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November 21, 2018

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Advance Medical Directives & Living Will - A Landmark Judicial Development


- Ambuja Cement Corporate Legal Team, [ ]

medicaldirectives

Since the concept of advance directives is new to our country, we will have to wait and watch how it pans out...

The Universal Declaration of Human Rights by the United Nations General Assembly recognizes 'dignity' of an individual as an important facet of human rights. Article 21 of the Indian Constitution which deals with the Right to Life and Personal Liberty also accentuates 'dignity' as the cornerstone of life and liberty. This right is incomplete unless it encompasses the dignity of an individual. With the passage of time, the Supreme Court of India ("SC") has expanded the spectrum of Art. 21 to include within its ambit the right to live with dignity as an essential component of the Right to Life and Liberty.

It is undisputed that the sanctity of life must be kept on a high pedestal, yet in cases of terminally ill persons or persons in persistent vegetative stage, where there is absolutely no hope for recovery, priority should be given to the right of self-determination. The right to die cannot be claimed to be part of the right to life, but undoubtedly, the right to die with dignity is an inseparable and inextricable facet of the right to live with dignity.

On 9th March 2018, a Constitutional bench of the SC, in a landmark judgment, held that Art. 21 of the Constitution includes the 'right to die with dignity'. As Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and/or judicial pronouncement, the SC also felt the need to recognize this right as a part of the citizen's right of self-determination, dignity, autonomy and privacy. The bench upheld the right to give 'Advance Medical Directive' or 'living will' spelling out wishes/directives relating to medical treatment of terminally ill persons or those in a persistent vegetative state.

What are Advance Directives or Living Wills?


The history of 'living will' dates back to 1969, when American lawyer Louise Kutner first proposed it. He viewed it as a simple tool to allow patients to refuse lifesustaining treatment that they did not want, even if they were too ill to communicate. An Advance Directive, also known as a living will, personal directive or medical directive, is a legal document wherein a person specifies one's healthcare goals, instructions and appoints an agent or proxy to take a decision in the event of their incapacity.

Advance Directives can be broadly of two types –

i) Living will, in which a person indicates his/her wish regarding medical treatment; and

ii) A durable power of attorney or healthcare proxy, in which a person nominates another individual to take medical decisions on his/her behalf in the event he/she becomes incapable of the same.

Presently, there is no legal framework for Advance Directives in India; however, the SC has issued guidelines for execution and enforcement of the same, as enlisted below:

Who can execute Advance Directives and how?

  • The person drawing up Advance Directives must be an adult, who is of sound mind and capable of communicating his decision clearly.
  • Drawing up of Advance Directives is a voluntary act and therefore cannot be done under duress or coercion.

Essential Ingredients of Advance Directives

  • It should clearly and unambiguously indicate the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
  • The ability to revoke any instructions made in the Advance Directive must be mentioned clearly.
  • It must contain a declaration stating that the executor of Advance Directive has understood the consequences of executing it.
  • Name of the guardian or relative authorized to decide on behalf of the executor in an adverse situation must be disclosed.
  • It must be signed by the executor, in the presence of two witnesses, countersigned by a Judicial Magistrate First Class (JMFC) so designated by the concerned District Judge.
  • The JMFC shall preserve a copy of the document in his/ her office, in addition to keeping it in digital format, and shall submit one copy to the registry of the jurisdictional District Court for being preserved.
  • The JMFC shall inform the immediate family members of the executor, if not present at the time of execution, and shall also handover a copy of the document to the family physician, if any.

When and how can Advance Directives be implemented?

  • When the executor of an Advance Directive becomes terminally ill, and despite treatment, there is no hope of recovery, the treating physician, when made aware about the Advance Directives, has to ascertain the genuineness and authenticity of the document from the jurisdictional JMFC before acting upon the same.
  • The execution/implementation of the Advance Directive can happen only if the medical board, consisting of the head of the treating department and at least three experts in the field of general medicine, cardiology, neurology, nephrology, psychiatry or oncology having experience of at least 20 years, grants its permission. The decision shall be regarded as a preliminary opinion.
  • After the medical board certifies the instructions contained in the Advance Directive, the hospital has to inform the jurisdictional Collector about the proposal.
  • The Collector shall constitute another medical board comprising of the Chief District Medical Officer as the chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology. This board has to convey its decision 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, authorize the implementation of the decision of the Board.
  • In cases where the medical board refuses to grant permission to execute the Advance Directives, the immediate recourse that is available to the family is to approach the High Court. The Chief Justice of the High Court will have to constitute a division bench to decide upon the case.

Advantages of Advance Directives

  • It respects the patient's human rights, and in particular, their right to reject medical treatment.
  • It respects the patient's right of self-determination.
  • It helps medical professionals in taking difficult decisions as it provides statutory immunity if they comply with the directives recorded in Advance Directives.
  • Patient's family and friends don't have to take difficult decisions.

Conclusion

This decision of the SC is indeed a landmark judgment with far-reaching consequences. In the absence of any legislation on the subject, the directions and guidelines issued by the SC shall remain in force till the Parliament enacts a legislation.

Since the concept of Advance Directives is new to our country, we will have to wait and watch how it pans out. The fact that the SC has upheld the right to give Advance Directives in itself is a remarkable milestone for our medical jurisprudence. As of now, it can be said that Advance Directive would definitely serve as a fruitful means to facilitate the fructification of the sacrosanct right to live with dignity.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

 

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