Full Judgment Text
‘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
O R D E R
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.
Signature Not Verified
(2) A Constitution Bench came to be constituted on
Digitally signed by
Nidhi Ahuja
Date: 2023.02.02
17:19:33 IST
Reason:
the basis of a Reference made to it by a Bench of
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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support system should be withdrawn.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:
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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<br>Guidelines | Modifications |
|---|---|---|
| Para<br>198.2.5 | It should specify<br>the name of a<br>guardian or close<br>relative who, in<br>the event of the<br>executor becoming<br>incapable of<br>taking decision at<br>the relevant time,<br>will be authorised<br>to give consent to<br>refuse or withdraw<br>medical treatment<br>in a manner<br>consistent with<br>the Advance<br>Directive. | It should specify the<br>name of a guardian(s) or<br>close relative(s) who, in<br>the event of the executor<br>becoming incapable of<br>taking decision at the<br>relevant time, will be<br>authorised to give<br>consent to refuse or<br>withdraw medical<br>treatment in a manner<br>consistent with the<br>Advance Directive. |
| Para<br>198.3.1 | The document<br>should be signed | The document should be |
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| by the executor in<br>the presence of<br>two attesting<br>witnesses,<br>preferably<br>independent, and<br>countersigned by<br>the jurisdictional<br>Judicial<br>Magistrate of<br>First Class (JMFC)<br>so designated by<br>the District Judge<br>concerned. | signed by the executor in<br>the presence of two<br>attesting witnesses,<br>preferably independent,<br>and attested before a<br>notary or Gazetted<br>Officer. | |
|---|---|---|
| Para<br>198.3.2 | The witnesses and<br>the jurisdictional<br>JMFC shall record<br>their satisfaction<br>that the document<br>has been executed<br>voluntarily and<br>without any<br>coercion or<br>inducement or<br>compulsion and<br>with full<br>understanding of<br>all the relevant<br>information and<br>consequences. | The witnesses and the<br>notary or Gazetted<br>Officer shall record<br>their satisfaction that<br>the document has been<br>executed voluntarily and<br>without any coercion or<br>inducement or compulsion<br>and with full<br>understanding of all the<br>relevant information and<br>consequences. |
| Para<br>198.3.3 | The JMFC shall<br>preserve one copy | Deleted. |
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| of the document in<br>his office, in<br>addition to<br>keeping it in<br>digital format. | ||
|---|---|---|
| Para<br>198.3.4 | The JMFC shall<br>forward one copy<br>of the document to<br>the Registry of<br>the jurisdictional<br>District Court for<br>being preserved.<br>Additionally, the<br>Registry of the<br>District Judge<br>shall retain the<br>document in<br>digital format. | Deleted. |
| Para<br>198.3.5 | The JMFC shall<br>cause to inform<br>the immediate<br>family members of<br>the executor, if<br>not present at the<br>time of execution,<br>and make them<br>aware about the<br>execution of the<br>document. | The executor shall<br>inform, and hand over a<br>copy of the Advance<br>Directive to the person<br>or persons named in<br>Paragraph 198.2.5, as<br>well as to the family<br>physician, if any. |
| Para<br>198.3.6 | A copy shall be<br>handed over to the<br>competent officer<br>of the local<br>Government or the<br>Municipal<br>Corporation or | A copy shall be handed<br>over to the competent<br>officer of the local<br>Government or the |
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| Municipality or<br>Panchayat, as the<br>case may be. The<br>aforesaid<br>authorities shall<br>nominate a<br>competent official<br>in that regard who<br>shall be the<br>custodian of the<br>said document. | Municipal Corporation or<br>Municipality or<br>Panchayat, as the case<br>may be. The aforesaid<br>authorities shall<br>nominate a competent<br>official in that regard<br>who shall be the<br>custodian of the said<br>document.<br>The executor may also<br>choose to incorporate<br>their Advance Directive<br>as a part of the digital<br>health records, if any. | |
|---|---|---|
| Para<br>198.3.7 | The JMFC shall<br>cause to hand over<br>copy of the<br>Advance Directive<br>to the family<br>physician, if any. | Deleted. |
| Para<br>198.4.1 | In the event the<br>executor becomes<br>terminally ill and<br>is undergoing | In the event the executor<br>becomes terminally ill |
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| prolonged medical<br>treatment with no<br>hope of recovery<br>and cure of the<br>ailment, the<br>treating<br>physician, when<br>made aware about<br>the Advance<br>Directive, shall<br>ascertain the<br>genuineness and<br>authenticity<br>thereof from the<br>jurisdictional<br>JMFC before acting<br>upon the same. | and is undergoing<br>prolonged medical<br>treatment with no hope of<br>recovery and cure of the<br>ailment, and does not<br>have decision-making<br>capacity, the treating<br>physician, when made<br>aware about the Advance<br>Directive, shall<br>ascertain the genuineness<br>and authenticity thereof<br>with reference to the<br>existing digital health<br>records of the patient,<br>if any or from the<br>custodian of the document<br>referred to in Paragraph<br>198.3.6 of this<br>judgement. | |
|---|---|---|
| Para<br>198.4.2 | The instructions<br>in the document<br>must be given due<br>weight by the | No change. |
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| doctors. However,<br>it should be given<br>effect to only<br>after being fully<br>satisfied that the<br>executor is<br>terminally ill and<br>is undergoing<br>prolonged<br>treatment or is<br>surviving on life<br>support and that<br>the illness of the<br>executor is<br>incurable or there<br>is no hope of<br>him/her being<br>cured. | ||
|---|---|---|
| Para<br>198.4.3 | If the physician<br>treating the<br>patient (executor<br>of the document)<br>is satisfied that<br>the instructions<br>given in the<br>document need to<br>be acted upon, he<br>shall inform the<br>executor or his<br>guardian/close<br>relative, as the<br>case may be, about<br>the nature of<br>illness, the<br>availability of<br>medical care and<br>consequences of<br>alternative forms<br>of treatment and<br>the consequences<br>of remaining<br>untreated. He must | If the physician treating<br>the patient (executor of<br>the document) is<br>satisfied that the<br>instructions given in the<br>document need to be acted<br>upon, he shall inform the<br>person or persons named<br>in the Advance Directive,<br>as the case may be, about<br>the nature of illness,<br>the availability of |
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| also ensure that<br>he beliefs on<br>reasonable grounds<br>that the person in<br>question<br>understands the<br>information<br>provided, has<br>cogitated over the<br>options and has<br>come to a firm<br>view that the<br>option of<br>withdrawal or<br>refusal of medical<br>treatment is the<br>best choice. | medical care and<br>consequences of<br>alternative forms of<br>treatment and the<br>consequences of remaining<br>untreated. He must also<br>ensure that he believes<br>on reasonable grounds<br>that the person in<br>question understands the<br>information provided, has<br>cogitated over the<br>options and has come to a<br>firm view that the option<br>of withdrawal or refusal<br>of medical treatment is<br>the best choice. | |
|---|---|---|
| Para<br>198.4.4 | The<br>physician/hospital<br>where the executor<br>has been admitted<br>for medical<br>treatment shall<br>then constitute a<br>Medical Board | The hospital where the<br>executor has been<br>admitted for medical<br>treatment shall then |
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| consisting of the<br>Head of the<br>treating<br>department and at<br>least three<br>experts from the<br>fields of general<br>medicine,<br>cardiology,<br>neurology,<br>nephrology,<br>psychiatry or<br>oncology with<br>experience in<br>critical care and<br>with overall<br>standing in the<br>medical profession<br>of at least twenty<br>years who, in<br>turn, shall visit<br>the patient in the<br>presence of his<br>guardian/close<br>relative and form<br>an opinion whether<br>to certify or not<br>to certify<br>carrying out the<br>instructions of<br>withdrawal or<br>refusal of further<br>medical treatment.<br>This decision<br>shall be regarded<br>as a preliminary<br>opinion. | constitute a Primary<br>Medical Board consisting<br>of the treating physician<br>and at least two subject<br>experts of the concerned<br>specialty with at least<br>five years’ experience,<br>who, in turn, shall visit<br>the patient in the<br>presence of his<br>guardian/close relative<br>and form an opinion<br>preferably within 48<br>hours of the case being<br>referred to it whether to<br>certify or not to certify<br>carrying out the<br>instructions of<br>withdrawal or refusal of<br>further medical<br>treatment. This decision<br>shall be regarded as a |
|---|
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| preliminary opinion. | ||
|---|---|---|
| Para<br>198.4.5 | In the event the<br>Hospital Medical<br>Board certifies<br>that the<br>instructions<br>contained in the<br>Advance Directive<br>ought to be<br>carried out, the<br>physician/hospital<br>shall forthwith<br>inform the<br>jurisdictional<br>Collector about<br>the proposal. The<br>jurisdictional<br>Collector shall<br>then immediately<br>constitute a<br>Medical Board<br>comprising the<br>Chief District<br>Medical Officer of<br>the district<br>concerned as the<br>Chairman and three<br>expert doctors<br>from the fields of<br>general medicine,<br>cardiology,<br>neurology,<br>nephrology,<br>psychiatry or<br>oncology with<br>experience in<br>critical care and<br>with overall<br>standing in the | In the event the Primary<br>Medical Board certifies<br>that the instructions<br>contained in the Advance<br>Directive ought to be<br>carried out, the hospital<br>shall then immediately<br>constitute a Secondary<br>Medical Board comprising<br>one registered medical<br>practitioner nominated by<br>the Chief Medical Officer<br>of the District and at<br>least two subject experts<br>with at least five years’<br>experience of the<br>concerned specialty who<br>were not part of the<br>Primary Medical Board. |
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| medical profession<br>of at least twenty<br>years (who were<br>not members of the<br>previous Medical<br>Board of the<br>hospital). They<br>shall jointly<br>visit the hospital<br>where the patient<br>is admitted and if<br>they concur with<br>the initial<br>decision of the<br>Medical Board of<br>the hospital, they<br>may endorse the<br>certificate to<br>carry out the<br>instructions given<br>in the Advance<br>Directive. | They shall visit the<br>hospital where the<br>patient is admitted and<br>if they concur with the<br>initial decision of the<br>Primary Medical Board of<br>the hospital, they may<br>endorse the certificate<br>to carry out the<br>instructions given in the<br>Advance Directive. The<br>Secondary Medical Board<br>shall provide its opinion<br>preferably within 48<br>hours of the case being<br>referred to it. | |
|---|---|---|
| Para<br>198.4.6 | The Board<br>constituted by the<br>Collector must<br>beforehand<br>ascertain the<br>wishes of the<br>executor if he is<br>in a position to<br>communicate and is<br>capable of | The secondary Board must<br>beforehand ascertain the<br>wishes of the executor if<br>he is in a position to<br>communicate and is |
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| understanding the<br>consequences of<br>withdrawal of<br>medical treatment.<br>In the event the<br>executor is<br>incapable of<br>taking decision or<br>develops impaired<br>decision-making<br>capacity, then the<br>consent of the<br>guardian nominated<br>by the executor in<br>the Advance<br>Directive should<br>be obtained<br>regarding refusal<br>or withdrawal of<br>medical treatment<br>to the executor to<br>the extent of and<br>consistent with<br>the clear<br>instructions given<br>in the Advance<br>Directive. | capable of understanding<br>the consequences of<br>withdrawal of medical<br>treatment. In the event<br>the executor is incapable<br>of taking decision or<br>develops impaired<br>decision-making capacity,<br>then the consent of the<br>person or persons<br>nominated by the executor<br>in the Advance Directive<br>should be obtained<br>regarding refusal or<br>withdrawal of medical<br>treatment to the executor<br>to the extent of and<br>consistent with the clear<br>instructions given in the<br>Advance Directive. | |
|---|---|---|
| Para<br>198.4.7 | The Chairman of<br>the Medical Board | The hospital where the |
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| nominated by the<br>Collector, that<br>is, the Chief<br>District Medical<br>Officer, shall<br>convey the<br>decision of the<br>Board to the<br>jurisdictional<br>JMFC before giving<br>effect to the<br>decision to<br>withdraw the<br>medical treatment<br>administered to<br>the executor. The<br>JMFC shall visit<br>the patient at the<br>earliest and,<br>after examining<br>all aspects,<br>authorise the<br>implementation of<br>the decision of<br>the Board. | patient is admitted,<br>shall convey the decision<br>of the Primary and<br>Secondary Medical Boards<br>and the consent of the<br>person or persons named<br>in the Advance Directive<br>to the jurisdictional<br>JMFC before giving effect<br>to the decision to<br>withdraw the medical<br>treatment administered to<br>the executor. | |
|---|---|---|
| Para<br>198.4.8 | It will be open to<br>the executor to<br>revoke the<br>document at any<br>stage before it is<br>acted upon and<br>implemented. | No change. |
| Para<br>198.5.1 | If permission to<br>withdraw medical<br>treatment is<br>refused by the<br>Medical Board, it<br>would be open to<br>the executor of | If permission to withdraw<br>medical treatment is<br>refused by the Secondary<br>Medical Board, it would |
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| the Advance<br>Directive or his<br>family members or<br>even the treating<br>doctor or the<br>hospital staff to<br>approach the High<br>Court by way of<br>writ petition<br>under Article 226<br>of the<br>Constitution. If<br>such application<br>is filed before<br>the High Court,<br>the Chief Justice<br>of the said High<br>Court shall<br>constitute a<br>Division Bench to<br>decide upon grant<br>of approval or to<br>refuse the same.<br>The High Court<br>will be free to<br>constitute an<br>independent<br>committee<br>consisting of<br>three doctors from<br>the fields of<br>general medicine,<br>cardiology,<br>neurology,<br>nephrology,<br>psychiatry or<br>oncology with<br>experience in<br>critical care and<br>with overall<br>standing in the<br>medical profession<br>of at least twenty | be open to the person<br>or persons named in the<br>Advance Directive or even<br>the treating doctor or<br>the hospital staff to<br>approach the High Court<br>by way of writ petition<br>under Article 226 of the<br>Constitution. If such<br>application is filed<br>before the High Court,<br>the Chief Justice of the<br>said High Court shall<br>constitute a Division<br>Bench to decide upon<br>grant of approval or to<br>refuse the same. The High<br>Court will be free to<br>constitute an independent<br>committee consisting of<br>three doctors from the<br>fields of general |
|---|
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| years. | medicine, cardiology,<br>neurology, nephrology,<br>psychiatry or oncology<br>with experience in<br>critical care and with<br>overall standing in the<br>medical profession of at<br>least twenty years. | |
|---|---|---|
| Para<br>198.5.2 | The High Court<br>shall hear the<br>application<br>expeditiously<br>after affording<br>opportunity to the<br>State counsel. It<br>would be open to<br>the High Court to<br>constitute Medical<br>Board in terms of<br>its order to<br>examine the<br>patient and submit<br>report about the<br>feasibility of<br>acting upon the<br>instructions<br>contained in the<br>Advance Directive. | No change. |
| Para<br>198.5.3 | Needless to say<br>that the High<br>Court shall render<br>its decision at | No change. |
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| the earliest as<br>such matters<br>cannot brook any<br>delay and it shall<br>ascribe reasons<br>specifically<br>keeping in mind<br>the principles of<br>“best interests of<br>the patient”. | ||
|---|---|---|
| Paras<br>198.6.1 | An individual may<br>withdraw or alter<br>the Advance<br>Directive at any<br>time when he/she<br>has the capacity<br>to do so and by<br>following the same<br>procedure as<br>provided for<br>recording of<br>Advance Directive.<br>Withdrawal or<br>revocation of an<br>Advance Directive<br>must be in<br>writing. | No change. |
| Para<br>198.6.2 | An Advance<br>Directive shall<br>not be applicable<br>to the treatment<br>in question if<br>there are<br>reasonable grounds<br>for believing that<br>circumstances<br>exist which the<br>person making the<br>directive did not<br>anticipate at the | No change. |
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| time of the<br>Advance Directive<br>and which would<br>have affected his<br>decision had he<br>anticipated them. | ||
|---|---|---|
| Para<br>198.6.3 | If the Advance<br>Directive is not<br>clear and<br>ambiguous, the<br>Medical Boards<br>concerned shall<br>not give effect to<br>the same and, in<br>that event, the<br>guidelines meant<br>for patients<br>without Advance<br>Directive shall be<br>made applicable. | No change. |
| Para<br>198.6.4 | Where the Hospital<br>Medical Board<br>takes a decision<br>not to follow an<br>Advance Directive<br>while treating a<br>person, then it<br>shall make an<br>application to the<br>Medical Board<br>constituted by the<br>Collector for<br>consideration and<br>appropriate<br>direction on the<br>Advance Directive | Where the Primary Medical<br>Board takes a decision<br>not to follow an Advance<br>Directive while treating<br>a person, the person or<br>persons named in the<br>Advance Directive may<br>request the hospital to<br>refer the case to the<br>Secondary Medical Board |
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| for consideration and<br>appropriate direction on<br>the Advance Directive. | ||
|---|---|---|
| Para<br>199 | It is necessary to<br>make it clear that<br>there will be<br>cases where there<br>is no Advance<br>Directive. The<br>said class of<br>persons cannot be<br>alienated. In<br>cases where there<br>is no Advance<br>Directive, the<br>procedure and<br>safeguards are to<br>be same as applied<br>to cases where<br>Advance Directives<br>are in existence<br>and in addition<br>there to, the<br>following<br>procedure shall be<br>followed: | No change. |
| Cases where there is No Advance Directive | ||
| Para<br>199.1 | In cases where the<br>patient is<br>terminally ill and<br>undergoing<br>prolonged<br>treatment in<br>respect of ailment<br>which is incurable<br>or where there is<br>no hope of being | In cases where the<br>patient is terminally ill<br>and undergoing prolonged<br>treatment in respect of<br>ailment which is |
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| cured, the<br>physician may<br>inform the<br>hospital which, in<br>turn, shall<br>constitute a<br>Hospital Medical<br>Board in the<br>manner indicated<br>earlier. The<br>Hospital Medical<br>Board shall<br>discuss with the<br>family physician<br>and the family<br>members and record<br>the minutes of the<br>discussion in<br>writing. During<br>the discussion,<br>the family members<br>shall be apprised<br>of the pros and<br>cons of withdrawal<br>or refusal of<br>further medical<br>treatment to the<br>patient and if<br>they give consent<br>in writing, then<br>the Hospital<br>Medical Board may<br>certify the course<br>of action to be<br>taken. Their<br>decision will be<br>regarded as a<br>preliminary<br>opinion. | incurable or where there<br>is no hope of being<br>cured, the physician may<br>inform the hospital,<br>which, in turn, shall<br>constitute a Primary<br>Medical Board in the<br>manner indicated earlier.<br>The Primary Medical Board<br>shall discuss with the<br>family physician, if any,<br>and the patient’s next of<br>kin/next friend/guardian<br>and record the minutes of<br>the discussion in<br>writing. During the<br>discussion, the patient’s<br>next of kin/next<br>friend/guardian shall be<br>apprised of the pros and<br>cons of withdrawal or<br>refusal of further |
|---|
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| medical treatment to the<br>patient and if they give<br>consent in writing, then<br>the Primary Medical Board<br>may certify the course of<br>action to be taken<br>preferably within 48<br>hours of the case being<br>referred to it.<br>Their decision will be<br>regarded as a preliminary<br>opinion. | ||
|---|---|---|
| Para<br>199.2 | In the event the<br>Hospital Medical<br>Board certifies<br>the option of<br>withdrawal or<br>refusal of further<br>medical treatment,<br>the hospital shall<br>immediately inform<br>the jurisdictional<br>Collector. The<br>jurisdictional<br>Collector shall<br>then constitute a<br>Medical Board<br>comprising the<br>Chief District<br>Medical Officer as | In the event the Primary<br>Medical Board certifies<br>the option of withdrawal<br>or refusal of further<br>medical treatment, the<br>hospital shall then<br>constitute a Secondary<br>Medical Board comprising<br>in the manner indicated |
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| the Chairman and<br>three experts from<br>the fields of<br>general medicine,<br>cardiology,<br>neurology,<br>nephrology,<br>psychiatry or<br>oncology with<br>experience in<br>critical care and<br>with overall<br>standing in the<br>medical profession<br>of at least twenty<br>years. The Medical<br>Board constituted<br>by the Collector<br>shall visit the<br>hospital for<br>physical<br>examination of the<br>patient and, after<br>studying the<br>medical papers,<br>may concur with<br>the opinion of the<br>Hospital Medical<br>Board. In that<br>event, intimation<br>shall be given by<br>the Chairman of<br>the Collector<br>nominated Medical<br>Board to the JMFC<br>and the family<br>members of the<br>patient. | hereinbefore. The<br>Secondary Medical Board<br>shall visit the hospital<br>for physical examination<br>of the patient and, after<br>studying the medical<br>papers, may concur with<br>the opinion of the<br>Primary Medical Board. In<br>that event, intimation<br>shall be given by the<br>hospital to the JMFC and<br>the next of kin/next<br>friend/guardian of the<br>patient preferably within<br>48 hours of the case<br>being referred to it. | |
|---|---|---|
| Para<br>199.3 | The JMFC shall<br>visit the patient<br>at the earliest<br>and verify the | Deleted |
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| medical reports,<br>examine the<br>condition of the<br>patient, discuss<br>with the family<br>members of the<br>patient and, if<br>satisfied in all<br>respects, may<br>endorse the<br>decision of the<br>Collector<br>nominated Medical<br>Board to withdraw<br>or refuse further<br>medical treatment<br>to the terminally-<br>ill patient. | ||
|---|---|---|
| Para<br>199.4 | There may be cases<br>where the Board<br>may not take a<br>decision to the<br>effect of<br>withdrawing<br>medical treatment<br>of the patient or<br>the Collector<br>nominated Medical<br>Board may not<br>concur with the<br>opinion of the<br>hospital Medical<br>Board. In such a<br>situation, the<br>nominee of the<br>patient or the<br>family member or<br>the treating<br>doctor or the<br>hospital staff can<br>seek permission<br>from the High | There may be cases where<br>the Primary Medical Board<br>may not take a decision<br>to the effect of<br>withdrawing medical<br>treatment of the patient<br>or the Secondary Medical<br>Board may not concur with<br>the opinion of the<br>Primary Medical Board. In<br>such a situation, the<br>nominee of the patient or |
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| Court to withdraw<br>life support by<br>way of writ<br>petition under<br>Article 226 of the<br>Constitution in<br>which case the<br>Chief Justice of<br>the said High<br>Court shall<br>constitute a<br>Division Bench<br>which shall decide<br>to grant approval<br>or not. The High<br>Court may<br>constitute an<br>independent<br>committee to<br>depute three<br>doctors from the<br>fields of general<br>medicine,<br>cardiology,<br>neurology,<br>nephrology,<br>psychiatry or<br>oncology with<br>experience in<br>critical care and<br>with overall<br>standing in the<br>medical profession<br>of at least twenty<br>years after<br>consulting the<br>competent medical<br>practitioners. It<br>shall also afford<br>an opportunity to<br>the State counsel.<br>The High Court in<br>such cases shall | the family member or the<br>treating doctor or the<br>hospital staff can seek<br>permission from the High<br>Court to withdraw life<br>support by way of writ<br>petition under Article<br>226 of the Constitution<br>in which case the Chief<br>Justice of the said High<br>Court shall constitute a<br>Division Bench which<br>shall decide to grant<br>approval or not. The High<br>Court may constitute an<br>independent committee to<br>depute three doctors from<br>the fields of general<br>medicine, cardiology,<br>neurology, nephrology,<br>psychiatry or oncology<br>with experience in |
|---|
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| render its<br>decision at the<br>earliest since<br>such matters<br>cannot brook any<br>delay. Needless to<br>say, the High<br>Court shall<br>ascribe reasons<br>specifically<br>keeping in mind<br>the principle of<br>“best interests of<br>the patient”. | critical care and with<br>overall standing in the<br>medical profession of at<br>least twenty years after<br>consulting the competent<br>medical practitioners. It<br>shall also afford an<br>opportunity to the State<br>counsel. The High Court<br>in such cases shall<br>render its decision at<br>the earliest since such<br>matters cannot brook any<br>delay. Needless to say,<br>the High Court shall<br>ascribe reasons<br>specifically keeping in<br>mind the principle of<br>“best interests of the<br>patient”. | |
|---|---|---|
| Para<br>200 | Having said this,<br>we think it | No change. |
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| appropriate to<br>cover a vital<br>aspect to the<br>effect the life<br>support is<br>withdrawn, the<br>same shall also be<br>intimated by the<br>Magistrate to the<br>High Court. It<br>shall be kept in a<br>digital format by<br>the Registry of<br>the High Court<br>apart from keeping<br>the hard copy<br>which shall be<br>destroyed after<br>the expiry of<br>three years from<br>the death of the<br>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
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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.
38