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.
In Prof. Dr. Nikhil D. Datar v. State of Maharashtra and Ors., a division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar criticized the State on 20th June 2024 while hearing a PIL for failing to establish an adequate system to enforce Living Wills. The court highlighted the absence of a secondary medical board, essential for implementing these directives, and remarked, “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?” The bench expressed dismay that individuals must file petitions to ensure compliance with an existing Supreme Court order.
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 before proceeding, forming a preliminary opinion.
This decision is then communicated to the jurisdictional Collector, who forms a Secondary Medical Board for further assessment. Earlier, the Judicial Magistrate First Class (JMFC) had to endorse the decision to withdraw treatment, but this requirement was later removed.
2018 Supreme Court Guidelines & Subsequent Revisions
The original 2018 judgment outlined procedures but faced criticism for being impractical. Following clarifications sought by the Indian Council for Critical Care Medicine (2023), the Supreme Court modified the guidelines.
The updated guidelines included:
Detailing the authorized person in the directive.
Procedures for authentication by a notary or Gazetted Officer.
Removing the JMFC’s role in registration and verification.
Despite these revisions, compliance remains an issue, as no custodian for Living Wills has been appointed, prompting the aforementioned PIL.
Our View
In today’s world, a Living Will is essential to ensure that an individual’s healthcare preferences are respected when they cannot communicate. By 2024, countries like Canada, Australia, Spain, Belgium, the Netherlands, and certain U.S. states have legalized Euthanasia and/or Assisted Suicide under strict conditions, reflecting a global shift toward recognizing the right to die with dignity.
We believe that a Living Will not only honors a patient’s autonomy but also provides clarity and relief to families during distressing times. However, strong safeguards must be in place to prevent misuse by unscrupulous relatives. When implemented correctly, Living Wills reinforce a patient’s right to self-determination, even when they can no longer express their wishes.