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Poor adoption of living will stems from complexity

Awareness about SC ruling on Living Will is still poor among the Indian population


Euthanasia is a deliberate intervention undertaken with the express intention of ending a life, to relieve extreme suffering. There is often a debate whether ‘assisted dying’ can be permitted or not in a civilized society.

In countries such as Switzerland, Belgium, the Netherlands, Canada, a few states in Australia and the US, ‘assisted dying’ is permitted with stipulated regulations to mitigate any abuse.

In a landmark judgment in early 2018, a five-judge constitution bench led by then Chief Justice of India Dipak Misra recognized the right to die with dignity as a fundamental right. It was enshrined as an intrinsic facet of Article 21 of the Indian Constitution.

The judgment also recognized the right of persons to draft and execute a Living Will (advanced directives) to turn down life-saving and sustaining medical interventions and treatments in case they were unable to communicate their decision at an advanced stage of their disease.

The ruling further issued comprehensive guidelines as regards procedures to be implemented for facilitating passive euthanasia. Undoubtedly, precautions are required to ensure that this right is neither misused or abused by anyone.

Advanced medical directives can be made by any person who is above 18 years of age. The concerned person should not be suffering from any mental illness at the time of making the directive (even if he/she was suffering from a mental illness earlier). It is imperative that the stated directive should be attested by two witnesses to establish that the executor of the Will is of sound mental capacity and has a genuine intent to execute the will. The stated directive also needs to be duly notarized. The Will should further contain a clause allowing its executant to revoke it at any point after its making.

The concept of Living Will originated in the US in the late 1960s and was a brainchild of noted US human rights attorney Louis Kutner. It was conceptualized with a view to enable people to communicate in advance the refusal to continue advanced medical treatment in cases of terminal illnesses where the patient was likely to remain in a perpetual state of clinical vegetativeness.

Given the significance of this concept and the historical ruling by the Supreme Court, there continues to be less awareness about its importance among the Indian population.

This fact was highlighted by the Living Will Survey undertaken by healthcare service provider HealthCare at HOME (HCAH) around a year after the apex court ruling. The survey covered more than 2,400 urban Indians comprising an equal number of male and female participants. It established that hardly 27% of those participating were apprised of the notion of Advanced Directives Will while an actual Living Will had been made by a meagre 6% of the respondents.

The mass acceptance and adoption of the Living Will concept among the Indian population has been constrained by the procedural complexities involved in its registration. Execution of the Will is an onerous process for the ordinary Indian citizen as it involves a multi-layered approval process.

The directive needs to be executed through the attestation of two witnesses, authenticated by a judicial magistrate and certified by a medical board.

Following the certification by the board, the matter will be referred to the jurisdictional collector, who will constitute another medical board to examine the case. After the chairman of the board analyses the merits of the case, the decision will be conveyed to the jurisdictional magistrate, who will visit the patient and grant approval to the decision.

As we slowly emerge from the adverse shadows of the covid-19 pandemic, we need to have serious conversations around the concept of advanced healthcare directives.

With the power to document their wishes and preferences for future treatment refusals for end-stage diseases, people have been given the right to choose suitable treatment outcomes. In a country with lower penetration of health insurance and out-of-pocket expenses majorly accounting for the payment of medical bills, a Living Will can lead to considerable financial savings for families and also reduce the pain and trauma caused to the person who is terminally ill as well as his/her immediate family.

Living with respect and dying with dignity is the absolute right of every individual human being. This right should be respected by policymakers and the process of registering Living Will should be made seamless and less cumbersome.

Rajesh Narain Gupta is managing partner, SNG & Partners.

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Updated: 14 Sep 2021, 06:10 AM IST
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