Right to Die Guidelines Day #2: Sr. Adv. Datar Suggests Changes to Advance Directive Requirements

Today, a 5-Judge Constitution Bench led by Justice K.M. Joseph continued to hear the application to modify the SC’s 2018 guidelines to implement ‘Advance Directives’ (ADs) from terminally ill patients who wish 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 application was filed in July 2019 by the Indian Society for Critical Care (ISCC). Senior Advocate Arvind Datar, representing ISCC, submitted a chart detailing the suggested changes to the 2018 guidelines.

Mr. Datar suggested expanding the use of ADs to situations where treatment may ‘…cause a greater possibility of harm than the reasonable possibility of benefit’. However, Justice Joseph stated that the wording adds complexity and may increase the possibility of misuse. Mr. Datar also attempted to convince the Bench to include persons in a ‘permanent vegetative state’ who are not at risk of death but have no hope of recovery and no ability to communicate their wishes. Justice Joseph shot down this suggestion as well, stating that the Bench could not allow this so long as there is a possibility that they could become healthy again.

Moving to his next point, Mr. Datar suggested that instead of requiring the Judicial Magistrate to sign the AD, it can simply be attested by a notary public. The Bench appeared to be more amenable to this suggestion, although Justice Joseph suggested that someone should keep a copy of the AD for counterchecking purposes. Mr. Datar provided a possible solution, and pointed to the government portal maintained by the National Digital Health Commission. He suggested that individuals could upload their ADs to the portal and it could be made available to doctors in the hospital where they eventually sought treatment.

Finally, Mr. Datar suggested removing requirement for a second medical board to review the decision of the primary medical board if the AD is approved. Further, he suggested limiting the board to 3 members: the treating physician, a specialist, and the hospital director. He claimed that this would make the process more efficient. This suggestion sparked a long discussion. Justice Joseph was in favor of more doctors on the primary board. Further, having more specialists present would allow it to be a multi-disciplinary board. Meanwhile, Justice Hrishikesh Roy agreed with Mr. Datar. Stating that he is from the North-East, he said he could only think of a few hospitals in Gauhati that had the necessary personnel to constitute a primary board as suggested by Joseph J.

Eventually, the Bench appeared to come to an agreement. They would mandate a 4-member board comprising the treating physician and 3 ‘subject-experts’.

The hearings will resume tomorrow at 2 PM. The Bench is expected to discuss the requirement for a second independent medical board to review the primary board’s decision.