Living wills provide individuals with the right to die with dignity and have control over their own medical treatment and end-of-life care
The Concept of a living will, also known as an advance directive or advance decision, has gained recognition in various countries, including India and the United States. A living will is an important legal document that allows individuals to express their medical treatment preferences in advance, ensuring that their wishes are honoured even if they become incapacitated. In 2018, the Supreme Court delivered a historic judgment introducing the legal framework for Living Wills in India.
ORIGIN AND CONCEPT
The concept of living wills originated in the United States with the passage of the “Natural Death Act” in California in 1976. It allowed individuals to specify their end-of-life medical decisions in advance. A living will is essentially an instruction given by an individual while conscious, outlining the actions to be taken in case they become incapacitated due to illness, to decide.
Living wills are protected under Article 21 of the Constitution of India, which guarantees the right to life and personal liberty
LIVING WILL IN INDIA
In India, the Supreme Court’s judgment in the Aruna Shanbaug Case recognized passive euthanasia and emphasized the need for a legal framework to address end-of-life decisions. The court stated that any decision to withdraw life support should be made in the best interest of the patient and approved by the concerned High Court. This led to the introduction of comprehensive guidelines for Living Wills, known as Advance Medical Directives.
The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, based on the 241st Law Commission Report, further addressed the concept of Advance Medical Directives in detail. It clarified that the execution of an advance medical directive does not bind any medical practitioner, emphasizing the importance of a collaborative decision making process.
EXECUTION AND GUIDELINES
The Supreme Court’s guidelines specify the requirements for executing a living will. An adult with a sound mind capable of communicating their decision clearly can execute a living will. It must be in writing, signed by the executor in the presence of two independent witnesses, and countersigned by a jurisdictional Judicial Magistrate of First Class (JMFC).
The document should clearly stipulate the executor’s wishes and intent, disclose their understanding of the consequences, and specify a guardian or close relative authorised to give consent to refuse or withdraw medical treatment.
IMPLEMENTATION
To make a living will operational in India, the physician must ascertain its genuineness and inform the executor or their guardian/close relative about the illness and the consequences of remaining untreated.
The hospital where the executor is admitted forms a Medical Board to evaluate the instructions regarding withdrawal or refusal of further medical treatment. If the Hospital Medical Board certifies the instructions, the jurisdictional Collector constitutes its own Medical Board, which jointly endorses the certificate. The decision of the Board is then conveyed to the jurisdictional JMFC, who authorizes the implementation of the decision. In case life support is withdrawn, the Magistrate informs the High Court, which maintains the necessary records.
LEGAL PROTECTION AND SIGNIFICANCE
Living wills provide individuals with the right to die with dignity and have control over their own medical treatment and end-of-life care. They offer clarity and guidance to healthcare providers, ensuring that a person’s wishes are respected even if they are unable to communicate at the time. Living wills are protected under Article 21 of the Constitution, which guarantees the right to life and personal liberty.
The introduction of living wills in India has been a significant step towards empowering individuals to make informed decisions about their end-of-life care. The legal framework and guidelines provided by the Supreme Court have laid the foundation for respecting individual autonomy and ensuring that their wishes are upheld. It is essential to spread awareness about the importance of executing.