The Supreme Court recently modified the guidelines applicable to advance medical directives (“AMD”), originally laid out in 2018 in Common Cause vs. Union of India^[1] (“2018 Judgment”). Recognising the difficulties being experienced with the registration process for AMDs, a five-judge bench of the Supreme Court has substantially altered the procedure for the registration and execution of AMDs.

What is an AMD?

An AMD is a document recording the preferences of an adult individual as to the kind of medical care they wish to receive and the kind of treatments they wish to opt for / opt out of, if they become terminally ill, or are facing a medical condition with no hope of recovery (“Medical Futility”). An AMD writer needs to possess mental capacity when an AMD is put in place – however, a valid AMD would continue to be valid at the time of Medical Futility even if the author of the AMD does not possess capacity when the AMD is sought to be implemented. This is a key motivating factor for persons looking to put AMDs in place.

In addition to specifying their preferences for medical care, AMD writers can also nominate guardians (generally close relatives) as surrogate decision makers to take medical decisions on their behalf when they are incapacitated to take such decisions. It should be noted that an AMD only provides a Medical Power of Attorney and is different from a Lasting Power of Attorney which gives an individual the power to nominate a person for not only medical but also financial decisions on their behalf. As of today, Indian law does not provide for the concept of a Lasting Power of Attorney for financial decisions.

The 2018 Judgment:

In 2018, the Supreme Court, recognising the right to die with dignity as a fundamental right, prescribed a detailed set of guidelines for the registration and execution of AMDs, targeted at preventing abuse of the process. The apex court also clarified that the guidelines were to be effective till such time the Parliament of India passes a legislation on this subject (there is no legislation yet in this regard). The Judgement provided the following guidelines:

• Execution of AMD: A person wishing to execute an AMD could enumerate their wishes on paper and have it signed in the presence of two attesting witnesses and countersigned by the jurisdictional Judicial Magistrate of First Class (“JMFC”), as designated by the concerned District Judge.
• Primary Board and Secondary Board: The AMD would come into operation at the time of Medical Futility of the AMD writer. Such determination of Medical Futility was to be ascertained by a team of doctors of the concerned hospital (“Primary Board”) having not less than twenty years’ of experience in specialised fields including cardiology, neurology, nephrology etc. Once the Primary Board had ruled in favour of Medical Futility, a second team of doctors appointed by the District Collector (“Secondary Board”) having the same professional qualifications as the members of the Primary Board, would then re-assess the condition of the AMD writer and on concurring with the decision of Primary Board, would send their report to the concerned JMFC. After a final assessment, the JMFC would authorise the decision arrived at by the Secondary Board and the AMD would finally come into effect.
• Approaching the High Court: In the event of an adverse conclusion by the medical boards, the guardian or close relative of the AMD-writer, or even their treating doctor or the hospital staff had the right to approach the concerned High Court under Article 226 of the Constitution of India to seek re-assessment by a medical board constituted by the concerned High Court.

Implementation Difficulties:

Although the 2018 Judgment was welcomed, there were barely any instances of AMDs being successfully registered / implemented. Some of the reasons were as follows:

• Temporary nature of the guidelines under the Judgement: The guidelines under the Judgement were stated to be ‘temporary’ (i.e. applicable until the Parliament enacted an appropriate legislation). Consequently, the authorities were in wait-and-watch mode and did not act to put a procedure in place.
• Appointment of JMFCs: One key impediment was the appointment of JMFCs, which were prescribed by the 2018 Judgment as being required for the successful registration of an AMD. In most jurisdictions, no JMFCs were designated for the purpose.
• Difficulty in implementation: Apart from the non-appointment of the requisite authorities, the process of getting an AMD registered in itself was tedious and cumbersome. For instance, there were four stages between the drawing up and implementation of an AMD, namely – the verification by JMFC, assessment by the Primary Board, re-assessment by the Secondary Board, and final authorisation by the JMFC. Considering that an AMD would be invoked in a situation of Medical Futility, the layers of authority prescribed under the guidelines did not inspire confidence and made the task of implementing an AMD seem daunting.

2023 Order:

The applicant, Indian Society of Critical Care Medicine (“Applicant”), approached the apex court with a plea to modify and make the guidelines set out under the Judgement workable, citing the abovementioned impediments. Consequently, the Supreme Court issued an order (“2023 Order”)^[2] ruling as follows:

• Attestation before gazette officer: As per the 2023 Order, the requirement to approach the JMFC has been done away with. Now, the AMD-writer can get their AMDs attested before any notary or a gazetted officer who will ascertain the veracity and genuineness of the AMD.
• Flexibility in appointment of guardians: while the 2018 Judgment provided for the appointment of “a” guardian or relative as the surrogate decision maker to act when the AMD-writer lost their capacity, the 2023 Order has modified the language to include multiple guardians and close relatives, thereby providing flexibility and the option to address other contingencies.
• Easing the qualifications for appointment of Primary and Secondary Board: The teams comprising the Primary Board and Secondary Board were earlier required to have an experience of twenty years each in the relevant field which has now been decreased to five years. This issue was also argued at length in the apex court with the Applicant contending that most districts in India may not have the medical teams with twenty years of experience, which will eventually delay the process of implementing the AMD at a critical stage.
• Prescribing time limits: Further speeding up the process, the Supreme Court has now clarified that both the medical boards are now required to form an opinion on Medical Futility ‘within’ forty-eight hours as opposed to no such time limit earlier which could have led to an unforeseen delay in enforcing the wishes of the AMD-writer.
• Digital health records: In order to streamline the process of preserving the AMD, the person executing can get their AMD incorporated as a part of their digital health records for easy accessibility at the time of Medical Futility. The implementation of digital health records in India is still at a very nascent stage and is not widely adopted. Further, privacy concerns, regarding uploading AMDs on the relevant digital health record platform, could also be a deterrent in AMDs being linked to the digital health records.
• Easing of procedural / implementation requirements: In addition to the changes provided herein, the some of the relaxations introduced by the 2023 Order are set out below – (i) the requirement of the AMD being forwarded by the JMFC to the district court has also been done away with under the 2023 Order; (ii) under the 2023 Order, it would suffice for the executor to hand over a copy of the AMD to the decisionmaker (stipulated under the AMD) and the family physician, if any, and the requirement of the JMFC having to inform the executor and family physician (under the Judgement) has been removed; and (iii) the requirement for the JFMC to maintain a copy of the AMD has been deleted.

Conclusion:

While the 2023 Order is a step forward towards the proper execution and registration of AMDs, there are certain nuances which still need to be addressed. For instance, it is still not clarified as to who constitutes ‘guardians’ or ‘close relatives’. In some situations, a person may not be keen to appoint a relative as a surrogate decision maker but may prefer a professional such as a doctor acquaintance, as they may believe that an objective third party may be more willing to respect their wishes.

Secondly, neither the 2018 Judgment nor the 2023 Order address the issue of medical liability sufficiently i.e. the issue of how to protect doctors for bona fide decisions taken by them while implementing AMDs.  The onus of determining the genuineness of an AMD is on the treating physician, which may be a deterrent for physicians and hospitals in implementing / executing AMDs. Further, although the 2018 Judgment states that doctors shall not be criminally liable, the language around civil liability is vague and open to interpretation. In the absence of such protections, medical professionals are likely to be hesitant and wary of litigation from family members who do not wish to adhere to the wishes contained in the AMD. These issues will need to be addressed as the AMD framework is further developed, perhaps by the Parliament by way of a statute.

Footnotes:

[1] Common Cause v. Union of India, (2018) 5 SCC 1
[2] Common Cause (A Registered Society) v. Union of India, 2023 SCC OnLine SC 99;