The landmark 2018 Supreme Court judgement of “Aruna Shanbaug Case” legalized “Passive Euthanasia” which is an act of withdrawal of life support system or withholding medical treatment which artificially prolongs life. In this case activist and author Pinki Virani asked for permission to pull out the life support of Aruna Shanbaug, a nurse who had by then spent nearly 40 years in a vegetative state after she was sexually assaulted in 1973.
This judgement laid the foundation for “Living Will” which is an Advance Directive whereby a person can communicate his/her wishes on receiving or declining medical care or life-sustaining treatments in the event he/she becomes terminally ill or injured or is in a persistent vegetative state with no hope of recovery and unable to communicate those decisions for himself/herself at that time.
The said judgement not only enshrined right to die with dignity under Article 21 of the Constitution of India but also helped in formulating mechanism to give validity to the documentation of one’s wishes related to the healthcare through Living Will.
Current Scenario
The Supreme Court delivered a second judgement in January 2023 i.e Common Cause v/s Union of India which modified the process in executing the Living Will as compared to the 2018 judgement.
Currently, following are the requirements and process to be followed for the execution of valid Living Will:
- A living will can be made by an adult person, i.e., above the age of 18 years who is in a sound and healthy state of mind. It should be made voluntarily without any undue influence or constraint.
- It should clearly mention the circumstances under which medical treatment can be withdrawn or refusal to undergo any medical treatment which has the effect of prolonging life where there is no hope of recovery which may otherwise cause him/her only pain and suffering.
- It should disclose that the person executing the Living Will has understood the consequences of executing the document.
- The important part of the Living Will is mentioning the name of guardians or close relatives who will be authorized to give consent, withdraw, or refuse medical treatment in a manner consistent with the Living Will at a time when the “executor” (will maker) becomes incapable of taking any decision. Therefore, it’s important that you give this authority to a person who is capable of taking such a decision.
Execution and preservation of Living Will
- After the living Will is drafted by the executor complying with all the requirements mentioned above, it should be signed by the executor in the presence of two attesting witnesses and attested before a Notary or Gazette officer.
- The Witnesses and Notary/Gazette Officer should record their satisfaction in the same document that the Living Will was executed voluntarily and without any coercion and compulsion and with full understanding of all the relevant information and consequences.
- The executor has to hand over a copy of the Living Will to the designated guardian/close relative mentioned in the living Will and to the family physician, if any.
- A copy shall also 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.
Enforceability of Living Will
- In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of ailment, the treating physician, when made aware of the Living Will, shall ascertain the authenticity of the Living Will from the custodian and after being satisfied that the Living Will should be acted upon the treating physician shall inform the guardian/close relative about the nature of illness and the availability of medical care and about his view that withdrawal or refusal of medical treatment is the best choice.
- The treating physician shall then form a primary medical board which would consist of the treating physician and two subject expert of 5 years of experience, to form a preliminary opinion on the condition of the patient and on the applicability of the Living Will. After the primary medical board gives its sanction within 48 hours of the case being referred whether the Living Will should be carried out or not.
- If the board is of the opinion that living will should be carried out, then the hospital will immediately constitute a secondary medical board consisting of one registered medical practitioner and 2 subject expert of 5 years of experience. This board will provide its final opinion preferably within 48 hours of the case being referred to it. After the final decision by the boards the hospital should convey the said decision and the consent of the guardian/close relative mentioned in the Living Will to the judicial magistrate before giving effect to withdrawal of medical treatment to the executor.
- Incase of refusal by the secondary board to execute the Living Will, the parties can approach the High Court.
Conclusion
The significance of a living will lie in its ability to provide individuals with the power to make their own healthcare decisions in advance, so that the same can be implemented when they are unable to communicate them. It allows people to die with dignity and without unnecessary pain and suffering. A well-executed living will can help to avoid disputes among family members and healthcare providers and ensures individuals’ choice is respected.
