In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of Advance Medical Directives emerged in various countries.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Versus
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
P. Advance Directive/Advance Care Directive/Advance Medical Directive:
177. In order to overcome the
difficulty faced in case of patients who are unable to express their wishes at
the time of taking the decision, the concept of Advance Medical Directives emerged
in various countries. The proponents of Advance Medical Directives contend that
the concept of patient autonomy for incompetent patients can be given effect
to, by giving room to new methods by which incompetent patients can beforehand
communicate their choices which are made while they are competent. Further, it
may be argued that failure to recognize Advance Medical Directives would amount
to non-facilitation of the right to have a smoothened dying process. That
apart, it accepts the position that a competent person can express her/his
choice to refuse treatment at the time when the decision is required to be made.
178. Advance Directives for
health care go by various names in different countries though the objective by
and large is the same, that is, to specify an individual's health care
decisions and to identify persons who will take those decisions for the said
individual in the event he is unable to communicate his wishes to the doctor.
179. The Black's Law
Dictionary defines an advance medical directive as, "a legal document
explaining one's wishes about medical treatment if one becomes incompetent or
unable to communicate‖. A living will, on the
other hand, is a document prescribing a person's wishes regarding the medical
treatment the person would want if he was unable to share his wishes with the
health care provider.
180. Another type of advance
medical directive is medical power of attorney. It is a document which allows
an individual (principal) to appoint a trusted person (agent) to take health care
decisions when the principal is not able to take such decisions. The agent
appointed to deal with such issues can interpret the principal's decisions
based on their mutual knowledge and understanding.
181. Advance Directives have
gained lawful recognition in several jurisdictions by way of legislation and in
certain countries through judicial pronouncements. In vast majority of the
States in USA, it is mandatory for the doctors to give effect to the wishes of
the patients as declared by them in their advance directives. California was
the first State to legally sanction living will. The United States Congress in
1990, with the objective of protecting the fundamental principles of
selfautonomy and self-determination, enacted the Patient Self- Determination
Act (PSDA) which acknowledged the rights of the patient to either refuse or
accept treatment. Following this, all 50 States enacted legislations adopting
advance directives. Apart from this, several States of USA also permit the
patients to appoint a health care proxy which becomes effective only when the
patient is unable to make decisions.
182. In order to deal with
the technicalities and intricacies associated with an instrument as complex as
an Advance Directive, several derivatives/versions have evolved over time. The
National Right to Life Committee (NRLC) in the United States came up with a
version of a living will which was called 'Will to Live" which is a
safeguard of the lives of patients who wish to continue treatment and not
refuse life-sustaining treatment. This form of active declaration gains
importance in cases where the will of the patient cannot be deciphered with certainty
and the Courts order withdrawal of life supporting treatment where they deem
the life of the patient as not worthwhile.
183. Yet another measure for
finding and accessing the patient's advance directive was the setting up of the
U.S. Living Will Registry. As per this model, it was obligatory on the part of
the hospital administration to ask a patient, who would be admitted, if he/she
had an advance directive and store the same on their medical file. A special
power to the Advance Directives introduced by Virginia was the "Ulysses
Clause" which accords protection in situations when the patient goes into
relapse in his/her condition, that is, schizophrenia and refuses treatment
which they would not refuse if not for the said relapse.
184. A new type of advance
directive is the "Do Not Resuscitate Order" (DNRO) in Florida which
is a form of patient identification device developed by the Department of Health
to identify people who do not wish to be resuscitated in the event of
respiratory or cardiac arrest. In Florida State of United States, where an
unconscious patient with the phrase "Do Not Resuscitate" tattooed on
his chest was brought in paramedics, the doctors were left in a conundrum
whether the message was not to provide any medical treatment to the patient and
ultimately, the doctors opted not to perform any medical procedure and the
patient, thereafter, died. This case highlights the dynamics involved in the
concept of advanced directives due to the intricacies surrounding the concept.
185. The Mental Capacity Act
governs the law relating to advance directives in the UK. Specific guidelines
as to the manner in which the advance directive should be drafted and the necessary
conditions that need to be fulfilled in order to give effect to the directives
have been categorically laid out in the said piece of legislation. A few
specific requirements in case of refusal of life sustaining treatment is the
verification of the decision-maker that the refusal operates even if life is at
risk and that the directive should be in the written form and signed and
witnessed. However, an advance directive refusing food and water has not been
recognized under this statute. Further, the Act recognizes the rights of the
patient to appoint a health care proxy who is referred to as "lasting
power of attorney". In order for the proxy decision-maker so appointed to
be competent to consent or refuse life-sustaining treatment of the decision-maker,
an express provision delegating the said authority should be a part of the
advance directive. In general, as per the settled law vide the decision in Airedale, life sustaining treatment
including artificial nutrition and hydration can be withdrawn if the patient
consents to it and in case of incompetent patients, if it is in their best
interest to do so.
186. Australia too, by way of
legislation, has well established principles governing Advance Health
Directives. Except Tasmania, all states have a provision for Advance Directives.
The Advance Directives as postulated by the different legislations in each
State in Australia differ in nature and their binding effect but the objective
of every type remains the same, that is, preservation of the patient's
autonomy. There are several circumstances when the advance health care
directives or certain provisions contained therein become inoperative.
187. In Queensland, the
directive becomes inoperative if the medical health practitioner is of the
opinion that giving effect to the directive is inconsistent with good medical
practice or in case of a change in circumstances, including new advances in medicine,
medical practice and technology, to the extent that giving effect to the
directive is inappropriate.
188. In the State of
Victoria, an advance directive ceases to apply due to a change in the condition
of the patient to the extent that the condition in relation to which the
advance directive was given no longer exists. Further, South Australia permits
a medical practitioner to refuse to comply with a certain provision in an
advance directive in case he/she has enough reason to believe that the patient
did not intend the provision to apply in certain conditions or the provision
would not reflect the present wishes of the patient. In Western Australia, the
occurrence of a change in circumstances which either the decision maker could
have never anticipated at the time of making the directive or which could have
the effect on a reasonable person in the position of the decision maker to change
his/her mind regarding the treatment decision would invalidate the said
treatment decision in the directive. In Northern Territory, an advance consent
direction is disregarded in case giving effect to it would result in such unacceptable
pain and suffering to the patient or would be so unjustifiable and rather it is
more reasonable to override the wishes of the patient. Furthermore, if the
medical practitioner is of the opinion that the patient would have never
intended the advance consent direction to apply in the circumstances, then the
advance consent direction need not be complied with.
189. Canada does not have a
federal legislation exclusively to regulate advance directives. Rather, there
are eleven different provincial approaches governing the law on passive euthanasia
and advance directives in Canada. The provinces of Alberta, Saskatchewan,
Manitoba, Prince Edward Island, Newfoundland and Labrador and Northwest
Territories have a provision for both proxy and instructional directives,
whereas, the States of British Columbia, Ontario, Quebec and Yukon provide only
for appointment of a proxy while simultaneously recognizing the binding nature
of previously given instructions. The respective legislations of the provinces/territories
differ from one another on several criteria, for instance, minimum age
requirement and other formalities to be complied with, such as written nature
of the advance directive, etc. Furthermore, some of the provinces mandate a
prior consultation with a lawyer. Wishes orally expressed have also been
recognized by some provinces.
190. Having dealt with the
principles in vogue across the globe, we may presently proceed to deal with the
issue of advance medical directive which should be ideal in our country. Be it
noted, though the learned counsel for the petitioner has used the words ―living
will‖, yet we do not intend to use the said terminology. We have
already stated that safeguards and guidelines are required to be provided.
First, we shall analyse the issue of legal permissibility of the advance medical
directive. In other jurisdictions, the concepts of ―living will‖ and involvement of Attorney are stipulated. There is no legal
framework in our country as regards the Advance Medical Directive but we are
obliged to protect the right of the citizens as enshrined under Article 21 of
the Constitution. It is our constitutional obligation. As noticed earlier, the
two-Judge Bench in Aruna Shanbaug (supra) has provided for approaching
the High Court under Article 226 of the Constitution. The directions and
guidelines to be given in this judgment would be comprehensive and would also
cover the situation dealt with Aruna
Shanbaug case.
191. 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:-
Comments
Post a Comment