Supreme Court reserves verdict on ‘living will’ issue

New Delhi: The Supreme Court on Wednesday reserved its verdict on whether “living will” authorising stoppage of medical treatment to the person suffering from an ailment with no chance of survival can be allowed in India. The court will also decide on allowing passive euthanasia (to withdraw or withhold treatment) to a terminally ill patient with point of no return with sufficient safeguards.

A five judge constitution bench, comprising Chief Justice Dipak Misra and Justices A.K. Sikri, A.M. Kanwilkar, D.Y. Chandrachud and Ashok Bhushan, reserved verdict at the conclusion of arguments on the petition filed by NGO Common Cause seeking a declaration that right to die is part of right to life under Article 21 of the Constitution.

Prashant Bhushan for Common Cause submitted that the issue before the court is whether an individual has fundamental right under Article 21 of the Constitution to express his/her desire in advance in writing to have or not to have extraordinary life prolonging measures to keep him/her alive even though there is no chance of recovery from his/her terminal condition.

He said it was undisputed that doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law, right of people, of any civilised country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

The CJI told the counsel that a person’s advance directive (living will) to withdraw medical care to allow him to die with dignity should take effect only when a medical board affirms that his condition is beyond cure and irreversible.

The Bench said it would lay down guidelines for drafting living wills and how it can be authenticated. The CJI said Advance directives might be executed by the person concerned before a Magistrate, who will examine whether the person executing the ‘Living Will’ is of sound mind. There should be two independent witnesses at the time of execution of the Living Will.  

The CJI pointed out that a certificate from a statutory medical board that a patient’s condition was beyond cure and irreversible would take care of apprehensions of relatives and doctors about withdrawing life support and when it should be done. The medical board will take the decision on the touchstone of modern technology. The court there would be guidelines to ensure that the decisions of the medical boards would be final and are not subject to legal challenge.

Justice Chandrachud observed that a ‘Living Will’ would come into effect, when the medical condition of the patient has become irreversible and when the prolongation of his life can be done only at the cost of pain and suffering which is at a level inconsistent with his advance directive.

Additional Solicitor General P.S. Narasimha said while the proposed bill would take care of passive euthanasia, he cautioned the court from legalising  ‘advance directives’ as it would amount to waiving of the paramount fundamental right to life enshrined under Article 21 of the Constitution. Mr. Narasimha submitted that it was opposing the concept of ‘Living Will’ as a principle of public policy as the State had an obligation to sustain life and not legalise a person’s wish to die. He said the `living will’ concept would be misused if it were to be legalised.