Passive euthanasia in India: Over 4 years after judgement on ‘Living Will’, SC to modify guidelines

New Delhi: 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 KM Joseph said there can only be a little tweaking of the guidelines or else it will become a review of its own 2018 judgement.

It 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 C T 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.

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.

"What happened was initially the five-judge judge bench laid down certain directions as to how to issue the advance directive... A three-step process was spelt out which is very cumbersome... There are three broad parameters - contents, method of recording and implementation of advance directive," Datar said.

He suggested in a Living Will, there can be two witnesses and the role of judicial magistrate can be done away with.

"The Will is going to be acted upon on suggestions of the boards...Let us not retain the Magistrate," he said.

Published on: Wednesday, January 18, 2023, 01:34 AM IST