The Supreme Court.

The Supreme Court.

A ‘living will’ for passive euthanasia; SC allows right to die with dignity

Life support can be removed only after statutory medical board declares patient incurable

Agency Report | New Delhi | 9 March, 2018 | 09:30 PM

In a historical judgement, the Supreme Court has allowed the making out of a 'living will' for passive euthanasia. The court was hearing a petition seeking the recognition of a 'living will' made by terminally-ill patients for passive euthanasia. A living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. Passive euthanasia is a condition where there is a withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.

The Supreme Court on Friday said a person has the “right to die with dignity” and can make an advance “living will” authorising the withdrawal of life support system if in medical view he or she has reached an irreversible stage of terminal illness.

In the historic decision, the top court said the right to lead a healthy life also includes “leaving the world in a peaceful and dignified manner” and an adult “has right to refuse medical treatment including withdrawal from life-saving devices”.

While allowing adults “who are of a sound and healthy state of mind” to make the advance directive or living will, a five-judge Constitution Bench, headed by Chief Justice Dipak Misra, however, attached strict conditions and framed guidelines to be followed for executing these.

A living will is a written document by way of which a patient can give instructions that his or her life should not be prolonged with an artificial support system when he or she has reached an irreversible stage of terminal illness.

Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.

The bench, also including judges A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, laid down guidelines on who would execute the will and how the nod for passive euthanasia would be granted by the medical board.

“To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence,” said Justice Chandrachud.

He said the reason which has impelled the court to recognise passive euthanasia and advance directives is that both bear a close association to the human urge to “live with dignity”.

“The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life. Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence.”

The court said the life support can be removed only after the statutory medical board declares the patient to be incurable.

The bench said its guidelines and directives should remain in force till Parliament makes legislation on this issue.

The bench clearly specified that for executing the living will, the person has to be in a position to communicate, relate and comprehend the purpose and consequences of executing the document.

It “must be voluntarily executed” and “without any coercion or inducement or compulsion and after having full knowledge or information”.

The living will shall be “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 or her pain, anguish and suffering and further put him or her in a state of indignity, said the bench.

The bench said it should also mention that the “executor may revoke the instructions or authority at any time”.

The living will should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.

The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with the full understanding of all the relevant information and consequences.

On when and by whom can the living will be given effect to, the bench, in its 538-page judgement, said in such a case the treating physician, when made aware about the advance directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon it.

“The physician or hospital shall then constitute a medical board consisting of the head of the treating department and at least three experts… who shall visit the patient in the presence of his or her guardian or close relative” and then take a call, the verdict read.

“This decision shall be regarded as a preliminary opinion,”

The bench said if permission to withdraw treatment is refused by the medical board, it would be open to the executor or his family members or even the treating doctor or the hospital staff to approach the high court.

The apex court also laid down similar guidelines for the cases where there is no advance directive.

Chief Justice Misra said a competent person who has come of age “has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death”.

Quoting the philosophy of Swamy Vivekananda on life and death, Justice Misra said Vivekananda expects one to understand that life is the lamp that is constantly burning out and suggests that if one wants to have life, one has to die every moment for it.

The judges pronounced four separate but concurring judgements.

Justice Chandrachud, in a separate judgement, said: “Life and death are inseparable. Every moment of our lives, our bodies are involved in a process of continuous change… Life is not disconnected from death. To be is to die. From a philosophical perspective, there is no antithesis between life and death. Both constitute essential elements in the inexorable cycle of existence.”

The court’s verdict came on a plea filed in 2005 by an NGO Common Cause seeking the right to make a living will authorising the withdrawal of life support system in the event of the will-makers reaching an irreversible vegetative state.

Advocate Prashant Bhushan, appearing for the NGO, had said since a patient under coma cannot express his or her wish, the law should allow him or her to put it down in writing in advance that he or she should not be tortured.

In the absence of a law authorising doctors to do so, they keep incurable patients on life support, he said.
All you need to know about a living will
Here are the court laid down rules relating to the procedure for its execution.

*What is advance medical directive or living will?

It is a medical power of attorney that allows an individual to appoint a trusted person to make health care decisions when the patient is not able to take such decisions. The trusted person is allowed to interpret the patient’s decisions based on their mutual knowledge and understanding. The trusted person can decide on the patient’s behalf how long the medical treatment should continue when the patient in unconscious or in a coma state is not in a position to decide.

*Who is allowed to execute or draw up the will?

According to the Supreme Court rules, it can be executed only 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.

It must be voluntarily executed and should have characteristics of an informed consent given without any undue influence or constraint.

It shall be stated clearly 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 the patient pain, anguish and suffering and further put him or her in a state of indignity.

In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of advance medical directives emerged in various countries.

*What should the will speak about?

It should indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.

Be in specific terms and the instructions must be absolutely clear and unambiguous.

Mention that the executor may revoke the instructions/authority at any time.

Disclose that the executor has understood the consequences of executing such a document.

Specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking a 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.

In the event that there is more than one valid living will, 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.

*How should the will be recorded, preserved?

The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and counter-signed the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned district judge.

The JMFC shall preserve one copy of the document in his office, keep another in digital format, forward one copy of the document to the registry of the jurisdictional district court, inform the immediate family members of the executor.

A copy is handed over to the competent officer of the local body. A copy of the directive is handed over to the family physician if any.

*When and by whom can it be given effect to?

In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician when made aware about the advance directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.

The document should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.

The physician or hospital where the executor has been admitted for medical treatment shall constitute a medical board that shall visit the patient and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment.

The Chairman of the board nominated by the collector, that is, the Chief District Medical Officer, shall convey the decision of the board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the patient.

The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the board.

It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

What if the board refuses the permission?

If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the patient or his family members or even the treating doctor or the hospital staff to approach the high court and its chief justice will have to constitute a division bench to decide upon the case. (IANS)