2023 LiveLaw (SC) 79

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
K.M. JOSEPH; J., AJAY RASTOGI; J., ANIRUDDHA BOSE; J., HRISHIKESH ROY; J., C.T. RAVIKUMAR; J.
January 24, 2023.
MISCELLANEOUS APPLICATION NO. 1699 OF 2019 IN WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) versus UNION OF INDIA
INDIAN SOCIETY OF CRITICAL CARE MEDICINE Applicant
Constitution of India, 1950; Article 21 - Right to die with dignity - Passive
Euthanasia - Supreme Court Constitution Bench simplifies the procedure for
executing living will/advance directive by modifiying the he judgment reported
in Common Cause (A Registered Society) v. Union of India and Another (2018)
5 SCC 1 - the Court allows the application filed by Indian Society of Critical Care
Medicine seeking clarification of the judgment.
(Arising out of impugned final judgment and order dated 09-03-2018 in W.P.(C) No. 215/2005 passed
by the Supreme Court of India)
For Petitioner(s) Mr. Arvind P. Datar, Sr. Adv. Dr. Dhvani Mehta, Adv. Ms. Rashmi Nandakumar, AOR
Ms. Shreya Shrivastava, Adv.
For Respondent(s) Mr. K.M. Nataraj, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Mohd. Akhil, Adv.
Mr. Adit Khorana, Adv. Mr. Shailesh Madiyal, Adv. Mr. Udai Khanna, Adv. Mr. Vinayak Sharma, Adv.
Mr. Anirudh Bhat, Adv. Mr. Sanjay M Nuli, Adv. Mr. Nakul Chengappa K.K., Adv. Mr. Chitransh
Sharma, Adv. Mr. Anuj S. Udupa, Adv. Dr. R. R. Kishore, Adv.
ORDER
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 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system/medicines, life support system should be withdrawn.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:
198.1. Who can execute the Advance Directive and how?

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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 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.

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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.
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 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
admitted and if they concur with the initial decision of the Medical Board of the hospital,

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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 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 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.

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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 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 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

5
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 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 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
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:

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Para Existing Guidelines Modifications

Para 198.2.5 It should specify the name of a It should specify the

guardian or close relative who, name of a guardian(s) or
in the event of the executor close relative(s) who, in
becoming incapable of taking the event of the executor
decision at the relevant time, becoming incapable of
will be authorised to give taking decision at the
consent to refuse or withdraw relevant time, will be
medical treatment in a manner authorised to give
consistent with the Advance consent to refuse or
Directive. withdraw medical
treatment in a manner
consistent with the
Advance Directive.

Para 198.3.1 The document should be The document should be

signed by the executor in the signed by the executor in
presence of two attesting the presence of two
witnesses, preferably attesting witnesses,
independent, and preferably independent,
countersigned by the and attested before a
jurisdictional Judicial notary or Gazetted
Magistrate of First Class Officer.
(JMFC) so designated by the
District Judge concerned.

Para 198.3.2 The witnesses and the The witnesses and the
jurisdictional JMFC shall notary or Gazetted Officer
record their satisfaction that shall record their
the document has been satisfaction that the
executed voluntarily and document has been
without any coercion or executed voluntarily and
inducement or compulsion without any coercion or
and with full understanding of inducement or
all the relevant information compulsion and with full
and consequences. understanding of all the
relevant information and
consequences.

Para 198.3.3 The JMFC shall preserve one Deleted.

copy of the document in his
office, in addition to keeping it
in digital format.

Para 198.3.4 The JMFC shall forward one Deleted.

copy of the document to the
Registry of the jurisdictional
District Court for being
preserved. Additionally, the
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 Registry of the District Judge
shall retain the document in
digital format.

Para 198.3.5 The JMFC shall cause to The executor shall inform,
inform the immediate family and hand over a copy of
members of the executor, if the Advance Directive to
not present at the time of the person or persons
execution, and make them named in Paragraph
aware about the execution of 198.2.5, as well as to the
the document. family physician, if any.

Para 198.3.6 A copy shall be handed over A copy shall be handed

to the competent officer of the over to the competent
local Government or the officer of the local
Municipal Corporation or Government or the
Municipality or Panchayat, as Municipal Corporation or
the case may be. The Municipality or
aforesaid authorities shall Panchayat, as the case
nominate a competent official may be. The aforesaid
in that regard who shall be the authorities shall nominate
custodian of the said a competent official in
document. 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 Deleted.

over copy of the Advance
Directive to the family
physician, if any.

Para 198.4.1 In the event the executor In the event the executor
becomes terminally ill and is becomes terminally ill
undergoing prolonged and is undergoing
medical treatment with no prolonged medical
hope of recovery and cure of treatment with no hope of
the ailment, the treating recovery and cure of the
physician, when made aware ailment, and does not
about the Advance Directive, have decision-making
shall ascertain the capacity, the treating
genuineness and authenticity physician, when made
thereof from the jurisdictional aware about the Advance
JMFC before acting upon the Directive, shall ascertain
same. the genuineness and
authenticity thereof with
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 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 The instructions in the No change.

198.4.2 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.

Para If the physician treating the If the physician treating

198.4.3 patient (executor of the the patient (executor of
document) is satisfied that the the document) is satisfied
instructions given in the that the instructions
document need to be acted given in the document
upon, he shall inform the need to be acted upon, he
executor or his guardian/close shall inform the person or
relative, as the case may be, persons named in the
about the nature of illness, the Advance Directive, as the
availability of medical care case may be, about the
and consequences of nature of illness, the
alternative forms of treatment availability of medical
and the consequences of care and consequences
remaining untreated. He must of alternative forms of
also ensure that he beliefs on treatment and the
reasonable grounds that the consequences of
person in question remaining untreated. He
understands the information must also ensure that he
provided, has cogitated over believes on reasonable
the options and has come to a grounds that the person
firm view that the option of in question understands
withdrawal or refusal of the information provided,
medical treatment is the best has cogitated over the
choice. options and has come to
a firm view that the option
of withdrawal or refusal of
medical treatment is the
best choice.

9
Para The physician/hospital where The hospital where the
198.4.4 the executor has been executor has been
admitted for medical admitted for medical
treatment shall then constitute treatment shall then
a Medical Board consisting of constitute a Primary
the Head of the treating Medical Board consisting
department and at least three of the treating physician
experts from the fields of and at least two subject
general medicine, cardiology, experts of the concerned
neurology, nephrology, specialty with at least five
psychiatry or oncology with years’ experience, who, in
experience in critical care and turn, shall visit the patient
with overall standing in the in the presence of his
medical profession of at least guardian/close relative
twenty years who, in turn, and form an opinion
shall visit the patient in the preferably within 48 hours
presence of his of the case being referred
guardian/close relative and to it whether to certify or
form an opinion whether to not to certify carrying out
certify or not to certify carrying the instructions of
out the instructions of withdrawal or refusal of
withdrawal or refusal of further further medical treatment.
medical treatment. This This decision shall be
decision shall be regarded as regarded as a preliminary
a preliminary opinion. opinion.

Para In the event the Hospital In the event the Primary

198.4.5 Medical Board certifies that Medical Board certifies
the instructions contained in that the instructions
the Advance Directive ought contained in the Advance
to be carried out, the Directive ought to be
physician/hospital shall carried out, the hospital
forthwith inform the shall then immediately
jurisdictional Collector about constitute a Secondary
the proposal. The Medical Board
jurisdictional Collector shall comprising one
then immediately constitute a registered medical
Medical Board comprising the practitioner nominated by
Chief District Medical Officer the Chief Medical Officer
of the district concerned as the of the District and at least
Chairman and three expert two subject experts with
doctors from the fields of at least five years’
general medicine, cardiology, experience of the
neurology, nephrology, concerned specialty who
psychiatry or oncology with were not part of the
experience in critical care and Primary Medical Board.
with overall standing in the They shall visit the
medical profession of at least hospital where the patient
twenty years (who were not is admitted and if they

10
 members of the previous concur with the initial
Medical Board of the hospital). decision of the Primary
They shall jointly visit the Medical Board of the
hospital where the patient is hospital, they may
admitted and if they concur endorse the certificate to
with the initial decision of the carry out the instructions
Medical Board of the hospital, given in the Advance
they may endorse the Directive. The Secondary
certificate to carry out the Medical Board shall
instructions given in the provide its opinion
Advance Directive. preferably within 48 hours
of the case being referred
to it.

Para The Board constituted by the The secondary Board

198.4.6 Collector must beforehand must beforehand
ascertain the wishes of the ascertain the wishes of
executor if he is in a position the executor if he is in a
to communicate and is position to communicate
capable of understanding the and is capable of
consequences of withdrawal understanding the
of medical treatment. In the consequences of
event the executor is withdrawal of medical
incapable of taking decision or treatment. In the event the
develops impaired decision- executor is incapable of
making capacity, then the taking decision or
consent of the guardian develops impaired
nominated by the executor in decision-making
the Advance Directive should capacity, then the
be obtained regarding refusal consent of the person or
or withdrawal of medical persons nominated by the
treatment to the executor to executor in the Advance
the extent of and consistent Directive should be
with the clear instructions obtained regarding
given in the Advance refusal or withdrawal of
Directive. medical treatment to the
executor to the extent of
and consistent with the
clear instructions given in
the Advance Directive.

Para The Chairman of the Medical The hospital where the

198.4.7 Board nominated by the patient is admitted, shall
Collector, that is, the Chief convey the decision of
District Medical Officer, shall the Primary and
convey the decision of the Secondary Medical
Board to the jurisdictional Boards and the consent
JMFC before giving effect to of the person or persons
the decision to withdraw the named in the Advance
medical treatment Directive to the
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 administered to the executor. jurisdictional JMFC
The JMFC shall visit the before giving effect to the
patient at the earliest and, decision to withdraw the
after examining all aspects, medical treatment
authorise the implementation administered to the
of the decision of the Board. executor.

Para It will be open to the executor No change.

198.4.8 to revoke the document at any
stage before it is acted upon
and implemented.

Para If permission to withdraw If permission to withdraw

198.5.1 medical treatment is refused medical treatment is
by the Medical Board, it would refused by the Secondary
be open to the executor of the Medical Board, it would
Advance Directive or his be open to the person or
family members or even the persons named in the
treating doctor or the hospital Advance Directive or
staff to approach the High even the treating doctor
Court by way of writ petition or the hospital staff to
under Article 226 of the approach the High Court
Constitution. If such by way of writ petition
application is filed before the under Article 226 of the
High Court, the Chief Justice Constitution. If such
of the said High Court shall application is filed before
constitute a Division Bench to the High Court, the Chief
decide upon grant of approval Justice of the said High
or to refuse the same. The Court shall constitute a
High Court will be free to Division Bench to decide
constitute an independent upon grant of approval or
committee consisting of three to refuse the same. The
doctors from the fields of High Court will be free to
general medicine, cardiology, constitute an
neurology, nephrology, independent committee
psychiatry or oncology with consisting of three
experience in critical care and doctors from the fields of
with overall standing in the general medicine,
medical profession of at least cardiology, neurology,
twenty years. nephrology, psychiatry or
oncology with experience
in critical care and with
overall standing in the
medical profession of at
least twenty years.

Para The High Court shall hear the No change.

198.5.2 application expeditiously after
affording opportunity to the
State counsel. It would be

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 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.

Para Needless to say that the High No change.

198.5.3 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”.

Paras An individual may withdraw or No change.

198.6.1 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.

Para 198.6.2 An Advance Directive shall not No change.

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 time of the Advance
Directive and which would
have affected his decision had
he anticipated them.

Para198.6.3 If the Advance Directive is not No change.

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.

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Para 198.6.4 Where the Hospital Medical Where the Primary
Board takes a decision not to Medical Board takes a
follow an Advance Directive decision not to follow an
while treating a person, then it Advance Directive while
shall make an application to treating a person, the
the Medical Board constituted person or persons named
by the Collector for in the Advance Directive
consideration and appropriate may request the hospital
direction on the Advance to refer the case to the
Directive Secondary Medical Board
for consideration and
appropriate direction on
the Advance Directive.

Para 199 It is necessary to make it clear No change.

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:

Cases where there is No Advance Directive

Para 199.1 In cases where the patient is In cases where the patient
terminally ill and undergoing is terminally ill and
prolonged treatment in respect undergoing prolonged
of ailment which is incurable or treatment in respect of
where there is no hope of being ailment which is incurable
cured, the physician may inform or where there is no hope
the hospital which, in turn, shall of being cured, the
constitute a Hospital Medical physician may inform the
Board in the manner indicated hospital, which, in turn,
earlier. The Hospital Medical shall constitute a Primary
Board shall discuss with the Medical Board in the
family physician and the family manner indicated earlier.
members and record the The Primary Medical
minutes of the discussion in Board shall discuss with
writing. During the discussion, the family physician, if
the family members shall be any, and the patient’s next
apprised of the pros and cons of of kin/next
withdrawal or refusal of further friend/guardian and
medical treatment to the patient record the minutes of the

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 and if they give consent in discussion in writing.
writing, then the Hospital During the discussion,
Medical Board may certify the the patient’s next of
course of action to be taken. kin/next friend/guardian
Their decision will be regarded shall be apprised of the
as a preliminary opinion. pros and cons of
withdrawal or refusal of
further 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 In the event the Primary
Medical Board certifies the Medical Board certifies
option of withdrawal or refusal the option of withdrawal
of further medical treatment, the or refusal of further
hospital shall immediately medical treatment, the
inform the jurisdictional hospital shall then
Collector. The jurisdictional constitute a Secondary
Collector shall then constitute a Medical Board
Medical Board comprising the comprising in the manner
Chief District Medical Officer as indicated hereinbefore.
the Chairman and three experts The Secondary Medical
from the fields of general Board shall visit the
medicine, cardiology, hospital for physical
neurology, nephrology, examination of the patient
psychiatry or oncology with and, after studying the
experience in critical care and medical papers, may
with overall standing in the concur with the opinion of
medical profession of at least the Primary Medical
twenty years. The Medical Board. In that event,
Board constituted by the intimation shall be given
Collector shall visit the hospital by the hospital to the
for physical examination of the JMFC and the next of
patient and, after studying the kin/next friend/guardian
medical papers, may concur of the patient preferably
with the opinion of the Hospital within 48 hours of the
Medical Board. In that event, case being referred to it.
intimation shall be given by the
Chairman of the Collector
nominated Medical Board to the

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 JMFC and the family members
of the patient.

Para 199.3 The JMFC shall visit the patient Deleted

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
terminallyill patient.

Para 199.4 There may be cases where the There may be cases
Board may not take a decision where the Primary
to the effect of withdrawing Medical Board may not
medical treatment of the patient take a decision to the
or the Collector nominated effect of withdrawing
Medical Board may not concur medical treatment of the
with the opinion of the hospital patient or the Secondary
Medical Board. In such a Medical Board may not
situation, the nominee of the concur with the opinion of
patient or the family member or the Primary Medical
the treating doctor or the Board. In such a situation,
hospital staff can seek the nominee of the patient
permission from the High Court or the family member or
to withdraw life support by way the treating doctor or the
of writ petition under Article 226 hospital staff can seek
of the Constitution in which permission from the High
case the Chief Justice of the Court to withdraw life
said High Court shall constitute support by way of writ
a Division Bench which shall petition under Article 226
decide to grant approval or not. of the Constitution in
The High Court may constitute which case the Chief
an independent committee to Justice of the said High
depute three doctors from the Court shall constitute a
fields of general medicine, Division Bench which
cardiology, neurology, shall decide to grant
nephrology, psychiatry or approval or not. The High
oncology with experience in Court may constitute an
critical care and with overall independent committee to
standing in the medical depute three doctors from
profession of at least twenty the fields of general
years after consulting the medicine, cardiology,
competent medical neurology, nephrology,
practitioners. It shall also afford psychiatry or oncology
an opportunity to the State with experience in critical
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 counsel. The High Court in such care and with overall
cases shall render its decision standing in the medical
at the earliest since such profession of at least
matters cannot brook any twenty years after
delay. Needless to say, the consulting the competent
High Court shall ascribe medical practitioners. It
reasons specifically keeping in shall also afford an
mind the principle of “best opportunity to the State
interests of the patient”. 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.

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 disposed of as above.
No orders as to costs.

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