The Bombay High Court criticized the Maharashtra government on Thursday for not having an adequate system to enforce living wills, particularly the absence of a secondary medical board required for executing these directives.
A division bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar was addressing a PIL filed by Dr. Nikhil Datar, a gynaecologist from Mumbai. Dr. Datar sought proper implementation of the Supreme Court’s directive on passive euthanasia.
Chief Justice Questions Government’s Inaction
“It is unfortunate that someone has to petition the court to enforce the Supreme Court’s existing judgment. The judgment is designed to facilitate your functions. Why can’t you establish a permanent secondary board? What’s the difficulty?” Chief Justice Upadhyaya questioned the state.
Supreme Court Directive on Passive Euthanasia
Dr. Datar, along with two other professors, called for the enforcement of the Supreme Court’s January 24, 2023 order. This order aims to streamline the process for passive euthanasia, including creating a robust system for living wills or advance medical directives (AMDs). A living will is a legal document where individuals specify their medical treatment preferences for situations where they cannot communicate their wishes, such as during terminal illness or emergencies.
State Government’s Report on Custodians
In prior hearings, the state government reported appointing over 400 officials across local bodies to act as custodians for living wills. However, Dr. Datar argued that the necessary secondary medical boards had not been established. These boards are crucial for affirming the primary medical boards’ opinions regarding the execution of living wills.
Required Secondary Medical Board
According to the Supreme Court’s directive, once a primary medical board—comprising three doctors from the hospital where the patient is admitted—certifies that the instructions in an advanced directive should be executed, a secondary medical board must be formed. This secondary board should include one registered medical practitioner (RMP) nominated by the district’s Chief Medical Officer (CMO) and at least two subject experts with a minimum of five years of experience. The secondary board then confirms the primary board’s decision and endorses the certificate to implement the advanced directive.
Ineffectiveness Without Secondary Board
Dr. Datar asserted that without the secondary board, the advanced directive could not be executed, rendering the system ineffective. Chief Justice Upadhyaya questioned why the state had not established a permanent secondary medical board, suggesting that each district’s CMO could nominate a doctor to serve this role, simplifying the task.
Simplest of Solutions
“Every single doctor in a government hospital is a registered medical practitioner. Why not nominate someone? Each CMO should designate a regular member for the secondary board in each district. Why don’t you do this? It’s the simplest of things.”
Issues with Submission of Living Wills
Dr. Datar shared his personal experience of visiting a custodian to submit his living will, where the certifying officer was unable to explain how the will could be retrieved after 20 years, a common issue for others as well.
The court requested a detailed response from the state government on the petitioner’s submissions within two weeks. It also permitted Dr. Datar to include the National Medical Commission (NMC) and the Union Health Ministry as respondents. The next hearing is scheduled in three weeks.
Case Details:
- Case no.: PIL/3/2024 [Civil]
- Case Title: Prof Dr. Nikhil D. Datar v. State of Maharashtra