ISSN (Online) - 2349-8846
-A A +A

Two Steps Forward, One Step Back

Supreme Court on Advance Directives

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

.

More than a decade after the writ petition was initially filed by Common Cause, a Delhi-based public interest advocacy organisation, a constitution bench of the Supreme Court has finally delivered its landmark verdict holding that advance directives (or “living wills”) will have legal recognition in India (Common Cause v Union of India 2018). The four concurring opinions are unanimous in holding that all adults of sound mind have the fundamental right to die with dignity (traceable to Article 21 of the Constitution), and cannot be compelled to take life-saving treatment against their will. All the judges hold that an advance directive made by a person should be respected by the treating doctor and hospital even when such person is not in a position to communicate lack of consent for treatment, and treatment should be withdrawn if the person has so indicated.

This means that a person can choose to say in an advance directive that even life-saving treatment be withdrawn under certain conditions. Even in the absence of an enabling legislation, the Court has held that such a right can be exercised, subject to the procedure laid down in the judgment by way of “directions.”

As salutary as the reasoning behind the judgment may be, there is much to dissect and examine in the “directions” that the Court has issued to doctors and authorities charged with implementing advance directives. I had previously argued in this journal that the Court would be better off not hazarding an attempt at framing guidelines (Kumar 2014), and the directions issued by the Supreme Court in this case illustrate why.

By far the Court’s most important finding was the recognition that the right to life under Article 21 includes the right to die with dignity and the right to refuse treatment, even if it is life-saving treatment. The two seem synonymous, but are actually distinct. Although there is a tendency to use the phrase “passive euthanasia” in the context of the right to die with dignity, it is somewhat a misnomer given the issues at stake. It is a phrase that is being eschewed by and large within the medical community itself (Gupta 2018), and there is a need to adopt the language in law accordingly.

Clearing the Air

In tracing the right to die with dignity to Article 21, the Court has put an end to a few years of confusion over the meaning and scope of the judgments of the Supreme Court in Gian Kaur v State of Punjab (2011) and Aruna Ramchandra Shanbaug v Union of India (1996). The reference order in this case (Common Cause v Union of India 2014) complicated matters further by misreading the Aruna Shanbaug judgment’s misreading of the Gian Kaur one. This fundamentally left the issue of whether there is a right to die with dignity entirely in the air.

What the constitution bench has done is to clear the air comprehensively, pointing out that the right to die with dignity is a part of the right to life, and that neither the Aruna Shanbaug judgment, nor the reference order in the Common Cause case read the Gian Kaur judgment right. In the Gian Kaur case, the constitution bench had only made an observation that the right to die with dignity was an aspect of the right to life, but had not gone into the specific question of the withdrawal of treatment at a terminal stage of illness.

The latter question, however, was resolved in the Supreme Court’s judgment in K S Puttaswamy v Union of India (2017). Three of the four opinions delivered in the Common Cause case (by Chief Justice of India [CJI] Dipak Misra, and Justices D Y Chandrachud and Ashok Bhushan) rely on the Puttaswamy judgment’s framing of the right to bodily autonomy as a core element of the right to privacy guaranteed under the Constitution to draw from it the right to refuse life-saving treatment. From this, they extrapolate that a person has the right to indicate, in advance, whether they wish to be given this treatment when they are no longer in a position to give or refuse consent. The right to refuse treatment actually flows out of the right to one’s bodily autonomy and the principle, having been articulated in the Puttaswamy judgment, was put to rest in the Common Cause case insofar as advance directives were concerned.

In effect, the Court has gone a little further than what was exactly sought in the petition. It has recognised the fundamental right of a patient to refuse certain treatment (even if it would save their life) and also that such a right can be exercised in advance, through a properly executed advance directive, binding family, doctors and even the state.

Where, however, the judgment tangles itself into a few problematic knots is in trying to outline what should be a properly executed advance directive.

Directions of the Court

Acknowledging that the effective en- forcement of advance directives will require legislative and institutional support, however, the Supreme Court proceeds to lay down “directions” that, it claims, will occupy the field till parliamentary law replaces it. In doing so, it chooses to tread the somewhat problematic path that previous landmark judgments of the Supreme Court have undertaken in Vishaka v State of Rajasthan (1997) and Laxmi Kant Pandey v Union of India (1984) in the context of sexual harassment and inter-country adoption of minors, respectively.

The directions themselves are split into six broad heads and seem comprehensive. Though contained primarily in CJI Misra’s judgment, they are endorsed by the three other concurring opinions. However, there are three significant problems with the directions.

First, while the Court lays down stringent requirements for what should be contained in the advance directives, it assumes, however, that all the terms used are intelligible to the lay person who wishes to make an advance directive. Since this document is being prepared by a person with no knowledge of law or medical terms, it might have helped if the Court had thought it fit to include a draft form or a model advance directive that individuals could use to prepare their advance directives.

Second, the directions require that the advance directive be countersigned by the jurisdictional judicial magistrate first class (JMFC), with copies preserved by the office of such JMFC, the district and the local body. Having three different authorities be the custodians of the document, in addition to the copy existing with the executor of the advance directive, seems unnecessary and complicated. The directions assume that only the state machinery is capable of maintaining such documents safely, foreclosing the option of cheaper and perhaps more effective options such as banks and registries, which have experience storing documents in lockers and have evolved processes to ensure the safety and security of the same. While one understands the need for authentication of the advance directive by a person in a responsible position, why that person should also be saddled with the burden of holding and maintaining the document is unclear. There are no clear directions as to how the JMFC is supposed to maintain these documents, for how long, and what their responsibilities are in law towards the executors of advance directives. There is no other law that imposes such an obligation on JMFCs, and complying with these directions is something that will pose a challenge.

Third, the procedure for enforcing an advance directive promises to be a bureaucratic nightmare. The directions require that the physician, the medical board of the treating hospital, a different medical board constituted by the jurisdictional collector and the jurisdictional JMFC must be involved in the decision to withdraw life-saving treatment. Much of this is pointless duplication of procedures and decision-making, which only serves to highlight how little the Supreme Court trusts authorities and individuals to be able to take a difficult decision in good faith. Ideally, the decision to end treatment for a terminally ill person should be one that is only between the treating physician and the patient or their family. To involve a complex cast of characters only ends up depriving the patient of agency, rendering the advance directive pointless.

With these flaws, the Supreme Court may have effectively nullified the positive impact of the judgment, making it almost impossible to effectively draft and enforce an advance directive.

Conclusions

The initial consensus among practitioners and experts seems to be that the guidelines are essentially unimplementable (Pratap 2018). It is excessively bureaucratic and unnecessarily expensive, and also does not clearly outline the responsibilities and legal liabilities of all concerned. What the directions only serve to do is to highlight the essential need for a detailed legislation that takes into account inputs of stakeholders and ordinary citizens in framing a law to protect the right of terminally ill persons to refuse treatment.

One other undeniable good that has also come out of the judgment is that the existing Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill will have to be scrapped and a fresh bill drafted. This is necessitated because Clause 11 of this bill expressly rejects the binding nature of “advance medical directives,” and has been described by CJI Misra in his leading judgment as “disproportionate” and not a “fair, just or reasonable procedure” for the purposes of Article 21. This is, of course, only one of the many problems with the bill and, with the advance directives clause being held potentially unconstitutional, one hopes that there is a serious rethink of the bill in its entirety. Not to say that the procedure in the Court’s directions is entirely preferable, but certainly a different approach is called for.

In hoping for a legislation to replace the directions in the Common Cause judgment, one cannot help but notice that it took nearly 16 years before the directions in the Vishaka judgment were replaced by parliamentary law on the topic of sexual harassment at the workplace. It took 32 years for the union government to replace the guidelines framed in the L K Pandey case with binding regulations under the Juvenile Justice (Care and Protection of Children) Act, 2015. One hopes that we will not have to wait as long for a law to give effect to advance directives.

The Vidhi Centre for Legal Policy had filed an intervention application in the Supreme Court in Common Cause v Union of India seeking recognition of the legality of advance directives.

References

Aruna Ramchandra Shanbaug v Union of India (1996): SCC, SC, 2, p 648.

Common Cause v Union of India (2014): SCC, SC, 5, p 338.

Common Cause v Union of India (2018): SCC OnLine, SC, 208.

Gian Kaur v State of Punjab (2011): SCC, SC, 4, p 454.

Gupta, Harmala (2018): “Don’t Say Euthanasia: Supreme Court Judgment Is More about Giving People the Power to Stop Futile Treatment,” Times of India, 16 March, viewed on 19 March 2018, https://blogs.timesofindia.indiatimes.com/toi-edit-page/dont-say-euthanasia-supreme-court-judgment-is-more-about-giving-people-the-power-to-stop-futile-treatment/.

K S Puttaswamy v Union of India (2017): SCC, SC, 10, p 1.

Kumar, Alok Prasanna (2014): “Tilting at the Windmills (Again): Should the Supreme Court Legalise ‘Living Wills’?” Economic & Political Weekly, Vol 49, No 34, pp 10–12.

Laxmi Kant Pandey v Union of India (1984): AIR, SC, p 469.

Pratap, Aayushi (2018): “Passive Euthanasia: Here’s Why Mumbai Experts Feel Implementing Living Will Is a Challenge,” Hindustan Times, 10 March, viewed on 19 March 2018, https://www.hindustantimes.com/mumbai-news/passive-euthanasia-here-s-why-mumbai-experts-feel-implementing-living-will-is-a-challenge/story-yNEJZzn27Aihz4GMOosHiO.html.

Vishaka v State of Rajasthan (1997): SCC, SC, 6, p 241.

Updated On : 23rd Mar, 2018

Comments

(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top