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‘Drafting a living will safeguards your right to live and die with dignity’
Updated On: 01 June, 2024 06:35 PM IST | Mumbai | Aakanksha Ahire
A living will promises autonomy of your own life, takes off a huge burden from your family members and doctors, and allows you to live your last days with dignity. If you haven’t drafted a living will already or are blissfully unaware of it, this World Health Day, let legal experts tell you what it is and why you should consider filing one
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It is not your usual will and is completely different from euthanasia. It is not just any legal document. It is legally recognisable in the eyes of Indian law. A living will is a friend to those who cannot communicate or are no longer of sound mind to make medical decisions for themselves. A living will is probably one of the best decisions you can make for yourself and your family members.
Given the fact that illnesses of all kinds, from cancers to lifestyle diseases, are on the rise, it has become extremely crucial for every adult to secure themselves medically for times when they become incapacitated. A living will enables you to do just that.
With World Health Day 2024 around the corner, Mid-day.com chose to speak to experts who volunteered to educate our readers about living will. While health experts refused to comment on the subject, three legal experts shared relevant insights on what a living will is, why one should draft the document, its advantages, and limitations, as well as the procedure to get a living will drafted.
What is a living will?
As explained by Bhaavya Roy, managing partner and founder, Kranti Law Offices, a ‘living will’ also known as an Advanced Medical Directive is essentially a legal document that allows an individual to specify their wishes and instructions about medical treatment and end-of-life care in the scenario that they become terminally ill or incapacitated and are unable to communicate.
The term end-of-life care refers to medical care and support offered to patients and their families during the time leading up to death. The motive is to help patients live life as comfortably as possible by effectively managing physical symptoms and providing emotional, spiritual, and social support.
Adding to Roy’s explanation, Subhadip Choudhuri, advocate, Calcutta High Court, specialising in civil laws, real estate laws and estate planning, says, “A living will is prepared by a person while they are of sound mind. In the will, one may also choose to pre-determine whether they would prefer to continue to exist on life support or recommend its withdrawal in case such an event arises.”
Adding to this, Shreya Sharma, lawyer, founder, Rest The Case highlights a key piece of information. She says, “A living will is completely different from a will. Unlike a regular will or testament which deals with the distribution of assets after death, a living specifically addresses healthcare decisions while the individual is still alive.”
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How is it different from euthanasia?
One must not confuse preparing a living will with euthanasia. Choudhuri elucidates, “Euthanasia is the act of ending the life of a terminally ill patient by his physician to save the patient from unbearable suffering which cannot be otherwise alleviated.”
Euthanasia is of two types - active euthanasia and passive euthanasia. Active euthanasia may be administered at the request of the patient (voluntary euthanasia), without the patient`s consent and at the discretion of his physician (involuntary euthanasia), and in instances where the patient is not in a state to provide consent (non-voluntary euthanasia). Passive euthanasia or the act of withdrawing the life support of a patient, who would otherwise not be alive, has been generally accepted worldwide.
Countries like the Netherlands, Belgium, Luxembourg, Colombia, Canada, Australia and a few others have accepted the administration of voluntary euthanasia only if certain conditions are met and the prescribed guidelines have been followed.
Involuntary euthanasia is prohibited and illegal in most countries. In 2018, the Supreme Court of India in its judgment in Common Cause (A Registered Society) v. Union of India and Another has allowed passive euthanasia of terminally ill patients provided the prescribed safeguards and guidelines have been strictly followed.
Choudhuri opines, “It may not be proper to put living will and euthanasia in the same basket. Euthanasia is a procedure while a living will is a document that contains the pre-determined consent of a person to undergo the procedure of euthanasia in case he is not able to specify his choice while being mortally ill.”
Is it legal in India?
Roy says drafting a living will is legal in India. “Post the 2018 judgement of the Apex Court in the matter of Common Cause vs Union of India, patient autonomy with regards to end-of-life medical care was taken into consideration and passive euthanasia was legalised in India. The Supreme Court laid out an elaborate procedure for living wills and their enforceability. This was primarily taken into consideration given the Right to Life under Article 21 of the Constitution.”
The right to life under Article 21 of the Constitution of India promises dignity in the process of dying. Depriving a person of their dignity during the end of their life is equivalent to depriving them of a meaningful existence.
Thus, the Supreme Court of India recognised the right to make advance directives for medical treatment, including the decision to refuse life-sustaining treatment.
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