THE LIVING WILL...The document that speaks for you when you fall silent! (July 2024)

A Will and A Living Will: A Living Will is a contradiction in terms.? A Will, as commonly known, is a compendium of your wishes when you are alive that are expected to get activated on your death.? A Living Will on the other hand, is a collection of your instructions and wishes on mostly what you do not want to get done to you or your body in a situation when you are expecting certain death that you yourself are not aware of. However morbid these statements might sound; it should come as no surprise to people that the sentiments behind such circumstances would be more comforting to people when they leave this world. A Living Will is also correctly known in legal parlance as Advance Medical Directives (AMD).? It is a legal document that allows individuals to express their preferences on the extent of medical treatment in case they become unable to communicate their decisions due to incapacitation or serious illness. Normally this stage is known as a vegetative state. In other words, a Will is an expression of a wish which becomes operational only on the death of the person writing it whereas the directions contained in the Living Will the directions comes into effect during his lifetime itself.? You may not know how or when you die, but you may be able to plan how you live before you die!? A Living Will empowers a person to assign to another person the power to make decisions on the former’s medical treatment when he happens to be in a comatose or unconscious state that eventually leads to his death. This ensures that one’s medical treatment preferences are respected even if the person concerned is unable to communicate.? It also ensures that decisions about life-sustaining treatments, such as resuscitation, mechanical ventilation, and artificial nutrition and hydration are resorted to and sustained to such a limit that you yourself would have wanted if you were in a position to take decisions concerning them.? Clear expressions in such circumstances are made known to the family through a Living Will would reduce the emotional trauma on the family members while line of medical treatment during such crises.? The family also would be relieved that all that you wanted to do yourself are done for you – nothing more and nothing less.? The healthcare providers also are relieved of the pressures of taking certain decisions concerning you thereby reducing the risk of legal disputes and uncertainty regarding your end-of-life care.? It not only prevents unnecessary and unwanted medical interventions but also aligns your treatment plans with your values and desires.? However, Living Will cannot cover every possible medical eventuality in your line of treatment especially when medical technologies keep evolving during the period of one’s comatose state.? The laws of the land could provide their own challenges despite the care-giver’s best of intentions. This could ultimately lead to misunderstandings in the family and engender legal disputes, exactly the very thing that the patient wanted to avoid by creating a Living Will. One has to keep in mind that for all the right reasons the Living Will may be made with the best of intentions but both during drafting the Living Will and later while executing the Living Will it can be quite exhausting and emotionally draining for all in the family. This not only affects you but also the entire family. ?However, a Living Will is a crucial tool for ensuring that an individual’s healthcare preferences are respected even when he or she cannot communicate them. While there are some drawbacks such as lack of specificity and potential legal complexities, the benefits of maintaining one’s autonomy and reducing the burden on family members make this a valuable document. Opportunities for improvement include better integration with healthcare systems and increased awareness, which can further enhance its effectiveness and accessibility.

The Law of the Land Meets the Law of the Gods: You did not know when to take birth. But you can decide under certain circumstances when to die. The Supreme Court of India in 2018 recognised the right to die with dignity as a fundamental right under Article 21 of the Constitution. This right encompassed passive euthanasia, which allows withholding or withdrawing medical treatment that sustains life, but crucially with the help of a Living Will.? In one sense that makes this Will almost like a God’s will.? This landmark decision allowed terminally ill patients or those in a persistent vegetative state to execute an advance medical directive, also known as a Living Will. This Living Will would communicate their wish to forgo medical treatment under certain circumstances.? It is important to note that while the apex court recognised the concept of Living Wills in 2018, they later acknowledged the cumbersome registration process in 2023. This resulted in another Judgement making the process of execution of a Living Will a lot smoother and legally valid.

The Legal Sanctity of a Living Will in India: Having broadly seen the broad contours of a Living Will, let us look at the concept of such a document and its legal implications in India. For this, let us begin at the beginning.? Not too long ago in 2018 a Mumbai based doctor submitted his Living Will with the Custodian appointed by Brihanmumbai Municipal Corporation (BMC).? This was as per the Guidelines laid down by the Supreme Court in its Order in the case of Common Cause (A Registered Society) v Union of India and Another. In this case the Supreme Court laid down an elaborate procedure for Advance Medical Directives (AMD).? The Judiciary in India normally do not step into the area of legislating laws and rules that is the domain of the Legislature under the division of powers among the various branches of the government.? In this case the apex court took this extraordinal step primarily because of the urgency involved in laying down the AMD.? This matter came up before a Bench consisting of Justice C T Ravi Kumar, Justice Hrishikesh Roy, Justice Anirudha Bose, Justice Ajay Rastogi and Justice K M Joseph. From the following observations contained in the Judgment of the Court one can get the idea of the basic principles that guided the Bench while formulating the AMD.? The Court’s observations in the judgment were as follows:

(i) The?Constitution?Bench?in ? Gian?Kaur's?case earlier had?held that the “right to life including the right to live with human dignity would mean the existence of such normal that the?“right to life including the ? right to?live ? with “human dignity” would mean the existence of?such?right?up to the end of natural life which also includes the right to a dignified life ? up to ? the ? point ? of ? death. The ? above right was held to be part of fundamental?rights?enshrined under Article 21 of the Constitution which we also reiterate.

(ii) ? ? We ? agree ? with ? the ? observation ? made ? in ? the reference?order?of?the?three Judge?Bench?to?the?effect that?the?Constitution?Bench?in?Gian?Kaur's?case?did?not express any?binding?view?on?the?subject?of?euthanasia. We hold that no binding view was expressed by ? the Constitution?Bench?on?the?subject?of?Euthanasia.

(iii) The Constitution Bench, however,? noted ?a distinction between cases in which a physician decides not to provide or continue to provide for treatment and care which could?or?might?prolong?his?life?and?those?in which he decides to administer a lethal drug even though with the objective of relieving the patient from pain and suffering.? The latter was held not to be covered under any right flowing from Article 21.

(iv)Thus,?the?law?of?the?land?as?existing?today?is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.

(v)? An?adult?human?being?of?conscious?mind?is?fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace death in natural way.

(vi) Euthanasia?as?the?meaning?of?words?suggest?is?an act which leads to a good death.? Some positive act is necessary to characterise the action as Euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.?

(vii) We?are?thus?of?the?opinion?that?the?right?not to take a lifesaving treatment by a person competent to take an informed decision is?not?covered?by the concept of euthanasia as it is commonly understood but a decision to withdraw lifesaving treatment by a patient who is competent to take the decision as well as with regard to a patient who is not competent to take a decision can be termed as passive euthanasia which is lawful and legally permissible in this country.

(vii) The right of a patient who is incompetent to express his view cannot be outside the fold of Article 21 of the Constitution of India.

(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interest principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable any aggrieved person to approach the court of law.

(x) An Advance Medical Directive is an individual’s advance exercise of his autonomy on the subject of the extent of medical intervention that he wishes to allow upon his own body at a future date when he may not be in a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision.? The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.

(xi) The right of execution of an advance medical directive by an individual does not depend on any recognition or legislation of a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and affirmation of his right of bodily integrity and self-determination.

In view of our conclusions as noted above the writ petition is allowed in the following manner:

The right to die with dignity as a fundamental right has already been declared by the Constitution Bench of this Court in Gian Kaur case (supra) which we reiterate. We declare that an adult human having mental capacity to take an informed decision has a right to refuse medical treatment including withdrawal from life-saving devices. A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.

The Legal Fight to Make the Living Will Simpler: However, soon after the above judgment was delivered by the apex court in 2023 a Miscellaneous Application was filed by the Indian Council for Critical Care Medicine before the Supreme Court seeking clarifications and modifications to the 2018 judgment as the previously issued guidelines were found to be impractical, complicated, and cumbersome to execute by medical professionals. After hearing the contentions of the applicants, the Court?went on to make some modification to the Guidelines and made certain additions to incorporate the details of the authorised person in the Directives.? ?Additionally, a procedure for authenticating the Directive by attesting it before a notary or Gazetted Officer was also put in place.? The Five Judge Constitution Bench consisted of Chief Justice Dipak Mishra, Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan of the Supreme Court made these changes thereby making the procedure a lot simpler.? Anyone who looks for information on this subject would need to understand both the verdicts made by the Supreme Court on this subject.? Here is a summary of the processes and procedures of Court’s view culled out from both the judgments as applicable.

1.???????? A citizen of India has a fundamental right to live with dignity and die with dignity.

2.?????? The right to execute a set of Advance Medical Directives, also known as Living Will stands recognised.? These objectives shall become operational when a competent person makes this document and also ensures that the procedures are strictly adhered to.

3.?????? A Living Will can be executed only by an adult who is of sound mind and is also in a position to communicate, relate and comprehend the purposes and consequences of executing a Living Will.

4.?????? A Living Will was to be valid and enforceable at a time when the executor is alive physically but is in a terminal condition as certified by a body of medical professionals as indicated in the judgment.

5.?????? The wishes contained in the Living Will should be clear and unambiguous to everyone and the executor should be aware of the consequences of making this document.

6.?????? As the executor of the Living Will would not be around when his wishes are to be implemented, the document should specify who would be his health care representative, otherwise known as his Power of Attorney.

7.?????? The Living Will must be signed personally by the executor witnessed by two persons. As per the revised procedure made by the court it is sufficient if it is countersigned by a notary public or a gazetted officer.

8.?????? A signed copy of the Living Will have to be lodged with the jurisdictional Judicial Magistrate who would then forward the document to the Registry of Jurisdictional District Court.

9.?????? The AMD can be revoked, if need be, by the executor by following the same procedure as outlined above at various stages as appropriate.

10.?? It is permissible to have more than one guardian under the scheme who preferably should be close relatives of the executor and who had confirmed to act as guardians in the AMD.

11.?? The Board that is constituted to validate the veracity of the AMD shall consist of the treating physician and two other doctors with at least five years of experience in the speciality.

12.?? In the revised guidelines both the Preliminary and Secondary Boards are to give their opinions on withdrawal of treatment within 48 hours of its intimation to them.?

13.?? All that is required to be done is to convey the decision of the Primary and Secondary Boards to the jurisdictional Judicial Magistrate unlike in the earlier judgment.

14.?? Finally, the AMD is now made part of the national health records accessible by Indian hospitals.

15.?? A new procedure is prescribed even for those who do not execute the AMD.? The Municipal Corporations are mandated to nominate a Competent Authority as a custodian to hold the documents of the Living Will.

Some Philosophical Dimensions of Who Control Our Lives: Beyond legalese, a Living Will is more than just a document to serve a legal purpose; it is a profound expression of philosophical principles concerning one’s autonomy, the value of life, human dignity, relational ethics, and the management of suffering. It reflects the deeply personal and ethical considerations that individuals must navigate when contemplating their own mortality and the nature of a good death. By respecting and adhering to the wishes outlined in a Living Will, we honour the complex interplay of these philosophical ideas, affirming the individual's autonomy and dignity even in their final moments. By creating a Living Will, individuals exercise their autonomy, ensuring their wishes are respected even when they can no longer actively participate in the decision-making processes. This respect for personal autonomy is a fundamental ethical principle, rooted in the belief that individuals have the right to control their own bodies and life choices. Some argue that life has absolute value, and every effort should be made to preserve it regardless of the circumstances. Others contend that the quality of life is a crucial factor suggesting that mere biological existence without the possibility of experiencing meaningful interactions, joy or personal growth might not be worth preserving at any cost. Philosophers like Immanuel Kant have argued that respecting human dignity involves treating individuals as ends in themselves, not merely as means to an end. Therefore, honouring a person's wishes as outlined in their Living Will is a way of upholding their dignity. The ethical considerations extend beyond the individual’s autonomy to include the emotional and moral burdens placed on loved ones. Balancing these relational ethics with the respect for individual autonomy is a complex and sensitive issue.? Some philosophical traditions, such as Stoicism, view suffering as an inevitable part of life that should be met with dignity and resilience. Others, such as existentialism might focus on the subjective experience of suffering and the importance of authenticity in how one faces the end of life. A Living Will can be seen as a way for individuals to assert control over their experience of suffering thereby aiming to minimise unnecessary pain and maximise their sense of peace and closure.

The Author’s Note on Living Will:? I have been writing articles of topical interest in Bizsol Update for quite some time now.? Never before did I have a problem on any of the subjects that I had written about.? But writing on this subject was proving to be different and difficult.? None wants to write about death, however certain it is.? Sometimes while writing I felt that I might be indulging in fear mongering by raking up a morbid subject like death.? But life is not a bed of roses always. We have to be prepared for the harsh realities of life (and death, too) however uncomfortable the thought may be purely from the point of one’s own predilections.? A stich in time saves nine.? A Living Will made in time will save one’s family a lot of avoidable traumas.

Thank You.

Venkat R Venkitachalam