Living wills, also known as advance medical directives, have become an important legal tool in India to safeguard an individual’s right to die with dignity. These documents allow people to express their preferences for medical treatment in case they become incapacitated and unable to communicate their wishes. By executing a living will, individuals gain control over their medical care and provide clarity to their families when making difficult decisions about life support systems. Let’s delve into the significance of living wills and recent developments in their execution and enforcement.
The Need for Living Wills
The right to live with dignity encompasses the right to die with dignity, as recognized under Article 21 of the Indian constitution. This perspective was echoed by Professor DN Jauhar, who, along with his wife Professor Adarsh Jauhar, became the first individuals in India to execute and register living wills in December 2019. Professor Jauhar, a terminally ill patient, questioned why he should be forced to endure misery and be kept alive in a vegetative state.
The Aruna Shanbaug Case
The case of Aruna Shanbaug played a crucial role in shaping the conversation around euthanasia and living wills in India. Aruna, a nurse, was sexually assaulted and left in a vegetative state for over four decades until her death in 2015. Although the Supreme Court initially rejected a plea for euthanasia, it acknowledged the need for passive euthanasia in the country. Passive euthanasia involves withdrawing life support systems to allow a person to die, while active euthanasia entails intentionally administering lethal drugs to end the life of terminally ill patients.
Recognition of Living Wills
In a groundbreaking judgment in 2018, the Supreme Court of India recognized the “right to die with dignity” as an inherent part of the fundamental “Right to Life” under Article 21 of the constitution. The court affirmed that adults with the mental capacity to make informed decisions have the right to refuse medical treatment and life support systems by executing an advance medical directive or a living will. However, this right is applicable only in specific cases where a patient becomes terminally ill and cannot express their wish to stop treatment.
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Streamlining the Execution and Enforcement
To simplify the process of executing and enforcing living wills, a five-judge constitution bench of the Supreme Court, headed by Justice KM Joseph, introduced modifications in January 2023. Previously, the registration process was time-consuming and cumbersome. Under the revised guidelines, a living will must be duly signed, witnessed by two independent witnesses, and attested by a notary or gazetted officer instead of a judicial magistrate. The document should clearly state the name of the authorized guardian or close relative responsible for making decisions regarding medical treatment withdrawal.
- Additionally, the medical board responsible for assessing the case has undergone changes. The minimum required experience for doctors serving on the medical board is now five years, with at least two subject experts. Both the primary and secondary medical boards must be constituted by the treating hospital, and they are required to provide their opinions within 48 hours. In case of a difference of opinion or refusal of permission by the boards, the patient’s next of kin can approach the High Court to form a fresh medical board.
Living wills have emerged as crucial legal instruments in India to safeguard the right to die with dignity. With the recognition of the “right to die with dignity” by the Supreme Court, individuals now have the power to control their medical treatment even in incapacitated states. The recent modifications in the execution and enforcement guidelines have streamlined the process, making it more accessible and efficient. Living wills not only empower individuals but also provide guidance to families during challenging times when medical decisions need to be made.