WILL TO DIE — Law on ‘Living Wills’ & Passive Euthanasia

While it may be difficult to think about the end of our lives, most people should consider creating documents that specify their health care wishes and that create health care and financial decision-making proxies to carry out whose wishes if the person becomes incapacitated. This not only protects the individual, but it makes it easier for loved ones to carry out a family member’s wishes. These documents can include setting forth our medical wishes if the person was unable to share his wishes with the health care provider, the distribution of one’s estate, and assigning authority to our loved ones so that they can manage your medical care and financial decisions, is what a Living will can be described as.

WHAT IS A LIVING WILL?

LIVING WILL, also known as an advance directive or advance health care directive, is essentially a document that sets out a patient’s wishes regarding how they want to be treated if they are seriously ill and set forth his/her wishes on the types of medical treatment he/she would want to receive at the end of his/her life.

LEGALITY OF LIVING WILLS

The history of living wills dates back to 1969 when the American lawyer Louis Kutner first proposed it, looking at it as a special device which allows patients to say no to life-sustaining treatment that they did not want, even if they were too ill to communicate.

While in other Countries Living wills are an acclaimed document since a very long time, now is gaining its popularity in India.  Living wills follows the jurisprudence of advance directives, which finds its root in American jurisprudence. Specific procedure have to be followed for Advance Directives to be implemented which are been discussed in the present article.

To die peacefully without suffering is a right under Article 21. But one cannot commit suicide. However, one has a right to say while dying let me not suffer.” Chief Justice Dipak Misra further added that a living will would relieve the relatives of taking the painful decision of advising doctors to withdraw life support from the patient. Euthanasia in India before the Common Cause (A Regd. Society) vs Union Of India landmark judgement remained illegal in India and hence the concept of Living will remained under the covers in India. While rejecting a plea to end the life of a woman, Aruna Shanbaug who had been in a vegetative state since 1973 in the city of Mumbai after being raped and strangled, the court had however taken the view that in said some cases of euthanasia could be sanctioned if doctors were to file a case in court. Aruna Shanbaug, who was left with severe brain damage and paralysed after the 1973 attack by a ward attendant in the Mumbai hospital where she worked, died in 2015.Her death sparked a national debate over euthanasia and Living Wills so as to give the essential right to an individual about his Life and medical treatments.

The 2011 judgement had put the onus on doctors to petition to withdraw life support, under the supervision of the courts. Previously all forms of euthanasia were illegal in India. There have been a number of requests even thereafter for active euthanasia – any act that intentionally helps another person kill themselves – by Indians which have been rejected by courts and authorities. In 2008, Jeet Narayan, a resident of Uttar Pradesh state, wrote to the then Indian president Pratibha Patil seeking permission to end the lives of his four bed-ridden, paralysed children. The president had rejected the plea. In 2013, Dennis Kumar, a porter from Tamil Nadu, sought permission from the authorities to end the life of his infant son, who had been suffering from a congenital disorder. The plea was yet again rejected by a court.

However, Supreme Court, in Common Cause (A Regd. Society) vs Union Of India, held that right to die with dignity is a fundamental right enshrined in Article 21 of the Constitution. This judgment paved the way for the grant of passive euthanasia clearly demarcating the differences in passive euthanasia and active euthanasia and need for developing the guidelines for same in our country because the former does not require an overt act. Active euthanasia being intentional act of causing the death of a patient in great suffering, is illegal in India. It entails deliberately causing the patient’s death through injections or overdose. But passive euthanasia, wherein the withdrawal of medical treatment with the deliberate intention to hasten a terminally ill patient’s death is “partially” allowed with certain guidelines. The intention of the person as to how to go about his/her treatment may be gauged through the Advance Directions that a person is entitled to execute through a procedure laid down in this judgment.

TYPES OF LIVING WILL– There are mainly two types of Will:

1. Privileged Will:

In simple words, Privilege Will is made to provide privilege to certain persons like airman, mariner, navy persons, soldiers while they are on employment. This will is made to dispose of the property when they are on duty. If it is made orally then it is valid for one month but if it is made in writing then it is valid throughout.

1. Unprivileged Will:

As per Section 63 of the Indian Succession Act 1925, an unprivileged will is created by a person other than those who do not fall under the category of privileged will. This type of Will can be revoked by new will or making a declaration by the testator with the purpose to revoke the same.

WHO CAN EXECUTE A LIVING WILL?

• Living Will also known as Advance Directives, Advance Healthcare Directives, Advance Medical Directivescan only be executed by an adult with a sound mind and who is physically and mentally in condition to communicate, relate and comprehend the objectives and consequences of executing such advance directives 
• It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
• Living Will shall be voluntarilyexecuted and without any coercion or inducement or compulsion and after obtaining the full knowledge or information about the conditions in which such Advance Directives can be executed? What treatments shall be given to the person and what not? Who can give effect to those Advance Directives? etc.

MANDATES OF DRAFTING A LIVING WILL AND ITS PRESERVATION:

• The person drawing up the ‘living will’ must be an adult, who is of sound mind and can communicate his/her decision clearly.
• This is a voluntary process and the ‘living will’ cannot be obtained under duress or coercion.
• The ‘living will’ must be in writing and the contents of it must clearly state that treatment may be withdrawn.
• It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
• It should be in specific terms and the instructions must be absolutely clear and unambiguous.
• A declaration stating that the person is drawing up the ‘living will’ has understood the consequences of executing the will must be mentioned.
• The ability to revoke any instructions made in the ‘living will’ must also be mentioned clearly.
• The name of a guardian or relative authorised to decide on behalf of the patient in adverse situations must also be clearly mentioned.
• The ‘living will’ must be signed by the person making it in the presence of two witnesses, countersigned by a jurisdictional judicial magistrate first class.
• The witnesses and the judicial magistrate must record their satisfaction that the document has been drawn up and executed voluntarily without any coercion.
• One copy of the ‘living will’ shall be preserved in the office of the judicial magistrate, and one copy shall be forwarded to the registry of the district court.
• The onus of informing the immediate family members of this ‘living will’ be on the judicial magistrate.
• A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.
• One copy of the directive must be handed over to the family physician.
• In the event that there is more than one valid Living Will, none of which have been revoked, the most recently signed Living Will will be considered as the last expression of the patient’s wishes and will be given effect to.

UNDER WHAT CIRCUMSTANCES CAN THE ‘LIVING WILL’ BE IMPLEMENTED?

• To ensure that various checks and balances are put in place, there are certain criteria’s that need to be met before the ‘living will’ can be executed.
• In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the ‘living will’, has to ascertain the genuineness and authenticity of the document from the jurisdictional judicial magistrate before acting upon the same.
• The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured. The execution of the ‘living will’ can happen only if the medical board grants permission. A medical board consists of the head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with at least twenty years of experience. This board, in turn, has to visit the patient in the presence of guardians/close relatives and form an opinion to certify, or not certify, the instructions in the living will. This decision shall be regarded as a preliminary opinion.

Ø After the hospital medical board certifies that the instructions contained in the ‘living will’ ought to be carried out, the hospital has to inform the jurisdictional collector about the proposal.

• The collector shall constitute another medical board comprising the chief district medical officer as the chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology.
• The chairman of the medical board nominated by the Collector, that is, the Chief District Medical Officer has to convey the decision of the board to the jurisdictional judicial magistrate before withdrawing the medical treatment administered to the patient. The judicial magistrate shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
• However, It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

In cases where the medical board refuses to grant permission to execute the living will, the immediate recourse that is available to the family is to approach the High Court by way of writ petition. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent Committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.

The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive. High Court shall give its decision at the earliest as such matters cannot take the leverage of any delay and the said decision shall be a reasoned and detailed one specifically keeping in mind the principles of “best interests of the patient“.

HERE ARE SOME OF THE ADVANTAGES OF LIVING WILLS:

• They respect the patient’s human rights, and in particular their right to reject medical treatment
• Knowing what the patient want means that doctors are more likely to give appropriate treatment
• They help medical professionals in taking difficult decisions
• A patient’s family and friends don’t have to take the difficult decisions

Since as a concept this is new to us in India, we will have to wait and watch how it pans out. As of now, all that can be said is that this is a step in the right direction to end the pain and suffering of terminally ill patients.

A WAY OUT OF THE LIVING WILLS

An individual can revoke or alter the Living Will at any time when he/she has the capacity to do so by following the same procedure as for the recording of the Living will.

• Withdrawal or revocation of a Living Will must be in writing.
• An individual may withdraw or alter the Living Will at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive.

WHEN CAN A LIVING WILL NOT BE EXECUTED/IMPLEMENTED?

1. In case there is reasonable chances of recovery-: Living Will, shall not be enforceable to the treatment in consideration if there are sensible reasons for accepting that certain conditions exist which if the individual making the mandate couldn’t foresee at the time of writing such Advance Directive and which would have influenced his choice if he had foreseen them. Example: Development of new Medical machinery, the discovery of a new cure etc.
2. Ambiguity -: Medical Boards can withdraw there consent in any case they discover any kind of ambiguity or unclear terms. In such a case, the general guidelines meant for patients will be applicable for the treatment without any interference from the existing Living will.
3. Treatments to be given-:Where the Hospital Medical Board goes for a decision not to implement Living Will while treating the executor, then it shall write an application to the Medical Board formed by the Collector for considering and appropriating the direction on the Living Will.

PASSIVE EUTHANASIA ALLOWED IN CASE OF NO LIVING WILL?

Looking at the current scenario, one should make his/her Living Will before crossing their 40’s. It will give enough time to rethink the nature of illness/serious accidents when you want medical support/ treatment to be withdrawn.

In the absence of a Living Will, your well-wisher/family/acquaintances might refuse the right decision at that because of the overwhelming emotion and attachment. Having a Living Will also reduce the burden on your loved one to take the difficult decision in an already difficult time. They won’t have to bear the burden of taking the decision of either keeping you alive with immense suffering and pain or free you from pain once and for all.

In cases where there is no Living Will, the procedure and safeguards are the same as applied to cases where the Living Wills are in existence and for the purpose of same, following procedure shall be followed as laid under the : –

(i) Formation of Medical Board by Hospital

In situations where the patient is critically ill and experiencing drawn out treatment in regard of sickness which is and where there is no desire for being cured, the doctors may advise the emergency clinic which, thusly, will establish a Hospital Medical Board in the way same way as explained herein above.

(ii) Taking Family Suggestions

The Hospital Medical Board shall discuss with the family physician and the family members. In such meeting, the family members can convey the pros and cons of withdrawal of further medical sustenance to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will only be considered as an initial opinion.

(iii) Formation of Medical Board by Collector 

In case, in the event that the Hospital Medical Board confirms the alternative of withdrawal or refusal of further therapeutic treatment, the emergency clinic will quickly illuminate the jurisdictional Collector.

The jurisdictional Collector shall at that point establish a Medical Board including the Chief District Medical Officer as the Chairman and three specialists from the fields and experience referred before. The Medical Board comprised by the Collector will visit the patient for his physical examination and, in the wake of considering the medical reports, may agree with the verdict of the Hospital Medical Board. In that occasion, insinuation will be given by the Chairman of the Collector designated Medical Board to the JMFC and the relatives of the patient.

(iv) Examination by JMFC 

The JMFC visits the patient at the most soonest and checks the medical reports, analyse the state of the patient, talk about it with the relatives of the patient and, whenever fulfilled in all regards, may embrace the choice of the Collector designated Medical Board to pull back or deny further medicinal treatment to them in critical condition quiet.

What if the Medical Board didn’t give permission (in case of absence of Living Will)?

As in the case where the Living Will was present and Medical Board didn’t give permission to apply those directives, the similar situation can arise in a case where the Medical Board constituted by District Collector didn’t approve the passive euthanasia and withdrawing medical treatment of the patient. In such a case, the following procedure can be followed by, the nominee of the patient or the family member or the treating doctor or the hospital staff-:

(i) Filing Petition

They can seek permission from the High Court to withdraw life support by way of a writ petition and in such case, the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not in the same way as mentioned earlier.

(ii) Intimation by High Court

The same is also be intimidated by the Magistrate to the High Court. High court keeps it in a digital format by the Registry of the High Court apart from keeping the hard copy which is destroyed after the expiry of three years from the death of the patient.

Conclusion

It might be difficult for some us for taking such a call but we should keep in mind that the right of a dying man is to die with dignity when life is ebbing out. And in the case of a terminally ill patient or in a situation where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity. The concept living will has found a place in Indian legislation through judicial activism in lieu with worldwide practice and has acclaimed attention, however still needs much more recognition amongst the citizens.

By Advocate Sandhya

TruLegal Solutions