Introduction-
A ‘Living Will,’ or ‘Advance Medical Directive,’ is a legally binding document that enables individuals to specify their preferences for medical care in case they become incapacitated or unable to communicate. Essentially, it allows them to appoint someone to act as their healthcare decision-maker if they’re in a coma or otherwise unconscious. This document outlines their desires regarding medical treatment, such as whether they want life-sustaining measures to be taken or not. In this article, we’ll explore the current legal status of Living Wills in India, clarify their legality, and emphasize why it’s essential for individuals to consider creating one for themselves.
Every state offers the option to create a Living Will, although the terminology and specific requirements may vary. Some states refer to the document as a Medical Directive or Health Care Proxy. The process also differs across states, with some allowing for customized Living Wills, while others mandate the use of standardized forms.
A Living Will covers various medical procedures commonly encountered in life-threatening situations, such as CPR, ventilation, and dialysis. Individuals can specify their preferences regarding these procedures, whether they wish to receive some, all, or none of them. Additionally, they can indicate their intention to donate organs and tissues after death. Even if someone declines life-sustaining care, they can still express a desire to receive pain relief during their final hours.
Legality of living will-
In the Common Cause judgment of March 9, 2018, the Supreme Court of India upheld the legality of passive euthanasia and established a comprehensive procedure for living wills in India. This landmark decision included guidelines regarding the competence of the executor, methods of directive creation, directive content, recording and preservation procedures, registration, circumstances for medical board refusal, and revocation of directives.
In cases where there is no Living Will, the Supreme Court proposed the formation of a Medical Board (referred to as the “Primary Board”). It is the responsibility of this Primary Board to inform the family members of the terminally-ill patient about the potential consequences of withdrawing medical treatment and obtain their written consent, termed as a “preliminary opinion.” If the Primary Board recommends withdrawing medical treatment, this decision is then communicated to the appropriate jurisdictional Collector, who forms a Secondary Board. The Secondary Board, chaired by the Chief District Medical Officer and comprising three medical experts, provides a secondary opinion. If the Secondary Board concludes that withdrawing medical treatment is appropriate, they may approach the Judicial Magistrate First Class (JMFC) for the district. The JMFC conducts inquiries, visits the hospital, and, upon satisfaction, may endorse the decision to withdraw medical treatment for the terminally-ill patient. In cases where the decision of the Judicial Magistrate First Class (JMFC) contradicts the recommendation of the Secondary Board, or if any of the authorities involved decide against withdrawing medical treatment for the terminally-ill patient, the family member has the option to approach the respective High Court under Article 226 of the Constitution. The Chief Justice of the High Court may then form a Division Bench to address the specific issue. This summarizes the procedure established by the Constitution Bench in the 2018 judgment.
In 2023, the Indian Council for Critical Care Medicine filed a miscellaneous application before the Supreme Court seeking clarifications/modifications to the 2018 judgment, citing impracticality and complexity in executing the guidelines by medical professionals. After considering the arguments presented, the Supreme Court proceeded to modify the guidelines, incorporating details of the authorized person in the directive and introducing a procedure for authenticating the directive by attesting it before a notary or Gazetted Officer. The modification eliminated the role of the Judicial Magistrate First Class (JMFC) in registering the directive, instead placing the responsibility on the competent officer of the local Government, Municipal Corporation, Municipality, or Panchayat to appoint a custodian for the directive. Additionally, the requirement for JMFC verification of the opinion of the Secondary Board was also removed.
Recently in early 2024, a PIL was filed by the aforementioned Mumbai-based doctor before the Hon’ble Bombay High Court seeking compliance by the State Government of the said Guidelines as, at the relevant point of time, no custodian for Living Wiils had been appointed by the competent authority, i.e., BMC. However, on 16th March 2024, it was reported that he had submitted his Living Will to the custodian appointed by the BMC.
Execution of living will-
The Common Cause judgment in India provides for the effectuation of advance medical directives in three specific cases: terminal condition, persistently unconscious condition, and end-stage condition. The guidelines outlined in the judgment address scenarios where a valid advance medical directive exists, as well as situations where no directive exists, and the patient is deemed incompetent or incapable of making decisions. While the procedure is largely similar in both cases, there may be some necessary adjustments to accommodate the circumstances.
The execution involves following procedure-
- Eligibility-
The execution of an Advance Directive in India is restricted to adults who are of sound mind, capable of communication, comprehension, and relating to the purpose and consequences of the document. It must be voluntary, without coercion or inducement, and based on full knowledge and understanding. The directive should resemble informed consent, given freely and without undue influence. It must be in writing, clearly stating circumstances under which medical treatment may be withdrawn or refused, particularly if it only prolongs suffering and indignity without offering benefit.
The Living Will should provide clear and unambiguous instructions regarding the circumstances under which medical treatment may be withheld or withdrawn. It must state that the executor has the right to revoke the instructions at any time and that they understand the consequences of executing the document. Additionally, it should specify the name of a guardian or close relative authorized to make decisions on behalf of the executor if they become incapable of doing so. In case of multiple valid Advance Directives, the most recently signed one will be considered the final expression of the patient’s wishes and given effect to.
- Recording & preservation-
The Living Will document should be signed by the executor in the presence of two attesting witnesses, preferably independent. It should also be countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) designated by the District Judge. The witnesses and the JMFC must confirm that the document was executed voluntarily, without coercion, and with full understanding of its implications. The JMFC is responsible for preserving one copy in his office, in addition to keeping it in digital format. Another copy is forwarded to the Registry of the jurisdictional District Court for preservation, also in digital format.
The Judicial Magistrate of First Class (JMFC) is tasked with informing the immediate family members of the executor if they were not present during the execution of the document, ensuring they are aware of its existence. A copy of the document is then handed over to the competent officer of the local Government, Municipal Corporation, Municipality, or Panchayat, who will appoint a custodian for the document. The JMFC also provides a copy to the family physician, if one is designated.
- Revocation & inability-
An individual retains the right to withdraw or modify their Advance Directive at any time, provided they have the capacity to do so, following the same procedure as the initial recording. Withdrawal or revocation must be done in writing. If circumstances arise that the individual did not anticipate at the time of making the directive, and these circumstances would have influenced their decision, the directive may not be applicable to the treatment in question. If an Advance Directive is unclear or ambiguous, the relevant Medical Boards will not enforce it, and the guidelines for patients without Advance Directives will apply instead. If a Hospital Medical Board decides not to follow an Advance Directive, it must apply to the Medical Board appointed by the Collector for consideration and appropriate guidance on the directive.
Absence of living will-
In cases where a terminally ill patient is undergoing prolonged treatment for an incurable ailment or with no hope of being cured, the hospital may inform the jurisdictional Collector, who will then constitute a Medical Board. This Medical Board, chaired by the Chief District Medical Officer and comprising experienced medical professionals, will examine the patient and review medical records. If they concur with the hospital’s recommendation to withdraw or refuse further treatment, the decision is communicated to the Judicial Magistrate First Class (JMFC) and the patient’s family.
If the Medical Board does not agree to withdraw treatment, or if the Hospital Medical Board’s opinion is not endorsed, the patient’s nominee, family member, treating doctor, or hospital staff can petition the High Court under Article 226 of the Constitution. The Chief Justice will then form a Division Bench to decide whether to grant approval. The High Court may appoint an independent Committee of experienced doctors to review the case and consider the best interests of the patient. The High Court is expected to make a prompt decision in such matters, prioritizing the patient’s well-being and providing clear reasons for its decision.
Conclusion
The concept living will has found a place in Indian legislation through judicial activism in lieu with worldwide practice. The concept evolves just like the Vishakha Guidelines through which women were given protection in the workplace and through living wills, the person’s right to die with dignity has been recognized. It is an important step and would be the law of land until the legislature explicitly brings about its own.
By- Esha (intern)