Apex court allows ‘living will’ for terminally ill

Context:

• A five judge bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, in a landmark judgment legalised the right to die and approved ‘living will’ made by terminally-ill patients for passive euthanasia.

Court’s judgment in this regard:

• The Supreme Court allowed passive euthanasia in India and the rights of persons, including the terminally ill, to give advance directives to refuse medical treatment permissible.
• A Constitution Bench which recognized ‘right to die’ with dignity as a part of fundamental right to life under Article 21 of  Constitution, laid down clear guidelines for ‘living will’.
• The Bench in three concurring opinions, upheld that the fundamental right to life and dignity includes right to refuse treatment and die with dignity.
• The Court recognised that a terminally-ill patient or a person in persistent vegetative state can execute an “advance medical directive” or a “living will” to refuse medical treatment, saying the right to live with dignity also includes “smoothening” the process of dying.

Government’s opposition on SC judgment:

• The government had opposed the concept of Living Will and the Medical Power of Attorney in case of terminally ill patients.
• The government said legalisation of ‘advance directives’ would amount to waiving off the paramount fundamental right to life enshrined under Article 21 of the Constitution.
• The government was opposing the concept of ‘Living Will’ as a principle of public policy. It said the State’s primary obligation is to sustain life and not legalise a person’s wish to die.
• As part of it, the government is already finalising draft law on passive euthanasia called ‘The Management of Patients with Terminal Illness – Withdrawal of Medical Life Support Bill’.

Background:

• The court’s ruling was pronounced on a 2005 plea filed by Prashant Bhushan on behalf of NGO Common Cause, which sought recognition of a living will so that an individual could exercise the right to refuse medical treatment at a terminally ill stage of life.
• Prashant Bhushan, appearing for the NGO, had said that under Article 21 (Right to Life) a person had the right to die peacefully without any suffering and must be allowed to create a living will for a time when he cannot recover from an illness.

What is Passive Euthanasia?

• Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.
• The 241st report of the Law Commission states that passive euthanasia should be allowed with certain safeguards and there is a proposed law—Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006—in this regard.
• Passive euthanasia entails a patient being allowed to die by limiting medical intervention, not escalating already aggressive treatment, withholding or withdrawing artificial life support in cases that are judged to be medically futile.

What is a Living Will?

• Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally-ill or no longer able to express informed consent.
• A Living Will is a healthcare directive, in which people can state their wishes for their end-of-life care, in case they are not in a position to make that decision.

Who can make a Living Will?

• An adult with a sound and healthy mind. It should be voluntarily executed and based on informed consent.
• It should be expressed in specific terms in a language “absolutely clear and unambiguous”.

What it should contain?

• The circumstances in which medical treatment should be withheld or withdrawn
• It should specify that the Will can be revoked any time
• It should give the name of the “guardian or close relative” who will give the go-ahead for starting the procedure of passive euthanasia
• If there is more than one Living Will, the latest one will be valid.
• It should say that the patient has understood the consequences of executing such a document.
• If there is more than one valid Advance Directive, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be implemented.

How to preserve it?

• The Will shall be attested by two independent witnesses and preferrably counter-signed by the Judicial Magistrate First Class (JMFC) assigned the jurisdiction by the District Court.
• The JMFC shall preserve one hard copy, along with one in the digital format, in his office.
• JMFC shall forward a copy of the Will to the Registry of the District Court
• JMFC shall inform the immediate family of the executor, if not informed.
• A copy will be handed over to an official in the local government or Municipal Corporation or municipality or panchayat concerned. This authority shall nominate a custodian for the Living Will.

When and by whom can it be implemented?

• The living will should be implemented only after being fully satisfied that the patient is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the patient is incurable
• The hospital where the patient has been admitted for medical treatment has to constitute a medical Board consisting of the head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology of at least twenty years experience who, in turn, have to visit the patient in the presence of his guardian/close relative and form an opinion to certify, or not certify, the instructions in the living will.
• After the hospital medical board certifies that the instructions contained in the advance directive ought to be carried out, the hospital has to inform the jurisdictional collector about the proposal.
• The collector shall constitute another medical board comprising the chief district medical officer as the chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology
• The chairman of the medical board nominated by the Collector, that is, the Chief District Medical Officer, has to convey the decision of the board to the jurisdictional JMFC before withdrawing the medical treatment administered to the patient.
• The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board

What if the permission is refused by the medical board?

• If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the patient or his family members or even the treating doctor or the hospital staff to approach the high court.
• The chief justice of the high court will have to constitute a division bench to decide upon case.