INTRODUCTION
The concept of living will is of recent origin, it is also known as advance directive or advance decision. It was first recognized in US, California state in 1976 and passed “Natural Death Act”. It means an instruction given by an individual while conscious, specifying what action should be taken in the event he/she is unable to decide due to illness or incapacity and appoints a person to take such decision on her/his behalf. It may include directive to withdraw life support or certain eventualities.
In India the supreme court in Gian Kaur v. State of Punjab held that both euthanasia and assisted suicide are not lawful in India and overruled its decision in P. Rathinam v. Union of India. The supreme court in the case of Aruna Shanbaug case recognized passive euthanasia, and the decision is taken to withdraw life support should be approved by the concerned High Court. The supreme court also recommended the parliament to consider deletion of section 309 from IPC.
AIM OF LIVING WILL
The aim of living will is to empower patients to make decisions about their future medical treatment, especially when they are unable to communicate their wishes. Nevertheless, even after six years after the judgment, the Court’s process is inaccessible i most of India. The implementation of the will is nowhere by the officials, unless if there is any direct orders and guidance from the state governments.
EVOLUTION OF LIVING WILL IN INDIA
The law commission of India (2006) in its 196th report mentioned “Medical Treatment to Terminally Ill Patents” it says that a patient’s decision to not receive medical treatment did not constitute an attempt to suicide under section 309 IPC. Also doctor who told to withhold/withdraw the medical treatment does not commit a breach of professional duty.
Aruna Shanbaug case (2011): The SC allowed passive euthanasia for the nurse lying in a vegetative state at a hospital in Mumbai.
S. Puttaswamy case (the right to privacy case 2017): Article 21 includes the concept of individual dignity and thus allows passive euthanasia.
Common Cause case (2018): The supreme court decided that passive euthanasia will be legally allowed and issued some guidelines in India. It includes” The right to die with dignity is a part of the right to live with dignity “.
MEANING OF ACTIVE AND PASSIVE EUTHANASIA
Active euthanasia: it involves an active intercession to end a person’s life with materials or external force, such as administering a lethal injection.
Passive or negative euthanasia: it is denial of medical care necessary for maintaining life, such as denial of antibiotics when the patient is likely to die without them.
MENTAL HEALTH CARE ACT 2017
The mental health care Act allows a person suffering from mental illness to specify the form of treatment to be provided in advance and also empowers that person to nominate a agent/manager to ensure that directives are being obeyed. The Mental Health Care Act also lays down provisions to revoke, amend or cancel the advance directive at any time. The directions laid down in common cause judgement act as guiding force in the absence of any statute governing and regulating the Advance Medical Directive.
Imp findings of the judgement as follows:
Who can execute a living will: An adult with a sound mind capable of communicating his/her decision clearly.
Prescribed mode of registration of a living will: the living will shall be in writing, signed in presence of 2 independent attesting witness by the executor of will. It shall be counter signed by jurisdictional judicial magistrate of first class (JMFC). The JMFC is under obligation to supply the requisite copies of living will to concerned authorities and executor immediate family members.
Contents of a living will: It contains the wishes of the executor and mention that executor may revoke the instructions at any time by informing the agent and the treating physician. It is essential to reveal that the executor has understood the implications of executing such a directive. It should also specify the name of guardian or close relative, if executor become incapable of deciding at the relevant time, they will be authorized to decide at that time what to do.
How a living will become operational: The physician of the executor after ascertaining the fairness of living will inform executor or guardian/ close relative about the illness and the consequences of remaining untreated. He must also ensure that the person in question understands the information provided and has come to firm view that option of withdrawal or refusal of medical treatment is the best choice.
The hospital where the executor has admitted shall constitute a board to form opinion whether to attest the instructions regarding the withdrawal or refusal of further medical treatment. If the hospital board certifies then inform the jurisdiction collector about proposal and constitute its own medical board. This board jointly visits the hospital, if they concur with the decision of previous medical board, then endorse certificate to carry out the instructions given in will. The decision of board will be delivered by chairmen of board to JMFC, then the JMFC visits the patient and examine all aspects authorize the implementation of the decision. Incase life support is withdrawn the same shall be intimated to High court by magistrate, the HC shall maintain requisite records in digital format.
If there is a opinion of difference between the board and the executor or their family members, then parties can prefer writ petition in the concerned high court. The decision of court in this regard shall be final and binding.
FIRST LIVING WILL IN INDIA
Justice MS Sonak, the senior most judge of the Bombay High Court at Goa, made history by becoming the first person in the state to register a “living will”. This wonderful event took place during a program organized by the Goa branch of Indian Medical Association and the Goa state Legal Services Authority to release a booklet on Advanced Medical Directive (AMD). The first state in India to operationalize such directives is Goa.
According to guidelines, a person who wishes to create living will must draft in the presence of two witness. Then it will be certified by a gazetted officer or notary and forwarded to the main mamladtor of Taluka, who will the send it to nodal officer appointed by the district collector for safe custody.
CONCLUSION
The concept of living will in India is developing day by day. As the constitution gave us Art 21 No person shall be deprived of his life or personal liberty, except procedure established by law. In recent judgement common cause case it is said that right to die with dignity is a part of the right to live with dignity. It gives the person freedom to decide before a tough situation arises, although it has been recognized in 1986 in US but now it came to existence in India. But there is lag in implementation of living will in India. Main aim is that empowers the patients to take decision about their medical condition in present only.
SUBMITTED BY: P. SASI REKHA
FINAL YEAR B.A LLB
DR.BR AMBEDKAR COLLEGE OF LAW, ANDHRA UNIVERSITY
