A living will, also known as an advance directive, is a legal document that outlines a person’s wishes regarding medical treatment in situations where they are no longer able to communicate or make decisions due to a severe illness or incapacitation. Read here to learn more.
The ‘living will’ is a form of advance care planning that guides healthcare providers and family members about the types of medical treatment the person would or would not want to be used to keep them alive, as well as other decisions, like pain management or organ donation.
In India, passive euthanasia was legalised in 2018, and the “right to die with dignity” is part of the fundamental “Right to Life” under Article 21 of the Constitution.
However, the procedure for advance directives has been seen as time-consuming in India hence the execution has been lagging.
Living Wills
A living will, also known as an advance directive is a legal document that specifies the type of medical care that an individual does or does not want in the event they are unable to communicate their wishes.
- Treatment Preferences: Living will typically address a variety of treatments that might be considered in different scenarios, including resuscitation, mechanical ventilation, tube feeding, dialysis, and palliative care.
- Conditions Covered: They often specify the conditions under which the wishes apply, such as terminal illness, permanent unconsciousness, or severe brain damage where recovery to a meaningful quality of life is not expected.
- Values and Goals: Beyond specific treatments, the advance directive can articulate a person’s values and goals for care, helping guide decisions in situations not specifically mentioned in the document.
- Legality: The legal status and specific regulations surrounding the advance directive vary by jurisdiction. Most regions have specific laws that govern the creation and use of such wills, including requirements for witnesses or notarization.
- Difference from Other Directives: The advance directives are distinct from other types of advance directives like health care power of attorney (or proxy) documents, which appoint someone else (a health care agent) to make medical decisions on the person’s behalf. Often, individuals will have both types of documents to cover different aspects of their care preferences.
Importance of Living Wills
- Autonomy: They ensure a person’s treatment preferences are respected, even when they can’t speak for themselves, maintaining their autonomy over end-of-life care.
- Clarity: They provide clear instructions to healthcare providers and relieve family members from the burden of making difficult decisions during emotional times.
- Conflict Prevention: By clearly stating wishes in advance, they can help prevent conflicts among family members and between family members and medical providers about the course of treatment.
Creating a Living Will in India
The law in India currently states that a ‘living will’ should be signed in the presence of two attesting witnesses and affirmed by a notary or gazetted officer (according to the 2023 SC judgement).
- In case the executor, that is, the person for whom the will is made- becomes terminally ill, a doctor overseeing treatment is mandated to constitute a board of three experts.
- Three doctors, including a treating physician and two other doctors with five years of experience in the speciality, will comprise the primary board of doctors.
- Primary/secondary board to decide within 48 hours on withdrawal of further treatment.
- The hospital must immediately constitute a secondary board of medical experts.
- While anyone over age 16 can make a living will in India, registering such a will has proven to be a laborious task.
Why in the news?
2024: In early March, 30 people in Thrissur in Kerala executed living wills.
- Living wills have been legal since 2018 when the Supreme Court of India created a process to allow terminally ill patients, with no hope of a cure, to withhold or withdraw treatment and die with dignity.
- Since patients may not be able to communicate their wishes for a variety of reasons, including being unconscious or suffering from dementia, living will allow them to make choices about future medical care.
- Six years after the judgment, however, the Court’s process is unavailable in most of India.
- Officials remain unlikely to implement the procedure without direct orders and guidance from State governments.
2023: When the Court created the process for living will, it was complex and arduous to implement.
- As the Court worried that “unscrupulous persons who wish to inherit or otherwise grab the property of the patient” might abuse the process, it created elaborate bureaucratic procedures as safeguards.
- The particular requirement that living wills must be countersigned by a judicial magistrate became cumbersome.
Hence, only a few living wills were executed in the first five years after the judgment.
- In January 2023, the Court recognised that requiring a judge to countersign each living will impair the objective of its judgment, and streamlined the procedure.
Changes brought in 2023
Changes in 2023 |
Earlier provisions |
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Conclusion
Living wills are a crucial component of healthcare planning, ensuring that individuals have a say in their medical treatment throughout their entire lives, even in situations when they cannot express their wishes verbally.
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-Article by Swathi Satish
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