A Constitution Bench on January 17, 2023 questioned the utility of executing an advanced medical directive in India when a person is anyway free to refuse invasive treatment and accept death.
A five-judge Bench led by Justice K.M. Joseph also queried when such an directive should be implemented. There were cases when the mind had overridden the limitations of the body and comatose persons have returned to normalcy. There were also people who have beaten the boundaries of their disease and lived long and fruitful years. The court pointed to the case of renowned physicist Stephen Hawking, who despite the daunting diagnosis of amyotrophic lateral sclerosis, lived till 76 years. Formula One race car driver Michael Schumacher, who is reportedly in a coma for years after a skiing accident, may again wake up, the court discussed.
"Does a coma always precede a full stop [death]? Does a comatose condition always lead to death?" Justice Joseph asked senior advocate Arvind Datar.
Justice Hrishikesh Roy, on the Bench, said there have been cases of "mind over body" and asked who would decide whether an illness was "critical" or "terminal" for an individual. The financial background of people in many cases has decided whether a person's illness was "critical" or "terminal".
Justice Ajay Rastogi pointed out that advanced directives place a heavy burden on doctors. It is they who have to ultimately say when a patient has gone beyond the point of return. This would be risky considering the recent attacks on medical professionals by disgruntled families of patients who accuse them of negligence.
Justice Joseph said advanced directives operate in a "very narrow realm", when a person was in a "vegetative state" and unable to tell the doctors to stop the treatment.
"Otherwise, a person has the right to say 'I don't want treatment'. In rural areas, many people don't even go to hospitals," Justice Joseph pointed out.
Additional Solicitor General K.M. Nataraj said a directive could be given for a "specific illness in a specific situation". "I could give a directive for a particular disease for which I may have to undergo a painful treatment. This specific directive cannot be acted upon in the case of every disease," the law officer suggested.
The court said it was focussed on three aspects of an advanced directive — its contents, the method in which such a directive should be recorded without the danger of tampering, and its implementation.
The court made it clear that whatever it may do would only be stop-gap until the Legislature came up with a law.
The Bench is considering a plea to modify a March 2018 judgment which had upheld passive euthanasia and advanced directives, but made the process of implementing it cumbersome.