SC strikes off magistrate’s approval condition from ‘living will’ process

New Delhi:  The Supreme Court on Tuesday removed the condition, mandating a magistrate’s approval for withdrawal or withholding of life support to a terminally ill person.

A five-judge constitution bench, headed by Justice K.M. Joseph, said now the document will be signed by the executor of the living will. Two attesting witnesses, preferably independent, should be there when the document is signed and attested before a notary or gazetted officer, it added.

The bench also agreed to take on board a suggestion that the executor should hand over a copy of the advance directive to the family physician, if there is any.

The apex court introduced these changes in order to make the guidelines on “living will”, which is an advance medical directive on end-of-life treatment, more workable.

The bench — also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar — said that the notary and the witnesses should record their satisfaction that the document has been executed voluntarily and there was no coercion involved.

The bench also agreed to a recommendation that the treating physician when learns about the advance directive, should then determine the authenticity of the document.

During the hearing in the matter, the top court had pulled up the Central government for not enacting a law on passive euthanasia as laid down in its 2018 judgment.

Last week, the Supreme Court had said it will not review its 2018 judgment on passive euthanasia and instead it would modify the guidelines on “living will” to make it more effective.

The bench had said: “We will simply make it a little bit more workable; we can’t be reviewing it… We cannot be reopening the whole thing.”

Senior advocate Arvind P. Datar, representing The Indian Society for Critical Care, had submitted that he has submitted a chart elaborating the areas which are unworkable. Additional Solicitor General K.M. Nataraj, representing the Centre, said that everything has already been laid down and there are some practical difficulties and that vacuum has to be filled.

The top court was considering a plea seeking modification of the guidelines for living will/advance medical directive issued by it in 2018.

In 2018, a top court’s judgment had recognised that a person in a persistent vegetative state may execute an advance medical directive or a “living will” to refuse medical treatment. But people wanting to get a “living will” registered were facing problems due to unworkable guidelines.


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