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Living WILL - A Partial Way

A living will is a document prescribing a person's wishes regarding the medical treatment the person would want if he/she was unable to share his/her wishes with the health care provider. The term living will is synonym to Advance Directive, which is also known as Advance Care Directive or Advance Medical Directive.

Dignity of human nature requires that we must face the storms of life
.- Mahatma Gandhi

The Black's Law Dictionary defines an Advance Medical Directive as, a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate.
The history of living wills dates back to 1969 when the American lawyer, Louis Kutner first proposed it. He viewed it as a simple device to allow patients to say no to life-sustaining treatment that they did not want, even if they were too ill to communicate.

In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of Advance Medical Directives emerged in various countries. The proponents of Advance Medical Directives contend that the concept of patient autonomy for incompetent patients can be given effect to, by giving room to new methods by which incompetent patients can beforehand communicate their choices, which are made while they are competent. It accepts the position that a competent person can express his/ her choice to refuse treatment at the time when the decision is required to be made.
Advance Directives for health care go by various names in different countries though the objective largely is the same, that is, to specify an individuals health care decisions and to identify persons who will take those decisions for the said individual in the event he is unable to communicate his wishes to the doctor.

Advance Directives have gained lawful recognition in several countries by way of legislation and in certain countries through judicial pronouncements. In order to deal with the technicalities and intricacies associated with an instrument as complex as an Advance Directive, several derivatives/ versions have evolved over time.

Indian Scenario
For first time, the concept of living will was concretely used in the Aruna Shanbaug[1]case. The Supreme Court[2]had dismissed the petition,[3]however, in its landmark opinion; it allowed passive euthanasia in India by issuing a set of broad guidelines.

Since there was no concrete legal framework in India as regards to the Advance Medical Directive, the Supreme Court, in Common Cause v. Union of India[4], found it necessary to protect the right of the citizens as enshrined under Article 21 of the Indian Constitution.

The prayers of the said writ petition[5]are as follows:

  • (i) that right to die with dignity be declared as a fundamental right within the fold of right to live with dignity guaranteed under Article 21 of the Constitution and
  • (ii) that the direction be issued to Union of India, to adopt suitable procedures, in consultation with the State Governments wherever necessary, to ensure that the persons with deteriorated health or terminally ill should be able to execute a document, viz., my living will & Attorney authorization which can be presented to hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of life of the executant or in the alternative, issue appropriate guidelines to this effect and to appoint an Expert Committee consisting of doctors, social scientists and lawyers to study into the aspect of issuing guidelines regarding execution of Living Wills.

It is well known that the right to die with dignity is a part of the Right to Life guaranteed under Article 21 of the Constitution. In Gian Kaur v. State of Punjab,[6]Constitution Bench of the Supreme Court has held that the right to live with dignity under Article 21 will be inclusive of right to die with dignity, this decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug case, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur case had upheld the same. In view of the inconsistent opinions rendered in Aruna Shanbaug case and also considering the important question of law involved, which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. Moreover, in the cogent opinion of the Supreme Court, the question of law involved requires careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole.

Thus the Supreme Court[7]refrained from framing any specific questions for consideration and the case was referred to the Constitution Bench for going into all the aspects of the matter and to lay down exhaustive guidelines in that regard.

Hence, a five judges Constitutional Bench[8]was formed and it found necessary to protect the right of the citizens as enshrined under Article 21 of the Indian Constitution. Thus, it was considered that the Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The Constitutional Bench viewed that said directive would dispel many a doubt at the relevant time of need during the course of treatment of the patient. It will strengthen the mind of the treating doctors, as they will be in a position to ensure that they are acting in a lawful manner. There has to be safeguards for Advance Medical Directive, as it cannot operate in abstraction. The Constitutional Bench[9]framed the following guidelines[10]:

Who can execute the Advance Directive and how?

  • (i) It can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
  • (ii) It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
  • (iii) It should have characteristics of an informed consent given without any undue influence or constraint.
  • (iv) 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.


What should it contain?

(i)It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
(ii)It should be in specific terms and the instructions must be absolutely clear and unambiguous.
(iii)It should mention that the executor may revoke the instructions/authority at any time.
(iv)It should disclose that the executor has understood the consequences of executing such a document.
(v)It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
(vi)In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patients wishes and will be given effect to.

How should it be recorded and preserved?

  • (i) The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • (ii) The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.
  • (iii) The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.
  • (iv) The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.
  • (v) The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.
  • (vi) 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.
  • (vii) The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.


When and by whom can it be given effect to?

  • (i) 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 Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.
  • (ii) 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.
  • (iii) If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/ close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
  • (iv) The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting 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 experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
  • (v) In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/ hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert 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 (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
  • (vi) The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.
  • (vii) The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorize the implementation of the decision of the Board.
  • (viii) It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.


What if permission is refused by the Medical Board?

  • (i) If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. 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.
  • (ii) 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.
  • (iii) Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of best interests of the patient.


Revocation or inapplicability of Advance Directive

  • (i) An individual may withdraw or alter the Advance Directive 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. Withdrawal or revocation of an Advance Directive must be in writing.
  • (ii) An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
  • (iii) If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
  • (iv) Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.

The Honble Supreme Court further made it clear that there will be cases where there is no Living Will or Advance Directive. The said class of persons cannot be alienated. The Supreme Court said that, in such cases, the procedure and safeguards are to be the same as applied to the cases where Advance Directives are in existence and in addition, there to, the following procedure shall be followed:[11]

  1. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment 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 be regarded as a preliminary opinion.
  2. In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts 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 Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
  3. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient.
  4. There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent Committee to depute 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 after consulting the competent medical practitioners.

It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. The High Court shall ascribe reasons specifically keeping in mind the principle of best interests of the patient.

Thus, the Indian Judiciary has made a commendable effort. Living Wills also reflect a moment in time, and may therefore need regular updating to ensure that the correct course of action can be chosen. The principles relating to the procedure for execution of Living Will or Advance Medical Directive shall be governed by the judgment in the Common Cause Case and shall remain in force till the Parliament brings a legislation in the field.

Conclusion
The Supreme Court, in the Common Cause Case, has given a basic legal frame work for Living Will or Advance Medical Directive in India. The Constitutional Bench of Five Judges have given four concurring judgments, firstlyby Honble Chief Justice of India Dipak Mishra, for himself and for Justice A.M. Khanwilkar, have taken a legal & factual approach supported by morality & ethics; secondlyby Honble Justice A.K. Sikhri having taken literary approach; thirdlyby Honble Justice Dr. D.Y. Chandrachud, who took philosophical approach and the fourthly by Hon'ble Justice Ashok Bhushan who took the scientific approach supported by philosophy.

In other words, the Judiciary has prepared a skeleton and now, its the Indian Legislature who has to provide a body, that is, a specific legislation needs to be drafted. The said piece of legislation should be drafted with a foresight of the developments in the field of science, medicine & technology and the knowledge of the existing laws prevalent over the globe.

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 a person in Persistent Vegetative State (PVS), 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.

Thus, I end in the words of a Japanese writer, Mr.Haruki Murakami :
Death is not the opposite of life, but a part of it.

End-Notes
[1]Aruna Ramchandra Shanbaug v. Union of India & Ors., (2011) 4 SCC 454.
[2]Comprising of Hon'ble Justices Shri. Markandey Katju and Smt. Gyan Sudha Mishra.
[3]Writ Petition (Criminal) No. 115 of 2009.
[4](2014) 5 SCC 338.
[5]Writ Petition (Civil) No. 215 of 2005.
[6](1996) 2 SCC 648.
[7]Comprising of Hon'ble Chief Justice of India P. Sathasivam and Hon'ble Justices Ranjan Gogoi and Shiva Kirti Singh.
[8]Comprising of Hon'ble Chief Justice of India, Shri Dipak Mishra and Hon'ble Justices, A.M. Khanvilkar, A.K. Sikri, Dr. D.Y. Chandrachud and Ashok Bhushan.
[9](2018) 5 SCC 1.
[10]Ibid, para 191.
[11]Ibid,para192.

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