Euthanasia - What if Permission is refused by the Medical Board ?

If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.

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.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

(e) What if permission is refused by the Medical Board? 

(i) If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent Committee consisting of 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.

(ii) The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.

(iii) Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of "best interests of the patient".