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SUPREME COURT OF INDIA
K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY, C.T. RAVIKUMAR, JJ.
Common Cause (A Regd. Society) – Petitioner
With
Indian Society of Critical Care Medicine – Applicant
Versus
Union of India – Respondent
Miscellaneous Application No. 1699 of 2019 In Writ Petition (Civil) No. 215 of 2005
Decided On : 24-01-2023
Constitution of India – Article 21 – Right to die with dignity – Withdrawal of life support system from terminally-ill patients – Advance Medical Directive – Difficulties which are being encountered have been voiced by a large number of Doctors and it becomes absolutely necessary for this Court to revisit directions so that this Court puts in place a mechanism which effectively carries out object of this Court laying down principles in concerned paragraphs – Advance Medical Directive cannot operate in abstraction – There has to be safeguards – Directions contained in Paragraphs 198 to 199 of A Registered Society v. Union of India and Another (2018) 5 SCC 1 require to be modified/ deleted – There may be cases where Primary Medical Board may not take a decision to the effect of withdrawing medical treatment of patient or Secondary Medical Board may not concur with opinion of Primary Medical Board – In such a situation, nominee of patient or family member or treating doctor or hospital staff can seek permission from High Court to withdraw life support by way of writ petition under Article 226 of Constitution in which case Chief Justice of said High Court shall constitute a Division Bench which shall decide to grant approval or not – High Court may constitute an independent committee to depute three doctors from fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in medical profession of at least twenty years after consulting competent medical practitioners – It shall also afford an opportunity to State Counsel – High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay – High Court shall ascribe reasons specifically keeping in mind principle of best interests of patient – Elaborate clarifications issued. (Paras 5 and 6)
Facts of the case:
A Constitution Bench came to be constituted on the basis of a Reference made to it by a Bench of three Judges. In the backdrop of certain earlier decisions of this Court, in particular, this Court was engaged with the question as to whether Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives. This Court also was concerned with the question as to whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn.
Findings of Court:
Registrar Generals of the High Courts will despatch a copy of this Order to the Health Secretaries in the respective States/Union Territories for onward communication to all Chief Medical Officers in the States/Union Territories.
Result : Miscellaneous application disposed of with directions.
This Supreme Court order addresses a miscellaneous application filed by the Indian Society of Critical Care Medicine seeking clarification and modification of prior guidelines on Advance Medical Directives (AMD) and withdrawal of life support from terminally-ill patients with no hope of recovery, recognizing the right to die with dignity under Article 21. (!) (!) [1000767620001][1000767620005]
Background and Difficulties Noted:
A prior Constitution Bench decision laid down detailed safeguards for executing and implementing AMD, including requirements for attestation by a Judicial Magistrate of First Class (JMFC), multiple medical boards, and Collector involvement. Practical implementation revealed insurmountable obstacles, such as delays due to JMFC countersignature and preservation duties, voiced by numerous doctors, impairing the objective of facilitating dignified death.[1000767620001] (!) (!)
Key Modifications to AMD Guidelines (Paras 198-199):
The Court modifies the procedure to make it more practical while retaining safeguards:
- Execution (Para 198.2.5, 198.3): AMD must specify guardian(s)/close relative(s); signed before two witnesses (preferably independent) and attested by a notary or Gazetted Officer, who records voluntariness. Executor informs nominated persons and family physician; copy to local government custodian (optional digital health integration). JMFC-related clauses (preservation, forwarding, family notification) deleted.[1000767620005]
- Implementation (Para 198.4): Treating physician verifies authenticity via digital records or custodian if patient lacks capacity. Hospital forms Primary Medical Board (treating physician + 2 experts with 5+ years' experience) for preliminary opinion (within 48 hours). If approved, Secondary Medical Board (1 nominee of Chief Medical Officer + 2 experts, not from Primary) concurs (within 48 hours). Convey decision and nominated persons' consent to JMFC (visits deleted).[1000767620005]
- Refusal/High Court Role (Para 198.5): If Secondary Board refuses, nominated persons, doctor, or staff may file writ under Article 226; Chief Justice constitutes Division Bench, possibly with independent 3-doctor committee (20+ years' experience), hearing State counsel expeditiously, deciding on patient's best interests. (!) [1000767620005]
- Revocation/Inapplicability (Para 198.6): Unchanged, allowing revocation in writing; inapplicable if unforeseen circumstances or ambiguity (apply no-AMD guidelines).[1000767620005]
- No JMFC Authorization: Hospital proceeds post-Boards' approval; post-withdrawal, intimate High Court digitally (hard copy destroyed after 3 years). (!) (!)
Guidelines for Cases Without AMD (Para 199):
Similar simplified process: Hospital forms Primary Medical Board to discuss with family/next of kin/guardian (written consent, within 48 hours). If approved, Secondary Medical Board concurs (within 48 hours), intimates JMFC and family (no visit). High Court recourse if refusal, per above.[1000767620005]
Final Directions:
Guidelines remain until legislation; Registry communicates to High Court Registrar Generals, who forward to State/UT Health Secretaries and Chief Medical Officers. Application disposed without costs. (!) (!) (!) (!)
ORDER :
K.M. Joseph, J.
1. This is an application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1.
2. A Constitution Bench came to be constituted on the basis of a Reference made to it by a Bench of three learned Judges. In the backdrop of certain earlier decisions of this Court, in particular, this Court was engaged with the question as to whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives. This Court also was concerned with the question as to whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn. The Court went on to dwell on the right of a person to die with dignity. Thereafter, this Court has proceeded to lay down the directives as follows :
"198. In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. We enumerate them as follows:
198.1. Who can execute the Advance Directive and how?
198.1.1. The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
198.1.2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
198.1.3. It should have characteristics of an informed consent given without any undue influence or constraint.
198.1.4. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
198.2. What should it contain?
198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
198.2.2. It should be in specific terms and the instructions must be absolutely clear and unambiguous.
198.2.3. It should mention that the executor may revoke the instructions/authority at any time.
198.2.4. It should disclose that the executor has understood the consequences of executing such a document.
198.2.5. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
198.2.6. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient's wishes and will be given effect to.
198.3. How should it be recorded and preserved?
198.3.1. The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned.
198.3.2. The witnesses and the jurisdictional JMFC shall record their satisf
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