An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
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.]
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(f) Revocation or inapplicability of Advance Directive
(i) An individual may withdraw or alter the Advance Directive at
any time when he/she has the capacity to do so and by following the same procedure
as provided for recording of Advance Directive. Withdrawal or revocation of an
Advance Directive must be in writing.
(ii) An Advance Directive shall not be
applicable to the treatment in question if there are reasonable grounds for
believing that circumstances exist which the person making the directive did
not anticipate at the time of the Advance Directive and which would have
affected his decision had he anticipated them.
(iii) If the Advance Directive is not clear
and ambiguous, the concerned Medical Boards shall not give effect to the same
and, in that event, the guidelines meant for patients without Advance Directive
shall be made applicable.
(iv) Where the Hospital Medical Board takes a decision
not to follow an Advance Directive while treating a person, then it shall make
an application to the Medical Board constituted by the Collector for consideration
and appropriate direction on the Advance Directive.
192. It is necessary to make it clear that
there will be cases where there is no Advance Directive. The said class of
persons cannot be alienated. In cases where there is no Advance Directive, the
procedure and safeguards are to be same as applied to cases where Advance
Directives are in existence and in addition there to, the following procedure
shall be followed:-
(i) 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 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 decision will be regarded as a preliminary opinion.
(ii) In the event the Hospital Medical Board
certifies the option of withdrawal or refusal of further medical treatment, the
hospital shall immediately inform the jurisdictional Collector. The
jurisdictional Collector shall then constitute a Medical Board comprising the Chief
District Medical Officer as the Chairman and three experts from the fields of
general medicine, cardiology, neurology, nephrology, psychiatry or oncology
with experience in critical care and with overall standing in the medical
profession of at least twenty years. The Medical Board constituted by the Collector
shall visit the hospital for physical examination of the patient and, after
studying the medical papers, may concur with the opinion of the Hospital
Medical Board. In that event, intimation shall be given by the Chairman of the
Collector nominated Medical Board to the JMFC and the family members of the
patient.
(iii) The JMFC shall visit the patient at the
earliest and verify the medical reports, examine the condition of the patient,
discuss with the family members of the patient and, if satisfied in all
respects, may endorse the decision of the Collector nominated Medical Board to
withdraw or refuse further medical treatment to the terminally ill patient.
(iv) There may be cases where the Board may
not take a decision to the effect of withdrawing medical treatment of the
patient on the Collector nominated Medical Board may not concur with the
opinion of the hospital Medical Board.
In such a situation, the nominee of the
patient or the family member or the treating doctor or the hospital staff can
seek permission from the High Court to withdraw life support by way of writ
petition under Article 226 of the Constitution in which case the Chief Justice
of the said High Court shall constitute a Division Bench which shall decide to
grant approval or not. The High Court may constitute an independent Committee
to depute three doctors from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology with experience in critical care
and with overall standing in the medical profession of at least twenty years
after consulting the competent medical practitioners. It shall also afford an opportunity
to the State counsel. The High Court in such cases shall render its decision at
the earliest since such matters cannot brook any delay. Needless to say, the
High Court shall ascribe reasons specifically keeping in mind the principle of
"best interests of the patient"..
193. Having said this, we think it
appropriate to cover a vital aspect to the effect the life support is
withdrawn, the same shall also be intimated by the Magistrate to the High
Court. It shall be kept in a digital format by the Registry of the High Court
apart from keeping the hard copy which shall be destroyed after the expiry of
three years from the death of the patient.
194. Our directions with regard to the Advance
Directives and the safeguards as mentioned hereinabove shall remain in force till
the Parliament makes legislation on this subject.
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