SCO Daily: Making the Right to Die With Dignity ‘Workable’

Transcript.

On January 24th, 2023 the Supreme Court modified their 2018 Judgment which recognised the right to die with dignity, making it easier for terminally ill patients with no hope of recovery to cease treatment. This was in response to an application filed by the Indian Society for Critical Care Medicine in 2019 which claimed that the guidelines provided in the 2018 decision were ‘unworkable’. Virtually no one had been able to end their suffering due to some of the requirements. 

The 2018 Judgment was meant to provide relief in a very real sense to terminally ill patients. The Constitution Bench held that the right to die with dignity is a fundamental right. Further,  they recognised the validity of ‘Advance Medical Directives’, which allows patients to provide instructions for withdrawing treatment if they fall terminally ill and are unable to communicate their wishes.

However, among other stringent requirements the SC held that a Judicial Magistrate must personally visit the patient and give their assent to withdraw life supporting treatment. They also held that the hospital must create a medical board which will decide if withdrawing treatment is the correct decision. The hospital medical board’s decision must be further reviewed by a second medical board created by the District Collector.. 

A new Constitution Bench led by Justice K.M. Joseph began hearing the application filed by the Indian Society for Critical Care Medicine (or ISCCM) on January 17th, 2023. The ISCCM, represented by Senior Advocate Arvind Datar, sought to eliminate the involvement of the Judicial Magistrate and the District Collector entirely, as well as the requirement of a second medical board. Although the Union government opposed the application when it was first filed, Additional Solicitor General K.M. Nataraj made it clear that the Union was in favor of streamlining the entire process so long as there were necessary safeguards. 

Acknowledging the shift in the Union’s position, the Bench directed the ISCCM to work with the Union and submit a joint proposal on what modifications need to be made. From the very beginning, the Union indicated that they were in favor of eliminating the involvement of the Magistrate and the Collector, which was reflected in the joint proposal. However, both the Union and the Bench refused to budge on removing the requirement of a second medical board. 

Eventually, the parties and the Bench reached a consensus: The two medical boards would have 48 hours each to arrive at a final decision regarding withdrawal of life supporting treatment. Further, the Bench agreed to reduce the qualification requirement for members of the boards, holding that they must be subject experts with at least 5 years experience in their concerned specialty. 

The nature of the case evoked many discussions between the Bench and the parties about the nature of death and the suffering of terminally ill patients. During these discussions, the Bench and Mr. Datar referred to many literary works. Before closing the case for good, Mr. Datar gave the Judges a parting gift, signed copies of Arun Shourie’s book ‘Preparing: For Death’. 

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