Navigating the Legal Landscape of Living Wills and Euthanasia: A Closer Look at the Supreme Court's Verdict

Introduction:

The issue of euthanasia, or mercy killing, has long been a contentious topic worldwide. It touches upon fundamental questions of morality, ethics, and the sanctity of life. In India, the legal journey concerning euthanasia reached a significant milestone with the Supreme Court's recent verdict on living wills. This article aims to delve into the key amendments and procedures laid down by the Supreme Court in Common Cause (A Regd. Society) vs Union of India and Another (Decided on January 24th, 2024).

Understanding Euthanasia:

Euthanasia involves the deliberate ending of a person's life to relieve suffering from a terminal illness or incurable condition in a vegetative state with no hope for recovery. The Supreme Court's stance on euthanasia underwent a transformation from initial rejection in the Gian Kaur case of 1996 to legalization in limited circumstances in 2018, citing the right to life and die with dignity enshrined under Article 21 of Constitution of India.

The Emergence of Living Wills:

Living Will also popularly known as Advance Directives are a legal document that empower individuals to give instructions in writing about their healthcare preferences in advance, particularly in situations where they may be unable to make decisions due to incapacitation. There are many individuals who would not want to withdraw from the life support systems, where there is no hope for recovery such as slipping in an irreversible coma for life. One can thus make a living will giving instructions as to how to be treated in such a situation. The Hon’ble Supreme Court in Common Cause (A Regd. Society) vs Union of India and Anr (2018) 5 SCC 1, gave recognition to Living Will/Advance Directive, however the procedure provided in the 2018 Judgement was found to be complex and thus, on July 19, 2019, the Indian Society of Critical Care Medicine filed a Miscellaneous Application seeking clarification on the procedure and modifications of some of the guidelines prescribed in 2018 Judgment.

The Supreme Court's ruling in the Common Cause (A Regd. Society) vs Union of India and Anr (Decided on January 24th, 2024) introduced amendments to streamline the process of executing living wills.

Key Amendments and Procedures:

1.    Execution of Living Will: The document must be signed by the executor in the presence of two witnesses and attested by a Notary or Gazetted officer to ensure voluntariness and understanding.

2.    Nomination of Custodian by Authority: A copy of the Living Will must be provided to person/s named in the will (person nominated in the will, the family physician (if any), competent officer of the Local Government/Municipal Corporation/Municipal Council/Panchayat (as the case may be). The concerned authority on receipt of such copy of Living Will shall nominate an official as the custodian of such copy. The executor may also choose to incorporate their Living Will as a part of the digital health records, if any.

3.    Authenticity and Verification: If the Executor becomes terminally ill and has been undergoing prolonged medical treatment with no hope of recovery and does not have decision making capacity, then the treating physician, after being made aware of the Living Will, shall ascertain the genuineness and authenticity of the Living Will from the custodian or existing digital health records.

4.    Duty of Physician: If the treating physician is satisfied that Living Will need to be acted upon, then he/she shall inform the persons named in the Living Will.

5.    Evaluation by Primary Medical Board: If the person(s) nominated by the Executor regarding the withdrawal or refusal of the treatment as per the instructions giving in the Living Will, comes to a conclusion, that the instructions given in should be carried out, then the hospital (where the Executor has been admitted) shall constitute a Primary Medical Board which consists of the treating physician and at least 2 subject experts of the concerned specialty, who shall have at least 5 years of experience and they shall visit the patient (Executor) and determine whether or not to certify the instructions given in the Living Will, within 48 hours of the case being referred to it.

6.    Evaluation by Secondary Medical Board: If the Primary Medical Board certifies that the instructions given should be carried out, then the hospital shall constitute a Secondary Medical Board comprising one registered medical practitioner nominated by the Chief Medical Officer of the District and at least two subject experts with at least five years of experience of the concerned specialty who were not part of the Primary Medical Board. The Secondary Medical Board shall provide its opinion within 48 hours of the case being referred to it. The Secondary Medical Board shall ascertain the wishes of the Executor (if he/she is in a position to communicate) or the consent of the person(s) nominated by the Executor.

7.    Decision by Magistrate: The hospital shall then convey the decision of the Primary and Secondary Medical Boards and consent of the person(s) named in the Living Will to the Jurisdictional JMFC before giving effect to the decision of withdrawal of medical treatment.

Remedies in the event, Board refuses to follow instructions in Living Will:

If the Primary Medical Board takes a decision not to follow instruction stated in the Living Will while treating a patient, then the person(s) named may request the hospital to refer the case to the Secondary Medical Board for consideration and appropriate direction on the Living Will.

If the permission to withdraw the medical treatment is denied by the Secondary Medical Board, then the nominated person(s) or treating doctor or hospital staff can approach the High Court by the way of filing a writ petition under Article 226 of the Constitution of India. After filing of such petition, the Chief Justice of the High Court shall constitute a Division Bench to decide upon grant of approval or refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The High Court may constitute Medical Board in terms of its order to examine the patient (Executor) and submit report about the possibility of acting upon the instructions contained in the Living Will and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.

Conclusion:

The Supreme Court's verdict on living wills and euthanasia represents a significant step forward in recognizing individuals' autonomy over their end-of-life decisions. By providing a legal framework for advance directives, the judgment upholds the principles of dignity and self-determination in healthcare. However, the procedure needs to be followed in an expeditious manner keeping in mind that every citizen of India is guaranteed right to die with dignity.