CALL FOR LEGISLATION ON LIVING WILLS
Author: Ayushi Raghuwanshi, I year of LL.M. from MNLU, Nagpur
India in a landmark judgment[i] has recognised drawing up of living will by people who are suffering from terminal illness. Earlier the Supreme Court in 2011 recognised passive euthanasia in Aruna Shanbaug case[ii] and laid down certain guidelines for passive euthanasia and declared active euthanasia illegal. Now living will has given a way for passive euthanasia in the common cause judgment. “It is a landmark judgement because it comes at a time when medical science allows patients to be kept alive by artificial means and the hospitals to keep charging money"[iii]
With the march of legislation, the theory of individual autonomy has gained much importance. It has been recognized as the vital feature of human dignity across many jurisdictions. The SC of India has also rooted it very firmly in the guarantee to life and individual freedom in Art. 21[iv], throughout the matrix propounded in the Puttaswamy judgment[v] Further broadening the scope of Article 21, the court in 2018 held ‘right to die with dignity’ as a fundamental right of the people. This right to die with dignity can be exercised by the people by recording a living will which has been legalised by the court.
But what is a living will? “It is a type of advance directive that states the specific types of medical care that a person wishes to receive if that person is no longer able to make medical decisions because of a terminal illness or being permanently unconscious. A living will usually has instructions about whether to use certain treatments to help keep a person alive, such as the use of dialysis (kidney) machines, breathing tubes, feeding tubes, and CPR”[vi].
Living wills aren't only for more old age people. Unforeseen end of-life circumstances can occur at whatever stage in life, so it's significant for all adults to set up these reports. By preparing, you can get the clinical consideration you need, keep away from pointless anguish and alleviate the family and caretakers of dynamic weights of decision making during times of emergency. You additionally assist with decreasing disarray or conflict about the decisions you would need individuals to make for your benefit.
It saves the patient from going through worthless medicines that just delay life, not save it. It prepares for a smooth and effortless exit from the world with friends and family around.
PROBLEMS WITH LIVING WILL
Though living wills have been legally recognized in India yet the benefits have not been reaped fully as there lays a lot of difficulties -
No standard procedure in the absence of a legislation regarding living will is one of the practical difficulties in getting the same executed. Apart from the guidelines laid down in the judgment[vii] there is no law governing the same. The whole process is cumbersome and the stakeholders face unnecessary trouble in the same.
LACK OF AWARENESS
A year after the judgement, “Living Will Survey was conducted by healthcare service provider HealthCare at HOME (HCAH) across seven cities--Delhi, Mumbai, Kolkata, Hyderabad, Bengaluru, Chandigarh and Jaipur with a sample size of 350 to 400 per region. Out of more than 2,400 urban Indian respondents has found that while 88% of respondents wanted to decide their line of medical treatment during the last days of their life, only 27% were aware of the concept of a living will and only 6% of these had actually created a living will”[viii].
COMPLEX PROCEDURE FOR REVOCATION
A similar procedure is required to be observed for revocation of the living will as for the recording. A cumbersome procedure first for the recording of the directive then for its revocation becomes a factor which discourages people. In the event of a person being unable to get it revoked and later if he becomes unconscious then his original directive will be given effect even if he does not want.
What can be called terminally ill and what cannot be is a matter which demands greater scrutiny. There have been instances when even terminally ill patients have recovered from illness and terminating their lives earlier without having tried all the medical procedures possible would take away their life.
MISUSE OF LIVING WILL
It may result in the misuse of the provision by some who want to get rid of their elderly parents. There are very high chances of such misuse. It would rule out the possibility of any doubts about terminating the life decision as murder.
LACK OF LEGISLATION
The Euthanasia (Regulation) Bill, 2019 introduced in the Lok Sabha “to regulate termination of life of persons who are in a permanent vegetative state or terminally ill and facing unbearable suffering and for matters connected therewith or incidental thereto”[ix].
This has been a positive step towards regulating euthanasia. The Medical Treatment Of Terminally-Ill Patients (Protection Of Patients And Medical Practitioners) Bill proposed by the Law commission of India in its 241st Report also provides a framework for regulating the process.
There is no legislation regarding euthanasia which leads to lack of standard procedure which in turn leads to ambiguity. This problem can be addressed if the bill becomes an act.
The Supreme Court of India through its landmark decision has once again expanded the scope of Article 21 and included within it the right to die with dignity. The court has also laid down certain guidelines for the formulation of living wills which would ascertain that people have the right to die with dignity. However it is clear that there are certain procedural difficulties in the absence of legislation and the regulation by mere guidelines. Moreover the people are not informed of their right to have a living will recorded.
The guidelines regarding living will undoubtedly require reforms and legislation on the matter would regulate the same in a systematic manner. People need to be informed of their right and choice to make a living will as it is an approval of the individual's on the right track to pick clinical treatment according to his/her yearnings. It guarantees proper treatment and dodges useless mediations. It urges people to talk about and plan end-of-life care. The family doesn't need to take extreme choice and needn't be put through unnecessary guilt and superfluous problems. A living will directs the clinical group and family when the patient is in a vegetative express, a state of unconsciousness, is critically ill with helpless result or has a constant and hopeless condition. With the right legislation, living will can guarantee an individual’s right to die with dignity.
[i] Common Cause (A Regd. Society) vs. Union of India and Anr. (2018) 5 SCC 1 [ii]Aruna Ramchandra Shanbaug vs Union Of India & Ors (2011) 4 SCC 454 [iii] https://www.bbc.com/news/world-asia-india-43341155 [iv]No person shall be deprived of his life or personal liberty except according to a procedure established by law [v] Justice K S Puttasawamy Vs Union of India (2017) 10 SCC 1 [vi] https://www.cancer.gov/publications/dictionaries/cancer-terms/def/living-will [vii] Common Cause (A Regd. Society) vs. Union of India and Anr. (2018) 5 SCC [viii] https://www.business-standard.com/article/current-affairs/a-year-after-sc-verdict-on-right-to-living-will-73-indians-are-unaware-119060300074_1.html [ix] Bill No. 136 of 2019