Living Will – Law in India

In India, ‘living wills’ follows the jurisprudence of advance directives, which finds its root in American jurisprudence. Specific procedure have to be followed for Advance Directives to be implemented.


06 February 20214 min read

The Black’s Law Dictionary defines an advance medical directive as, “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate”.

Last Will and Testament

A living will, on the other hand, is a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.

Legality of living wills
In India, ‘living wills’ follows the jurisprudence of advance directives, which finds its root in American jurisprudence. Specific procedure have to be followed for Advance Directives to be implemented. The Black’s Law Dictionary defines an advance medical directive as, “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate”.

The Supreme Court, in Common Cause (A Regd. Society) vs Union Of India held that right to die with dignity is a fundamental right enshrined in Article 21 of the Constitution. This judgment paved the way for the grant of passive euthanasia which is also described as Physician Assisted Suicide (PAS). The Supreme Court held that passive euthanasia is permissible under law.

The passive euthanasia is different from the active euthanasia because the former does not require an overt act. The intention of the person as to how to go about his/her treatment may be gauged through the Advance Directives that a person is entitled to execute through a procedure laid down in this judgment. Elaborate procedural guidelines regarding the same have been laid down.


Who can execute the Advance Directive and how?

  1. The Advance directive can only be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.
  2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
  3. It should have characteristics of an informed consent given without any undue influence or constraint.
  4. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.

What should the Advance Directive Contain?

  1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
  2. It should be in specific terms and the instructions must be absolutely clear and unambiguous.
  3. It should mention that the executor may revoke the instructions/authority at any time.
  4. It should disclose that the executor has understood the consequences of executing such a document.
  5. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
  6. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be given effect to.

Conclusions
The concept living will has found a place in Indian legislation through judicial activism in lieu with worldwide practice. The concept evolves just like the Vishakha Guidelines through which women were given protection in the workplace and through living wills, the person’s right to die with dignity has been recognized. It is an important step and would be the law of land until the legislature explicitly brings about its own.

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