The Supreme Court on Tuesday simplified the process to withdraw or withhold life support for a terminally ill patient by allowing a two-tiered process for authorising passive euthanasia.
The new guidelines, approved in principle, do away with a cumbersome three-tiered procedure where a doctor and the patient’s family had to get a judicial magistrate’s approval to withhold or withdraw life support. The final order is expected shortly.
According to the new guidelines, the Supreme Court recognises the right to die in case of terminal illness and allows a primary board and a secondary board, set up by the hospital, to decide whether the patient’s life support can be withdrawn.
Doctors say the new set of guidelines will make the process simpler and remove legal constraints for hospitals in dealing with cases where a patient is in a persistent vegetative state or coma, brain dead, terminally ill or on prolonged life support.
The 2018 judgement
The Supreme Court first paved the way for passive euthanasia in 2018 by allowing a person to make a living will or an advanced directive that will allow him or her the freedom to choose the treatment if they end up on life support, irreversible coma, or have terminal illness.
The original guidelines in 2018 mandated a judicial magistrate’s approval to make a living will. For withdrawal of life support, the hospital first had to form a committee, then the collector had to form a second committee to review the decision and finally, the magistrate had to verify the facts and give an approval.
Speaking to Scroll.in, Dr Raj Mani, an intensivist and member of Indian Society of Critical Care Medicine, said the court procedure was not workable and deterred families and doctors from taking the legal route.
People who attempted to make an advanced directive found that local magistrates had no information about the 2018 judgement. And hospitals who reached out to local collectors also found that the order copy had not reached district offices.
In 2019, the Indian Society of Critical Care Medicine approached the Supreme Court seeking directions to modify the guidelines and make them simpler.
The new guidelines
The five-judge bench headed by Justice KM Joseph has been cautious to ensure unscrupulous interests do not lead to deaths of patients where treatment and recovery is possible.
If a person has written an advanced directive and ends up with a terminal illness, the doctor and close family has to follow up with the advanced directive and set up a board to opine on the matter, the court said. In cases where there is no advanced directive, close family members can decide on whether they wish to continue with treatment.
As per the modified guidelines, once the treating physician confirms that the patient is at a point of no return, the hospital first forms a primary board with subject experts to opine. The primary board has to respond within 48 hours.
In the second step, the hospital sets up a secondary board comprising at least two subject experts, different from the ones part of the primary board and with five years of experience, and a doctor nominated by the district chief medical officer, to review the primary board’s decision. The secondary committee also has 48 hours to respond.
Once both boards approve, the treating doctor and family can either withdraw life support, withhold it or not initiate treatment at all. The hospital has to inform the magistrate in writing about the procedure, but no approval is required.
For an advanced directive, a gazetted officer or public notary can authorise the document in the presence of two witnesses. The Supreme Court has also created a provision for linking the digital copy of an advanced directive with the Ayushman Bharat digital health mission, under which each person has a unique health ID to store their medical records.
Advocate Arvind Datar, representing the petitioners, told the court that when an advanced directive is absent, the close family’s consent should be allowed for withdrawing life support. The same process of a hospital board and a district board should be followed, he said.