Right to Die Guidelines Day #1: Sr. Adv. Arvind Datar Argues Current Process is Cumbersome

Today, a 5-Judge Constitution Bench led by Justice K.M. Joseph heard an application to modify the SC’s 2018 Judgment which recognised the right to die with dignity and provided guidelines for terminally ill patients to refuse further treatment. The 2018 Judgment also recognised the validity of ‘Advance Directives’, allowing individuals to provide instructions on how to proceed if they become terminally ill, unable to communicate their wishes and seek to refuse treatment.

The Indian Society for Critical Care Medicine (ISCCM) filed a Miscellaneous Application in July 2019 claiming the SC’s guidelines were cumbersome and very few Advance Directives (ADs) were accepted and implemented

Senior Advocate Arvind Datar, representing ISCCM, led the discussion with the Bench in today’s hearing. The 2018 Judgment requires a Judicial Magistrate to record that the AD was signed voluntarily. Sr. Adv. Datar claimed that this is the main reason behind the delays. The Bench then discussed when an AD should be allowed. The 2018 Judgment states that it must ‘clearly indicate’ the circumstances when medical treatment can be withdrawn. Justice Joseph suggested this may be unfair to individuals from the lower strata of society. Joseph J suggested modifying this requirement to allow patients who have ‘reached the terminal stage as certified by the Medical Council of India’ (or) ‘…as known to medical science at the time’.

The discussion turned to the format for the AD and the definition of ‘terminal illness’. Mr. Datar suggested defining it as ‘…where disease modifying options are no longer available’. Justice Rastogi asked Mr. Datar how the magistrate can be bypassed while retaining the safeguards preventing misuse. Mr. Datar suggested that the requirements to sign the AD in the presence of two independent witnesses and then receive approval from two medical boards is sufficient.

Justice Joseph asked if it was necessary to have 2 medical boards approve the AD. Mr. Datar explained that the second board would comprise doctors who were not part of the team treating the patient to avoid bias. In smaller hospitals, a doctor from a government hospital will review the decision of the primary medical board. In response, Justice Joseph suggested placing time limits on each medical board to arrive at a decision.

The Bench asked Mr. Datar to return tomorrow with a chart comparing the SC’s 2018 guidelines along with the changes suggested by the petitioners and the Bench. The case will be heard again at 2 P.M. tomorrow (January 18th, 2022).