Thread by @lawbarandbench

A Constitution Bench of the #SupremeCourt led by Justice KM Joseph to shortly hear pleas regarding passive euthanasia and the right to die with dignity.

#euthanasia #SupremeCourtOfIndia

ASG KM Nataraj: With Mr Datar have had a series of meetings. We have come up some possible guidelines.

Sr Adv Datar: Where patient's life cannot ...

SC: Regarding passive euthanasia?

Datar: Yes.

SC: Where do you draw the court's view from?

Datar: It is difficult to always have board constituted and approach a division bench. Once lordships approve how videograph should be done. Persons can put in their will, that when time comes do not advance full treatment in some situations.

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Datar: Once there is advance directive, question of consent of kin does not arise.

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SC: Let us go through the prevailing procedure than we can immediately apply our mind to it.

Justice Roy: Since you mentioned will, we need to have proper terms. Living will is one. It has certain connotation.

Datar: advance directive is another. About when eventual time..

Datar: comes and I am in agony, it can lead to financial ruin because it is difficult for parties to take a call.

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An advocate who was a doctor for long now argues: I am a diagnostic and therapeutist.

Datar: He was instrumental in drawing the guidelines.

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Adv: I was Amicus in the case in which Justice Dipak Misra have judgment.

Adv takes Court through euthanasia law history in India.

Justice Bose: We have to sign all kinds of bonds when he go to hospital. It is not right to die in normal situations but in some ...

Justice Ravikumar: That is why question of if right to die with dignity also.

Bhushan: Everybody has an indefeasible right to refuse treatment. Here if a person is unconscious or unable to express his will on if he wants to be put on ventilator ... He gives a advance directive saying should this arise i do not want to be kept alive by artificial means...

Bhushan: He signs it and gives it to the hospital.

Justice Bose: Right now the link has it. You want to shift it to the person.

Bhushan: Yes because he has a right to do so when in his right mind. Then even kin cannot force him.

Adv Prashant Bhushan l: Right now there are many impediments.

Justice Ravikumar asks about regulation 198.

Datar: As of today, AIIMS asks for kin to consent.

Justice Bose: What law is this?

Datar: There is no statutory provision.

Justice Bose: Then why do you need a direction from us?

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Datar takes Court through the Regulations.

ASG: Cumbersome procedure involved.

Datar: Persons have been refused because they did not go to Magistrate.

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Justice Joseph gives example of a last stage cancer patient: If they say I do not want treatment. But interventions being made. New treatments ..

Datar reiterates point about advance directive.

Datar: Primary medical board, review board and ethics committee looks if treatment

Datar: is possible.

SC: But against their wishes? What is the absolute right to determine when to live or die?

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Justice Joseph: Particularly in rural areas, once this idea takes hold.

Datar: Yes that is a concern, to curb misuse.

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SC: When doctors prescribe palliative, people take it without any issue. Here these will apply to very few people ...

Adv: Real issue is once, once a doctor finds that there are low chances of survival, it is a grey area along with definition of death.

SC: If we say withdrawal (of life support) should be at terminal stage? Again what really is terminal illness will come into the light. But do you have an absolute right even before terminal, because treatment is too expensive, painful and will go into terminal stage?

SC: Changes in the medical field are so drastic.

Datar: In my humble submission, that could lead to problems. Today issue is nobody is willing to take a decision.

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Justice Joseph: Now you have for months even if you have to fix your tooth.

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Justice Rastogi: According to you amendments needed to make the process more workable?

Datar: Main safeguard can be the advance directive, how to do that is the question.

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Datar: SC has said advance directive may be acted on only on terminal illness.

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ASG: Directive can be general or specific. Latter ones cannot be taken for everything, that is the interpretation.

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SC notes that doctors not God's that they can exactly, but more like weathermen.

Justice Joseph: They go by science. Whole thing revolves only around allopathy, it excludes other forms of medicine like homeopathy. If you are willing to not completely discredit it ...

Datar: They can say probable.

Adv goes through an Austrian High Court ruling.

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SC: We are only here to consider improving the guidelines, till a law is made by Legislature. They are endowed with more skills or knowledge required.

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Justice Joseph: Does being in coma mean a full stop is near?

Adv: No my lords.

Justice Rastogi: What needs to be added to Medical Board?

Datar: Basically balancing terminal illness, one's wishes and misuse. If 194 can be modified to say that it can be stated to allow removal of life support if allowed by a panel of doctors when no further treatment...

Justice Roy: Dying in peace should be as per our wish. Life with dignity.

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Justice Joseph: So there is a distinction between critical and terminal illness? So many people come out of critical illnesses.

Justice Roy: What is critical for an ordinary person of normal wealth, is not critical for Michael Schumacher.

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Justice Rastogi: Give us a simplification suggestions.

Datar: If Magistrate can be ... Right now whether to go to notary or ...

Justice Joseph: Once can always say he does not want treatment, issue is when he enters a vegetative State. So what is the utility of any such guidelines, tell us that. So many people in our country die that way, saying i do not want. No abetting here.

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ASG: Circumstances in rural areas due to financial reasons etc, saying i have lived a good life.

Justice Bose: Have you contemplated any legislation in the last five years?

ASG: Will come back on that.

Justice Ravikumar: In some countries that is why there is a minimum requirement.

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Datar: This is to aid people who have lost their decision making capability.

SC: Modern ideas, we do not have to follow the West in everything. What is good we can take from anywhere.

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Justice Joseph: Problem with will is no one else knows about it. How will they give it effect, it should be known, to close relatives. So it is better that it should not be in a will. It should be a separate document.

Datar: An executor has it usually.

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Justice Roy: I was not correct in suggesting it should be a part of the will. But maybe the age should be 50.

ASG: Some ailments can be anytime.

Adv: It would not be advisable, except for minors, to have an age limit.

Justice Rastogi: Yes that creates problems...

Justice Rastogi: 30 years on, we discuss people's age at the time.

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Justice Ravikumar emphasises that the present plea is essentially modification not a review application.

Justice Rastogi: Whatever mechanisms like portal the government has to figure out. We have to modify JFMC rules to make it more workable.

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Justice KM Joseph: This is going to affect a very small percentage of Indians, not many.

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SC: To trouble a Magistrate for this ...

ASG: Directive to make it known to persons may violate privacy. Suppose i suffer from a particular ailment, i do not want others to know ... It may be my wish. We have to protect that.

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SC: Double board thing is a little problematic. Why two? You have no objection?

Datar: Have to make 194 workable.

Datar: We have secondary board only so that ... Instead of complicating it, we can say team of doctors treating him and an independent one. Let the primary board decide, if they say no ...

Justice Rastogi: Doctors should be as per nature of ailment

Datar: That is a good idea.

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Justice Ravikumar: The two tier system is there for a purpose, specially when you are taking away the live of a man that is very precious, more than his priorities.

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Justice Joseph: Many due on the bill.

Justice Bose: So all this is only for people who can afford it.

Justice Joseph: Exactly what i was saying, affects a .00 ...

A Doctor: Lot of people take life support when they do not need to. There are guidelines for it. But here we are talking about death and dignity.

Another Dr: i am from Safdarjung hospital. Once patients are out of money they shift to govt hospitals.

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Dr: They say (living will) only when treatment is futile and they are at the very end. They say they want the resources to be used for others. Advance directives are available for very few people. When it is better to save other lives.

SC: There is a WW2 term

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Datar: Triage. It re emerged during covid.

Dr: That is different. Once a treating team decides that our medical treatment will not help in anyway, it is good to have opinion of board. After judgment, we faced cumbersome, non practical process, not a single case

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Dr: Where we could have done it. We need to trust medical professionals. I do not know why we are making the advance directive a big thing, it is only when patient is in life saving stage.

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SC: Thank you.

Datar: Tomorrow we will look at the other regulations.

SC: So having two boards makes sense. What we can do is set time limits.

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Justice Joseph: Every part of the country not the same. Like my brother was saying in Rajasthan, MP, or like i have seen in Uttarakhand, you may not find specialists everywhere. But these rules will have to apply everywhere.

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Dr: Medical Board issue has to be practical. Doctors in first five years are not everything, generalists.

SC: Do not put your personal presumption here.

Bhushan: in general, when in a sound state one has a indefeasible right to refuse treatment.

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Matter to continue at 2pm tomorrow.