Living wills are now legally binding but might be still hard to implement

Last week, the Supreme Court passed a judgment upholding the legality of withholding or withdrawing life saving medical treatment from terminally ill patients. The legal recognition of this act, referred to sometimes as “passive euthanasia”, is not new. A previous judgment by the Supreme Court made it legally permissible since 2011. Now, the Supreme Court has gone further in confirming the right to a dignified death as a part of the right to life under article 21 of the Indian Constitution.

The 2011 judgment in the case of Aruna Shanbaug v Union of India had a major shortcoming in its requirement to seek the permission of the High Court every time life-sustaining medical treatment was to be withheld or withdrawn from a terminally ill patient. A review of litigation after this judgment shows that it has been invoked only once, in a case that did not involve a terminally ill patient. Therefore it may be safely presumed that most cases of withholding or withdrawal of medical treatment for terminally ill patients are currently decided outside of court.

With the latest judgment in the case of Common Cause v Union of India, the Supreme Court had the opportunity to replace this requirement with a more feasible mechanism. However, the Court has laid down a procedure that is arguably even more cumbersome than the one previously prescribed by it. An advance directive would have to be executed in the presence of two witnesses and authenticated by a Judicial Magistrate of First Class. Irrespective of whether the patient has an advance directive, permission for withholding treatment would have to be sought from two separate Medical Boards constituted by the hospital and a ‘jurisdictional collector’. Both these Boards will visit the patient before arriving at their decisions. Finally, the Judicial Magistrate of First Class will visit the patient and authorise the implementation of the decision of the Board. It is unclear how these decisions will be taken while these Boards are being constituted.

The decade-long case

As early as 2005, the NGO Common Cause had filed a petition asking for the legal recognition of advance directives or “living wills”. There was also ambiguity about the legal basis on which passive euthanasia has been allowed so far. The petitioners argued that the judgment in Aruna Shanbaug had incorrectly relied on a previous Supreme Court judgment (Gian Kaur v Union of India) to uphold the legality of withholding or withdrawing care to a terminally ill patient. To make a conclusive determination, the case was referred to a larger constitution bench of the Supreme Court, which has independently upheld the legality of passive euthanasia.

The judgment in the Common Cause case is noteworthy in its recognition of the legal validity of advance directives or living wills. An advance directive is a document where a person can specify the kinds of medical intervention they want (or do not want) to receive in a situation where they have lost the capacity to consent to such treatment. The judgment also recognises the appointment of nominated representatives who can act as proxy decision makers for such people.

Recognising advance directives

The concept of advance directives in the context of end of life care was first discussed in a 2006 report of the Law Commission of India. In this report, it was recommended that these instruments could be easily abused and could create unwanted litigation. They must therefore be deemed to be void and have no legal effect. This opinion was echoed by the Law Commission in its 241st report, and the Medical Treatment of Terminally Ill Patients Bill, 2006. A version of this 2006 Bill was also introduced in the Rajya Sabha in 2016. All these iterations stated that advance directives would not be binding on medical practitioners.

In its judgment in Common Cause, the Court has now recognised advance directives as a “fruitful means” to facilitate the realisation of the constitutional right to dignity and makes such directives legally binding. This right necessitates the introduction of a legal framework for advance directives with sufficient safeguards. The recognition of this instrument would help to clarify the course of medical treatment in end of life situations and lend legal certainty to the actions of medical practitioners. However, the Court has limited the scope of advance directives to only the withdrawal of medical treatment by terminally ill patients, a decision that is likely to significantly limit the utility of such an instrument.

Advance directives are not unique to end of life care. These have also been granted legal validity under the Mental Healthcare Act, 2017. Under this Act, a person can make an advance directive specifying how they would like to be cared for and treated for their mental illness. It comes into effect whenever the person ceases to have the capacity to make mental healthcare and treatment decisions. On the other hand, for an advance directive for end of life care to come into effect, not only would the person have to lose the capacity to consent, but would also have to be certified as terminally ill. For example, a person who is severely injured in an accident leaving her paralysed for life and unable to communicate her views might have left an advance directive for withholding or withdrawing care. But this would not be recognised because she is not terminally ill. This instrument merely facilitates the ability of the patient to exercise their right to bodily autonomy and self-determination over the kind of medical treatment they wish to receive. There is therefore no reason for it to be limited to patients with terminal illnesses.

The way forward

The guidelines issued by the Court remain in effect only till legislation is introduced covering all of these areas. While the government has previously invited comments on the Medical Treatment of Terminally Ill Patients Bill, that version of the Bill is severely lacking. This decision of the Supreme Court provides an opportunity to draft a fresh legislation which fully recognises and gives effect to the right to life and dignified death of all persons.

The right of all persons to refuse even life saving medical treatment is well recognised in common law. To give effect to complete patient autonomy, all terminally ill persons who are competent to consent should be able to refuse life saving medical treatment. As an extension of this principle, advance directives must be made enforceable, once it has been ascertained that the patient has a terminal illness and that the directive was legally executed. As long as a valid advance directive exists, it should be binding on the medical practitioner, irrespective of the opinions of family members or a medical board.

The only instance where external intervention is warranted is when the patient is incapable of consenting to medical treatment and has not executed a valid advance directive or nominated a medical representative. In such cases, the attending medical practitioner must attempt to ascertain the will of the patient as far as possible. Reference may then be made to a medical board to make a final decision which is based on an assessment of the will of the patient. In this context, it is also important to acknowledge the socio-economic and gendered dimensions of decision making at the end of life. Any legislative guidance on end of life care must be informed by these considerations.

While the Court has now made a determination on several contentious issues, many others are yet to be decided. These include recognising the evolving capacities of minors, access to palliative care and acceptable safeguards to prevent the misuse of any legal mechanisms prescribed by the law. The ball is now back in the government’s court, and it must use this opportunity to initiate a consultative process to draft a practical and progressive legislation on end of life care.

The writer is a lawyer working on health rights at the Vidhi Centre for Legal Policy. Vidhi was an intervener in the Common Cause case in the Supreme Court.