'Living will is an idea whose time has come'

'Some form of euthanasia is already taking place without the patient's consent.'
'This is happening every day.'

Illustration: Uttam Ghosh/Rediff.com

In a landmark judgment on March 9, 2018, the Supreme Court recognised a living will made by terminally ill patients for passive euthanasia.

A five judge Constitution bench headed by Chief Justice Dipak Misra said passive euthanasia and an advance living will are 'permissible'.

The Supreme Court laid down guidelines as to who would execute the will and how the nod for passive euthanasia would be granted by the medical board.

The Court said advance directives for terminally ill patients could be issued and executed by a friend and relatives of such a person after which a medical board would consider it.

All the judges were unanimous that the living will should be permitted since a person cannot be allowed to continue suffering in a comatose state when s/he does not wish to live.

"Passive euthanasia is actually more important in the sense that the need to administer it arises every day in some hospital or the other. And it can be administered without a living will," Vipul Mudgal, left, director of the NGO Common Cause, which filed a plea to declare the 'right to die with dignity' as a Fundamental Right flowing from Article 21 or the Right to Life, tells Rediff.com's Swarupa Dutt.

Is a living will now law?

Yes, a living will is the law of the land because the Supreme Court has recognised a living will for passive euthanasia.

The Court said the guidelines laid down by it and its directive will remain in force until and unless a legislation is brought about by Parliament, which challenges the verdict.

So, there is no need for parliamentary legislation right now?

If the Supreme Court has NOT said the government should bring in legislation, then the judgment automatically becomes the law of the land; it becomes part of the Constitution of India.

Therefore, this judgment will apply until and unless legislation -- deliberated, discussed and passed by Parliament -- contrary to the judgment is passed.

In the unlikely situation that the government brings a bill which is violative of the judgment -- for instance, there is no mention of the living will -- then the petitioner (Common Cause) can go back to the Court and say the government is violating the Supreme Court order and so it is unconstitutional.

Can anyone draw up a living will?

Yes, of course, anyone can draw up a living will, but right now the mechanism to draw it up -- the practicalities -- are not in place.

The Court has said you can write a living will through a judicial magistrate first class or give a notice similar to the way we register a normal will in court.

A lot of work needs to be done to put in place all the guidelines that the Court has laid down.

Naturally, nobody has gone to court to write a living will yet since the verdict is just out. But in Common Cause many people have expressed a desire to do so.

When someone does set about to make a living will, the mechanism that the Court has suggested will be put in place and then it becomes a precedent for others to use.

A living will is an idea whose time has come, but the enabling environment has to be created by the government.

A living will is defined by the words 'advance directive', which means the person draws up the will in anticipation of a situation where s/he may be terminally ill or in a permanent vegetative state.
So how advance is advance? And can you change the will?

There is no age bar on when you write the will. You can always update the will -- revise, change, or scrap it -- much like a property will.

But my guess is people would write it post 50 when one feels the need to write it.

Normally, what is applicable in a property will is applicable here too, so you can change it as many times as you want.

Again like a property will, you should be in control of your cognitive abilities -- at least mental cognition.

Why is the Supreme Court verdict being called historic?

Common Cause first filed a petition in the Supreme Court seeking to recognise a living will.

At the time, nobody understood the meaning of a living will, since not many countries in the world had any statues on it. I would say it is a historic verdict because a living will has been recognised in the judgment.

For Common Cause, the central point was:

• 1. The patient's own determination or autonomy over his body and,
• 2. The right to death with dignity as a part of the right to a dignified life which is given under Article 21.

Can a patient be allowed passive euthanasia without a living will?

Passive euthanasia is actually more important in the sense that the need to administer it arises every day in some hospital or the other. And it can be administered without a living will.

The Supreme Court on March 9 also laid down guidelines for those cases when there is no advanced directive or living will.

It said in these cases the doctors and family members can take the decision to withdraw life support.

The court also said if there is no next of kin, then the 'next of friend' can approach the high court to withdraw life support.

The court will then order the setting up a medical board to determine whether the patient can be allowed passive euthanasia.

How is this ruling different from the Aruna Shanbaug ruling in 2011 which legalised passive euthanasia?

The Aruna Shanbaug case case was a landmark verdict, the first verdict legalising passive euthanasia.

There was a complete vacuum about euthanasia before it, no law, nothing.

Can you imagine a human being lying in bed for 42 years and nobody has the right to end her suffering because there is no law!

Passive euthanasia was for the first time given its due when the court said yes, the artificial mechanism sustaining life can be withdrawn in lieu of the fact that the chances of the person recovering or in a manner of speaking coming back to life, was almost negligible.

On March 9, the Supreme Court broadened the scope of the 2011 verdict by bringing in the living will.

What happens when the two criteria for passive euthanasia -- a permanent vegetative state with no real chance of survival or terminally illness -- is met, but there is no living will?
Would you advocate active euthanasia?

Assisted suicide or active euthanasia is out, let us not have any doubt about it.

Now, the other aspect of passive euthanasia -- what happens when there is no living will?

Very often -- in fact, I would say it happens every day -- a patient takes a turn for the worse and s/he is put on a ventilator.

After a week or so, the doctors tell the family there is no hope of regaining consciousness.

The family says we cannot afford to keep the patient in hospital, please remove the patient from life support.

Or the family will say the patient is being subjected to indignity, please remove the patient from life support.

Life support is removed on the premise that the family wants to take the patient home.

The patient lives for a few hours, days or weeks and then succumbs.

So some form of euthanasia is already taking place without the patient's consent.

This is happening every day. These are the twilight zones.

These are areas that can never be fully legal or fully illegal.