‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
MISCELLANEOUS APPLICATION NO. 1699 OF 2019
IN
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY)
Petitioner(s)
VERSUS
UNION OF INDIA
Respondent(s)
INDIAN SOCIETY OF
CRITICAL CARE MEDICINE
Applicant
ORDER
K. M. JOSEPH, J.
(1) This is an application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC
1. (2) A Constitution Bench came to be constituted on the basis of a Reference made to it by a Bench of MA No. 1699/ 2019 in WP (C) No. 215/ 2005 three learned Judges. In the backdrop of certain earlier decisions of this Court, in particular, this Court was engaged with the question as to whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives. This Court also was concerned with the question as to whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn. The Court went on to dwell on the right of a person to die with dignity. Thereafter, this Court has proceeded to lay down the directives as follows:
"198. In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. We enumerate them as follows: MA No. 1699/ 2019 in WP (C) No. 215/ 2005
198.1. Who can execute the Advance Directive and how? 198.1.1. 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. 198.1.2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information. 198.1.3. It should have characteristics of an informed consent given without any undue influence or constraint. 198.1.4. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
198.2. What should it contain?
198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
198.2.2. It should be in specific terms and the instructions must be absolutely clear and unambiguous.
198.2.3. It should mention that the executor may revoke the instructions/authority at any time.
198.2.4. It should disclose that the executor has understood the consequences of executing such a document.
198.2.5. It should specify the name of a guardian or close relative who, in the event of MA No. 1699/ 2019 in WP (C) No. 215/ 2005
the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
198.2.6. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient's wishes and will be given effect to.
198.3. How should it be recorded and preserved?
198.3.1. The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned.
198.3.2. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
198.3.3. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
198.3.4. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
198.3.5. The JMFC shall cause to inform the immediate family members of the executor, if MA No. 1699/ 2019 in WP (C) No. 215/ 2005
not present at the time of execution, and make them aware about the execution of the document.
198.3.6. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
198.3.7. The JMFC shall cause to hand over copy of the Advance Directive to the family physician, if any.
198.4. When and by whom can it be given effect to?
198.4.1. 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.
198.4.2. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.
198.4.3. 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 MA No. 1699/ 2019 in WP (C) No. 215/ 2005
of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he beliefs on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
198.4.4. The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
198.4.5. 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. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the district concerned as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is MA No. 1699/ 2019 in WP (C) No. 215/ 2005
admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
198.4.6. The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. 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.
198.4.7. The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
198.4.8. It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
198.5. What if permission is refused by the Medical Board?
198.5.1. 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 MA No. 1699/ 2019 in WP (C) No. 215/ 2005
treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.
198.5.2. The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.
198.5.3. Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.
198.6. Revocation or inapplicability of Advance Directive
198.6.1. An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
198.6.2. An Advance Directive shall not be applicable to the treatment in question if MA No. 1699/ 2019 in WP (C) No. 215/ 2005
there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
198.6.3. If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
198.6.4. Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
199. It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:
199.1. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the MA No. 1699/ 2019 in WP (C) No. 215/ 2005
patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.
199.2. In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
199.3. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally-ill patient.
199.4. There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek MA No. 1699/ 2019 in WP (C) No. 215/ 2005
permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.
200. Having said this, we think it appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.
201. Our directions with regard to the Advance Directives and the safeguards as mentioned hereinabove shall remain in force till Parliament makes legislation on this subject.”
(3) The applicant has approached this Court within a short period.
The reason for approaching this Court all over MA No. 1699/ 2019 in WP (C) No. 215/ 2005 again appears to be that in the actual working of the directions, insurmountable obstacles are being posed. For instance, it is pointed out that this Court has provided in paragraph 198.3 that in the case of an Advance Directive which is devised by a person, it should not only be in the presence of two attesting witnesses who are preferably independent witnesses, but also it should have countersigned by a Judicial First Class Magistrate. It is pointed out that this clause has led the very object of this Court issuing directions being impaired, if not completely defeated.
There are other aspects which have been highlighted in the application.
(4) The respondent, viz., the Union of India, has filed a counter affidavit. We find from the contents of the counter affidavit that the stand of the Union of India was that it opposed the application.
(5) As we have noticed, this is an application seeking clarification. Ordinarily, be it an MA No. 1699/ 2019 in WP (C) No. 215/ 2005 application lodged in this Court blessed as it is with powers under Article 142 of the Constitution of India, we would have thought that the application should not receive further consideration. However, we notice that there has been a subsequent development. The development is in the form of orders evidencing an attempt being made by the respondent also to evolve/agree to certain changes. Several rounds of discussions, it would appear, have taken place between officers of the respondent-Union who not unnaturally includes medical experts.
According to the applicant, the difficulties which are being encountered have been voiced by a large number of Doctors and it becomes absolutely necessary for this Court to revisit the directions so that this Court puts in place a mechanism which effectively carries out the object of this Court laying down the principles in the paragraphs which have already been adverted to.
(6) Having heard Shri Arvind Datar, learned senior counsel, appearing for the applicant, assisted by Dr. Dhvani Mehta and Ms. Rashmi Nandakumar, learned MA No. 1699/ 2019 in WP (C) No. 215/ 2005 counsel, Dr. R. R. Kishore, learned counsel, as also Mr. K. M. Nataraj, learned Additional Solicitor General appearing on behalf of respondent-Union of India, we are of the view that the directions contained in paragraphs 198 to 199 require to be modified/ deleted as hereinafter indicated:
Para
Existing
Guidelines
Modifications
Para
198.2.5
It should specify
the name of a
guardian or close
relative who, in
the event of the
executor becoming
incapable
of
taking decision at
the relevant time,
will be authorised
to give consent to
refuse or withdraw
medical treatment
in
a
manner
consistent
with
the
Advance
Directive.
It should specify the name of a guardian(s) or close relative(s) who, in the event of the executor becoming incapable of taking decision at the relevant time, will be
authorised
to
give
consent to refuse or
withdraw
medical
treatment in a manner
consistent
with
the
Advance Directive.
Para
198.3.1
The
document
should be signed
The document should be MA No. 1699/ 2019 in WP (C) No. 215/ 2005
by the executor in
the presence of
two
attesting
witnesses,
preferably
independent, and
countersigned by
the jurisdictional
Judicial
Magistrate
of
First Class (JMFC)
so designated by
the District Judge
concerned.
signed by the executor in the presence of two
attesting
witnesses,
preferably
independent,
and attested before a
notary
or
Gazetted
Officer.
Para
198.3.2
The witnesses and
the jurisdictional
JMFC shall record
their satisfaction
that the document
has been executed
voluntarily
and
without
any
coercion
or
inducement
or
compulsion
and
with
full
understanding of
all the relevant
information
and
consequences.
The witnesses and the
notary
or
Gazetted
Officer
shall
record
their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion
and
with
full
understanding of all the relevant information and consequences.
Para
198.3.3
The JMFC shall
preserve one copy
Deleted. MA No. 1699/ 2019 in WP (C) No. 215/ 2005
of the document in
his office, in
addition
to
keeping it in
digital format.
Para
198.3.4
The JMFC shall
forward one copy
of the document to
the Registry of
the jurisdictional
District Court for
being preserved.
Additionally, the
Registry of the
District
Judge
shall retain the
document
in
digital format.
Deleted.
Para
198.3.5
The JMFC shall
cause to inform
the
immediate
family members of
the executor, if
not present at the
time of execution,
and make them
aware about the
execution of the
document.
The
executor
shall
inform, and hand over a copy of the Advance Directive to the person or persons named in Paragraph 198.2.5, as well as to the family physician, if any.
Para
198.3.6
A copy shall be
handed over to the
competent officer
of
the
local
Government or the
Municipal
Corporation
or
A copy shall be handed over to the competent officer of the local
Government
or
the
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
Municipality
or
Panchayat, as the
case may be. The
aforesaid
authorities shall
nominate
a
competent official
in that regard who
shall
be
the
custodian of the
said document.
Municipal Corporation or
Municipality
or
Panchayat, as the case may be. The aforesaid
authorities
shall
nominate
a
competent
official in that regard
who
shall
be
the
custodian of the said document.
The executor may also choose to incorporate their Advance Directive as a part of the digital health records, if any.
Para
198.3.7
The JMFC shall
cause to hand over
copy
of
the
Advance Directive
to the family
physician, if any.
Deleted.
Para
198.4.1
In the event the
executor becomes
terminally ill and
is
undergoing
In the event the executor becomes terminally ill
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
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.
and
is
undergoing
prolonged
medical
treatment with no hope of recovery and cure of the
ailment,
and does not
have
decision-making
capacity,
the treating
physician,
when
made
aware about the Advance
Directive,
shall
ascertain the genuineness and authenticity thereof with reference to the existing digital health records of the patient, if any or from the custodian of the document referred to in Paragraph
198.3.6
of
this
judgement.
Para
198.4.2
The instructions
in the document
must be given due
weight by the
No change. MA No. 1699/ 2019 in WP (C) No. 215/ 2005
doctors. However,
it should be given
effect to only
after being fully
satisfied that the
executor
is
terminally ill and
is
undergoing
prolonged
treatment or is
surviving on life
support and that
the illness of the
executor
is
incurable or there
is no hope of
him/her
being
cured.
Para
198.4.3
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. He must
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 person or persons named in the Advance Directive, as the case may be, about the nature of illness,
the
availability
of
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
also ensure that
he beliefs on
reasonable grounds
that the person in
question
understands
the
information
provided,
has
cogitated over the
options and has
come to a firm
view that the
option
of
withdrawal
or
refusal of medical
treatment is the
best choice.
medical
care
and
consequences
of
alternative
forms
of
treatment
and
the
consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has
cogitated
over
the
options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
Para
198.4.4
The
physician/hospital
where the executor
has been admitted
for
medical
treatment
shall
then constitute a
Medical
Board
The hospital where the
executor
has
been
admitted
for
medical
treatment
shall
then
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
consisting of the
Head
of
the
treating
department and at
least
three
experts from the
fields of general
medicine,
cardiology,
neurology,
nephrology,
psychiatry
or
oncology
with
experience
in
critical care and
with
overall
standing in the
medical profession
of at least twenty
years who, in
turn, shall visit
the patient in the
presence of his
guardian/close
relative and form
an opinion whether
to certify or not
to
certify
carrying out the
instructions
of
withdrawal
or
refusal of further
medical treatment.
This
decision
shall be regarded
as a preliminary
opinion.
constitute
a
Primary
Medical Board consisting of the treating physician and at least two subject experts of the concerned specialty with at least five years’ experience, who, in turn, shall visit the patient in the
presence
of
his
guardian/close
relative
and form an opinion
preferably
within
48
hours of the case being referred to it whether to certify or not to certify
carrying
out
the
instructions
of
withdrawal or refusal of
further
medical
treatment. This decision shall be regarded as a
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
preliminary opinion.
Para
198.4.5
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. The
jurisdictional
Collector
shall
then immediately
constitute
a
Medical
Board
comprising
the
Chief
District
Medical Officer of
the
district
concerned as the
Chairman and three
expert
doctors
from the fields of
general medicine,
cardiology,
neurology,
nephrology,
psychiatry
or
oncology
with
experience
in
critical care and
with
overall
standing in the
In the event the Primary Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the hospital
shall
then immediately
constitute a
Secondary
Medical Board comprising one registered medical practitioner nominated by the Chief Medical Officer of the District and at least two subject experts with at least five years’
experience
of
the
concerned specialty who were not part of the Primary Medical Board.
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
medical profession
of at least twenty
years (who were
not members of the
previous Medical
Board
of
the
hospital).
They
shall
jointly
visit the hospital
where the patient
is admitted and if
they concur with
the
initial
decision of the
Medical Board of
the hospital, they
may endorse the
certificate
to
carry out the
instructions given
in the Advance
Directive.
They shall visit the
hospital
where
the
patient is admitted and if they concur with the initial decision of the Primary Medical Board of the hospital, they may endorse the certificate
to
carry
out
the
instructions given in the
Advance Directive.
The
Secondary Medical Board shall provide its opinion
preferably
within
48
hours of the case being referred to it.
Para 198.4.6 The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of
The secondary Board must beforehand ascertain the wishes of the executor if he is in a position to
communicate
and
is
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
understanding the
consequences
of
withdrawal
of
medical treatment.
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.
capable of understanding
the
consequences
of
withdrawal of medical treatment. In the event the executor is incapable of taking decision or
develops
impaired
decision-making capacity, then the consent of the
person
or
persons
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.
Para
198.4.7
The Chairman of
the Medical Board
The hospital where the MA No. 1699/ 2019 in WP (C) No. 215/ 2005
nominated by the
Collector,
that
is, the Chief
District Medical
Officer,
shall
convey
the
decision of the
Board
to
the
jurisdictional
JMFC before giving
effect to the
decision
to
withdraw
the
medical treatment
administered
to
the executor. The
JMFC shall visit
the patient at the
earliest
and,
after
examining
all
aspects,
authorise
the
implementation of
the decision of
the Board.
patient
is
admitted,
shall convey the decision
of the
Primary and
Secondary Medical Boards and the consent of the person or persons named in the Advance Directive to the jurisdictional JMFC before giving effect to the decision to
withdraw
the
medical
treatment administered to the executor.
Para
198.4.8
It will be open to
the executor to
revoke
the
document at any
stage before it is
acted upon and
implemented.
No change.
Para
198.5.1
If permission to
withdraw medical
treatment
is
refused by the
Medical Board, it
would be open to
the executor of
If permission to withdraw
medical
treatment
is
refused by the Secondary Medical Board, it would
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
the
Advance
Directive or his
family members or
even the treating
doctor or the
hospital staff to
approach the High
Court by way of
writ
petition
under Article 226
of
the
Constitution. If
such application
is filed before
the High Court,
the Chief Justice
of the said High
Court
shall
constitute
a
Division Bench to
decide upon grant
of approval or to
refuse the same.
The High Court
will be free to
constitute
an
independent
committee
consisting
of
three doctors from
the fields of
general medicine,
cardiology,
neurology,
nephrology,
psychiatry
or
oncology
with
experience
in
critical care and
with
overall
standing in the
medical profession
of at least twenty
be open to the person or persons named in the Advance Directive or even the treating doctor or
the hospital staff
to
approach the High Court by way of writ petition under Article 226 of the Constitution. If such
application
is
filed
before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the
fields
of
general
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
years. medicine, cardiology,
neurology,
nephrology,
psychiatry or oncology
with
experience
in
critical care and with overall standing in the medical profession of at least twenty years.
Para
198.5.2
The High Court
shall hear the
application
expeditiously
after
affording
opportunity to the
State counsel. It
would be open to
the High Court to
constitute Medical
Board in terms of
its
order
to
examine
the
patient and submit
report about the
feasibility
of
acting upon the
instructions
contained in the
Advance Directive.
No change.
Para
198.5.3
Needless to say
that the High
Court shall render
its decision at
No change. MA No. 1699/ 2019 in WP (C) No. 215/ 2005
the earliest as
such
matters
cannot brook any
delay and it shall
ascribe
reasons
specifically
keeping in mind
the principles of
“best interests of
the patient”.
Paras
198.6.1
An individual may
withdraw or alter
the
Advance
Directive at any
time when he/she
has the capacity
to do so and by
following the same
procedure
as
provided
for
recording
of
Advance Directive.
Withdrawal
or
revocation of an
Advance Directive
must
be
in
writing.
No change.
Para
198.6.2
An
Advance
Directive
shall
not be applicable
to the treatment
in question if
there
are
reasonable grounds
for believing that
circumstances
exist which the
person making the
directive did not
anticipate at the
No change. MA No. 1699/ 2019 in WP (C) No. 215/ 2005
time
of
the
Advance Directive
and which would
have affected his
decision had he
anticipated them.
Para
198.6.3
If the Advance
Directive is not
clear
and
ambiguous,
the
Medical
Boards
concerned
shall
not give effect to
the same and, in
that event, the
guidelines meant
for
patients
without
Advance
Directive shall be
made applicable.
No change.
Para
198.6.4
Where the Hospital
Medical
Board
takes a decision
not to follow an
Advance Directive
while treating a
person, then it
shall make an
application to the
Medical
Board
constituted by the
Collector
for
consideration and
appropriate
direction on the
Advance Directive
Where the Primary Medical Board takes a decision not to follow an Advance Directive while treating a person, the person or persons named in the Advance Directive may request the hospital to refer the case to the Secondary Medical Board
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
for consideration and appropriate direction on the Advance Directive.
Para
199
It is necessary to
make it clear that
there will be
cases where there
is no Advance
Directive.
The
said class of
persons cannot be
alienated.
In
cases where there
is no Advance
Directive,
the
procedure
and
safeguards are to
be same as applied
to cases where
Advance Directives
are in existence
and in addition
there to, the
following
procedure shall be
followed:
No change.
Cases where there is No Advance Directive
Para
199.1
In cases where the
patient
is
terminally ill and
undergoing
prolonged
treatment
in
respect of ailment
which is incurable
or where there is
no hope of being
In cases where the patient is terminally ill and undergoing prolonged treatment in respect of
ailment
which
is
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
cured,
the
physician
may
inform
the
hospital which, in
turn,
shall
constitute
a
Hospital Medical
Board
in
the
manner indicated
earlier.
The
Hospital Medical
Board
shall
discuss with the
family physician
and the family
members and record
the minutes of the
discussion
in
writing.
During
the
discussion,
the family members
shall be apprised
of the pros and
cons of withdrawal
or refusal of
further
medical
treatment to the
patient and if
they give consent
in writing, then
the
Hospital
Medical Board may
certify the course
of action to be
taken.
Their
decision will be
regarded as a
preliminary
opinion.
incurable or where there is no hope of being cured, the physician may
inform
the
hospital,
which, in turn, shall
constitute
a
Primary
Medical Board in the manner indicated earlier. The Primary Medical Board shall discuss with the family physician, if any, and the patient’s next of kin/next friend/guardian and record the minutes of
the
discussion
in
writing.
During
the
discussion, the patient’s
next
of
kin/next
friend/guardian shall be apprised of the pros and cons of withdrawal or
refusal
of
further
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
medical treatment to the patient and if they give consent in writing, then the Primary Medical Board may certify the course of action to be taken
preferably
within
48
hours of the case being referred to it. Their decision will be regarded as a preliminary opinion.
Para
199.2
In the event the
Hospital Medical
Board
certifies
the option of
withdrawal
or
refusal of further
medical treatment,
the hospital shall
immediately inform
the jurisdictional
Collector.
The
jurisdictional
Collector
shall
then constitute a
Medical
Board
comprising
the
Chief
District
Medical Officer as
In the event the Primary Medical Board certifies the option of withdrawal or refusal of further medical treatment, the
hospital
shall
then
constitute a
Secondary
Medical Board comprising in the manner indicated
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
the Chairman and
three experts from
the fields of
general medicine,
cardiology,
neurology,
nephrology,
psychiatry
or
oncology
with
experience
in
critical care and
with
overall
standing in the
medical profession
of at least twenty
years. The Medical
Board constituted
by the Collector
shall visit the
hospital
for
physical
examination of the
patient and, after
studying
the
medical
papers,
may concur with
the opinion of the
Hospital Medical
Board. In that
event, intimation
shall be given by
the Chairman of
the
Collector
nominated Medical
Board to the JMFC
and the family
members of the
patient.
hereinbefore.
The
Secondary
Medical Board
shall visit the hospital for physical examination of the patient and, after
studying
the
medical
papers, may concur with the opinion of the Primary Medical Board. In that event, intimation shall be given by the hospital to the JMFC and the next of kin/next friend/guardian of the patient preferably within 48 hours of the case being referred to it.
Para
199.3
The JMFC shall
visit the patient
at the earliest
and verify the
Deleted MA No. 1699/ 2019 in WP (C) No. 215/ 2005
medical reports,
examine
the
condition of the
patient, discuss
with the family
members of the
patient and, if
satisfied in all
respects,
may
endorse
the
decision of the
Collector
nominated Medical
Board to withdraw
or refuse further
medical treatment
to the terminally-
ill patient.
Para
199.4
There may be cases
where the Board
may not take a
decision to the
effect
of
withdrawing
medical treatment
of the patient or
the
Collector
nominated Medical
Board may not
concur with the
opinion of the
hospital Medical
Board. In such a
situation,
the
nominee of the
patient or the
family member or
the
treating
doctor or the
hospital staff can
seek
permission
from the High
There may be cases where the Primary Medical Board may not take a decision
to
the
effect
of
withdrawing
medical
treatment of the patient or the Secondary Medical Board may not concur with the opinion of the Primary Medical Board. In such a situation, the nominee of the patient or
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
Court to withdraw
life support by
way
of
writ
petition
under
Article 226 of the
Constitution
in
which case the
Chief Justice of
the said High
Court
shall
constitute
a
Division
Bench
which shall decide
to grant approval
or not. The High
Court
may
constitute
an
independent
committee
to
depute
three
doctors from the
fields of general
medicine,
cardiology,
neurology,
nephrology,
psychiatry
or
oncology
with
experience
in
critical care and
with
overall
standing in the
medical profession
of at least twenty
years
after
consulting
the
competent medical
practitioners. It
shall also afford
an opportunity to
the State counsel.
The High Court in
such cases shall
the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a
Division
Bench
which
shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general
medicine,
cardiology,
neurology,
nephrology,
psychiatry or oncology
with
experience
in
MA No. 1699/ 2019 in WP (C) No. 215/ 2005
render
its
decision at the
earliest
since
such
matters
cannot brook any
delay. Needless to
say, the High
Court
shall
ascribe
reasons
specifically
keeping in mind
the principle of
“best interests of
the patient”.
critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall
ascribe
reasons
specifically keeping in mind the principle of “best interests of the patient”.
Para
200
Having said this,
we
think
it
No change. MA No. 1699/ 2019 in WP (C) No. 215/ 2005
appropriate
to
cover a vital
aspect to the
effect the life
support
is
withdrawn,
the
same shall also be
intimated by the
Magistrate to the
High Court. It
shall be kept in a
digital format by
the Registry of
the High Court
apart from keeping
the hard copy
which shall be
destroyed
after
the expiry of
three years from
the death of the
patient.
(7) Registry will communicate a copy of this Order to Registrar Generals of all the High Courts.
The Registrar Generals of the High Courts will dispatch a copy of this Order to the Health Secretaries in the respective States/Union Territories for onward communication to all the Chief Medical Officers in the States/Union Territories.
The miscellaneous application will stand MA No. 1699/ 2019 in WP (C) No. 215/ 2005 disposed of as above.
No orders as to costs.
……………………………………………………., J.
[ K.M. JOSEPH ]
……………………………………………………., J.
[ AJAY RASTOGI ]
……………………………………………………., J.
[ ANIRUDDHA BOSE ]
……………………………………………………., J.
[ HRISHIKESH ROY ]
……………………………………………………., J. [ C.T. RAVIKUMAR ] New Delhi; January 24, 2023.