What are Living Wills?
A Living Will, or an Advanced Medical Directive (AMD)
is a legal document that allows a person to specify their
wishes regarding medical treatment and end-of-life care
if they are unable to communicate their preferences due
to terminal illness or other medical emergencies.
In the landmark decision of Common Cause v. Union of
India, the Honourable Supreme Court of India legally
recognized ‘Living Wills’ in 2018. This ruling established
a framework that permits terminally-ill patients, for
whom a cure is unattainable, to opt for withholding or withdrawing treatment,
thereby upholding their fundamental right to die peacefully and with dignity.
Prof Dr. Nikhil D. Datar v. State of
Maharashtra and Ors.
“Why can’t we have a permanent secondary board? Every
doctor is registered. You nominate one permanent
doctor? Why can’t you do this? Why is it that you always
seek instructions?”
A division bench of Chief Justice Devendra Kumar
Upadhyaya and Justice Amit Borkar criticised the State
on 20th June, 2024, while hearing a PIL for failing to
establish an adequate system to enforce living wills, and
the absence of a secondary medical board essential for
implementing these directives. The court observed that it
is unfortunate that a person has to file a petition seeking
direction for compliance of an order already passed by
the Supreme Court.
Alternative to a Living Will
• In the absence of a Living Will, the Supreme Court
proposed a Primary Medical Board to inform family
members of a terminally-ill patient about the
implications of withdrawing medical treatment. The
Primary Board must obtain written consent from the
family to proceed with the withdrawal, forming a
‘preliminary opinion. ‘
• This decision is then communicated to the jurisdictional
Collector, who forms a Secondary Medical Board for
further assessment, which earlier needed the Judicial
Magistrate First Class (JMFC) to endorse their decision
to withdraw medical treatment.
2018 Supreme Court Guidelines
• The 2018 Supreme Court judgment outlined the
abovementioned procedures but faced criticism for
being impractical. The Indian Council for Critical Care
Medicine sought clarifications in 2023, leading the
Supreme Court to modify the guidelines.
• The updated guidelines included detailing the
authorized person in the directive and procedures for
authentication by a notary or Gazetted Officer, removing
the JMFC’s role in registration and verification. The
aforementioned PIL seeks compliance with the revised
guidelines as no custodian for Living Wills had been
appointed.
Our View
In today’s time, a Living Will is essential for ensuring that
individuals’ healthcare preferences are respected when they
are no longer able to make decisions themselves.
As of 2024, countries like Canada, Australia, Spain, Belgium,
the Netherlands, and some states in the USA have legalized
Euthanasia and/or Assisted Suicide under certain conditions,
reflecting a growing acceptance of the right to die with
dignity.
We believe that having a Living Will not only honours the
patient’s wishes but also provides clarity and relief for family
members during difficult times. They must be implemented
with appropriate safeguards so as to prevent misuse by greedy
relatives. In such circumstances, this reinforces a patient’s
autonomy even when they can’t speak for themselves.
