Common Cause (A Registered Society) v Union of India (2018)

This is the current law on dying with dignity. It does three things no earlier decision did: it holds that the right to live with dignity includes the smoothening of the process of dying; it recognises the advance medical directive, or living will, and lays down how one is made and acted upon; and it corrects the earlier euthanasia decision on the need for legislation.

A registered society petitioned under Article 32 for a declaration that the right to die with dignity is part of Article 21, and for directions enabling persons of deteriorated health or terminally ill patients to execute a document described as a living will, to be acted upon by hospitals.

• The right to live with dignity under Article 21 includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery (conclusion (x)).
• The earlier decision erred in holding that the Constitution Bench decision on the right to life approved the English case, and in holding that euthanasia could be made lawful only by legislation (conclusion (iv)). Passive euthanasia does not require legislation.
• Every competent adult has the right to refuse treatment, even at the risk of death; a valid advance directive refusing treatment must be given effect (conclusion (viii)).
• For terminally ill or persistent-vegetative-state patients with no hope of revival, priority goes to the advance directive and to self-determination; where passive euthanasia applies, the best interest of the patient overrides the State interest (conclusions (xii) and (xiv)).
• On the distinction itself: In active euthanasia, a specific overt act is done to end the patient's life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life (conclusion (vi)).
• Guidelines were laid down under Article 142 for making and acting on a directive, and for patients who have none, to hold the field until Parliament legislates.

The procedure, in outline. Only an adult of sound and healthy mind, able to communicate, relate and comprehend the purpose and consequences of the document, may execute a directive; it must be voluntary, informed and in writing, and state when treatment may be withdrawn or not given where it would only delay death. It must name a guardian or close relative who may consent on the executor's behalf, and say that it may be revoked at any time; where several unrevoked directives exist, the most recent prevails. It is signed before two attesting witnesses and countersigned by the jurisdictional Judicial Magistrate of First Class, who records his satisfaction that it is voluntary, keeps copies, sends one to the District Court registry, informs the family, and hands copies to the family physician and to the local-government custodian.

When the executor becomes terminally ill with no hope of recovery: the treating physician verifies the directive with the Magistrate; informs the executor or guardian of the illness, the available treatment and the consequences of remaining untreated; the hospital constitutes a Medical Board (the head of the treating department and at least three experts of at least twenty years' standing) which visits the patient and gives a preliminary opinion; if it certifies that the directive should be carried out, the Collector constitutes a second Board chaired by the Chief District Medical Officer with three other experts not on the first; if the second concurs, its chairman conveys the decision to the Magistrate, who visits the patient and authorises implementation. The executor may revoke at any stage before implementation. If a Board refuses, the executor, the family, the treating doctor or the hospital staff may petition the High Court under Article 226, which may appoint an independent committee of three doctors and decide speedily in the patient's best interests. Where there is no directive, the hospital Board consults the family physician and the family, records the discussion, and may certify withdrawal if the family consents in writing; the Collector's Board must concur and the Magistrate must endorse; disagreement goes to the High Court.

Dignity is an intrinsic part of life under Article 21. A person who may not decline burdensome and futile treatment at the end of life is denied dignity in dying. Autonomy is already recognised in the right to refuse treatment; the advance directive simply extends that autonomy forward in time, to the moment when the person can no longer decide for himself. Because the right is constitutional, no statute was needed to make passive euthanasia lawful — what was needed was a procedure, and Article 142 supplied the power to lay one down.

For living wills and advance directives, this is the first authority, with the Mental Healthcare Act's s. 5 directive as the statutory counterpart for mental illness. For euthanasia generally, take Aruna Shanbaug first for the framework and Common Cause second, as the decision that corrects and supersedes it.

On a "do not resuscitate" problem: a competent adult's refusal of resuscitation is an exercise of the right to refuse recognised here; for a patient who can no longer decide, withholding resuscitation is passive euthanasia and must go through these safeguards — a valid directive, or the Board and Magistrate route. A hospital's unilateral note, without a directive or the prescribed procedure, has no support in these judgments. Indian official guidance specific to such orders is not covered in this paper.

A worked problem to expect: an unsigned or uncountersigned "living will" produced by a relative. Answer that the recording safeguard is not met, so the case falls under the no-directive procedure; that the document is still evidence of the patient's wishes and relevant to his best interests; and that the doctors must not act on a son's request alone.

A caution about the law. The procedure above is the procedure as laid down in 2018. Any later modification of it by the Supreme Court is not covered here; check before relying on the details.

What it does not decide: it does not legalise active euthanasia or physician-assisted suicide; it does not displace the criminal law where an overt act causes death; and it does not deal with a patient who is neither terminally ill nor in a persistent vegetative state.