HOW TO WRITE AND EXECUTE A LIVING WILL: PROCEDURE

WHAT IS A LIVING WILL?

First thing, first. A living will is not the instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. 

A living will is a legal document that restricts your health care wants if you become terminally ill and/or permanently incapacitated or unconscious due to injury, illness, or advanced age. It instructs your physician and family to know which life-sustaining medical treatments you want or don't want.

Living Will is also known as Advance Directives, Advance Healthcare Directives, Advance Medical Directives. 

RECOGNITION OF LIVING WILL IN INDIA

Under Article 32 of the Indian Constitution, Common Cause, a registered society for the common welfare of individuals, filed a written petition in 2005 to legalize Passive Euthanasia and to legally validate living wills. 

Before this, the registered society had written letters to the Ministry of Law and Justice, the Ministry of Health and Family Welfare, on passive euthanasia. The petitioners did not obtain the government's reply and then submitted the PIL. The petitioner argued that the right to live with dignity is the privilege of an individual before his death so that it should also be extended to include the privilege of obtaining a dignified death. That modern technology has created a situation under which the life of the patient is unnecessarily prolonged and causes both the patient and relative pain and anguish.

Finally, on 9 March 2018, the Supreme Court of India held that under Article 21 of the Indian Constitution, an individual has the right to die with dignity as part of his or her right to life and personal liberty. Thus this decision requires the termination of life-support devices for the terminally ill or those in incurable comas. Also, the court allowed individuals to decide against support for artificial life and accepted the need to create a living will. 

Furthermore, in this particular case, the court set out some recommendations relating to the procedure for administering the Advance Directives and provided the instructions for giving effect to passive euthanasia.

The court, in this case, also explains the difference between Active and Passive euthanasia.

Active euthanasia: includes the use of deadly substances or forces to kill a human, e.g. a deadly injection is administered to a person who is in terrible pain of terminal cancer. 

Passive euthanasia: Involves withholding medical care for the continuity of life, e.g. withholding antibiotics where the patient is likely to die without giving them, or withdrawing the heart-lung machine from a comma patient.

The court, in this case, permitting Passive Euthanasia in the country. At the same time, Active Euthanasia is still illegal in India and a crime under section 302 or at least under section 304 of the IPC, 1860. 

WHO CAN CARRY OUT A LIVING WILL AND HOW?

• Advance directed can be enforced only by an adult who is of a sound and healthy mind and in a position to communicate, relate, and comprehend the purpose and consequences of executing the document.
• The living will be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.
• It should have characteristics of informed consent given without any undue influence or constraint. 
• It should 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 disgrace.

ELEMENTS THAT MUST BE A PART WHILE EXECUTING A LIVING WILL

• MANIFESTATION: It should indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
• DEFINITE DIRECTIVES: It should be in specific terms, and the instructions must be absolutely clear and unambiguous. 
• REVOCATION: It should mention that the executor may revoke the instructions/ authority at any time.    
• EXECUTOR’S AFFIRMATION: It should disclose that the executor has understood the consequences of executing such a document.
•  SPECIFY THE GUARDIAN NAME: It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of deciding at the appropriate time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive. 
• NUMEROUS WILLS: If 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.

DOCUMENTATION AND MAINTENANCE OF LIVING WILL

• PRESENCE OF INDEPENDENT WITNESSES: The executor is required to sign the advance directive in the presence of two, preferably independent, attesting witnesses.
• JMFC COUNTERSIGNED: The advance directive shall then be countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC).
• RECORD OF SATISFACTION BY JMFC AND WITNESSES: The jurisdictional JMFC and both the witnesses shall then record their satisfaction regarding the fact of voluntary execution and absence of any form of coercion or inducement or compulsion and that the document was executed with a complete understanding of all the relevant information and consequences.
• MULTIPLE COPIES OF ADVANCE DIRECTIVE: There shall be multiple copies of the advance directive including a digital copy and JFMC should preserve one copy of the document.
• FORWARDING OF THE ADVANCE DIRECTIVE COPY: JFMC shall forward the copy of the advance directive to the registry of the jurisdictional District Court and with the competent officer of the Local Government or the Municipal Corporation or Municipality or Panchayat for being preserved. 
• NOTIFYING FAMILY MEMBERS AND PHYSICIAN: The JMFC shall also be notified of the advance directive by the immediate family members of the executor, and a copy shall also be entrusted to the family physician. 

The advance directive will be said to have been properly applied after the above conditions have been complied with.

UNDER WHAT CIRCUMSTANCES CAN THIS ‘LIVING WILL’ BE IMPLEMENTED?

After proper execution of the Advance Directive, a situation can occur where the implementation of the Advance Directive is necessary. The Supreme Court set out the following requirements for execution in such a situation:

• The treating physician shall VERIFY THE GENUINENESS AND AUTHENTICITY OF THE ADVANCE DIRECTIVE with the jurisdictional JMFC.
• INFORMING FAMILY: The physician shall after that notify the guardian/ close relative or the executor, depending on the circumstances, about the nature and gravity of the illness, forms of treatment available, and the consequences of not seeking medical treatment, among other things. 

The doctor has an additional duty to ensure that he trusts that the executor or the guardian as the case can completely appreciate the information given on fairgrounds and has deliberated on the different options provided and has come to a well-founded opinion that all the options, removal or denial of medical care remain the best choice.

• SET UP OF MEDICAL BOARD BY THE HOSPITAL: After the patient or his guardian has decided on withdrawal or refusal of treatment, a Medical Board will be assembled by the hospital comprising the Head of the treating department and three other experts from particular specialities. Many of these professionals should have mandatory training in critical care and at least twenty years of experience. While his guardian/close relative is also present, the Board will visit the patient and then vote about whether or not to certify the compliance of withdrawal or denial of further medical attention. This Board's decision is referred to as a preliminary opinion.
• SET UP OF ANOTHER MEDICAL BOARD BY THE COLLECTOR: After the preliminary opinion, the jurisdictional Collector shall be informed regarding the proposal of withdrawing of treatment. The Collector after that will constitute another Medical Board comprising the Chief District Medical Officer of the district as the Chairman and three other expert doctors from the specialities specified in the judgment with the practice of over 20 years. The doctors on this Board may not have been part of the hospital-assembled Medical Board. This Medical Board, appointed under the supervision of the Jurisdictional Collector, shall then endorse, in its opinion, the certificate of performance of the instructions given in the living will.
• COMMUNICATION OF DECISION TO JMFC: Before effectuating the advance directive, the Chairman of the Medical Board formulated by the Collector shall have to communicate the decision to the jurisdictional JMFC mandatorily. After that, the JMFC then shall also visit the patient and examine all relevant aspects, and after being satisfied, he may authorize the implementation of the decision.

• It is material to note that the same procedure is required to be followed in case of revocation of the advance directive.

REJECTION OF ADVANCE DIRECTIVE BY HOSPITAL MEDICAL BOARD

In a situation where the hospital medical board takes a decision not to follow an advance directive while treating a person, then it shall make an application to the Medical Board constituted by the jurisdictional Collector for consideration and appropriate action on the advance directive.

REJECTION TO WITHDRAW MEDICAL TREATMENT BY   THE JURISDICTIONAL COLLECTOR MEDICAL BOARD

If the Medical Board refuses permission to withdraw medical treatment constituted by the jurisdictional Collector, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of a writ petition under Article 226 of the Constitution.  The high court tries to draw its conclusion at the earliest as such matters cannot put up with any delay, and it shall lay on reasons specifically keeping in mind the principles of "best interests of the patient". The court can form another independent expert committee and decide based on their views. 

 WHERE THERE IS NO ADVANCE DIRECTIVE

• The hospital medical board shall discuss with the family physician and the family members and record the minutes of the discussion in writing.
• During the discussion, the family members shall be informed of the pros and cons of withdrawal or refusal of further medical treatment to the patient.
• If the family members give consent in writing, then the Hospital Medical Board may certify the course of action to be taken.

CIRCUMSTANCES IN WHICH ADVANCE DIRECTIVE IS INADMISSIBLE

• It has been withdrawn by the patient who issued it. The revocation has to be in writing.
• An Advance Directive shall not apply to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
•  If the advance directive is not clear or vague, the medical boards don’t give effect to the advance directive.
• Specific terms and conditions stated in the advance directive must comply for it to be effective.

CONCLUSION

By living will, one can express his will in advance that he doesn’t want to be kept alive by artificial means. In COMMON CAUSE VS UNION OF INDIA, 2018 one observation is laid down by the constitutional bench of the court, which is that every person is the master of his life. Therefore he has every right to decide to refuse any medical treatment, and no forms of medical treatment can be a force upon a conscious and fully sensible adult without his wish as that will amount to assault and battery which is an offence. 

The passive euthanasia or living will is very contentious and has several complex political, economic, educational, scientific, legal, and religious questions. 

Since a concept of living will or advance medical directive is advanced to us in India, we will have to wait and watch how it works out. As of now, all that can be said is that this is a step in the right direction as this saves the patient from going through ineffective treatment that only prolongs life, not save it. It paves the way for a smooth and painless existence in the world with loved ones around.