The Fight For The Right To Die

♌Thirty-year-old Harish Rana has not moved or eaten solid foods in 12 years—he’s been in a quadriplegic state with a 100 per cent disability since a tragic fall from the fourth floor of a building in Chandigarh in 2013. His parents have approached court to implement advance medical directives, or a living will, which is the directive to refuse life prolonging treatment. However, both the Delhi High Court and the Indian Supreme Court have refused their plea, even though in January 2023 the SC set guidelines for administering advance medical directives to appropriate cases.

🐻“In the Harish Rana's case, ideally the court should have decided on that ground and then referred them to this 2023 process, but the court got sidetracked on the issue of the capacity of the parents to care for Harish Rana. The case was dismissed by recording the fact that the government will provide for the treatment of Harish Rana,” explains Dhvani Mehta, a lawyer working with Vidhi Legal Policy who had filed an intervention petition in the case.

🅠While the rest of the world has left decisions on administering Advance Medical Directives (AMDs) to family and physicians, India has only just come around to simplifying the procedure, which previously was considered “unimplementable in practice,” according to Mehta.

🌸The first mention of AMD in courts was with the Aruna Shanbaug case. In 2011, SC justice Markandey Katju ruled that medical professionals could withdraw life support treatment from a person who is in a persistent vegetative state with no hope of recovery. It was only in 2018 that the apex court ruled that people could draw up living wills and thereby choose “passive euthanasia” or AMD, where medical treatment may be withdrawn to hasten a person's death. A bench comprised of Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud, and Ashok Bhushan laid down a strict process for living wills or AMDs.

ܫ“But the process the court had laid down was unimplementable in practice, and that's when the Indian Society of Critical Care Medicine filed an application for clarification,” says Mehta. That petition was heard in 2023, and the SC modification order was passed in January 2023.

🅰The new guidelines, which are being implemented by the Karnataka government in February this year, simplified the process. The 2018 judgement said that AMDs had to be executed before a judicial magistrate; in 2023, the court said that AMDs can be executed before a notary or a gazetted officer; the new guidelines have also done away with the need for the District Chief Medical Officer to be on the board of medical experts who assess patients and can nominate a medical officer in their stead; finally, while earlier one needed the judicial magistrate's approval before AMD, the court ruled that the hospital only needs to inform the magistrate about the AMD and can take further steps without waiting for their approval. 

🔜Though these guidelines ease the process considerably, senior advocate and one of the lawyers in the petitions for living wills, Prashant Bhushan, points out that the process is still time-consuming and possibly prolongs a patient’s suffering. “The procedure sidelines the family entirely. Whereas across the world, it is usually a familial decision where a doctor will give you the advice that this is a patient who is in a 90-100 per cent vegetative state, and then the family takes that call because it's a personal call. So even if they're saying they're simplifying the process in India, they have couched it in this bureaucracy,” he says.

🦋In June 2024, a Goan judge, M. S. Sonak, became the first person to register a living will under the new guidelines. Prior to that, while the guidelines existed, states had not implemented a mechanism for them.

๊On February 1, 2024, the Karnataka government ordered that the district health officers nominate people to serve on a medical board required to certify living wills, starting implementation of the guidelines in the state.

“The hospital where the patient is being treated must set up primary and secondary medical boards, comprising three registered medical practitioners each, such as a neurologist, neurosurgeon, surgeon, anaesthetist, or intensivist who has been approved by the appropriate authority (under the Transplantation of Human Organs and Tissues Act, 1994). The secondary medical board must also have a registered medical practitioner nominated by the District Health Officer. The primary and secondary medical boards will take decisions regarding withholding treatment after obtaining the consent of the patient’s next of kin or the person nominated in the patient’s advance medical directive,” the Health Department’s order said. Additionally, copies of the two boards’ decisions must be submitted to the Judicial Magistrate of the First Class (JMFC) before giving effect to them, and the JMFC will send copies to the Registrar of the High Court for record-keeping, the order added.

⭕Rana’s family declined to comment on the issue; however, his mother, Nirmala Rana, has been quoted saying, “A decade is a long time… Even when doctors gave up hope, I was hopeful that my son would recover some day. But this year, after his bedsores got worse, I decided I cannot see my son suffer any more.”