The Supreme Court on Wednesday reserved its verdict on the question of allowing people to execute a “living will” — or advance directive — that they should not be put on life support in case of terminal illness.
A five-judge Constitution Bench headed by Chief Justice of India Dipak Misra reserved its order, saying that if the right to dignity in death was to be recognised, then there has to be some room in the dying process, too.
The CJI said that a person’s advance directive intended to die with dignity should take effect only when a medical board affirms that the person’s medical condition was incurable and irreversible.
The Bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, was hearing a petition filed by the NGO Common Cause on the issue of passive euthanasia and “living will”. The court said it will lay down guidelines for drafting living wills and how it can be authenticated.
“Advance directives may be approved by a magistrate. The magistrate has to examine that the person executing the living will is of sound mind —- that he has taken informed consent…” CJI Misra observed.
A certificate from a statutory medical board that a patient’s condition is beyond cure and irreversible would take care of the fear of relatives and doctors about withdrawing life support, Justice Sikri said. “If a man is admitted to a hospital and he goes into coma, the hospital informs the medical board, which takes a fair, informed and impartial decision that his medical condition is beyond cure. This decision is taken by the medical board on the touchstone of modern technology,” he observed.
Justice Chandrachud suggested a two-pronged test on when a living will take effect. “One, when the medical condition of the patient has become irreversible. Two, 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,” he observed.
Justice Chandrachud also pointed out that a living will is “not postulated on the right to die but on the right to live, as the person is actually saying he wants to live only till he can without outside support”.
Additional Solicitor General P S Narasimha, however, said legalisation of “advance directives” would tantamount to waiving the fundamental right to life enshrined in Article 21 of Constitution.
On Tuesday, the ASG had told the court that although the government supports passive euthanasia, it is opposed in principle to allowing living will, as it can be misused in the case of elders, etc.
“Persons who exercise the right of self-determination (of when to die by withdrawing medical care) should know that there are many underprivileged persons who may be subjected to abuse if euthanasia and living wills are legalised,” he submitted Wednesday, adding that passive euthanasia is already taking place across the country.