SC to examine modalities for enforcing living will in November

Hearing an application filed by NGO Common Cause, a five-judge bench headed by justice KM Joseph said, that it will examine the issue on November 23.

The Supreme Court has agreed to examine the concerns expressed over the “unworkable” guidelines to enforce living will or an advance medical directive that were passed by the Supreme Court in a 2018 judgment.

In its decision of March 9, 2018, a five-judge bench held that living will is legally valid. (HT File)

Hearing an application filed by NGO Common Cause, a five-judge bench headed by justice KM Joseph said, that it will examine the issue on November 23.

The judgment held that persons who do not wish to be put on medical intervention to sustain life will have to get such a will registered before a civil court and at the time when it is to be executed, the District Collector will have to certify about enforceability of the living will by constituting an independent medical board and later conducting a spot verification by visiting the patient in the hospital.

Commenting on this procedure, senior advocate Arvind Datar said, “After the Court issued directions, I personally contacted several doctors in Chennai and Mumbai who said that these directions are unworkable. We have suggested in our application what needs to be amended.”

The bench, also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar said, “How will this issue be in a legislative domain. Families can take the decision to withdraw life support.”

Datar said that the decision to withdraw life support is always a tough call. “There are several families which have financial implications for carrying on treatment. There could be misuse too but there is greater relief to some families.”

Solicitor General Tushar Mehta appearing for the Centre told the Court that he is yet to discuss the matter with the Ministry and offered to have a meeting with the officials where Datar could join.

Mehta said, “Benefits of living will may be more but where there is even one abuse, it amounts to murder.” He recalled instances where persons have survived after being sustained for long periods on ventilator.

Datar said that instead of several Committees to assess the enforceability of living will, there could be just one committee to examine the issue.

The bench remarked to the lawyers appearing on both said, “This case reminds us of a 1981 film titled Whose Life is It Anyway. During the coming days, it will be an interesting film to watch.”

Living will is an advance declaration by a person for withdrawal of medical treatment that can hasten a terminally ill patient’s death. The NGO Common Cause had first approached the Court in 2005 for giving legal validity to living will citing the practice prevalent in many countries. It stated that this was part of Article 21 which not only secured a citizen’s right to live with dignity but die with dignity too.

In its decision of March 9, 2018, a five-judge bench held that living will is legally valid. This judgment recognized personal autonomy and dignity and came soon after the top court had held right to privacy to be a fundamental right in 2017.