[The Viewpoint] Execution of Living Will in India

The Supreme Court (‘SC’) in 2018 delivered a historic judgment to introduce the legal framework in India as regards the Living Will. The judgment contains and prescribes comprehensive guidelines to ensure that persons of deteriorated health or terminally ill patients should be able to execute a Living Will (‘Living Will’ or ‘Advance Medical Directive’).

The concept of Living Will is of recent origin. The advance medical directive has been recognized first by Statute in the United States of America when in the year 1976, State of California passed “Natural Death Act”. The term ‘Living Will’, also known as an advance directive or advance decision, means and includes 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 his/her behalf. It may include a directive to withdraw life support or certain eventualities.

The Supreme Court in Gian Kaur v. State of Punjab held that both euthanasia and assisted suicide are not lawful in India and thus overruled its earlier decision titled P. Rathinam v. Union of India. On the contrary, in ‘Aruna Shanbaug Case’, passive euthanasia was recognized and the SC observed that even if a decision is taken to withdraw life support, such a decision should be bona fide and in the best interest of the patient and shall be approved by the concerned High Court. In the present case, SC also recommended to Parliament to consider deletion of Section 309 from the Indian Penal Code.

The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, introduced pursuant to 241st Law Commission Report dealt with Advance Medical Directives at length. Not only did the bill define the term in Section 2(a), but also noted in Section 13 that considering execution of an advance medical directive does not bind any medical practitioner.

The Mental Healthcare Act, 2017 (‘Mental Healthcare Act’) allows the person suffering from mental illness to specify the form of treatment to be provided in advance and also empowers that person to nominate a representative to ensure that directives are being adhered to. These directives are binding in nature. The Mental Healthcare Act also lays down provisions to revoke, amend or cancel the advance directive at any time. The directions laid down in the ‘Common Cause Judgment’ act as the guiding force in the absence of any statute governing and regulating the Advance Medical Directive.  

• 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. It shall be signed in presence of 2 independent attesting witnesses by the Executor of the Living Will (‘Executor’). It shall be countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC). The JMFC is under an obligation to supply the requisite copies of the Living Will to the concerned authorities and to inform the immediate family members of the Executor. 

• Contents of a living will –

  The Living Will should clearly stipulate Executor’s wishes and his apparent intent for resorting to such measures. It should mention that the Executor may revoke the instructions at any time for any rationale whatsoever by informing the same to the agent and the treating physician. It is primary to disclose that the executor has understood the consequences of executing such a directive. Further, it should also specify the name of a guardian or close relative who, in the event of the Executor becoming incapable of deciding at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

• How Does a Living Will Become Operational –

  i. The physician of the Executor after ascertaining the genuineness of the Living Will shall inform the Executor or his guardian /close relative inter alia, about the details of the illness and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.

  ii. The hospital where the Executor has been admitted shall constitute a Medical Board to form an opinion whether to certify the instructions regarding withdrawal or refusal of further medical treatment. In the event the Hospital Medical Board certifies the instructions, the hospital shall forthwith inform the jurisdictional Collector about the proposal who shall then constitute its own Medical Board. This Board jointly visits the hospital and if they concur with the decision of the previous Medical Board, they may endorse the certificate to carry out the instructions given in the Living Will. The Chairman of the Medical Board shall convey the decision of the Board to the jurisdictional JMFC. Thereafter, the JMFC shall visit the patient and, after examining all aspects, authorise the implementation of the decision of the Board. In case the life support is withdrawn, the same shall be intimated by the Magistrate to the High Court and the High Court shall maintain the requisite records in digital format.

However, if there is a difference of opinion between the Board and the Executor or his family members, the parties can prefer a writ petition in the concerned High Court. The decision of the High Court in this regard shall be final and binding. 

In a judgment of the High Court of Himachal Pradesh, a writ petition was decided by construing the provisions of Mental Healthcare Act. The Court, inter alia, issued directions with regard to the right of an individual to have an advance directive and the person of his choice nominated under the Act and to build a mechanism for implementing the provisions of the Mental Healthcare Act, pertaining to Advance Directive and nominated representative in the specified timeline. The first instance of a Living Will being executed in India occurred in 2019 in Chandigarh. This information reflects that people are conscious about their rights including the right to die with dignity if they become terminally ill in the future.

In light of the above, it can be said that there is a duty imposed on the individual executing the will to have a rightful mind and also on the Judicial Magistrate to act reasonably while adjudicating upon its execution. Further, it is now imperative that the Parliament enacts a law to uphold the sanctity of a Living Will executed by a person of conscious mind exercising his right to die with dignity. It is also the need of the hour to spread awareness among people regarding this right under Article 21 of the Constitution of India.

Kunal Tandon is an Independent Counsel at the Supreme Court and Delhi High Court.