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.
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.
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.
The advance directive will be said to have been properly applied after the above conditions have been complied with.
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 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.
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.
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.
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.
George Floyd incident is the most recent example for all of us to understand this. When this incident took place all of the social media sites, media houses were taken by the boom.
For filing a partition suit or any other suit, a particular process has to be followed. The suit can be dismissed on the ground if the mandated procedure is not followed based on procedural impropriety.
Advocate Nivesh Sharma in his interview talks that any law student should start developing his/ her skills from the first semester itself. He said that gaining experience is the only asset which can build any person future. Running behind money can give you happiness, but knowledge can grant goodwill and pleasure both. Every law student should work from the ground level, i.e. from Non-Governmental Organizations to Supreme Court; there should be steps identified by every person. Doing a large number of an internship is not vital for success, but doing the internship and gaining different and new positive aspects of life from each internship is valuable for the future. He concluded by saying that peace of mind is necessary for a person to hone, as, in the field of law, frequent changes are very prevalent.