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What is a ‘living will’? Points you should know

Supreme Court has legalised ‘living will’ for terminally-ill patients

Sanghamitra Mazumdar | New Delhi |

The Supreme Court has pronounced its verdict on the plea seeking legal sanction for passive euthanasia. A five-judge constitution bench, headed by Chief Justice Dipak Misra, has decided that the ‘living will’ of a person, who is suffering from a terminal disease and in his/her last stage of life with no chance of recovery, should be recognised.

The court was hearing a petition filed by NGO ‘Common Cause’, which had sought a direction for recognition of a ‘living will’, contending that when a medical expert says a person afflicted with terminal disease has reached a point of no return, the patient should be given the right to refuse being put on life support.

“How can a person be told that he/she does not have right to prevent torture on his body? Right to life includes right to die with dignity. A person cannot be forced to live on support of ventilator. Keeping a patient alive by artificial means against his/her wishes is an assault on his/her body,” the petition had said.

The Centre had however told the SC that it was against letting people make “living wills”, though it was vetting a draft law to permit “passive euthanasia” — The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill “to provide for the protection of patients and medical practitioners from liability in the context of withholding or withdrawing medical treatment including life support systems from patients who are terminally ill”.

The draft Bill was released by the Health Ministry in 2016, based on a 2012 Law Commission of India report.

The Centre had also told the court that the government had in principle decided to decriminalise attempt to suicide, which at present is an offence punishable under Section 309 of the Indian Penal Code.

What is a ‘living will’?

As per definition, it’s a direction issued by a terminally ill patient that “he or she… shall or shall not be given medical treatment in future when or he she becomes terminally ill”. The term, “medical treatment”, here refers to artificial life support system that can delay death. The Supreme Court has last year found merit in the concept of ‘living will’, also termed as “advance medical directive”, paving the way for further discussion. The petition by Common Cause is on the lines of the US Patient Self Determination Act. The petition was referred to a Constitution Bench in 2014.

Living wills in other countries

Living will, or euthanasia, is permitted in varying forms in Belgium, Canada, and Sweden. In Australia, there is a system of “advance directive” to allow citizens to decide how they would like to be treated in future, if they are incompetent to make a decision at that point. The US has The Patient Self Determination Act that recognises advance directives or living wills, identifying the right to dignified death.

The Aruna Shanbaug connection

In the case of Aruna Ramchandra Shanbaug vs Union Of India & Ors (March 7, 2011), the Supreme Court had distinguished between “active” and “passive” euthanasia. Former nurse Aruna Shanbaug, a victim of a brutal sexual assault in 1973, had been in a persistent vegetative state in Mumbai’s KEM Hospital for 36 years. The petitioner had prayed that Shanbaug should be allowed to die peacefully by stopping the mashed food that she was being fed. The court had said, “Active euthanasia entails the use of lethal substances or forces to kill a person, e.g. a lethal injection… Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die…”

The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill

It seeks to allow a patient faced with terminal illness not to sustain life through medical treatment in the form of artificial support system. The patient should be a “competent person” aged 16 or more, who can take the decision with the consent of spouse or parents. The Bill mandates that the medical practitioner must inform the patient of all treatment options, and suggest or provide palliative care to make life less painful.