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HIGH COURT OF BOMBAY
JUSTICEHON'BLE SHRI GAUTAM A. ANKHAD
PIL/35/2024
PER, SHREE CHANDRASHEKHAR, CJ.
This Pubic Interest Litigation seeks to question the ICU admission criteria, particularly, for the critically ill patient who should not be admitted to ICU. Mr. Rajiv D. Joshi, who is the petitioner in person, states that the guidelines for not admitting critically ill patient to ICU where the patient or next of his kin has expressed his refusal is contrary to the decision of the Hon’ble Supreme Court in “Common Cause v. Union of India” (2023) 14 SCC 131. The petitioner in-person refers to paragraph no.199.1 of the said decision and submits that the guidelines for admission of terminally ill patient are patently illegal and not in public interest.
2. In the first place, we would indicate that in every case where allegation is made that some executive instruction has been made or a guideline has been framed contrary to decision of the Hon’ble Supreme Court, the issue shall not automatically become an issue in public interest. In paragraph no.199.1 of “Common Cause v. Union of India” (2023) 14 SCC 131, the Hon’ble Supreme Court modified the earlier directions as under:-
| Directions of the Hon’ble Supreme Court in “Common Cause v. Union of India” (2018) 5 SCC 1. | Modified directions of the Hon’ble Supreme Court in “Common Cause v. Union of India” (2023) 14 SCC 131. | |
|---|---|---|
| “Para 199.1 | In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their discussion will be regarded as a preliminary opinion. | In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital, which, in turn, shall constitute a Primary Medical Board in the manner indicated earlier. The Primary Medical Board shall discuss with the family physician, if any, and the patient’s next of kin/next friend/guardian and record the minutes of the discussion in writing. During the discussion, the patient’s next of kin/next friend/guardian shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Primary Medical Board may certify the course of action to be taken preferably within 48 hours of the case being referred to it. Their decision will be regarded as a preliminary opinion.” |
3. A glance at the aforesaid observations by the Hon’ble Supreme Court indicates that after discussions with the family members who are apprised of the pros and cons of the withdrawal or refusal of further medical treatment to the patient and if “they give consent in writing”, the Primary Medial Board may certify the course of action to be taken. The petitioner in-person has emphasized the expression “consent” in paragraph no. 199.1 to mean that the family members of the patient “have to give” their consent for treatment of the terminally ill patient and then future course of action shall be decided. We are not in agreement with the interpretation of paragraph no.199.1 as sought to be canvassed by the petitioner in-person. The judgment in “Common Cause” has been rendered in the context of duty of the doctor to treat a person who is faced with medical condition with no hope of recovery. By the impugned direction, the treating doctor is not relieved of his medical responsibility and leave has been indicated by the H
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