On 24th January, a five-judge Bench of the Supreme Court headed by Justice K M Joseph simplified the ‘living will’ rules on passive euthanasia in cases of terminal illness by removing red tape and constituting a time-bound process.
What is a living will?
- The ‘living will’ rules were laid down by the Apex court in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
- The 2018 judgement recognised the right to die with dignity, noting that a person can draft a living will, detailing how they don’t wish to be put on life support in the event they slip into an incurable coma.
- The court in 2018 held “Dignity in the process of dying is as much a part of the right to life under Article 21.’ Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
- Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.
Living will 2018 guidelines
- As per 2018 guidelines, a living will was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
- The treating physician was also required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience, who would decide whether to carry out the living will or not.
- If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
- The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
- Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
Living Will new guidelines (2023)
- Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
- The requirement of 20 years of experience for the doctors has been relaxed to five years. The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
- According to the 2018 judgement, only a judicial magistrate could attest or countersign a living will, which would remain with the district court. In the apex court’s new judgement, this power has been given to a notary or a gazetted officer and the document will now be in the national health records accessible by hospitals.
- The 2018 judgement made no mention of any stipulated time within which a decision had to be made. Now, a secondary board must immediately be constituted by the hospital and the primary / secondary board must arrive at a decision within 48 hours on withdrawal of further treatment.
