Overview The Supreme Court of India has passed a law which allows a patient to decide in advance whether he wishes to withdraw life support if he has a terminal illness. This means that it is now legal to write an Advance Medical Directive or a living will – but this is applicable only in cases of passive euthanasia.
A general format of a living will be drawn up in a separate article. Here, we will discuss various fundamental aspects of a living will.
Difference between Passive Euthanasia and Active Euthanasia Active euthanasia is when medication is administered by a doctor to a patient to end his life. So basically the doctor is hastening the death of the patient.
In the case of passive euthanasia, it is the patient himself who takes the decision in advance of not wishing to prolong his life in the possibility of having a terminal illness or when conscious & knowing he will die. Passive euthanasia is not assisting a person to die, but the patient himself taking the decision in advance to let go of life by stopping medications or the use of life-supporting machines when diagnosed with a terminal illness.
What is a living will? A living will, known as an Advance Medical Directive, is a written document which decides the end of life. It is made in advance in case a person becomes terminally ill, goes into a vegetative state and faces no hope of recovery.
Thus you are taking the decision into your own hands about end-of-life medical care for the time when you would be unable to communicate such a decision. By doing so, you will be thinking ahead on various aspects. For how long would you want treatment to continue if you become unconscious and are unable to convey that you do not wish to continue treatment? Would you want to be hooked up to a life-supporting ventilator or other equipment that will keep you alive for some more time – and for how much more time?
When should a living will be made? A living will can be made only by an adult.
It should be made when you are of sound mind and you can fully understand the consequences of signing the document. You should not be under any pressure to execute such a document but should do so voluntarily. It is advisable to make a living will after a discussion with family and close friends, so that they are aware of what all is involved.
In the event of there being more than one living will, the one which is most recently signed will be considered to be valid and not the earlier ones.
What are the requirements to ensure the validity of a living will? You cannot simply write up a document to have life support withdrawn and sign it. It needs to be signed by you in the presence of two witnesses and then be counter-signed and executed by a First-Class Judicial Magistrate (known as JMFC). A copy of the living will should be preserved by him in both, hard copy & digital format, and one should be sent by him to the District Court registry.
At the registry, too, a digital copy needs to be preserved. Another copy should be submitted to a Municipal Corporation, Municipality or Panchayat where a competent official will be appointed to be the living will's custodian.
In the eventuality that you are hospitalized, a judicial magistrate should send a copy to the Physician under whom you are receiving treatment. The Physician should be wholly satisfied that the instructions in the living will be carried out. Subsequently, the Physician should inform your family about possible options of treatment & possible consequences of not treating the ailment.
The next step is for the hospital to constitute a Medical Board, with the persons on the Board taking preliminary opinion as to whether or not the instructions of the will should be taken up. Once the Board has given the certification to go-ahead, the hospital has to notify the District Collector. The Collector will then constitute another Medical Board to give a final opinion on whether or not to withdraw the treatment. The Judicial Magistrate should then be notified. The Magistrate visits the patient and authorizes the Board's decision.
It is possible that any of the constituted medical boards do not give the permission to withdraw the medical treatment. In this eventuality, your guardian or a family member can take legal recourse and appeal to the High Court. In the absence of such a guardian/family member, even the Doctor under whose care the treatment is being given or the staff of the hospital can approach the High Court to appeal.
Another possible scenario is that the family of the patient is not aware of the existence of a living will. In such a case, the JMFC needs to inform the family.
What all aspects be included in a living will? When drawing up a document for a living will, you need to state the type of possible circumstances which may arise for when the decision to withdraw life support needs to be taken. This could include: in case of a terminal illness or some incurable disease/ailment or being in a vegetative state. It is also necessary to state the time frame when the medical treatment should be withdrawn.
You should additionally state that you have fully understood the consequences of executing this living will document and also that you may revoke the will at any time. If such a revocation is made, then that also must be in writing as per the same procedure. An important element, too, is giving the name of a guardian who is authorised to consent to or refuse the treatment. This guardian need not be immediate kin, but can also be a friend.
Conclusion It is appropriate to end this article with the quote of John Donne "One short sleep past, we wake eternally, And death shall be no more; death, thou shalt die." which was quoted in the Supreme Court Judgment on the writ petition filed by Common Cause, a registered society. that the "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.
A living will does ease the pressure on the family of a terminally ill patient who is not conscious and they are undecided on whether or not to continue the treatment. On the one hand, there is the feeling that the patient's agony should not be prolonged. On the other hand, societal pressures or emotional stress makes them feel guilty for taking the decision to not prolong the patient's life. It is a tough call. The living will document will not make it so.
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An excellent article keeping in view the hot discussion on euthanasia and the recent judgment of the five-member Constitution Bench of the Hon'ble Supreme Court. The Court has facilitated passive euthanasia by allowing enforcement of an ‘Advance Directive’, which has been synonymously used with the term “living will”. In the judgment, the Hon'ble Court has stated: “A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity”.
In this connection, it is pertinent to understand ''advance directive''. An advance directive is a document which the persons with deteriorating health or the terminally ill can execute in advance, whereby such a person can choose not to remain in a vegetative state on a life support system if he/she goes into a state when it will not be possible to express his/her wishes.
The Hon'ble Court has laid down exhaustive guidelines on how to execute and enforce the same. The author of this article has explained the procedure in layman's language which will benefit all readers to understand the detailed requirements and procedure .
However, I would like to mention that the Court has also provided the guidelines in respect of such patients who are not in a position to can not execute such "advance directive''. The Court has laid down that In the absence of a living will by the patient, their family members or ‘next friend’ can approach an applicable High Court to ask for passive euthanasia. The Supreme Court has included detailed guidelines in the judgment on when this will be allowed, and how the High Courts will need to deal with such requests.
In this connection, I would like to point out that the author has stated in the sub-para 'Overview' of the article: ''The Supreme Court of India has passed a law which allows a patient to decide in advance whether he wishes to withdraw life support if he has a terminal illness.'' I submit that this is only a judgment delivered by the Supreme Court, and I earnestly expect that the Parliament will pass the necessary law in this regard as early as possible.
Concluding my response, I sincerely thank the author for studying the significant judgment very quickly and explain the term ''living will'' in a lucid manner.
Making a living will, is a major decision in life for which one has to gain knowledge, understand, seek clarifications, think, re-think, analyze and then come to a final conclusion.
The conclusion based on the above should be, Yes, with a sound mind and no coercion (external pressure), I decide that in the unfortunate event that I am critically ill with a serious illness or terminal cancer or brain disease with no hope of recovery, then ' I Would Not" want my life to be prolonged by being on breathing machines, medication, dialysis etc. Once a person is able to comprehend and come to such a conclusion, then for a living will, the rest would be following the guidelines and protocols as laid down in the SC.
Often people think that when such a will is legalized, then the person will not get medical care and would be allowed to die without treatment. This is a misconception. The advance medical directive will come into play only when certain stringent criteria are met. Until then, even if one falls sick or develops a cancer, all the treatment will be given like anyone else. Only when, the condition worsens beyond a point of recovery, then it would be considered by the medical team and the family members.
Some people feel the procedure to activate a living will is cumbersome. There are numerous people to be informed on the medical side and on the legal side. This process is a crucial step wherein multiple levels of checks are placed in the system so that the living will is not misused and no needy patient is denied of needy medical care.
I think, it is important to clarify at the individual level that whatever the legal process is, it should not influence the decision or scare the person off. An adult who can think rationally and is of sound mind has to make the decision of yes, I will opt for the living will or No, I will not opt for the living will. This decision would be taken as an 'informed decision'(the pros, cons and the terminologies have to be understood) involving family members and close friends who will be aware of the individual's wishes.
Religious views, emotional thoughts, love and bonding of family members all can influence our decision about making a living will. At times, after making a living will, some would have second thoughts. If the person who has made a living will has major second thoughts and want to change his/her mind based on new information/clarification of misunderstood points, then it should be known that ' this advance directive' can be revoked by the same person who made it.