Living Will / End of life Care - way to die with dignity -Adv. ROHIT ERANDE. ©

 

The journey of Advanced Directive or the Living Will or End of Life Care  -  from no  base to good, now better and hoping for the best legal base !

ADV. ROHIT ERANDE ©

Introduction : 

Art.21 of the Indian constitution gives an individual the Right to Life and personal liberty –which are regarded as the Natural rights, even in absence of any Constitution. The words “right to life” has been interpreted by the Higher Judiciary to include various aspects of human life. E.g. right to live with dignity, right to environment, right of Free Trial, right to lead meaningful life and so on. This right of life whether includes right to die ? was the moot question before hon’ble supreme court and let’s see the history thereof in nutshell.

Whether Right to life includes Right to die?

a. The issue can be traced back to the landmark judgment in the case of P. Rathinam V/s. Union of India ((1994) 3 SCC 394), wherein the Division Bench of the Hon’ble Supreme Court held that Section 309 of the IPC (as per which the attempt to commit suicide was held to be an offense) was held to be unconstitutional holding that it was violative of the fundamental rights enshrined under Article 14 and 21 of the Constitution. The Apex Court, perhaps for the first time, had held that the right to die was encompassed within the right to live. But it does not talk about “active or passive euthanasia” . 

b. But then comes the judgment of Gian Kaur V/s. The State of Punjab (AIR 1996 SC 946) wherein the five Judge Bench of Hon. Supreme Court held that the right to live does not include the right to die under Article 21 of the Constitution. 

c. Finally, though after about 15 yrs, right to die – passive euthanasia was considered as an integral part of right to die, with of course under exceptional circumstances and under strict guidelines laid down by Hon’ble Apex court in the famous case of  Aruna Ramachandra Shanbaug V/s. Union of India and Ors. ((2011) 4 SCC 454). However the two judges bench emphasized to have a separate  legislation to act as a complete code in itself.

d. Then as stated, the journey which began from Gian Kaur’s case (supra) halted at a good stop in the case of  Common Cause (A Regd. Society) vs. Union of India and Anr. (AIR 2018 SUPREME COURT 1665 = (2018) 5 SCC 1). In this case, the Constitution Bench was constituted on the basis of a reference made it by a bench of three judges. The Apex Court dealt with the issues of whether Right to Life includes Right to die with the dignity and whether Court should issue suitable directions or set in place the norms to provide for what is described as Advance directives. 

The Court also considered the situations where there are no advance directives, but  a person is faced with a medical condition with no hope of recovery and is continued on life support systems /medicines. 

e. Their Lordships clarified that they do not wish to use the words “Living Will” but “advance Directives”(see Para 190 of the judgment ). The Hon’ble Apex Court referred to the Black’s Law Dictionary which defines an advance medical directive as, "a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate†. 

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. Nevertheless, subsequently the term “living Will Seems to have been  used and referred to. 

However, practically as these directives were found to be impractical and hence again, thanks to the Doctors, especially to the Indian Society of Critical Care Medicine which approached the Hon’ble Apex Court and expressed humbly that in the actual working of the directions, insurmountable obstacles are being posed. It also quoted the role of JMFC in the old guidelines  which  led the very object of this Court issuing directions being impaired, if not completely defeated. 

After hearing of the parties through their Ld. Advocates and after having several rounds of discussion, the Constitutional  Bench comprising of Hon. K.M. Joseph, Hon. Ajay Rastogi,  Hon. Anirudddha Bose, Hon. Hrishikesh Roy amd Hon. C.T. Ravikumar, JJ, delivered the judgment with new guidelines on 24th January, 2023 and by keeping some points as it is.  The Judgment was delivered by hon. K.M. Joseph for the bench. These new guidelines in nutshell may be summarized as under. In the actual judgment, their lordships have given the comparison Table of old and new provisions and the judgment is available online too. 

New Guidelines.

1. More than one Guardian /close relative can be appointed.

The new guidelines now permit appointment of more than 1 (one) guardian or close relative, which was not possible under old guidelines, incase the executor becoming incapable of taking decision at relevant time, who would in turn would take decision of refusal or withdrawal of medical treatment.

2. Attestation before Notary and provisions related to JMFC diluted:

i. The entire role of JMFC as it was in the old guidelines has been now removed. Now one need to go to a  JMFC for the countersign and to get his accord. Now their lordships have made it most simplified by involving a Notary Public, easily available.  

ii. The Executor should sign the Advance Directives document in presence of two preferably independent witnesses and to be attested before a Notary Public. 

iii. The witnesses and the Notary have to record that to their satisfaction the document has been voluntarily executed by the Executor with free consent and out of sound mind. 

iv. The executor has to now inform to the Guardian(s) / Close relative(s) and give a copy of the Advance Directives to them as well as to the family physician, if any.

v. For the first time, now the Executor can incorporate the Advance directives as a part of digital health record, if any. 

3. Municipal Corporation to set-up the officer :

Like old guidelines, the copy of the Advance directives to be handed over to the municipal Corporation who would appoint competent official to act as the guardian thereof. 

However, the Govt. should be made aware of this condition and it would require to set up the necessary department at the earliest. 

4. Implementation of Advance Directives :

When the executor terminally ill and undergoing prolonged medical illness with no hope of recovery and does not have a decision making capacity, the treating physician “when made aware of Advance directives” shall ascertain the genuineness thereof with the digital health record, if any or from the custodian appointed by Municipal Corporation as mentioned in earlier clause.

5. Doctors to get satisfied fully :

This clause is same and the Doctors before giving effect thereto should be fully satisfied that the executor is really terminally ill and suffering from incurable illness. 

It means the responsibility is on the shoulders of the doctors and the documentation should be perfect so as to answer the future possible allegations. 

6. Before actions upon, inform the person/s named in the Advance Directives :

The Physician before acting upon the Advance directives should infrom the aforesaid person/s about the nature of illness, consequences of alternative forms of treatment and consequences of non-treatment. Further the physician should ensure that such person/s have pondered over  the information given by him and that they have fully understood that giving effect to the Advance Directives is the only best choice. 

7. Hospital Primary Medical Board :

Then the Hospital wherein the patient is admitted should constitute a Medical Board consisting of the treating physician and minimum two Doctors from concerned specialty, with minimum 5 years of experience, who in turn shall physically see the patient in the presence of guardian/close relative and within 48 hrs from the case being referred to them, should form their opinion in favour of or against the Advance directives. It shall be the preliminary decision.

If the Primary Board Refuses :

If the Primary Board takes a decision not to follow Advance Directives, then the Person/s named in Advance Directives may request the Hospital to refer the case to the Secondary Medical Board.

8. Hospital Secondary Medical Board : Provision of Collector Removed : 

If the Primary Board opines in favour of giving effect to the Advance directives, then now instead of going to the Collector, the same Hospital has to form the Secondary Medical Board Comprising of one Registered Medical Practitioner nominated by the Chief Medical Officer (CMO) of the District and minimum 2 subject experts with 5 years experience to visit the patient and if they concur with opinion of Primary Board, then they should endorse it in writing. It is provided that preferably within 48 years from the reference, the Secondary Board should give its opinion. 

Secondary board must also before hand ascertain whether the Executor is capable of understanding the consequences of withdrawal of medical treatment and if found to be incapable so, then consent of person/s nominated by the Executor should be taken.

IF Secondary Board refuses :

If the Secondary Board refuses to withdraw the treatment, then the person/s named in the Advance Directive or the treating Doctor or Hospital staff may approach hon’ble High Court by filing Writ Petition U/Art.226. The concerned C.J. shall thereafter constitute a Division Bench, which inturn shall constitute a committee of 3 independent Doctors from MD, Cardiology, Neurology, Nephrology, Psychiatry or oncology with an experience in Critical Care with overall 20 yrs of standing. 

The high Court to decide the application expeditiously and to keep in mind the principles of “best interests of the patient”.

9. Hospital to inform decisions of Board to JMFC :

The hospital has to inform the decisions of primary and Secondary Boards alongwith the consent of person/s named in the Advance directives to the concerned Jurisdictional JMFC before giving effect to the decision of withdraw of medical treatment. 

This provision, in my humble opinion, should not have been included since earlier all the provisions relating to JMFC have been deleted as this provision is merely an enabling provision. I am afraid that a dispute may arise as to which JMFC to have jurisdiction ? where the Hospital situates or the patient resides ? and in my opinion Jurisdictional JMFC should be where the Hospital situates. 

10. Revocation of Advance Directives Document ;

The Executor can revoke the document at any stage, of course before it is acted upon. The withdrawal of Advance directives should also be in writing.

11. Non Applicability of Advance directives / ambiguous directives :

The Advance Directives cannot be acted upon if there are reasonable grounds for believing that the circumstances exist  which the person making the directive did not anticipate at the time of directives given and which would have affected his decision had he anticipated.

In case of unclear or ambiguous Advance Directives, the medical Boards should not implement it. 

This provision is little tricky and the Boards have to be more careful. 

12. Cases wherein there is no Advance Directives given

: This is very important as in India such cases are definitely going to be more.

a. Their Lordships have also considered the cases wherein there is no Advance directive, but the patient is terminally ill or no hope of being cured. In such case, again it’s the Responsibility of the Physician to in turn inform the Hospital  which in turn shall constitute a Primary Medical Board in the manner indicated earlier.

b. The Primary Board would then discuss the issue with Family physician if any and the patient’s next of kin/next friend/guardian and appraise them about pros and cons of withdrawal or refusal o further treatment and record the minutes. 

c. If the Primary Board certifies in favour of the withdrawal of medical treatment, the Hospital shall constitute Secondary Medical Board in the same manner as prescribed earlier. The Secondary Board after physical examination of patient may concur with the opinion of Primary Board, which in turn shall be given to concerned JMFC and the next of kith/friend/guardian of the patient, preferably within 48 hrs of the case being referred to it. 

The personal visit of JMFC has been deleted. 

d. High Court intervention :

i. If the Primary Medical  Board may not take the decision of withdrawal of treatment or the Secondary Medical Board does not concur with the decision of Primary Board, then again nominee or family member of the patient or treating Doctor of the hospital staff may approach the Hon’ble High Court and against same procedure as mentioned above shall be followed in High Court.

13. JMFC to inform High Court :

In cases wherein the life support system has been withdrawn, the JMFC to inform to the High Court and same shall be kept in physical as well as in digital format. The hard copy which shall be destroyed after expiry of 3 years from the date of death of the patient 

Conclusion :

 

• These new guidelines certainly would make the base better as the patients will be more benefited to decide about their own lives; however what’s important is to promote more awareness amongst the general public. 
• One may feel that it's a lengthy process,but to .ake a Will is the first step that is very easy. Procedural part will get easier as the time passes.
• One must understand that the Living Will is not like euthanasia  wherein Doctor Will give some injection and you will take your last breath. It' about stopping of a Treatment under certain circumstances.  
• Living will, as of now, will be applicable only if the person making is admitted in the Hospital.
• whether old or new guidelines, it has certainly increased the responsibility of the Doctors as   the guidelines make role of Doctors very crucial and Doctors have been bestowed as  the best judge to decide whether to execute the “wish of the patient to stop the treatment” as no doubt Doctors are bound the Hippocratic oath of saving lives ! Nevertheless,  it will always be a collective decision of team of Doctors. 
• These new guidelines certainly would make the base better as the patients will be more benefited to decide about their own lives; however what’s important is to promote more awareness amongst the general public. This decision is certainly difficult for the patient and most importantly for the relatives and near and dear ones and thus whatever the Law is, I feel one must talk freely to the family members first ! 
• But, still I feel these guidelines whether – old or new, carry with it the unwritten fear of its misuse, isn’t it ? Can we leave it to the wisdom of the People ? whether old or new, it has certainly increased the responsibility of the Doctors as   the guidelines make role of Doctors very crucial and Doctors have been bestowed as  the best judge to decide whether to execute the “wish of the patient to stop the treatment” as no doubt Doctors are bound the Hippocratic oath of saving lives !
• Nevertheless, it’s the new concept per se as far as our country is concerned and as any law gets evolved slowly, this also surely would, in the interests of the patients!

 

Thanks and Regards

 

(Adv. ROHIT ERANDE)©

B.com, LLB, LLM Pune.

9823370028.

rohiterande@hotmail.com