‘Can consider improving…’: SC on cumbersome guidelines on living will

The Supreme Court on Tuesday said that the legislature should enact a law for terminally ill patients who decide to stop medical treatment.

A five-judge constitution bench headed by Justice K.M. Joseph agreed to modify its 2018 guidelines on “living will”, an advance medical directive on end of life treatment. The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C. T. Ravikumar, said only guidelines can be tweaked otherwise it will become a review of its 2018 judgment.

“We are only here to consider improving the guidelines. We should realise the limitations of the court also,” it said.

The top court further added that the legislature has more skills and sources of knowledge and the court is not an expert in medicine, therefore it has to be careful.

It was considering a plea seeking modification of the guidelines for living will/advance medical directive issued by it in 2018.

The bench said the advance directive can be applied only in some cases, where terminally ill patients are not in a position to say that the treatment must stop.

Senior advocate Arvind P. Datar, representing The Indian Society for Critical Care, contended that due to the involvement of multiple stakeholders, the procedure under the apex court guidelines has become unworkable.

Additional Solicitor General K.M. Nataraj submitted that few meetings were held with AIIMS representatives and other stakeholders and a chart of necessary safeguards has been prepared. Advocate Prashant Bhushan, representing NGO Common Cause, submitted that everybody has an indefeasible right to refuse treatment.

The top court was informed that first a medical board would have to declare that the patient has no scope of recovery, then the District Collector would have to set up an independent medical board to obtain a second opinion, and after this, the matter would be referred to a judicial magistrate.

Datar argued that the role of the judicial magistrate can be kept out and recommended that in a living will, there can be two witnesses as he emphasised that the execution of the living will is very cumbersome. The hearing in the matter will continue on Wednesday.

In 2018, a top court judgment had recognised that a person in a persistent vegetative state may execute an advance medical directive or a “living will” to refuse medical treatment.

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