It is a medical power of attorney that allows an individual to appoint a trusted person to take health care decisions when the patient is not able to take such decisions. The trusted person is allowed to interpret the patient's decisions based on their mutual knowledge and understanding. The trusted person can decide on the patient's behalf how long the medical treatment should continue when the patient in unconscious or in a coma state is not in a position to decide.
‘A terminally ill person can opt for passive euthanasia by refusing medical treatment through an advance medical directive or a living will.’
*Who is allowed to execute or draw up the will?
According to the Supreme Court rules, 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.
It must be voluntarily executed and should have characteristics of an informed consent given without any undue influence or constraint.
It shall be stated clearly as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause the patient pain, anguish and suffering and further put him or her in a state of indignity.
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.
*What should the will speak about?
It should indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
Be in specific terms and the instructions must be absolutely clear and unambiguous.
Mention that the executor may revoke the instructions/authority at any time.
Disclose that the executor has understood the consequences of executing such a document.
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.
In the event that there is more than one valid living will, none of which have been revoked, the most recently signed advance directive will be considered as the last expression of the patient's wishes and will be given effect to.
*How should the will be recorded, preserved?
The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and counter-signed the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned district judge.
The JMFC shall preserve one copy of the document in his office, keep another in digital format, forward one copy of the document to the registry of the jurisdictional district court, inform the immediate family members of the executor.
A copy be handed over to the competent officer of the local body. A copy of the directive be handed over to the family physician, if any.
*When and by whom can it be given effect to?
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.
The document 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.
The physician or hospital where the executor has been admitted for medical treatment shall constitute a medical board that shall visit the patient and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment.
The Chairman of the 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 patient.
The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the board.
It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
*What if the board refuses the permission?
If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the patient or his family members or even the treating doctor or the hospital staff to approach the high court and its chief justice will have to constitute a division bench to decide upon case.