COMMON CAUSE (A REGD. SOCIETY) versus UNION OF INDIA on 24 January 2023

(1) This is an application filed by Indian Society of Critical CareMedicine seeking clarification of the judgment reported in Common Cause

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A(A Registered Society) v. Union of India and Another (2018) 5SCC 1.

(2) A Constitution Bench came to be constituted on the basis of aReference made to it by a Bench of three learned Judges. In the backdropof certain earlier decisions of this Court, in particular, this Court wasengaged with the question as to whether the Court should issue suitableBdirections or set in place norms to provide for what is described asAdvance Directives. This Court also was concerned with the questionas to whether even in the absence of Advance Directives, when a personis faced with a medical condition with no hope of recovery and is continuedon life support system/medicines, life support system should be withdrawn.The Court went on to dwell on the right of a person to die with dignity.CThereafter, this Court has proceeded to lay down the directives as follows:

“198. In our considered opinion, Advance Medical Directive wouldserve as a fruitful means to facilitate the fructification of thesacrosanct right to life with dignity. The said directive, we think,will dispel many a doubt at the relevant time of need during thecourse of treatment of the patient. That apart, it will strengthenDthe mind of the treating doctors as they will be in a position toensure, after being satisfied, that they are acting in a lawful manner.We may hasten to add that Advance Medical Directive cannotoperate in abstraction. There has to be safeguards. They need tobe spelt out. We enumerate them as follows:

E198.1. Who can execute the Advance Directive and how?

198.1.1. The Advance Directive can be executed only by an adultwho is of a sound and healthy state of mind and in a position tocommunicate, relate and comprehend the purpose andconsequences of executing the document.

198.1.2. It must be voluntarily executed and without any coercionFor inducement or compulsion and after having full knowledge orinformation.

198.1.3. It should have characteristics of an informed consentgiven without any undue influence or constraint.

198.1.4. It shall be in writing clearly stating as to when medicalGtreatment may be withdrawn or no specific medical treatmentshall be given which will only have the effect of delaying theprocess of death that may otherwise cause him/her pain, anguishand 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 theH

circumstances in which withholding or withdrawal of medicaltreatment can be resorted to.

198.2.2. It should be in specific terms and the instructions mustbe absolutely clear and unambiguous.

198.2.3. It should mention that the executor may revoke theinstructions/authority at any time.

198.2.4. It should disclose that the executor has understood theconsequences of executing such a document.

198.2.5. It should specify the name of a guardian or close relativewho, in the event of the executor becoming incapable of takingdecision at the relevant time, will be authorised to give consent torefuse or withdraw medical treatment in a manner consistent withthe Advance Directive.

198.2.6. In the event that there is more than one valid AdvanceDirective, none of which have been revoked, the most recentlysigned Advance Directive will be considered as the last expressionof 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 thepresence of two attesting witnesses, preferably independent, andcountersigned 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 recordtheir satisfaction that the document has been executed voluntarilyand without any coercion or inducement or compulsion and withfull understanding of all the relevant information and consequences.

198.3.3. The JMFC shall preserve one copy of the document inhis office, in addition to keeping it in digital format.

198.3.4. The JMFC shall forward one copy of the document tothe Registry of the jurisdictional District Court for being preserved.Additionally, the Registry of the District Judge shall retain thedocument in digital format.

198.3.5. The JMFC shall cause to inform the immediate familymembers of the executor, if not present at the time of execution,and make them aware about the execution of the document.

198.3.6. A copy shall be handed over to the competent officer ofthe local Government or the Municipal Corporation or Municipalityor Panchayat, as the case may be. The aforesaid authorities shallnominate a competent official in that regard who shall be thecustodian of the said document.

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198.3.7. The JMFC shall cause to hand over copy of the AdvanceDirective to the family physician, if any.

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198.4. When and by whom can it be given effect to?

198.4.1. In the event the executor becomes terminally ill and isundergoing prolonged medical treatment with no hope of recoveryand cure of the ailment, the treating physician, when made awareabout the Advance Directive, shall ascertain the genuineness andauthenticity thereof from the jurisdictional JMFC before actingupon the same.

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198.4.2. The instructions in the document must be given due weightby the doctors. However, it should be given effect to only afterbeing fully satisfied that the executor is terminally ill and isundergoing prolonged treatment or is surviving on life support andthat the illness of the executor is incurable or there is no hope ofhim/her being cured.

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198.4.3. If the physician treating the patient (executor of thedocument) is satisfied that the instructions given in the documentDneed to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, theavailability of medical care and consequences of alternative formsof treatment and the consequences of remaining untreated. Hemust also ensure that he beliefs on reasonable grounds that theperson in question understands the information provided, hasEcogitated over the options and has come to a firm view that theoption of withdrawal or refusal of medical treatment is the bestchoice.

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198.4.4. The physician/hospital where the executor has beenadmitted for medical treatment shall then constitute a MedicalBoard consisting of the Head of the treating department and atFleast three experts from the fields of general medicine, cardiology,neurology, nephrology, psychiatry or oncology with experience incritical care and with overall standing in the medical profession ofat least twenty years who, in turn, shall visit the patient in thepresence of his guardian/close relative and form an opinion whetherto certify or not to certify carrying out the instructions of withdrawalGor refusal of further medical treatment. This decision shall beregarded as a preliminary opinion.

198.4.5. In the event the Hospital Medical Board certifies thatthe instructions contained in the Advance Directive ought to becarried out, the physician/hospital shall forthwith inform thejurisdictional Collector about the proposal. The jurisdictional H

Collector shall then immediately constitute a Medical Boardcomprising the Chief District Medical Officer of the districtconcerned as the Chairman and three expert doctors from thefields of general medicine, cardiology, neurology, nephrology,psychiatry or oncology with experience in critical care and withoverall standing in the medical profession of at least twenty years(who were not members of the previous Medical Board of thehospital). They shall jointly visit the hospital where the patient isadmitted and if they concur with the initial decision of the MedicalBoard of the hospital, they may endorse the certificate to carryout the instructions given in the Advance Directive.

198.4.6. The Board constituted by the Collector must beforehandascertain the wishes of the executor if he is in a position tocommunicate and is capable of understanding the consequencesof withdrawal of medical treatment. In the event the executor isincapable of taking decision or develops impaired decision-makingcapacity, then the consent of the guardian nominated by theexecutor in the Advance Directive should be obtained regardingrefusal or withdrawal of medical treatment to the executor to theextent of and consistent with the clear instructions given in theAdvance Directive.

198.4.7. The Chairman of the Medical Board nominated by theCollector, that is, the Chief District Medical Officer, shall conveythe decision of the Board to the jurisdictional JMFC before givingeffect to the decision to withdraw the medical treatmentadministered to the executor. The JMFC shall visit the patient atthe earliest and, after examining all aspects, authorise theimplementation of the decision of the Board.

198.4.8. It will be open to the executor to revoke the document atany stage before it is acted upon and implemented.

198.5. What if permission is refused by the Medical Board?

198.5.1. If permission to withdraw medical treatment is refusedby the Medical Board, it would be open to the executor of theAdvance Directive or his family members or even the treatingdoctor or the hospital staff to approach the High Court by way ofwrit petition under Article 226 of the Constitution. If suchapplication is filed before the High Court, the Chief Justice of thesaid High Court shall constitute a Division Bench to decide upongrant of approval or to refuse the same. The High Court will befree to constitute an independent committee consisting of threedoctors from the fields of general medicine, cardiology, neurology, A

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nephrology, psychiatry or oncology with experience in critical careand with overall standing in the medical profession of at leasttwenty years.

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198.5.2. The High Court shall hear the application expeditiouslyafter affording opportunity to the State counsel. It would be opento the High Court to constitute Medical Board in terms of its orderBto examine the patient and submit report about the feasibility ofacting upon the instructions contained in the Advance Directive.

198.5.3. Needless to say that the High Court shall render itsdecision at the earliest as such matters cannot brook any delayand it shall ascribe reasons specifically keeping in mind theprinciples of “best interests of the patient”.

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198.6. Revocation or inapplicability of Advance Directive198.6.1. An individual may withdraw or alter the Advance Directiveat any time when he/she has the capacity to do so and by followingthe same procedure as provided for recording of AdvanceDirective. Withdrawal or revocation of an Advance Directive mustDbe in writing.

198.6.2. An Advance Directive shall not be applicable to thetreatment in question if there are reasonable grounds for believingthat circumstances exist which the person making the directivedid not anticipate at the time of the Advance Directive and whichwould have affected his decision had he anticipated them.

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198.6.3. If the Advance Directive is not clear and ambiguous, theMedical Boards concerned shall not give effect to the same and,in that event, the guidelines meant for patients without AdvanceDirective shall be made applicable.

198.6.4. Where the Hospital Medical Board takes a decision notFto follow an Advance Directive while treating a person, then itshall make an application to the Medical Board constituted by theCollector for consideration and appropriate direction on theAdvance Directive.

199. It is necessary to make it clear that there will be cases wherethere is no Advance Directive. The said class of persons cannotGbe alienated. In cases where there is no Advance Directive, theprocedure and safeguards are to be same as applied to caseswhere Advance Directives are in existence and in addition thereto, the following procedure shall be followed:

199.1. In cases where the patient is terminally ill and undergoingprolonged treatment in respect of ailment which is incurable or H

where there is no hope of being cured, the physician may informthe hospital which, in turn, shall constitute a Hospital Medical Boardin the manner indicated earlier. The Hospital Medical Board shalldiscuss with the family physician and the family members andrecord the minutes of the discussion in writing. During thediscussion, the family members shall be apprised of the pros andcons of withdrawal or refusal of further medical treatment to thepatient and if they give consent in writing, then the Hospital MedicalBoard may certify the course of action to be taken. Their decisionwill be regarded as a preliminary opinion.

199.2. In the event the Hospital Medical Board certifies the optionof withdrawal or refusal of further medical treatment, the hospitalshall immediately inform the jurisdictional Collector. Thejurisdictional Collector shall then constitute a Medical Boardcomprising the Chief District Medical Officer as the Chairmanand three experts from the fields of general medicine, cardiology,neurology, nephrology, psychiatry or oncology with experience incritical care and with overall standing in the medical profession ofat least twenty years. The Medical Board constituted by theCollector shall visit the hospital for physical examination of thepatient and, after studying the medical papers, may concur withthe opinion of the Hospital Medical Board. In that event, intimationshall be given by the Chairman of the Collector nominated MedicalBoard to the JMFC and the family members of the patient.

199.3. The JMFC shall visit the patient at the earliest and verifythe medical reports, examine the condition of the patient, discusswith the family members of the patient and, if satisfied in all respects,may endorse the decision of the Collector nominated MedicalBoard to withdraw or refuse further medical treatment to theterminally-ill patient.

199.4. There may be cases where the Board may not take adecision to the effect of withdrawing medical treatment of thepatient or the Collector nominated Medical Board may not concurwith the opinion of the hospital Medical Board. In such a situation,the nominee of the patient or the family member or the treatingdoctor or the hospital staff can seek permission from the HighCourt to withdraw life support by way of writ petition under Article226 of the Constitution in which case the Chief Justice of the saidHigh Court shall constitute a Division Bench which shall decideto grant approval or not. The High Court may constitute anindependent committee to depute three doctors from the fields ofgeneral medicine, cardiology, neurology, nephrology, psychiatry A

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Aor oncology with experience in critical care and with overallstanding in the medical profession of at least twenty years afterconsulting the competent medical practitioners. It shall also affordan opportunity to the State counsel. The High Court in such casesshall render its decision at the earliest since such matters cannotbrook any delay. Needless to say, the High Court shall ascribeBreasons specifically keeping in mind the principle of “best interestsof the patient”.

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200. Having said this, we think it appropriate to cover a vital aspectto the effect the life support is withdrawn, the same shall also beintimated by the Magistrate to the High Court. It shall be kept in adigital format by the Registry of the High Court apart from keepingCthe hard copy which shall be destroyed after the expiry of threeyears from the death of the patient.

201. Our directions with regard to the Advance Directives andthe safeguards as mentioned hereinabove shall remain in force tillParliament makes legislation on this subject.”D(3) The applicant has approached this Court within a short period.

The reason for approaching this Court all over again appears tobe that in the actual working of the directions, insurmountable obstaclesare being posed. For instance, it is pointed out that this Court has providedin paragraph 198.3 that in the case of an Advance Directive which isdevised by a person, it should not only be in the presence of two attestingEwitnesses who are preferably independent witnesses, but also it shouldhave countersigned by a Judicial First Class Magistrate. It is pointed outthat this clause has led the very object of this Court issuing directionsbeing impaired, if not completely defeated.There are other aspects which have been highlighted in theapplication.F(4) The respondent, viz., the Union of India, has filed a counteraffidavit. We find from the contents of the counter affidavit that thestand of the Union of India was that it opposed the application.

(5) As we have noticed, this is an application seeking clarification.Ordinarily, be it an application lodged in this Court blessed as it is withGpowers under Article 142 of the Constitution of India, we would havethought that the application should not receive further consideration.However, we notice that there has been a subsequent development.The development is in the form of orders evidencing an attempt beingmade by the respondent also to evolve/agree to certain changes. Severalrounds of discussions, it would appear, have taken place between officersHof the respondent-Union who not unnaturally includes medical experts.

According to the applicant, the difficulties which are beingencountered have been voiced by a large number of Doctors and itbecomes absolutely necessary for this Court to revisit the directions sothat this Court puts in place a mechanism which effectively carries outthe object of this Court laying down the principles in the paragraphswhich have already been adverted to.

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(6) Having heard Shri Arvind Datar, learned senior counsel,appearing for the applicant, assisted by Dr. Dhvani Mehta and Ms.Rashmi Nandakumar, learned counsel, Dr. R. R. Kishore, learned counsel,as also Mr. K. M. Nataraj, learned Additional Solicitor General appearingon behalf of respondent-Union of India, we are of the view that theCdirections contained in paragraphs 198 to 199 require to be modified/deleted as hereinafter indicated:

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA1149[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA1157[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[K. M. JOSEPH, J.]

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[2023] 1 S.C.R.

COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[K. M. JOSEPH, J.]

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[2023] 1 S.C.R.

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(7) Registry will communicate a copy of this Order to RegistrarGenerals of all the High Courts.E

The Registrar Generals of the High Courts will dispatch a copy ofthis Order to the Health Secretaries in the respective States/UnionTerritories for onward communication to all the Chief Medical Officersin the States/Union Territories.

The miscellaneous application will stand disposed of as above.F

No orders as to costs.

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Ankit GyanMiscellaneous application disposed of.

(Assisted by : Mahendra Yadav, LCRA)

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