Advance Medical Directives & Living Will - A Landmark Judicial Development

Since the concept of advance directives is

new to our country, we will have to wait and

watch how it pans out...

The Universal Declaration of Human Rights by

the United Nations General Assembly recognizes

'dignity' of an individual as an important

facet of human rights. Article 21 of the Indian

Constitution which deals with the Right to Life

and Personal Liberty also accentuates 'dignity' as the

cornerstone of life and liberty. This right is incomplete

unless it encompasses the dignity of an individual. With

the passage of time, the Supreme Court of India ("SC") has

expanded the spectrum of Art. 21 to include within its ambit

the right to live with dignity as an essential component of

the Right to Life and Liberty.

It is undisputed that the sanctity of life must be kept

on a high pedestal, yet in cases of terminally ill

persons or persons in persistent vegetative stage,

where there is absolutely no hope for recovery, priority

should be given to the right of self-determination.

The right to die cannot be claimed to be part of the right

to life, but undoubtedly, the right to die with dignity is an

inseparable and inextricable facet of the right to live with

dignity.

On 9th March 2018, a Constitutional bench of the SC, in a

landmark judgment, held that Art. 21 of the Constitution

includes the 'right to die with dignity'. As Advance

Directives have gained lawful recognition in several

jurisdictions by way of legislation and/or judicial

pronouncement, the SC also felt the need to recognize this

right as a part of the citizen's right of self-determination,

dignity, autonomy and privacy. The bench upheld the right

to give 'Advance Medical Directive' or 'living will' spelling

out wishes/directives relating to medical treatment of

terminally ill persons or those in a persistent vegetative

state.

What are Advance Directives or Living

Wills?

The history of 'living will' dates back to 1969, when

American lawyer Louise Kutner first proposed it. He

viewed it as a simple tool to allow patients to refuse lifesustaining

treatment that they did not want, even if

they were too ill to communicate. An Advance Directive,

also known as a living will, personal directive or

medical directive, is a legal document wherein a person

specifies one's healthcare goals, instructions and appoints

an agent or proxy to take a decision in the event of their

incapacity.

Advance Directives can be broadly of two types –

i) Living will, in which a person indicates his/her wish

regarding medical treatment; and

ii) A durable power of attorney or healthcare proxy, in

which a person nominates another individual to take

medical decisions on his/her behalf in the event he/she

becomes incapable of the same.

Presently, there is no legal framework for Advance Directives

in India; however, the SC has issued guidelines for execution

and enforcement of the same, as enlisted below:

Who can execute Advance Directives and

how?

• The person drawing up Advance Directives must

  be an adult, who is of sound mind and capable of

  communicating his decision clearly.

• Drawing up of Advance Directives is a voluntary act and

  therefore cannot be done under duress or coercion.

Essential Ingredients of Advance

Directives

• It should clearly and unambiguously indicate the

  circumstances in which withholding or withdrawal of

  medical treatment can be resorted to.

• The ability to revoke any instructions made in the

  Advance Directive must be mentioned clearly.

• It must contain a declaration stating that the executor

  of Advance Directive has understood the consequences

  of executing it.

• Name of the guardian or relative authorized to decide

  on behalf of the executor in an adverse situation must

  be disclosed.

• It must be signed by the executor, in the presence of two

  witnesses, countersigned by a Judicial Magistrate First

  Class (JMFC) so designated by the concerned District

  Judge.

• The JMFC shall preserve a copy of the document in his/

  her office, in addition to keeping it in digital format, and

  shall submit one copy to the registry of the jurisdictional

  District Court for being preserved.

• The JMFC shall inform the immediate family members

  of the executor, if not present at the time of execution,

  and shall also handover a copy of the document to the

  family physician, if any.

When and how can Advance Directives be

implemented?

• When the executor of an Advance Directive becomes

  terminally ill, and despite treatment, there is no hope

  of recovery, the treating physician, when made aware

  about the Advance Directives, has to ascertain the

  genuineness and authenticity of the document from the

  jurisdictional JMFC before acting upon the same.

• The execution/implementation of the Advance Directive

  can happen only if the medical board, consisting of the head of the treating department and at least three

  experts in the field of general medicine, cardiology,

  neurology, nephrology, psychiatry or oncology having

  experience of at least 20 years, grants its permission.

  The decision shall be regarded as a preliminary opinion.

• After the medical board certifies the instructions

  contained in the Advance Directive, the hospital has to

  inform the jurisdictional Collector about the proposal.

• The Collector shall constitute another medical board

  comprising of the Chief District Medical Officer as the

  chairman and three expert doctors from the fields of

  general medicine, cardiology, neurology, nephrology,

  psychiatry or oncology. This board has to convey its

  decision to the jurisdictional JMFC before withdrawing

  the medical treatment administered to the patient.

• The JMFC shall visit the patient at the earliest, and after

  examining all aspects, authorize the implementation of

  the decision of the Board.

• In cases where the medical board refuses to grant

  permission to execute the Advance Directives, the

  immediate recourse that is available to the family is to

  approach the High Court. The Chief Justice of the High

  Court will have to constitute a division bench to decide

  upon the case.

Advantages of Advance Directives

• It respects the patient's human rights, and in particular,

  their right to reject medical treatment.

• It respects the patient's right of self-determination.
• It helps medical professionals in taking difficult decisions

  as it provides statutory immunity if they comply with

  the directives recorded in Advance Directives.

• Patient's family and friends don't have to take difficult

  decisions.

Conclusion

This decision of the SC is indeed a landmark judgment

with far-reaching consequences. In the absence of any

legislation on the subject, the directions and guidelines

issued by the SC shall remain in force till the Parliament

enacts a legislation.

Since the concept of Advance Directives is new to our

country, we will have to wait and watch how it pans out.

The fact that the SC has upheld the right to give Advance

Directives in itself is a remarkable milestone for our medical

jurisprudence. As of now, it can be said that Advance

Directive would definitely serve as a fruitful means to

facilitate the fructification of the sacrosanct right to live

with dignity.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.