‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

MISCELLANEOUS APPLICATION NO. 1699 OF 2019

IN

WRIT PETITION (CIVIL) NO. 215 OF 2005

COMMON CAUSE (A REGD. SOCIETY) Petitioner(s)

VERSUS

UNION OF INDIA Respondent(s)

INDIAN SOCIETY OF

CRITICAL CARE MEDICINE Applicant

O R D E R

K. M. JOSEPH, J.

(1)This is an application filed by Indian Society

of Critical Care Medicine seeking clarification of

the judgment reported in Common Cause (A Registered

Society) v. Union of India and Another (2018) 5 SCC

1.

(2)A Constitution Bench came to be constituted on

the basis of a Reference made to it by a Bench of

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three learned Judges. In the backdrop of certain

earlier decisions of this Court, in particular, this

Court was engaged with the question as to whether

the Court should issue suitable directions or set in

place norms to provide for what is described as

Advance Directives. This Court also was concerned

with the question as to whether even in the absence

of Advance Directives, when a person is faced with a

medical condition with no hope of recovery and is

continued on life support system/medicines, life

support system should be withdrawn. The Court went

on to dwell on the right of a person to die with

dignity. Thereafter, this Court has proceeded to

lay down the directives as follows:

"198. In our considered opinion, Advance

Medical Directive would serve as a fruitful

means to facilitate the fructification of the

sacrosanct right to life with dignity. The said

directive, we think, will dispel many a doubt

at the relevant time of need during the course

of treatment of the patient. That apart, it

will strengthen the mind of the treating

doctors as they will be in a position to

ensure, after being satisfied, that they are

acting in a lawful manner. We may hasten to add

that Advance Medical Directive cannot operate

in abstraction. There has to be safeguards.

They need to be spelt out. We enumerate them as

follows:

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198.1. Who can execute the Advance Directive

and how?

198.1.1. The Advance Directive can be executed

only by an adult who is of a sound and healthy

state of mind and in a position to communicate,

relate and comprehend the purpose and

consequences of executing the document.

198.1.2. It must be voluntarily executed and

without any coercion or inducement or

compulsion and after having full knowledge or

information.

198.1.3. It should have characteristics of an

informed consent given without any undue

influence or constraint.

198.1.4. It shall be in writing clearly stating

as to when medical treatment may be withdrawn

or no specific medical treatment shall be given

which will only have the effect of delaying the

process of death that may otherwise cause

him/her pain, anguish and suffering and further

put him/her in a state of indignity.

198.2. What should it contain?

198.2.1. It should clearly indicate the

decision relating to the circumstances in which

withholding or withdrawal of medical treatment

can be resorted to.

198.2.2. It should be in specific terms and the

instructions must be absolutely clear and

unambiguous.

198.2.3. It should mention that the executor

may revoke the instructions/authority at any

time.

198.2.4. It should disclose that the executor

has understood the consequences of executing

such a document.

198.2.5. It should specify the name of a

guardian or close relative who, in the event of

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the executor becoming incapable of taking

decision at the relevant time, will be

authorised to give consent to refuse or

withdraw medical treatment in a manner

consistent with the Advance Directive.

198.2.6. In the event that there is more than

one valid Advance Directive, none of which have

been revoked, the most recently signed Advance

Directive will be considered as the last

expression of the patient's wishes and will be

given effect to.

198.3. How should it be recorded and

preserved?

198.3.1. The document should be signed by the

executor in the presence of two attesting

witnesses, preferably independent, and

countersigned by the jurisdictional Judicial

Magistrate of First Class (JMFC) so designated

by the District Judge concerned.

198.3.2. The witnesses and the jurisdictional

JMFC shall record their satisfaction that the

document has been executed voluntarily and

without any coercion or inducement or

compulsion and with full understanding of all

the relevant information and consequences.

198.3.3. The JMFC shall preserve one copy of

the document in his office, in addition to

keeping it in digital format.

198.3.4. The JMFC shall forward one copy of the

document to the Registry of the jurisdictional

District Court for being preserved.

Additionally, the Registry of the District

Judge shall retain the document in digital

format.

198.3.5. The JMFC shall cause to inform the

immediate family members of the executor, if

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not present at the time of execution, and make

them aware about the execution of the document.

198.3.6. A copy shall be handed over to the

competent officer of the local Government or

the Municipal Corporation or Municipality or

Panchayat, as the case may be. The aforesaid

authorities shall nominate a competent official

in that regard who shall be the custodian of

the said document.

198.3.7. The JMFC shall cause to hand over copy

of the Advance Directive to the family

physician, if any.

198.4. When and by whom can it be given effect

to?

198.4.1. In the event the executor becomes

terminally ill and is undergoing prolonged

medical treatment with no hope of recovery and

cure of the ailment, the treating physician,

when made aware about the Advance Directive,

shall ascertain the genuineness and

authenticity thereof from the jurisdictional

JMFC before acting upon the same.

198.4.2. The instructions in the document must

be given due weight by the doctors. However, it

should be given effect to only after being

fully satisfied that the executor is terminally

ill and is undergoing prolonged treatment or is

surviving on life support and that the illness

of the executor is incurable or there is no

hope of him/her being cured.

198.4.3. If the physician treating the patient

(executor of the document) is satisfied that

the instructions given in the document need to

be acted upon, he shall inform the executor or

his guardian/close relative, as the case may

be, about the nature of illness, the

availability of medical care and consequences

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of alternative forms of treatment and the

consequences of remaining untreated. He must

also ensure that he beliefs on reasonable

grounds that the person in question understands

the information provided, has cogitated over

the options and has come to a firm view that

the option of withdrawal or refusal of medical

treatment is the best choice.

198.4.4. The physician/hospital where the

executor has been admitted for medical

treatment shall then constitute a Medical Board

consisting of the Head of the treating

department and at least three experts 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 who, in turn, shall visit

the patient in the presence of his

guardian/close relative and form an opinion

whether to certify or not to certify carrying

out the instructions of withdrawal or refusal

of further medical treatment. This decision

shall be regarded as a preliminary opinion.

198.4.5. In the event the Hospital Medical

Board certifies that the instructions contained

in the Advance Directive ought to be carried

out, the physician/hospital shall forthwith

inform the jurisdictional Collector about the

proposal. The jurisdictional Collector shall

then immediately constitute a Medical Board

comprising the Chief District Medical Officer

of the district concerned as the Chairman and

three expert 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

(who were not members of the previous Medical

Board of the hospital). They shall jointly

visit the hospital where the patient is

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admitted and if they concur with the initial

decision of the Medical Board of the hospital,

they may endorse the certificate to carry out

the instructions given in the Advance

Directive.

198.4.6. The Board constituted by the Collector

must beforehand ascertain the wishes of the

executor if he is in a position to communicate

and is capable of understanding the

consequences of withdrawal of medical

treatment. In the event the executor is

incapable of taking decision or develops

impaired decision-making capacity, then the

consent of the guardian nominated by the

executor in the Advance Directive should be

obtained regarding refusal or withdrawal of

medical treatment to the executor to the extent

of and consistent with the clear instructions

given in the Advance Directive.

198.4.7. The Chairman of the Medical Board

nominated by the Collector, that is, the Chief

District Medical Officer, shall convey the

decision of the Board to the jurisdictional

JMFC before giving effect to the decision to

withdraw the medical treatment administered to

the executor. The JMFC shall visit the patient

at the earliest and, after examining all

aspects, authorise the implementation of the

decision of the Board.

198.4.8. It will be open to the executor to

revoke the document at any stage before it is

acted upon and implemented.

198.5. What if permission is refused by the

Medical Board?

198.5.1. 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

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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.

198.5.2. 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.

198.5.3. 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”.

198.6. Revocation or inapplicability of

Advance Directive

198.6.1. An individual may withdraw or alter

the Advance Directive at any time when he/she

has the capacity to do so and by following the

same procedure as provided for recording of

Advance Directive. Withdrawal or revocation of

an Advance Directive must be in writing.

198.6.2. An Advance Directive shall not be

applicable to the treatment in question if

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there are reasonable grounds for believing that

circumstances exist which the person making the

directive did not anticipate at the time of the

Advance Directive and which would have affected

his decision had he anticipated them.

198.6.3. If the Advance Directive is not clear

and ambiguous, the Medical Boards concerned

shall not give effect to the same and, in that

event, the guidelines meant for patients

without Advance Directive shall be made

applicable.

198.6.4. Where the Hospital Medical Board takes

a decision not to follow an Advance Directive

while treating a person, then it shall make an

application to the Medical Board constituted by

the Collector for consideration and appropriate

direction on the Advance Directive.

199. It is necessary to make it clear that

there will be cases where there is no Advance

Directive. The said class of persons cannot be

alienated. In cases where there is no Advance

Directive, the procedure and safeguards are to

be same as applied to cases where Advance

Directives are in existence and in addition

there to, the following procedure shall be

followed:

199.1. In cases where the patient is terminally

ill and undergoing prolonged treatment in

respect of ailment which is incurable or where

there is no hope of being cured, the physician

may inform the hospital which, in turn, shall

constitute a Hospital Medical Board in the

manner indicated earlier. The Hospital Medical

Board shall discuss with the family physician

and the family members and record the minutes

of the discussion in writing. During the

discussion, the family members shall be

apprised of the pros and cons of withdrawal or

refusal of further medical treatment to the

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patient and if they give consent in writing,

then the Hospital Medical Board may certify the

course of action to be taken. Their decision

will be regarded as a preliminary opinion.

199.2. In the event the Hospital Medical Board

certifies the option of withdrawal or refusal

of further medical treatment, the hospital

shall immediately inform the jurisdictional

Collector. The jurisdictional Collector shall

then constitute a Medical Board comprising the

Chief District Medical Officer as the Chairman

and three experts 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.

The Medical Board constituted by the Collector

shall visit the hospital for physical

examination of the patient and, after studying

the medical papers, may concur with the opinion

of the Hospital Medical Board. In that event,

intimation shall be given by the Chairman of

the Collector nominated Medical Board to the

JMFC and the family members of the patient.

199.3. The JMFC shall visit the patient at the

earliest and verify the medical reports,

examine the condition of the patient, discuss

with the family members of the patient and, if

satisfied in all respects, may endorse the

decision of the Collector nominated Medical

Board to withdraw or refuse further medical

treatment to the terminally-ill patient.

199.4. There may be cases where the Board may

not take a decision to the effect of

withdrawing medical treatment of the patient or

the Collector nominated Medical Board may not

concur with the opinion of the hospital Medical

Board. In such a situation, the nominee of the

patient or the family member or the treating

doctor or the hospital staff can seek

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permission from the High Court to withdraw life

support by way of writ petition under Article

226 of the Constitution in which case the Chief

Justice of the said High Court shall constitute

a Division Bench which shall decide to grant

approval or not. The High Court may constitute

an independent committee to depute 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 after

consulting the competent medical practitioners.

It shall also afford an opportunity to the

State counsel. The High Court in such cases

shall render its decision at the earliest since

such matters cannot brook any delay. Needless

to say, the High Court shall ascribe reasons

specifically keeping in mind the principle of

“best interests of the patient”.

200. Having said this, we think it appropriate

to cover a vital aspect to the effect the life

support is withdrawn, the same shall also be

intimated by the Magistrate to the High Court.

It shall be kept in a digital format by the

Registry of the High Court apart from keeping

the hard copy which shall be destroyed after

the expiry of three years from the death of the

patient.

201. Our directions with regard to the Advance

Directives and the safeguards as mentioned

hereinabove shall remain in force till

Parliament makes legislation on this subject.”

(3)The applicant has approached this Court within

a short period.

The reason for approaching this Court all over

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again appears to be that in the actual working of

the directions, insurmountable obstacles are being

posed. For instance, it is pointed out that this

Court has provided in paragraph 198.3 that in the

case of an Advance Directive which is devised by a

person, it should not only be in the presence of two

attesting witnesses who are preferably independent

witnesses, but also it should have countersigned by

a Judicial First Class Magistrate. It is pointed

out that this clause has led the very object of this

Court issuing directions being impaired, if not

completely defeated.

There are other aspects which have been

highlighted in the application.

(4)The respondent, viz., the Union of India, has

filed a counter affidavit. We find from the

contents of the counter affidavit that the stand of

the Union of India was that it opposed the

application.

(5)As we have noticed, this is an application

seeking clarification. Ordinarily, be it an

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application lodged in this Court blessed as it is

with powers under Article 142 of the Constitution of

India, we would have thought that the application

should not receive further consideration. However,

we notice that there has been a subsequent

development. The development is in the form of

orders evidencing an attempt being made by the

respondent also to evolve/agree to certain changes.

Several rounds of discussions, it would appear, have

taken place between officers of the respondent-Union

who not unnaturally includes medical experts.

According to the applicant, the difficulties

which are being encountered have been voiced by a

large number of Doctors and it becomes absolutely

necessary for this Court to revisit the directions

so that this Court puts in place a mechanism which

effectively carries out the object of this Court

laying down the principles in the paragraphs which

have already been adverted to.

(6)Having heard Shri Arvind Datar, learned senior

counsel, appearing for the applicant, assisted by

Dr. Dhvani Mehta and Ms. Rashmi Nandakumar, learned

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counsel, Dr. R. R. Kishore, learned counsel, as also

Mr. K. M. Nataraj, learned Additional Solicitor

General appearing on behalf of respondent-Union of

India, we are of the view that the directions

contained in paragraphs 198 to 199 require to be

modified/ deleted as hereinafter indicated:

Para Existing

Guidelines

Modifications

Para

198.2.5

It should specify

the name of a

guardian or close

relative who, in

the event of the

executor becoming

incapable of

taking decision at

the relevant time,

will be authorised

to give consent to

refuse or withdraw

medical treatment

in a manner

consistent with

the Advance

Directive.

It should specify the

name of a guardian (s) or

close relative(s) who, in

the event of the executor

becoming incapable of

taking decision at the

relevant time, will be

authorised to give

consent to refuse or

withdraw medical

treatment in a manner

consistent with the

Advance Directive.

Para

198.3.1

The document

should be signed

The document should be

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by the executor in

the presence of

two attesting

witnesses,

preferably

independent, and

countersigned by

the jurisdictional

Judicial

Magistrate of

First Class (JMFC)

so designated by

the District Judge

concerned.

signed by the executor in

the presence of two

attesting witnesses,

preferably independent,

and attested before a

notary or Gazetted

Officer.

Para

198.3.2

The witnesses and

the jurisdictional

JMFC shall record

their satisfaction

that the document

has been executed

voluntarily and

without any

coercion or

inducement or

compulsion and

with full

understanding of

all the relevant

information and

consequences.

The witnesses and the

notary or Gazetted

Officer shall record

their satisfaction that

the document has been

executed voluntarily and

without any coercion or

inducement or compulsion

and with full

understanding of all the

relevant information and

consequences.

Para

198.3.3

The JMFC shall

preserve one copy

Deleted.

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of the document in

his office, in

addition to

keeping it in

digital format.

Para

198.3.4

The JMFC shall

forward one copy

of the document to

the Registry of

the jurisdictional

District Court for

being preserved.

Additionally, the

Registry of the

District Judge

shall retain the

document in

digital format.

Deleted.

Para

198.3.5

The JMFC shall

cause to inform

the immediate

family members of

the executor, if

not present at the

time of execution,

and make them

aware about the

execution of the

document.

The executor shall

inform, and hand over a

copy of the Advance

Directive to the person

or persons named in

Paragraph 198.2.5, as

well as to the family

physician, if any.

Para

198.3.6

A copy shall be

handed over to the

competent officer

of the local

Government or the

Municipal

Corporation or

A copy shall be handed

over to the competent

officer of the local

Government or the

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Municipality or

Panchayat, as the

case may be. The

aforesaid

authorities shall

nominate a

competent official

in that regard who

shall be the

custodian of the

said document.

Municipal Corporation or

Municipality or

Panchayat, as the case

may be. The aforesaid

authorities shall

nominate a competent

official in that regard

who shall be the

custodian of the said

document.

The executor may also

choose to incorporate

their Advance Directive

as a part of the digital

health records, if any.

Para

198.3.7

The JMFC shall

cause to hand over

copy of the

Advance Directive

to the family

physician, if any.

Deleted.

Para

198.4.1

In the event the

executor becomes

terminally ill and

is undergoing

In the event the executor

becomes terminally ill

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prolonged medical

treatment with no

hope of recovery

and cure of the

ailment, the

treating

physician, when

made aware about

the Advance

Directive, shall

ascertain the

genuineness and

authenticity

thereof from the

jurisdictional

JMFC before acting

upon the same.

and is undergoing

prolonged medical

treatment with no hope of

recovery and cure of the

ailment, and does not

have decision-making

capacity, the treating

physician, when made

aware about the Advance

Directive, shall

ascertain the genuineness

and authenticity thereof

with reference to the

existing digital health

records of the patient,

if any or from the

custodian of the document

referred to in Paragraph

198.3.6 of this

judgement.

Para

198.4.2

The instructions

in the document

must be given due

weight by the

No change.

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doctors. However,

it should be given

effect to only

after being fully

satisfied that the

executor is

terminally ill and

is undergoing

prolonged

treatment or is

surviving on life

support and that

the illness of the

executor is

incurable or there

is no hope of

him/her being

cured.

Para

198.4.3

If the physician

treating the

patient (executor

of the document)

is satisfied that

the instructions

given in the

document need to

be acted upon, he

shall inform the

executor or his

guardian/close

relative, as the

case may be, about

the nature of

illness, the

availability of

medical care and

consequences of

alternative forms

of treatment and

the consequences

of remaining

untreated. He must

If the physician treating

the patient (executor of

the document) is

satisfied that the

instructions given in the

document need to be acted

upon, he shall inform the

person or persons named

in the Advance Directive,

as the case may be, about

the nature of illness,

the availability of

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also ensure that

he beliefs on

reasonable grounds

that the person in

question

understands the

information

provided, has

cogitated over the

options and has

come to a firm

view that the

option of

withdrawal or

refusal of medical

treatment is the

best choice.

medical care and

consequences of

alternative forms of

treatment and the

consequences of remaining

untreated. He must also

ensure that he believes

on reasonable grounds

that the person in

question understands the

information provided, has

cogitated over the

options and has come to a

firm view that the option

of withdrawal or refusal

of medical treatment is

the best choice.

Para

198.4.4

The

physician/hospital

where the executor

has been admitted

for medical

treatment shall

then constitute a

Medical Board

The hospital where the

executor has been

admitted for medical

treatment shall then

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consisting of the

Head of the

treating

department and at

least three

experts 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 who, in

turn, shall visit

the patient in the

presence of his

guardian/close

relative and form

an opinion whether

to certify or not

to certify

carrying out the

instructions of

withdrawal or

refusal of further

medical treatment.

This decision

shall be regarded

as a preliminary

opinion.

constitute a Primary

Medical Board consisting

of the treating physician

and at least two subject

experts of the concerned

specialty with at least

five years’ experience,

who, in turn, shall visit

the patient in the

presence of his

guardian/close relative

and form an opinion

preferably within 48

hours of the case being

referred to it whether to

certify or not to certify

carrying out the

instructions of

withdrawal or refusal of

further medical

treatment. This decision

shall be regarded as a

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preliminary opinion.

Para

198.4.5

In the event the

Hospital Medical

Board certifies

that the

instructions

contained in the

Advance Directive

ought to be

carried out, the

physician/hospital

shall forthwith

inform the

jurisdictional

Collector about

the proposal. The

jurisdictional

Collector shall

then immediately

constitute a

Medical Board

comprising the

Chief District

Medical Officer of

the district

concerned as the

Chairman and three

expert doctors

from the fields of

general medicine,

cardiology,

neurology,

nephrology,

psychiatry or

oncology with

experience in

critical care and

with overall

standing in the

In the event the Primary

Medical Board certifies

that the instructions

contained in the Advance

Directive ought to be

carried out, the hospital

shall then immediately

constitute a Secondary

Medical Board comprising

one registered medical

practitioner nominated by

the Chief Medical Officer

of the District and at

least two subject experts

with at least five years’

experience of the

concerned specialty who

were not part of the

Primary Medical Board .

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medical profession

of at least twenty

years (who were

not members of the

previous Medical

Board of the

hospital). They

shall jointly

visit the hospital

where the patient

is admitted and if

they concur with

the initial

decision of the

Medical Board of

the hospital, they

may endorse the

certificate to

carry out the

instructions given

in the Advance

Directive.

They shall visit the

hospital where the

patient is admitted and

if they concur with the

initial decision of the

Primary Medical Board of

the hospital, they may

endorse the certificate

to carry out the

instructions given in the

Advance Directive. The

Secondary Medical Board

shall provide its opinion

preferably within 48

hours of the case being

referred to it.

Para

198.4.6

The Board

constituted by the

Collector must

beforehand

ascertain the

wishes of the

executor if he is

in a position to

communicate and is

capable of

The secondary Board must

beforehand ascertain the

wishes of the executor if

he is in a position to

communicate and is

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understanding the

consequences of

withdrawal of

medical treatment.

In the event the

executor is

incapable of

taking decision or

develops impaired

decision-making

capacity, then the

consent of the

guardian nominated

by the executor in

the Advance

Directive should

be obtained

regarding refusal

or withdrawal of

medical treatment

to the executor to

the extent of and

consistent with

the clear

instructions given

in the Advance

Directive.

capable of understanding

the consequences of

withdrawal of medical

treatment. In the event

the executor is incapable

of taking decision or

develops impaired

decision-making capacity,

then the consent of the

person or persons

nominated by the executor

in the Advance Directive

should be obtained

regarding refusal or

withdrawal of medical

treatment to the executor

to the extent of and

consistent with the clear

instructions given in the

Advance Directive.

Para

198.4.7

The Chairman of

the Medical Board

The hospital where the

24

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

nominated by the

Collector, that

is, the Chief

District Medical

Officer, shall

convey the

decision of the

Board to the

jurisdictional

JMFC before giving

effect to the

decision to

withdraw the

medical treatment

administered to

the executor. The

JMFC shall visit

the patient at the

earliest and,

after examining

all aspects,

authorise the

implementation of

the decision of

the Board.

patient is admitted ,

shall convey the decision

of the Primary and

Secondary Medical Boards

and the consent of the

person or persons named

in the Advance Directive

to the jurisdictional

JMFC before giving effect

to the decision to

withdraw the medical

treatment administered to

the executor.

Para

198.4.8

It will be open to

the executor to

revoke the

document at any

stage before it is

acted upon and

implemented.

No change.

Para

198.5.1

If permission to

withdraw medical

treatment is

refused by the

Medical Board, it

would be open to

the executor of

If permission to withdraw

medical treatment is

refused by the Secondary

Medical Board, it would

25

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

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

be open to the person

or persons named in the

Advance Directive 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

26

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

years. 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.

Para

198.5.2

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.

No change.

Para

198.5.3

Needless to say

that the High

Court shall render

its decision at

No change.

27

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

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”.

Paras

198.6.1

An individual may

withdraw or alter

the Advance

Directive at any

time when he/she

has the capacity

to do so and by

following the same

procedure as

provided for

recording of

Advance Directive.

Withdrawal or

revocation of an

Advance Directive

must be in

writing.

No change.

Para

198.6.2

An Advance

Directive shall

not be applicable

to the treatment

in question if

there are

reasonable grounds

for believing that

circumstances

exist which the

person making the

directive did not

anticipate at the

No change.

28

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

time of the

Advance Directive

and which would

have affected his

decision had he

anticipated them.

Para

198.6.3

If the Advance

Directive is not

clear and

ambiguous, the

Medical Boards

concerned shall

not give effect to

the same and, in

that event, the

guidelines meant

for patients

without Advance

Directive shall be

made applicable.

No change.

Para

198.6.4

Where the Hospital

Medical Board

takes a decision

not to follow an

Advance Directive

while treating a

person, then it

shall make an

application to the

Medical Board

constituted by the

Collector for

consideration and

appropriate

direction on the

Advance Directive

Where the Primary Medical

Board takes a decision

not to follow an Advance

Directive while treating

a person, the person or

persons named in the

Advance Directive may

request the hospital to

refer the case to the

Secondary Medical Board

29

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

for consideration and

appropriate direction on

the Advance Directive.

Para

199

It is necessary to

make it clear that

there will be

cases where there

is no Advance

Directive. The

said class of

persons cannot be

alienated. In

cases where there

is no Advance

Directive, the

procedure and

safeguards are to

be same as applied

to cases where

Advance Directives

are in existence

and in addition

there to, the

following

procedure shall be

followed:

No change.

Cases where there is No Advance Directive

Para

199.1

In cases where the

patient is

terminally ill and

undergoing

prolonged

treatment in

respect of ailment

which is incurable

or where there is

no hope of being

In cases where the

patient is terminally ill

and undergoing prolonged

treatment in respect of

ailment which is

30

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

cured, the

physician may

inform the

hospital which, in

turn, shall

constitute a

Hospital Medical

Board in the

manner indicated

earlier. The

Hospital Medical

Board shall

discuss with the

family physician

and the family

members and record

the minutes of the

discussion in

writing. During

the discussion,

the family members

shall be apprised

of the pros and

cons of withdrawal

or refusal of

further medical

treatment to the

patient and if

they give consent

in writing, then

the Hospital

Medical Board may

certify the course

of action to be

taken. Their

decision will be

regarded as a

preliminary

opinion.

incurable or where there

is no hope of being

cured, the physician may

inform the hospital,

which, in turn, shall

constitute a Primary

Medical Board in the

manner indicated earlier.

The Primary Medical Board

shall discuss with the

family physician, if any,

and the patient’s next of

kin/next friend/guardian

and record the minutes of

the discussion in

writing. During the

discussion, the patient’s

next of kin/next

friend/guardian shall be

apprised of the pros and

cons of withdrawal or

refusal of further

31

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

medical treatment to the

patient and if they give

consent in writing, then

the Primary Medical Board

may certify the course of

action to be taken

preferably within 48

hours of the case being

referred to it.

Their decision will be

regarded as a preliminary

opinion.

Para

199.2

In the event the

Hospital Medical

Board certifies

the option of

withdrawal or

refusal of further

medical treatment,

the hospital shall

immediately inform

the jurisdictional

Collector. The

jurisdictional

Collector shall

then constitute a

Medical Board

comprising the

Chief District

Medical Officer as

In the event the Primary

Medical Board certifies

the option of withdrawal

or refusal of further

medical treatment, the

hospital shall then

constitute a Secondary

Medical Board comprising

in the manner indicated

32

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

the Chairman and

three experts 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. The Medical

Board constituted

by the Collector

shall visit the

hospital for

physical

examination of the

patient and, after

studying the

medical papers,

may concur with

the opinion of the

Hospital Medical

Board. In that

event, intimation

shall be given by

the Chairman of

the Collector

nominated Medical

Board to the JMFC

and the family

members of the

patient.

hereinbefore. The

Secondary Medical Board

shall visit the hospital

for physical examination

of the patient and, after

studying the medical

papers, may concur with

the opinion of the

Primary Medical Board. In

that event, intimation

shall be given by the

hospital to the JMFC and

the next of kin/next

friend/guardian of the

patient preferably within

48 hours of the case

being referred to it.

Para

199.3

The JMFC shall

visit the patient

at the earliest

and verify the

Deleted

33

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

medical reports,

examine the

condition of the

patient, discuss

with the family

members of the

patient and, if

satisfied in all

respects, may

endorse the

decision of the

Collector

nominated Medical

Board to withdraw

or refuse further

medical treatment

to the terminally-

ill patient.

Para

199.4

There may be cases

where the Board

may not take a

decision to the

effect of

withdrawing

medical treatment

of the patient or

the Collector

nominated Medical

Board may not

concur with the

opinion of the

hospital Medical

Board. In such a

situation, the

nominee of the

patient or the

family member or

the treating

doctor or the

hospital staff can

seek permission

from the High

There may be cases where

the Primary Medical Board

may not take a decision

to the effect of

withdrawing medical

treatment of the patient

or the Secondary Medical

Board may not concur with

the opinion of the

Primary Medical Board. In

such a situation, the

nominee of the patient or

34

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

Court to withdraw

life support by

way of writ

petition under

Article 226 of the

Constitution in

which case the

Chief Justice of

the said High

Court shall

constitute a

Division Bench

which shall decide

to grant approval

or not. The High

Court may

constitute an

independent

committee to

depute 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 after

consulting the

competent medical

practitioners. It

shall also afford

an opportunity to

the State counsel.

The High Court in

such cases shall

the family member or the

treating doctor or the

hospital staff can seek

permission from the High

Court to withdraw life

support by way of writ

petition under Article

226 of the Constitution

in which case the Chief

Justice of the said High

Court shall constitute a

Division Bench which

shall decide to grant

approval or not. The High

Court may constitute an

independent committee to

depute three doctors from

the fields of general

medicine, cardiology,

neurology, nephrology,

psychiatry or oncology

with experience in

35

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

render its

decision at the

earliest since

such matters

cannot brook any

delay. Needless to

say, the High

Court shall

ascribe reasons

specifically

keeping in mind

the principle of

“best interests of

the patient”.

critical care and with

overall standing in the

medical profession of at

least twenty years after

consulting the competent

medical practitioners. It

shall also afford an

opportunity to the State

counsel. The High Court

in such cases shall

render its decision at

the earliest since such

matters cannot brook any

delay. Needless to say,

the High Court shall

ascribe reasons

specifically keeping in

mind the principle of

“best interests of the

patient”.

Para

200

Having said this,

we think it

No change.

36

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

appropriate to

cover a vital

aspect to the

effect the life

support is

withdrawn, the

same shall also be

intimated by the

Magistrate to the

High Court. It

shall be kept in a

digital format by

the Registry of

the High Court

apart from keeping

the hard copy

which shall be

destroyed after

the expiry of

three years from

the death of the

patient.

(7)Registry will communicate a copy of this Order

to Registrar Generals of all the High Courts.

The Registrar Generals of the High Courts will

dispatch a copy of this Order to the Health

Secretaries in the respective States/Union

Territories for onward communication to all the

Chief Medical Officers in the States/Union

Territories.

The miscellaneous application will stand

37

MA No. 1699/ 2019 in WP (C) No. 215/ 2005

disposed of as above.

No orders as to costs.

……………………………………………………., J.

[ K.M. JOSEPH ]

……………………………………………………., J.

[ AJAY RASTOGI ]

……………………………………………………., J.

[ ANIRUDDHA BOSE ]

……………………………………………………., J.

[ HRISHIKESH ROY ]

……………………………………………………., J.

[ C.T. RAVIKUMAR ]

New Delhi;

January 24, 2023.

38