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Living will makes sense when coupled with medical power of attorney, independent third-party monitoring

Editor's note: This article was originally published on 11 October, 2017. It is being republished in light of the Supreme Court of India's landmark ruling to legalise euthanasia.

The Supreme Court on Tuesday was hearing a petition by the NGO Common Cause on a petition concerning the right of a person to make a living will that would determine the future course of treatment in the event that person becomes incapable of making such a decision. It needs to be noted that the right of a person to passive euthanasia was recognised by the Supreme Court in the Aruna Shanbaug case reasoning that Article 21 (The Right to Life) included the right to die with dignity.

Currently, Indian law permits passive euthanasia, that is, withdrawal of life support and treatment of a terminally-ill person. In these circumstances, family members or the next friend of the ill person may approach the court and seek permission for passive euthanasia. The Court then constitutes an expert panel of doctors and based on the doctors report grants permission on a case by case basis. Indian Law prohibits active euthanasia, where using medical intervention death is brought about in order to ease suffering.

A living will though will permit a person to determine in advance, what should be the course of treatment that doctors should undertake in case they reach a stage where prolonged treatment/life support would result in suffering. The Centre's argument against a living will is that the concept of allowing people to make a will to withdraw life support in advance may not work as there could be future medical advancements that could cure the disease the patient was currently suffering from. While accepting that passive euthanasia was the law of the land, the Centre informed the Court that living wills may be misused by people in cases involving elderly citizens.

Interestingly, Indian law provides for an advance medical directive of a completely different kind.

 Living will makes sense when coupled with medical power of attorney, independent third-party monitoringThe Mental Healthcare Act, 2017 introduces a concept of Advance Medical Directives that can be made by mentally-ill persons. These directives may, after certification by a medical professional, be registered with the medical board. The directive may prescribe the wishes of the patient with regards to their treatment should they be in a state where they are unsound of mind and incapable of taking the decision. However, the relatives may also apply to the Medical Board to set aside the directive and the board may do so if it feels the course set out in the directive is not in the interest of the patient. Note, an Advance Medical Directive only applies currently to conditions related to mental illness and is not the same as a living will. But it does provide some theoretical framework under which such a mechanism could work.

The right to live with dignity includes the right to die with dignity. The individual must at all times be in charge of their medical treatment. Indian law has always recognised this principle of medical autonomy. The problem arises when this medical autonomy conflicts with the prohibition against a person ending their own life. A living will in some cases can permit an individual to effectively end their own life by refusing medical treatment that would keep them alive longer. Further, it is evident that the state has an interest in the life of a person.

It is vital that the law find a middle ground to achieve a balance between these two rights. No person should be subject to pain and suffering unless absolutely necessary and no person should be barred or not-involved in making a medical decision concerning their own medical treatment. A system by which a person can register a living will in advance when they are capable of doing so or when they are entering treatment after duly being informed by a doctor of the consequences would make sense. Further, prior to the execution (withdrawal of life support) of such a will, the relatives may have the option of applying to the Medical Board to in case they want it set-aside. Further, the Medical Board can also be giving the power to on its own motion set aside the living will if there is a change in medical science or if they are of the opinion that the patient may recover.

While the decision to passively euthanise oneself can be left to the patient, the conditions on when this right may be invoked can be left to a medical board. A living will makes sense if coupled with a medical power of attorney and independent third party monitoring. This will allow for a middle way between all the interests that are at play here. The Right of the patient, the State's interest in human life and the interest of the family of the patient.

Though just as many other cases in India, this case in court because the government has failed in its duty to legislate on the matter. Court guidelines may be the outcome of this petition, but at the earliest, if the guidelines come out in favour of living wills, it becomes vital for the government to frame a law on this matter. There needs to be a central registry for such wills in the same manner as Advance Medical Directives under the Mental Health Act are registered and there also need to be statutory safeguards.

Ideally, such a legislative framework should have been brought in just after the Aruna Shanbaug decision.

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Updated Date: Mar 09, 2018 11:58:50 IST