawal of the treatment to the Judicial Magistrate of First Class.	Hospital replacing the role of the Chairman of the Medical Board is required to convey the decision of the Primary and Secondary Medical Board and consent of the person(s) mentioned in the A.D. to the Judicial Magistrate of First Class.
198.5.1	Discretion of the executor of the A.D. or his family members to file a writ petition under article 226 of the Indian Constitution in the High Court if the Medical Board refuses to withdraw treatment of the patient.	Person(s) mentioned in the A.D. or treating doctor or hospital staff have the discretion to approach the High Court replacing the duty of the executor.
198.6.4	Duty of the Hospital’s Medical Board to make an application to the Medical Board constituted by the Collector for providing directions if instructions provided in the A.D. decided not to be followed.	Person(s) mentioned in the A.D. may request the hospital to refer the case to the Secondary Medical Board if the Primary Board decided not to follow the instructions provided in the A.D replacing the role of the Hospital’s Medical Board.
199.1	Constitution of the Hospital’s Medical Board to discuss with physician and family members and to record the discussion where the patient is terminally ill and there is no hope of recovery.	Primary Medical Board to be constituted replacing the role of the Hospital’s Medical Board which shall discuss with physician and patient’s next of kin/next friend or the guardian expanding the number of persons. Primary Medical Board to provide its opinion within 48 hours of the case being referred.
199.2	Duty of the Hospital to inform the jurisdictional Collector regarding the decision of the Hospital’s Medical Board of refusal or withdrawal of the treatment which shall constitute another Medical Board to examine the patient and provide its opinion to the physician and family members.	Duty of the Hospital to constitute Secondary Medical Board after the decision of Primary Medical Board of refusal or withdrawal of the treatment is given. The Secondary Medical Board shall examine the patient and provide its opinion to the physician and family members replacing the role of the Hospital’s Medical Board.
199.3	Duty of the Judicial Magistrate of First Class to examine the patient’s health condition, discuss with the family members an endorse the decision of refusal or withdrawal of the treatment.	Requirement Deleted.
199.4	Indecision of the Hospital’s Medical Board and the Medical Board constituted by the Collector for refusal or withdrawal of the treatment may lead to the nominee of the patient to approach the High Court to take a decision.	Indecision of the Primary and Secondary Medical Board for refusal or withdrawal of the treatment may lead to the nominee of the patient to approach the High Court to take a decision replacing the role of Medical Board of the Hospital and one constituted by the Collector.

Original Table of Content of the Legally Cognizant

The apex court recognised that in the 2018 guidelines there are certain formalities which are barring and causing delay to the pure intent of the guidelines. Taking into consideration numerous responsibilities and duties of a Judicial Magistrate of First Class, the Apex Court delegated its roles to the Notary or Gazette Officer and the Executor, respectively.  

Constitution of Primary and Secondary Medical Board consisting of at least two subject experts of general medicine with at least five years' experience in replacement of the Hospital’s Medical Board and Medical Board formulated by the Collector consisting of at least three experts from the fields of general medicine with 20 years of experience portrays that probably formulating Medical Boards with such high-end experiences is extremely time consuming and problematic to formulate where an instant decision of refusal or withdrawal of a patient’s medical treatment has to be made.  

Most importantly, expansion on the number of person(s) who can be informed and consulted regarding the patients health other than one family member/guardian is beneficial because their absence out of sudden emergency could help physicians and medical boards to make the right medical choice at the right moment without delay.

Lastly, the Apex Court has emphasized on delivery of final opinion of the Primary and Secondary Medical Board to be produced within 48 hours of when the medical case is referred to them which highlights the importance of limitation of time on the shoulders of authorities to make sound and time sensitive decisions of a patient who does not have a hope to recover from a prolonged illness.  

CONCLUSION

This writ petition and the miscellaneous application filed in the case of Common Cause v. Union of India [2005] are supported by non-profit organizations, doctors from various medicinal backgrounds and affected families of patients which highlights the level of concern and sensitivity towards the importance of a dignified life of individuals including a person who is suffering from an irrecoverable illness and is incompetent to make a decision for his/her life.

It is commendable to mention that the Apex Court did not hesitate to amend its guidelines in 2018 in order to ensure speedy delivery of justice and good decision to protect the right to die with dignity. This decision gives a ray of hope to all the patients and their family members who are anguished through irrecoverable and cost sensitive medical treatments and procedural formalities. It provided them with the freedom and choice of a sound treatment and to let a patient die peacefully if there is no other resort left in the eyes of fact and law.

Since, as a coin always has two sides to it, similarly in this situation it is yet to be observed that whether these well-intentioned modifications will turn out to be fruitful to the object of the 2018 guidelines.