More than four years after its landmark order on passive euthanasia, the Supreme Court said on Tuesday it is for the legislature to enact a law for terminally ill patients choosing to stop treatment but agreed to modify its 2018 guidelines on “Living Will”, an advance medical directive on end of life treatment.
The apex court’s order notwithstanding, people wanting to get a “living will” registered have been facing problems due to cumbersome guidelines.
Observing that the legislature is much more endowed with “skills and sources of knowledge” to enact a relevant law, the Supreme Court said it will limit itself to improving the guidelines it had laid down on “Living Will”. A five-judge Constitution bench headed by Justice K M Joseph said there can only be a little tweaking of the guidelines or else it will become a review of its own 2018 judgment. The bench said the advance directive can be applied only in the narrow area where patients become so terminally ill that they are not in a position to say that the treatment must stop.
“We are only here to consider improving the guidelines. We should realise the limitations of the court also. The judgment clarifies that till a law is made by the legislature.....Legislature is much more endowed with skills, talents and sources of knowledge. We are not experts in medicine. We have to be careful in that,” the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and Justice CT Ravikumar said. The five-judge Constitution bench was considering a plea seeking modification of the guidelines for Living Will/Advance Medical Directive issued by it in 2018.
Advocate Prashant Bhushan, appearing for NGO Common Cause, said everybody has an indefeasible right to refuse treatment. “Here the question arises that if a person is unconscious and incapable of expressing his will as to whether he wants to be put on ventilator or not. The whole purpose of the advance directive is that no one, not even his next of kin, can force him to be put on a ventilator. The problem that has arisen now is that the execution of the Living Will is very cumbersome,” he said.
Senior advocate Arvind P Datar, appearing for The Indian Society for Critical Care, submitted that the procedure under the SC guidelines had become unworkable due to the involvement of multiple stakeholders in the process. In accordance with the SC directions, he said, a medical board has to first declare that the patient has no scope of recovery or is brain dead. The procedure then enumerates that the district collector has to constitute an independent medical board to obtain a second opinion, after which the matter is referred to a judicial magistrate, first class, he said.