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Living Wills

One of the long-standing debates of the modern- day world has been surrounding the right to die with dignity. While there could be multiple aspects of this debate, one legal aspect that has recently gained currency across the globe is that of a living Will. A Will in general parlance is a legal document that contains directives about a person’s assets and wishes upon his demise. A living Will is different as it enables people to retain control of their lives until they die.

A Living Will is an advance ‘rights declaration’. Where a person foresees that he will become incapable of forming, taking or making a medical decision, a living Will provides an opportunity to make his decisions and choices in advance, regarding the type and extent of medical treatment he finds acceptable and have it known to his doctors. These directives once executed validly are binding on health care professionals. In nutshell, A living expresses one’s wishes for health care decisions when one is incapacitated.

Why a living Will is needed or what exactly are its benefits?

Apart from protecting the patient’s right to self-determination, a living Will has many advantages.

  • The use of a living will would lead to easier and more reliable decision making, with clear proof of the patient’s choice.

  • A living will can legitimise a physician’s actions of withdrawing treatment by providing proof of a patient’s intentions. This protects a doctor from accusations of homicide.

  • A living will can help to provide patients and their loved ones with a sense of control over death, which can be an important psychosocial outcome of an AMD (Advanced Medical Directive). Most patients realise that their suffering causes anguish to their families and are therefore inclined to minimise the burden that their illness imposes on others.

International position on Living Wills

Internationally, living wills are recognised by law across many countries which includes the United States, the United Kingdom, Germany, France, Belgium and Australia.

In the United States the living will (LW) came into discussion around fifty years back and took considerable time before it was recognised. In the U.K., the formal legislation that deals with the incompetent patients is the Mental Capacity Act, 2005. The law in the U.K. is that a living will of a patient is effective when the patient is of full capacity. Care must also be taken to ensure that such anticipatory declarations are still representative of the wishes on the patient, by investigating how long ago, with what knowledge and in what circumstances the wishes were expressed.

India’s position on Living Wills

In India, living Wills are not legally recognized. Over the years different reports of the Law Commission have held it to be against the public policy. Even the central government has continually opposed it on the grounds of fear of misuse and unviability as a public policy.

A five-judge constitution bench of the Supreme Court that is looking into the matter reserved its judgement on 10th October, 2017. CJI Dipak Mishra observed that a person’s advance directive to withdraw medical care to allow him to die with dignity should take effect only when a medical board affirms that his medical condition is beyond cure and irreversible.

It was observed by Justice Sikri that if a man is admitted to a hospital and he goes into a coma, the hospital should inform the medical board, which will take a fair, informed and impartial decision that his medical condition is beyond cure. This decision will be taken by the medical board on the touchstone of modern technology.

Justice Chandrachud suggested a two-fold test as to when living will would come into effect. First level, when the medical condition of the patient has become irreversible and the second level , when the prolongation of his life can be done only at the cost of pain and suffering which is at a level inconsistent with his advance directive.

The Bench said it would lay down guidelines for drafting living wills and how it could be authenticated and it would frame safeguards and procedures for forming medical boards. It also suggested framing guidelines for setting up medical boards in every district and that the decision of the board would be final and an advance directive should yield to the board’s decision.

Although, the government is still opposed to recognising living wills, India is definitely moving towards getting into the club of nations that have recognised the right to die with dignity through living wills. As of today, what the law lacks is an efficient institution that safeguards the autonomy of an individual even while one is on the death bed. It is thus suggested that implementing Wills with proper safeguards is the best way to fill up this current gap in the law which does not allow for the protection of an individual’s right to self- determination while unconscious.

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