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Living Will

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 03-Jun-2024

Source: Indian Express

Why in News?

Justice MS Sonak of the Bombay High Court at Goa became the first person in the state to register a 'living will' during an event organized by the Indian Medical Association (IMA), Goa branch.

What was the Background of the News?

  • This follows the Supreme Court of India's 2018 recognition of passive euthanasia and advance directives, with guidelines simplified in 2023.

  • Goa implemented these rules, requiring living wills to be attested by a notary or gazetted officer and stored by the State Revenue Department Office, setting a precedent for others to follow.

What is Euthanasia?

    • About
    • The word Euthanasia is derived from the Greek words “eu” and “thanotos” which literally mean good death and is otherwise described as mercy killing.
    • The word euthanasia was used by Francis Bacon in the 17th Century to refer to an easy, painless and happy death as it is the duty and responsibility of the physician to alleviate the physical suffering of the body of the patient

Active v. Passive Euthanasia

Active Euthanasia Passive Euthanasia
It is also known as "positive" or "aggressive" euthanasia. It is also called "negative" or "non-aggressive" euthanasia.
It involves a positive act or affirmative action to cause the intentional death of a person by direct intervention. It entails withdrawing life support measures or withholding medical treatment necessary for the continuance of life.
Example: administering a lethal injection Example: withholding antibiotics or removing a patient from a life-support system

    • Law Commission 241st Report
      • The Law Commission in its 241st Report titled Passive Euthanasia – A Relook proposed for making a legislation on Passive Euthanasia.
        • It submitted a report on The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006
      • But the Ministry of Health and Family Welfare was not in favour of the enactment.
    • Global Position of Euthanasia
      • Cruzan v. Director of Missouri Department of Health (1990)
        • In this case, the U.S. Supreme Court established a constitutionally based right to refuse life-sustaining medical treatment, paving the way for passive euthanasia.
      • Rodriguez v. British Columbia (Attorney General) (1993)
        • The Supreme Court of Canada drew a distinction between active and passive euthanasia based on intention, affirming the permissibility of passive euthanasia while declaring active euthanasia impermissible.
      • Vacco v. Quill (1997)
        • The U.S. Supreme Court affirmed the distinction between active and passive euthanasia, holding that the right to refuse unwanted medical treatment (passive euthanasia) is permissible, while assisted suicide (active euthanasia) is not protected by the Constitution.

What is a Living Will?

  • About:
    • A living will, also known as an advance directive, is a legal document that allows individuals to express their wishes regarding end-of-life medical treatment.
    • It provides instructions on whether to withhold or withdraw life-sustaining measures in certain circumstances, such as terminal illness or a persistent vegetative state.
  • Significance of a Living Will:
    • Preserving Autonomy: A living will empowers individuals to maintain autonomy over their medical care and ensure their personal values and preferences are respected during the final stages of life.
    • Preventing Unnecessary Suffering: By specifying their desires, individuals can avoid prolonged suffering and maintain dignity in the dying process.
    • Alleviating Burden on Loved Ones: A living will can ease the emotional burden on family members by providing clear guidance, preventing potential conflicts, and ensuring the individual's wishes are followed.

What are the Landmark Cases in India on Euthanasia and Living Will?

  • P. Rathinam v. Union of India (1994)
    • The Supreme Court struck down Section 309 of the Indian Penal Code, 1869 (IPC) which criminalized attempted suicide, paving the way for discussions on the right to die with dignity.
  • Gian Kaur v. State of Punjab (1996)
    • The Supreme Court upheld the validity of Sections 309 and 306 of the IPC but distinguished euthanasia from suicide, leaving room for the possibility of passive euthanasia.
  • Aruna Ramchandra Shanbaug v. Union of India (2011)
    • The Supreme Court recognized the legality of passive euthanasia in certain circumstances.
    • Guidelines were provided for the withdrawal or refusal of life-sustaining treatment for patients in a persistent vegetative state or terminal illness.
    • The court acknowledged the need for advance directives but did not provide specific guidelines for living wills.
  • Common Cause v. Union of India (2018)
    • The Supreme Court upheld the legality of passive euthanasia and laid down an elaborate procedure for the execution and implementation of living wills in India.
    • The judgment recognized the principles of patient autonomy, self-determination, and human dignity as enshrined in Article 21 of the Constitution.
    • Detailed guidelines were provided for the execution, revocation, and implementation of living wills, involving multiple authorities and medical boards.

What is the Procedure Related to the Implementation of a Living Will?

    • Verification: Healthcare providers should verify the authenticity and validity of the living will with the Judicial Magistrate First Class (JMFC) concerned before acting upon it.
    • Medical Board Review: A medical board comprising experienced healthcare professionals should review the patient's condition and certify the applicability of the living will.
    • Judicial Oversight: The JMFC should visit the patient, examine the relevant aspects, and authorize the implementation of the living will if satisfied with its validity and applicability.
    • Revocation and Renewal: Provisions should be made for the revocation or renewal of living wills, considering the potential for changes in circumstances or preferences over time.

What are the Guidelines of the Supreme Court on Living Will?

The Supreme Court of India has recognized the validity of living wills and provided guidelines for their execution and implementation:

  • Eligibility: Only adults with a sound mind can execute an advance directive voluntarily and without coercion.
  • Content: The advance directive should clearly state the circumstances in which medical treatment may be withheld or withdrawn, and it should be unambiguous.
  • Revocation: The executor may revoke the directive at any time.
  • Execution: The document must be signed by the executor in the presence of two witnesses and countersigned by a judicial magistrate.
  • Preservation: Copies of the directive must be preserved by the magistrate, district court, and local authorities.
  • Implementation: If the executor becomes terminally ill or in a persistent vegetative state, a medical board will review the directive and decide on its implementation after considering the family's views.