What is a Living Will: Your Right to End of Life Care Decisions?

Back in 2018, in the case of Common Cause and Ors. V Union of India , the Supreme Court had observed that Article 21 of the Indian Constitution also encompassed the right to die with dignity and had gone on to legalise passive euthanasia. Recently, Justice MS Sonak of the Goa Bench of the Bombay High Court registered his “living will”, which gave guidelines to his family about making decisions about his treatment if and when he is unable to do so himself. 

Although the right to make a ‘living will’ has existed in India since 2011 following the landmark case of Aruna Shaunbaug, this can potentially be the first living will of India.Goa will be the first Indian state to implement the 2018 directives issued by the Supreme Court. In this Weekly, we shall explore what is a living will and how a citizen can make decisions about their end of life care. 

What is euthanasia?

Euthanasia is the practice of letting someone, suffering from a terminal or incurable disease or in a permanent vegetative state, to die peacefully. It is usually done at the will of the person concerned or their close kin. It is also known as mercy killing. Withdrawing life supporting treatment to speed up the process of death is known as passive euthanasia. In India, passive euthanasia is legal. 

Active euthanasia, i.e., the use of hazardous substances to end life, still amounts to the punishable offence of murder. 

What are advance directives?

An advance directive or living will is a written document a person makes to give instructions in advance to their family or friends about the line of medical treatment they should follow when that person is no longer in a position to make a decision or consent or object to anything. 

Living wills comprise specific decisions in case of terminal diseases. It also authorises family members or relatives to withdraw life supporting medical facilities, if the patient is deemed to be medically beyond treatment with no hope or possibility of recovery. 

Are advance directives legal in India?

Although there’s no legislative backing to euthanasia, several landmark judgements by the Supreme Court of India legalised passive euthanasia,in certain specific conditions. 

While the 2011 Aruna Shaunbaug case legally sanctioned passive euthanasia, it is only in 2018 that the Supreme Court laid down proper guidelines about the implementation of passive euthanasia and safeguards against misuse. According to the 2018 guidelines, advance directives are key to the execution of passive euthanasia.

What does an advance directive include?

According to the 2018 guidelines, the advance directives must include:

i) the circumstances under which withdrawal of treatment can be done. 

ii) specific instructions about the terms and conditions for the withdrawal of treatment.

iii) that the executor, i.e., the one who is making the directive, can revoke it anytime.

iv) an explicit declaration that the executor has clearly understood the implications of the advance directive and is giving an informed consent to passive euthanasia.

v)  the name and other identifiable details of the family member or relative, who in the event of the executor becoming incapacitated to make decisions, will take the decision regarding fulfilling the terms of the advance directive. 

If there are multiple advance directives, then the most recent directive will be considered the last expression of the executor’s will and all others will stand cancelled. 

How can an advance directive be executed?

An advance directive can only be executed by an adult who is of sound and healthy state of mind and who can fully comprehend the consequences of the advance directive. It needs to be amply clear that there is informed consent of the executor and they are under no coercion whatsoever. It must also be clarified that only such medical treatment which would merely delay the process of death can be withdrawn. The time and circumstances of when that can happen must also be clearly laid down. 

The advance directive must be executed by the person concerned in front of two witnesses and countersigned by a Judicial Magistrate of First Class. The Judicial Magistrate then retains one copy of the directive with themselves, forwards copies to the respective District Court, the Municipal Corporation or Panchayat and the family physician of the executor. 

If the executor falls terminally ill, then the doctor who is in charge will first check the authenticity of the advance directive from the judicial magistrate. Then, the doctor will inform the family member or the relative of the executor of the nature of the illness and that they are of firm opinion that there is no hope of recovery. 

The hospital where the executor is admitted must form a medical board who will further examine the patient and certify whether the directive can be acted upon. Their decision will then be communicated to the relevant judicial collector. The judicial collector will form an independent medical board who will then examine the patient. Upon concurring with the decision of the previous medical board, they will give a go ahead to the execution of the directive, which will then be communicated to the Judicial Magistrate of First Class. Following this, the Magistrate will visit the patient and upon being satisfied that execution of the advance directive is the best way forward, will sign off on the same.