A living will is a document prescribing a person's wishes regarding the
medical treatment the person would want if he/she was unable to share his/her
wishes with the health care provider. The term living will is synonym
to Advance Directive, which is also known as Advance Care
Directive or Advance Medical Directive.
Dignity of human nature requires that we must face the storms of life.-
The Black's Law Dictionary defines an Advance Medical Directive as, a legal
document explaining one's wishes about medical treatment if one becomes
incompetent or unable to communicate.
The history of living wills dates back to 1969 when the American lawyer, Louis
Kutner first proposed it. He viewed it as a simple device to allow patients to
say no to life-sustaining treatment that they did not want, even if they were
too ill to communicate.
In order to overcome the difficulty faced in case of patients who are unable to
express their wishes at the time of taking the decision, the concept of Advance
Medical Directives emerged in various countries. The proponents of Advance
Medical Directives contend that the concept of patient autonomy for incompetent
patients can be given effect to, by giving room to new methods by which
incompetent patients can beforehand communicate their choices, which are made
while they are competent. It accepts the position that a competent person can
express his/ her choice to refuse treatment at the time when the decision is
required to be made.
Advance Directives for health care go by various names in different countries
though the objective largely is the same, that is, to specify an individuals
health care decisions and to identify persons who will take those decisions for
the said individual in the event he is unable to communicate his wishes to the
Advance Directives have gained lawful recognition in several countries by way of
legislation and in certain countries through judicial pronouncements. In order
to deal with the technicalities and intricacies associated with an instrument as
complex as an Advance Directive, several derivatives/ versions have evolved over
For first time, the concept of living will was concretely used in the Aruna
Shanbaugcase. The Supreme Courthad dismissed the petition,however,
in its landmark opinion; it allowed passive euthanasia in India by issuing a set
of broad guidelines.
Since there was no concrete legal framework in India as regards to the Advance
Medical Directive, the Supreme Court, in Common Cause v. Union of India,
found it necessary to protect the right of the citizens as enshrined under
Article 21 of the Indian Constitution.
The prayers of the said writ petitionare as follows:
- (i) that right to die with dignity be declared as a fundamental right
within the fold of right to live with dignity guaranteed under Article 21 of
the Constitution and
- (ii) that the direction be issued to Union of India, to adopt suitable
procedures, in consultation with the State Governments wherever necessary, to ensure that the persons with deteriorated health or terminally ill
should be able to execute a document, viz., my living will & Attorney
authorization which can be presented to hospital for appropriate action in the
event of the executant being admitted to the hospital with serious illness which
may threaten termination of life of the executant or in the alternative, issue
appropriate guidelines to this effect and to appoint an Expert Committee
consisting of doctors, social scientists and lawyers to study into the
aspect of issuing guidelines regarding execution of Living Wills.
It is well known that the right to die with dignity is a part of the Right to
Life guaranteed under Article 21 of the Constitution. In Gian Kaur v. State of
Punjab,Constitution Bench of the Supreme Court has held that the right
to live with dignity under Article 21 will be inclusive of right to die with
dignity, this decision does not arrive at a conclusion for validity of
euthanasia be it active or passive. So, the only judgment that holds the field
in regard to euthanasia in India is Aruna Shanbaug case, which upholds the
validity of passive euthanasia and lays down an elaborate procedure for
executing the same on the wrong premise that the Constitution Bench in Gian Kaur
case had upheld the same. In view of the inconsistent opinions rendered in Aruna
Shanbaug case and also considering the important question of law involved, which
needs to be reflected in the light of social, legal, medical and constitutional
perspective, it becomes extremely important to have a clear enunciation of law.
Moreover, in the cogent opinion of the Supreme Court, the question of law
involved requires careful consideration by a Constitution Bench of this Court
for the benefit of humanity as a whole.
Thus the Supreme Courtrefrained from
framing any specific questions for consideration and the case was referred to
the Constitution Bench for going into all the aspects of the matter and to lay
down exhaustive guidelines in that regard.
Hence, a five judges Constitutional Benchwas formed and it found necessary
to protect the right of the citizens as enshrined under Article 21 of the Indian
Constitution. Thus, it was considered that the Advance Medical Directive would
serve as a fruitful means to facilitate the fructification of the sacrosanct
right to life with dignity. The Constitutional Bench viewed that said directive
would dispel many a doubt at the relevant time of need during the course of
treatment of the patient. It will strengthen the mind of the treating doctors,
as they will be in a position to ensure that they are acting in a lawful manner.
There has to be safeguards for Advance Medical Directive, as it cannot operate
in abstraction. The Constitutional Benchframed the following
Who can execute the Advance Directive and how?
- (i) It can be executed only by an adult who is of a sound and
healthy state of mind and in a position to communicate, relate and comprehend
the purpose and consequences of executing the document.
- (ii) It must be voluntarily executed and without any coercion or
inducement or compulsion and after having full knowledge or information.
- (iii) It should have characteristics of an informed consent given
without any undue influence or constraint.
- (iv) It shall be in writing clearly stating as to when medical
treatment may be withdrawn or no specific medical treatment shall be given which
will only have the effect of delaying the process of death that may otherwise
cause him/her pain, anguish and suffering and further put him/her in a state of
What should it contain?
(i)It should clearly indicate the decision relating to the
circumstances in which withholding or withdrawal of medical treatment can be
(ii)It should be in specific terms and the instructions must be
absolutely clear and unambiguous.
(iii)It should mention that the executor may revoke the
instructions/authority at any time.
(iv)It should disclose that the executor has understood the
consequences of executing such a document.
(v)It should specify the name of a guardian or close relative
who, in the event of the executor becoming incapable of taking decision at the
relevant time, will be authorized to give consent to refuse or withdraw medical
treatment in a manner consistent with the Advance Directive.
(vi)In the event that there is more than one valid Advance
Directive, none of which have been revoked, the most recently signed Advance
Directive will be considered as the last expression of the patients wishes and
will be given effect to.
How should it be recorded and preserved?
- (i) The document should be signed by the executor in the
presence of two attesting witnesses, preferably independent, and countersigned
by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by
the concerned District Judge.
- (ii) The witnesses and the jurisdictional JMFC shall record their
satisfaction that the document has been executed voluntarily and without any
coercion or inducement or compulsion and with full understanding of all the
relevant information and consequences.
- (iii) The JMFC shall preserve one copy of the document in his office,
in addition to keeping it in digital format.
- (iv) The JMFC shall forward one copy of the document to the Registry of
the jurisdictional District Court for being preserved. Additionally, the
Registry of the District Judge shall retain the document in digital format.
- (v) The JMFC shall cause to inform the immediate family members of
the executor, if not present at the time of execution, and make them aware
about the execution of the document.
- (vi) A copy shall be handed over to the competent officer of the
local Government or the Municipal Corporation or Municipality or Panchayat, as
the case may be. The aforesaid authorities shall nominate a competent official
in that regard who shall be the custodian of the said document.
- (vii) The JMFC shall cause to handover copy of the Advance Directive to
the family physician, if any.
When and by whom can it be given effect to?
- (i) In the event the executor becomes terminally ill and is
undergoing prolonged medical treatment with no hope of recovery and cure of the
ailment, the treating physician, when made aware about the Advance Directive,
shall ascertain the genuineness and authenticity thereof from the jurisdictional
JMFC before acting upon the same.
- (ii) The instructions in the document must be given due weight by
the doctors. However, it should be given effect to only after being fully
satisfied that the executor is terminally ill and is undergoing prolonged
treatment or is surviving on life support and that the illness of the executor
is incurable or there is no hope of him/her being cured.
- (iii) If the physician treating the patient (executor of the
document) is satisfied that the instructions given in the document need to be
acted upon, he shall inform the executor or his guardian/ close relative, as the
case may be, about the nature of illness, the availability of medical care and
consequences of alternative forms of treatment and the consequences of remaining
untreated. He must also ensure that he believes on reasonable grounds that the
person in question understands the information provided, has cogitated over the
options and has come to a firm view that the option of withdrawal or refusal of
medical treatment is the best choice.
- (iv) The physician/hospital where the executor has been admitted for
medical treatment shall then constitute a Medical Board consisting of the Head
of the treating Department and at least three experts 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 who, in turn, shall visit the patient in the presence
of his guardian/close relative and form an opinion whether to certify or not to
certify carrying out the instructions of withdrawal or refusal of further
medical treatment. This decision shall be regarded as a preliminary opinion.
- (v) In the event the Hospital Medical Board certifies that the
instructions contained in the Advance Directive ought to be carried out, the
physician/ hospital shall forthwith inform the jurisdictional Collector about
the proposal. The jurisdictional Collector shall then immediately constitute a
Medical Board comprising the Chief District Medical Officer of the concerned
district as the Chairman and three expert 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 (who were not members of the previous Medical Board of
the hospital). They shall jointly visit the hospital where the patient is
admitted and if they concur with the initial decision of the Medical Board of
the hospital, they may endorse the certificate to carry out the instructions
given in the Advance Directive.
- (vi) The Board constituted by the Collector must beforehand
ascertain the wishes of the executor if he is in a position to communicate and
is capable of understanding the consequences of withdrawal of medical treatment.
In the event the executor is incapable of taking decision or develops impaired
decision making capacity, then the consent of the guardian nominated by the
executor in the Advance Directive should be obtained regarding refusal or
withdrawal of medical treatment to the executor to the extent of and consistent
with the clear instructions given in the Advance Directive.
- (vii) The Chairman of the Medical Board nominated by the Collector,
that is, the Chief District Medical Officer, shall convey the decision of the
Board to the jurisdictional JMFC before giving effect to the decision to
withdraw the medical treatment administered to the executor. The JMFC shall
visit the patient at the earliest and, after examining all aspects, authorize
the implementation of the decision of the Board.
- (viii) It will be open to the executor to revoke the document at any
stage before it is acted upon and implemented.
What if permission is refused by the Medical Board?
- (i) If permission to withdraw medical treatment is refused by
the Medical Board, 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 writ petition under Article 226 of the Constitution. If
such application is filed before the High Court, the Chief Justice of the said
High Court shall constitute a Division Bench to decide upon grant of approval or
to 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
- (ii) The High Court shall hear the application expeditiously after
affording opportunity to the State counsel. It would be open to the High Court
to constitute Medical Board in terms of its order to examine the patient and
submit report about the feasibility of acting upon the instructions contained in
the Advance Directive.
- (iii) Needless to say that the High Court shall render its decision at
the earliest as such matters cannot brook any delay and it shall ascribe
reasons specifically keeping in mind the principles of best interests of the
Revocation or inapplicability of Advance Directive
- (i) An individual may withdraw or alter the Advance Directive at
any time when he/she has the capacity to do so and by following the same
procedure as provided for recording of Advance Directive. Withdrawal or
revocation of an Advance Directive must be in writing.
- (ii) An Advance Directive shall not be applicable to the treatment
in question if there are reasonable grounds for believing that circumstances
exist which the person making the directive did not anticipate at the time of
the Advance Directive and which would have affected his decision had he
- (iii) If the Advance Directive is not clear and ambiguous, the
concerned Medical Boards shall not give effect to the same and, in that event,
the guidelines meant for patients without Advance Directive shall be made
- (iv) 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 Collector for consideration and
appropriate direction on the Advance Directive.
The Honble Supreme Court further made it clear that there will be cases where
there is no Living Will or Advance Directive. The said class of persons cannot
be alienated. The Supreme Court said that, in such cases, the procedure and
safeguards are to be the same as applied to the cases where Advance Directives
are in existence and in addition, there to, the following procedure shall be
- In cases where the patient is terminally ill and undergoing prolonged
treatment in respect of ailment which is incurable or where there is no hope
of being cured, the physician may inform the hospital which, in turn, shall
constitute a Hospital Medical Board in the manner indicated earlier. The
Hospital Medical Board shall discuss with the family physician and the
family members and record the minutes of the discussion in writing. During
the discussion, the family members shall be apprised of the pros and cons of
withdrawal or refusal of further medical treatment to the patient and if
they give consent in writing, then the Hospital Medical Board may certify
the course of action to be taken. Their decision will be regarded as a
- In the event the Hospital Medical Board certifies the option of
withdrawal or refusal of further medical treatment, the hospital shall
immediately inform the jurisdictional Collector. The jurisdictional
Collector shall then constitute a Medical Board comprising the Chief
District Medical Officer as the Chairman and three experts 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 Medical Board constituted
by the Collector shall visit the hospital for physical examination of the
patient and, after studying the medical papers, may concur with the opinion
of the Hospital Medical Board. In that event, intimation shall be given by
the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.
- The JMFC shall visit the patient at the earliest and verify
the medical reports, examine the condition of the patient, discuss with the
family members of the patient and, if satisfied in all respects, may endorse the
decision of the Collector nominated Medical Board to withdraw or refuse further
medical treatment to the terminally ill patient.
- There may be cases where the Board may not take a decision to the effect
of withdrawing medical treatment of the patient on the Collector nominated
Medical Board may not concur with the opinion of the hospital Medical Board.
In such a situation, the nominee of the patient or the family member or the
treating doctor or the hospital staff can seek permission from the High
Court to withdraw life support by way of writ petition under Article 226 of
the Constitution in which case the Chief Justice of the said High Court
shall constitute a Division Bench which shall decide to grant approval or
not. The High Court may constitute an independent Committee to depute 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 after
consulting the competent medical practitioners.
It shall also afford an opportunity to the State counsel. The High Court in such
cases shall render its decision at the earliest since such matters cannot brook
any delay. The High Court shall ascribe reasons specifically keeping in mind the
principle of best interests of the patient.
Thus, the Indian Judiciary has made a commendable effort. Living Wills also
reflect a moment in time, and may therefore need regular updating to ensure that
the correct course of action can be chosen. The principles relating to the
procedure for execution of Living Will or Advance Medical Directive shall be
governed by the judgment in the Common Cause Case and shall remain in force till
the Parliament brings a legislation in the field.
The Supreme Court, in the Common Cause Case, has given a basic legal frame work
for Living Will or Advance Medical Directive in India. The Constitutional
Bench of Five Judges have given four concurring judgments, firstlyby Honble
Chief Justice of India Dipak Mishra, for himself and for Justice A.M. Khanwilkar,
have taken a legal & factual approach supported by morality & ethics;
secondlyby Honble Justice A.K. Sikhri having taken literary approach;
thirdlyby Honble Justice Dr. D.Y. Chandrachud, who took philosophical approach
and the fourthly by Hon'ble Justice Ashok Bhushan who took the scientific
approach supported by philosophy.
In other words, the Judiciary has prepared a skeleton and now, its the Indian
Legislature who has to provide a body, that is, a specific legislation needs to
be drafted. The said piece of legislation should be drafted with a foresight of
the developments in the field of science, medicine & technology and the
knowledge of the existing laws prevalent over the globe.
It might be difficult for some us for taking such a call but we should keep in
mind that the right of a dying man is to die with dignity when life is ebbing
out. And in the case of a terminally ill patient or a person in Persistent
Vegetative State (PVS), where there is no hope of recovery, accelerating the
process of death for reducing the period of suffering constitutes a right to
live with dignity.
Thus, I end in the words of a Japanese writer, Mr.Haruki Murakami :
Death is not the opposite of life, but a part of it.
Aruna Ramchandra Shanbaug v. Union of India & Ors., (2011) 4 SCC 454.
Comprising of Hon'ble Justices Shri. Markandey Katju and Smt. Gyan Sudha
Writ Petition (Criminal) No. 115 of 2009.
(2014) 5 SCC 338.
Writ Petition (Civil) No. 215 of 2005.
(1996) 2 SCC 648.
Comprising of Hon'ble Chief Justice of India P. Sathasivam and Hon'ble
Justices Ranjan Gogoi and Shiva Kirti Singh.
Comprising of Hon'ble Chief Justice of India, Shri Dipak Mishra and Hon'ble
Justices, A.M. Khanvilkar, A.K. Sikri, Dr. D.Y. Chandrachud and Ashok Bhushan.
(2018) 5 SCC 1.
Ibid, para 191.