A person has the right to execute an Advance Medical Directive to know their
decision regarding the manner and extent of medical treatment given to their
body, in case they are incapacitated to make an informed decision. Such rights
can be exercised by an individual in recognition and in affirmation of his right
of bodily integrity and self-determination which are duly protected under
Article 21 of the Constitution.
The rights to physical integrity and
self-determination are fundamental rights that are available to all human
beings. In the event of a terminal disease, a person's decision to utilize or
not employ a life-sustaining treatment is a significant personal decision. The
concept of an Advance Medical Directive is gaining popularity around the globe.
In this regard, various countries have enacted required legislation.
People in several jurisdictions around the world have the right under common law
to refuse medical treatment which might be unwanted at a certain age, and no one
can be forced to continue such treatment if they do not want to. It is a
violation of a person's right to personal liberty to begin medical treatment
against their will.
What is Advance Medical Directive?
The Advance Medical Directive (AMD) is a relatively new concept that has
received widespread acceptance around the world. AMD helps in protecting basic
human autonomy, while also shedding light on the concept of dignity in death.
An AMD is a person's advanced exercise of autonomy on the subject of the level
of medical intervention they intend to accept on their own body at a time when
they may not be able to express their views. The objective and intent of AMD are
to convey a person's medical care preferences if they lose their ability to make
decisions. The use and operation of an AMD should be limited to situations
where a person has reached a point where they would become incompetent or are
unable to make informed decisions about their medical treatment.
There is no
need to consider AMD as long as an individual can make an informed decision
about the same. A person has the unrestricted freedom to amend or cancel their
AMD based on the passage of time and medical scientific improvement. As a
result, a person cannot be held down or bound by instructions provided at a
In most western countries, AMD has taken a legalistic form incorporating a
formal declaration to be signed by competent witnesses. The laws also make
provisions for updating confirmation of its applicability and revocation.
Protecting the autonomy of an individual is the primary purpose of an AMD. The
right to decide one own fate presupposes a capacity to do so. The answer as to
when a particular AMD becomes operative usually depends upon the assent of when
its author is no longer competent to participate in medical decision-making.
Common Cause v. Union of India:
The Supreme Court of India in the case of Common Cause v. Union of India
discussed the concept of AMD, which is also referred to as a living will in
A writ petition was filed under Article 32 of the Constitution of India
by the petitioner to seek the following reliefs:
Brief background to the case:
- The petition challenged the constitutionality of Section 306 of the Indian Penal
- The petitioner wanted the Court to declare the right to die with dignity as a
fundamental right within the bounds of Article 21 of the Constitution, which
guarantees the right to live with dignity.
- The petitioner further asked the Court to issue directions to adopt suitable
procedures, to ensure that persons of deteriorated health or terminally ill
should be able to execute a document titled as my Living Will and attorney
authorization which can be presented to hospitals for appropriate action in
event of the executant being admitted to the hospital with serious illness.
In this case, the petitioner was a registered society that provided public
services. The petitioner filed a Public Interest Litigation (PIL) to draw the
attention of the Supreme Court to the significant problem of violations of the
people's fundamental rights to life, liberty, privacy, and the right to die with
dignity, as provided by Article 21 of the Indian Constitution.
Citizens with chronic ailments and/or who were nearing the end of their natural
life span and were likely to enter a condition of terminal illness or in
permanent vegetative condition are robbed of their right to refuse cruel and
unwanted medical treatment, like feeding through hydration tubes, being kept on
ventilator and other life-supporting machines to artificially prolong their
natural life span.
This can sometimes lead to more pain and suffering, both
physical and mental, which they desperately want to end by making an informed
decision and clearly stating their preferences in advance (called a living will)
if they are unable to voice their preferences.
Right to die with dignity:
As per the Constitution Bench of the Supreme Court in the case of Gian Kaur v.
State of Punjab, the right to die with dignity is guaranteed under Article 21 of
the Constitution. It's worth noting that AMD isn't always linked to end-of-life
decisions. However, it is critical to ensure that the form of an AMD matches its
author's needs and is sufficiently authoritative and practical to allow its
requirements to be enforced.
The concept of AMD originated largely as a response to the development of
medicines. Many people living depending on machines cause great financial
distress to the family with the cost of long-term medical treatment. AMD was
developed as a means to restrict the kinds of medical intervention in an event
when one becomes incapacitated. The foundation for seeking direction regarding
this is the extension of the right to refuse medical treatment and the right to
die with dignity.
When a competent patient has the right to decide on medical
treatment, concerning medical procedure entailing the right to die with
dignity, the said right cannot be denied to those patients, who have become
incompetent to make an informed decision at the relevant time. This concept has
gained ground to give effect to the rights of those patients, who at
a particular time are not able to make an informed decision.
Another concept that has gained traction in several nations is the recognition
of an instrument through which a person appoints a representative to make
medical treatment decisions on their behalf if the person executing the
instrument is unable to make an informed decision. This is referred to as
attorney authorization for medical care. There however is no legislation in
India that governs the same.
AMD under the Mental Healthcare Act:
The Mental Healthcare Act, 2017, whereas per Section 5 every person, who is not
a minor has a right to make an AMD in writing regarding treatment to their
mental illness in the way a person wishes to be treated. The person wishes not
to be treated for mental illness and nomination of individual and individual as
Section 5 of this Act prescribes the following:
- Every person, who is not a minor, has a right to make an advance
directive in writing, specifying any or all of the following, namely:
- the way the person wishes to be cared for and treated for a
- the way the person wishes not to be cared for and treated for a mental illness;
- the individual or individuals, in order of precedence, wants to appoint a
nominated representative as provided under Section 14 of this Act.
- An AMD can be made by a person irrespective of their past mental illness
or treatment for the same.
- An AMD can only be invoked when a person ceases to have the capacity to
make decisions about their mental health care or treatment for the same.
- Any decision made by a person while they can make mental health care and
treatment decisions will override any previously written advance directive
by the same person.
- Any advance directive made contrary to any law for the time being in
force shall be ab-initio void.
Guidelines for the advance medical directive, which are as follows:
- Only adults above the age of eighteen who are of sound mind at the time
the advance directive is carried out should be considered competent. Persons
with mental disabilities should be included if they are of sound mind at the
time of signing an advance directive.
- Only properly performed written advance directives with the notarized
signature of the individual performing the advance directive in the presence
of two adult witnesses are legal and enforceable in the eyes of the law.
- The paperwork should include a statement indicating the individual
carrying out the direction made an informed decision. Only advance
instructions relating to the termination or withholding of life-sustaining
treatment should be considered legal. The finding that the executor of the
advance directive is no longer capable of making the decision, as well as
the conclusion that the executor's life would end in the absence of
life-sustaining care, should be made following relevant medical professional
regulations or standard treatment recommendations. The formation of an
expert panel may also be considered in making this decision.
- The medical institution where the person is receiving treatment should
have primary responsibility for ensuring compliance with the advance
- If a hospital refuses to recognize the legitimacy of an advance
directive, family or a next-of-kin may petition the jurisdictional High
Court for a writ of mandamus ordering the hospital to carry out the
- The High Court can evaluate whether the directive was correctly
implemented, whether it is still valid (whether or not circumstances have
fundamentally altered after its implementation, rendering it invalid),
and/or whether it is appropriate to the specific circumstances or treatment.
- In civil or criminal actions, no hospital or doctor should be held
responsible for following a lawfully executed advance directive.
- Doctors who claim conscientious objection to the enforcement of advance
directives on religious grounds should be allowed to do so, following their
constitutional freedom under Article 25 of the Constitution. The hospital,
on the other hand, will continue to be responsible for this requirement.
The right to execute an advance medical directive is nothing but a step towards
protection of aforesaid right by an individual, in the event, they become
incompetent to make an informed decision, in a particular stage of life. The
technique and method in which such a right is expressed is a question that must
be addressed to safeguard the weak, infirm, and elderly from abuse.
It is the
responsibility of the state to safeguard its citizens, particularly those who
are sick, elderly, or require medical attention. The duty of doctors to extend
medical care to the patients, who come to them in no manner diminishes in any
manner by recognition of the concept that an individual is entitled to execute