Living wills –A dignified way to death

Source – This post on Living wills –A dignified way to death has been created based on the article “Living wills implementation lags in India” published in “The Hindu” on 3 April 2024.

UPSC Syllabus – GS Paper 2 – Issues Relating to Development and Management of Social Sector/Services relating to Health, Education, Human Resources.

Context – Recently, 30 people in Thrissur in Kerala have executed living wills. The Supreme Court has legalized living wills since 2018 to allow terminally ill patients, with no hope of a cure or recovery, to withdraw treatment and die with dignity.

What is a living will?

It is a legal document that outlines preferences for medical treatment for terminally ill patients who are unable to communicate their decisions, particularly regarding life-sustaining measures and end-of-life care.

What is the existing procedure for executing living will?

1) Streamlined procedure– The Supreme Court has streamlined the procedure to overcome the challenges posed by previously recommended complicated procedure-

A) Under this, living wills must be handed over to a “competent officer” in the local government after being signed in the presence of two witnesses and attested before a notary or a gazette officer. The competent officer will serve as a custodian of living will.

B) If the patient is terminally ill and can’t make decisions anymore, the doctor will check the living will either against the copy kept by the custodian or against digital health records of concerned patients.

2) Certification by medical board-The decisions on withholding or withdrawing treatment are certified first by a primary medical board and then confirmed by a secondary medical board. The secondary board should have a doctor who is nominated by the chief medical officer.
Further, as per the Supreme Court, if the patient does not have a living will then the primary medical board will have to obtain the written consent of the ‘next of kin’ for withdrawing/withholding treatment.

What are the issues in the implementation of living will in India?

1) Lack of custodians for living wills- State governments have not designated custodians for living wills. For ex- a public interest litigation had to be filed in the High Court of Bombay to appoint custodians across the State recently.

2) Absence of protocol- The National Health Authority has not produced protocols that could allow living wills to be authenticated through digital health records.

3) Complicated Procedure-As per guidelines, the secondary board must have a doctor nominated by the chief medical officer. This implies that hospitals cannot have secondary medical boards unless the chief medical officer has nominated a doctor in the hospital where the concerned patient is admitted. Therefore, terminally ill patients, even those who have made living wills, are not able to make critical decisions about medical care

4) Ambiguous guidelines– Indian law does not have a clear definition for ‘next of kin’. Further, there is lack of clarity when any family members disagree about the best course of action. Due to all this, officials will refrain from taking decisions on such a sensitive subject.

5) Lack of state government willingness– This area is complex and requires attention from medical and legal experts, therefore state governments are reluctant to implement it with determination.

Read more- Apex court allows ‘living will’ for terminally ill

What should be the way forward?

The Central government can bridge the gap in expertise by developing and publishing model orders and protocols. These protocols can provide the State governments with the necessary confidence and the guidance to effectively implement the Supreme court judgment.

Question for practice

What are the impediments in the smooth implementation of living will in India?