Supreme Court invokes emergency principle in ‘right to die’

New Delhi: The Supreme Court on Friday made it clear that the “emergency principle” or the “principle of necessity” has to be given effect to withdraw medical treatment only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger.

The Constitution bench headed by the Chief Justice Dipak Misra said where a patient has already made a valid advance directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such a directive has to be given effect to. The court said right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses individual dignity within its sphere. It has to be stated without any trace of doubt that the right to live with dignity also includes the smoot-hening of the process of dying in case of a terminally ill patient or a person in permanent vegetative state with no hope of recovery.

The court said a failure to legally recognise advance medical directives might amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements. Though the sanctity of life has to be kept on a high pedestal, in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.

Some of the guidelines framed by court: The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information. It should have characteristics of an informed consent given without any undue influence or constraint.

The document should be signed by the executor before a judicial magistrate in the presence of two attesting witnesses.

In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.

If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.

In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. In the event the executor is incapable of taking decision or develops impaired decision making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive and the medical board should authorise withdrawal of treatment.

If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court which shall decide upon grant of approval or to refuse the same. The directive and guidelines shall remain in force till the Parliament brings a legislation in the field, the court added.