India allows 'living wills' for terminally ill

Health experts welcomed the decision of the SC but said strict regulations must be put in to prevent abuse of the living will. representative image

A "living will" is made by a person, in his normal state of mind, seeking voluntary euthanasia in case of terminal illness, if he or she reaches an irreversible vegetative state.

The top court, in its last year's verdict, said there was no justification to keep the enforcement of Lokpal Act suspended till the proposed amendments, including on the issue of the Leader of Opposition in Lok Sabha, were cleared by the Parliament.

A five judge constitution bench of the Supreme Court said passive euthanasia is permissible; the court has framed detailed guidelines using its extraordinary power. The Supreme Court with a strict guideline to govern has permitted the passive euthanasia. Euthanasia can be active or passive in form and depending in the legal framework of a state, euthanasia is carried out in active or passive manner. However, in case of difference of opinion or rejection by the Medical Board on account of ambiguity in the advanced directive, the family or the hospital can approach the High Court that will expeditiously hear and decide the case.

What is the ruling all about? .

However, in a landmark judgement on Friday, 9 March 2018, the Supreme Court of India not only allowed the removal of life support for patients who are suffering from incurable comas or are terminally ill, but also recognized the concept of "living will".

"How can a person be told that he/she does not have right to prevent torture on his body?" A person can not be forced to live on support of ventilator.

Advocate Prashant Bhushan, appearing for the NGO, said since a patient in a coma can not express his or her wishes, the law should allow him or her to put down in writing in advance that he or she should not be tortured. Attempted suicide is now punishable by up to one year in jail under Section 309 of the Indian Penal Code, but, according to the Times of India, the government is considering revising that law.

What is a living will?

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Also termed as "advance medical directive", it is a direction issued by an individual that "he or she shall or shall not be given medical treatment in future when or he she becomes terminally ill".

It is now legal in India for terminally ill patients to refuse medical treatment. It includes authorizing his/her family to withdraw life support system in case a medical board declared that they were beyond medical help.

The SC provided for stringent guidelines for preparing and giving effect to "living will", to prevent possible misuse by greedy relatives eyeing the patients property by involving multiple medical boards comparising several experts and even judicial officers. It had cited examples of various countries in disallowing creation of living will by patients. The right to die with dignity, the NGO had argued was a Fundamental Right guaranteed under Article 21 of the Constitution.

Though the government took the lead in decriminalising suicide and is ready with a draft legislation formalising passive euthanasia, it struck a contradictory note in opposing living wills, essentially a person's desire to exit from life at a point of no return.

Aruna Shanbaug: The KEM nurse who was strangulated and sodomised by a sweeper in 1973 leading to her spending the rest of her life in vegetative state drew a wide spread attention.

The court also considered such cases where no living will or directive is left behind. On October 11, 2017, hearing was concluded and judgment reserved. On July 15th of the same year, a five-judge bench was commenced to hear the plea. He dies during the pendency of the case.

After nearly two years of that, on February 15th, 2016 thecentreopined that it is a deliberate issue and the five judges bench led by the Chief Justice of India Dipak Misra heard the argument and reversed the previous verdict. "But while the government was in favour of passive euthanasia, as demonstrated by the drafting of the 2016 bill, it was silent on the matter of the living will".

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