Common Cause (A Regd. Society) vs Union of India
Background
In 2018, a Constitution Bench of the Supreme Court recognised the right of a terminally ill person to refuse life-prolonging treatment and laid down detailed safeguards for making and acting on an "Advance Directive" (a living will). Those safeguards required, among other things, that the document be countersigned by a Judicial Magistrate, that the Magistrate keep copies and inform the family, that a hospital Medical Board of senior specialists with 20 years' standing certify the withdrawal of treatment, and that the District Collector then form a second board to confirm it. The Indian Society of Critical Care Medicine applied to the Court saying that, in practice, these steps had proved so cumbersome that almost no one had been able to use the procedure, and that the very object of the 2018 judgment was being defeated.
Decision Breakdown
The Court noted that ordinarily it would not entertain an application to "clarify" a final judgment, but the Union of India had itself held discussions with medical experts on possible changes, and the practical obstacles reported by doctors made a revisit necessary. It therefore modified the 2018 guidelines to make them workable: the living will now needs attestation before a notary or Gazetted Officer instead of a Judicial Magistrate; the Magistrate's role in preserving copies and informing the family is deleted, and the person may instead give copies to their named nominees, family doctor and local-body custodian, or attach it to their digital health records. The hospital's Primary Medical Board is now the treating physician plus at least two specialists with five years' experience (not 20), which should decide preferably within 48 hours; the Secondary Medical Board is formed by the hospital itself with one doctor nominated by the District Chief Medical Officer and two further specialists, again within 48 hours, replacing the earlier Collector-constituted board. A person may name more than one guardian or relative to give consent on their behalf. The application was disposed of with these modifications and the order was circulated to all High Courts and State health secretaries.
Lesson Learnt
Any adult of sound mind can now make a living will stating when life support should be withdrawn, by signing it before two witnesses and a notary or Gazetted Officer: no court visit is needed. When a right exists on paper but the procedure makes it unusable, the Court can revise its own safeguards so the right becomes real.