Living Wills: Right to Die with Dignity in India

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. This makes it an important part of Succession Planning.

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 will expresses one’s wishes for health care decisions when one is incapacitated.

Internationally, living wills are recognised by law across many countries which includes the United States, the United Kingdom, Germany, France, Belgium and Australia. But, due to the complexity involved, it has always been a long drawn process from discussion to law enactment such as in US though the discussion began half a century ago, it took decades before laws were enacted across states.

On 8th March, 2018, a five judge constitution bench of the Supreme Court, led by CJI Dipak Misra, and upheld that a terminally ill patient or a person in a persistent vegetative state has the right to die with dignity which is a part of the right to life and dignity. The bench held that this right could be exercised by executing a ‘living will’ stating advance directives and it also laid down the guidelines about the execution of such directives.

Though over the last few decades, in cases such as P. Rathinam [1] and the more publicly discussed case of Aruna Shanbaug [2] , the apex court had been cognizant of the right to die with dignity, it is only now in the case of Common Cause [3] that the same has been clearly pronounced. It should also be noted that the Government was opposed to living Wills being recognised fearing that these could ne subjected to misuse. Nevertheless, the Supreme Court pronouncement on 8th March has come as a much-awaited relief for many terminally ill patients or persons in persistent vegetative state and their families.

To read more about what is a living will- the concept and its evolution in India and abroad, kindly read one of our articles from the last year here.

The apex court held that until the legislature enacts a statute, the following guidelines laid down by the Supreme Court were to act as the law and remain enforceable.

Who can execute a living will?

Any person who is (a) a major in terms of age; (b) of a sound mind; and (c) capable of communication his/ her decision clearly could execute a living will.

What should be the contents of a valid living will?

Complete details of the patient;
A declaration that the person is executing a living will and understands the consequences of the same;
Clear and unambiguous instructions regarding the circumstances under which the medical treatment shall be withdrawn;
Details of a guardian or relative authorised to decide on behalf of the patient (person executing the living will) should the patient be incapacitated at a point of time in future;
Clause for revocation of the said living will;
Details of the Family Physician (also ensure that your doctor has copy of the living will)
Attestation by two witnesses who shall be present when the person is signing the Will;
Countersigning of the will by a Judicial Magistrate First Class (JMFC); and
The will should be executed voluntary and not under any duress, compulsion or coercion.

Where should the living will be preserved?

While, the executor could decide the place of safekeeping the original, it is advisable to also keep a copy with the guardian/ relative authorised in the living will.
It is also advisable to preserve a copy with the family doctor.
A copy of the ‘living will’ shall be kept at the office of the JMFC, and one copy each shall be forwarded to the registry of the district court the municipal corporation for their record.

What is the process of enforcing a living will?

To ensure that a living will is not misused and is properly executed, the following process with multiple checks and balances has been laid down for enforcing the living will.

In the event of the person (executor of the living will) being terminally ill or being in a persistent vegetative state, the doctor administering treatment shall verify the authenticity of the living will from the Judicial Magistrate First Class (JMFC).
As the second step, the said doctor shall inform the executor or his guardian or relative as named in the living will or his family about the illness, the available medical options, repercussions of those and the repercussions of non-treatment.
The third step will be constitution of a three- member medical board by the doctor/ hospital. Such a medical board will consist of three experts from different fields of medical sciences such as general medicine, cardiology, neurology, etc. with at least twenty years of professional experience. This board will visit the patient in the presence of guardians/close relatives and form an opinion to certify the carrying out of advance directives as per the living will.
In the event the hospital medical board certifies the advance directives as per the living will, then the hospital/ doctor shall inform the collector about the same. On receiving such information, the collector shall then constitute a second medical board comprised of the Chief District Medical Officer and three expert doctors. This medical board shall then visit the patient and decide on their endorsement of the hospital medical board’s certificate. If they endorse the certificate, then the Chief District Medical Officer shall inform the decision of the board to the Judicial Magistrate First Class (JMFC) before withdrawing the medical treatment administered to the patient.
JMFC on being informed of the second medical board’s decision shall visit the patient and after considering all aspects, authorize the board’s decision for implementation.

Which other points should be kept in mind pertaining to the living will?

The onus of informing the immediate family members of this ‘living will’ be on the judicial magistrate.
In case there are two sets of advance directives, the latest shall be considered valid and enforceable.
If the second medical board constituted by the collector does not endorse the hospital board’s certificate, then the patient, guardian, relatives or a hospital staff could approach the high court.

Living Wills being recognized by the apex court is a big step towards helping reduce suffering of the patient and family in a dignified way. Individuals should consider preparing living wills for themselves and their family members.