I. Introduction – What are Advance Medical Directives?
Advance Medical Directives, better known as “living wills” (“AMDs”), are legal documents that allow individuals to express their healthcare preferences in advance, particularly regarding end-of-life care. AMDs come into effect when a person is unable to communicate their healthcare wishes due to illness-induced physical or mental incapacity.
Typically, AMDs outline the medical treatment a person does or does not want to receive, ensuring their autonomy and dignity in healthcare decision-making, at a time when they are indisposed from doing so. By specifying their preferences in advance, individuals can guide healthcare providers and family members on their desired medical care, promoting a patient-centered approach to healthcare planning.
II. How does understanding the legal framework regarding ADMs help patients, their kin, and healthcare professionals and other stakeholders?
Knowing the legal framework around AMDs is important to enable people to make decisions with knowledge, and ahead of time – maintaining their dignity and autonomy even in situations where they are unable to best express themselves. It also guarantees that one’s healthcare preferences are acknowledged and respected by their kin. Further, having binding and legally valid AMDs also reduces the risk of any unscrupulous persons interfering with healthcare decisions at a terminal stage.
As a family physician and healthcare professional, understanding the legal framework is beneficial, particularly for clearly understanding, complying with and carry a patient’s healthcare choices/consents. Further, given the ethical primacy of the Hippocratic Oath, understanding legal ramifications makes addressing ethical issues with end-of-life care less complex.
It is also beneficial for healthcare institutions such as hospitals and clinics to acquaint themselves with the legal framework of ADMs and their implementation to better navigate ethical and moral norms, and to avoid legal liability.
III.Legal Framework of Advance Medical Directives in India
- AMDs in respect of mental health treatment
The Mental Healthcare Act, 2017 (the “Mental Healthcare Act”) lays down the framework for AMDs for the treatment of mental illnesses. To begin with, Section 3 of the Mental Healthcare Act prescribes strict parameters in accordance with which one may be determined as being a person with mental illness. Section 5 of the Mental Healthcare Act recognizes the validity of advance directives for the treatment of mental illness, made by a person (other than a minor) while still having the capacity to do so. Such directives come into effect when the person who made them is incapacitated/determined as a person with mental illness, and remain in effect until the maker’s capacity is regained.
The Mental Healthcare Act contains the following guidelines as to the contents and manner of execution of AMDs:
- AMDs are required to be in writing and signed by two witnesses attesting to the fact that the directive was executed in their presence
- AMDs may contain instructions on how the executor desires to get mental health treatment and to what form of treatment the patient would be opposed
- It is also essential to mention the name of a nominated representative, who is required to countersign the writing
- Further, AMDs are required to be registered with the Mental Health Review Board. The Mental Healthcare Act permits AMDs to be changed as many times as desired by the executor it so long as the treating healthcare professional is kept informed of such modifications.
- AMDs in respect of terminally ill persons or persons in a persistent vegetative state (PVS)
For AMDs in the case of terminally-ill persons or persons in PVS, there is no legislation such as in the case of mental health treatment. In this regard, the Supreme Court pronounced a historic decision on March 9, 2018 in the case of Common Cause (a Regd. Society) v. The Union of India and Anr. The Supreme Court affirmed that an adult human being with the mental capacity to make an informed decision has, the right to refuse medical treatment in cases of terminal illness/being in a PVS, including the removal of life-saving devices. It was further re-affirmed that the right to die with dignity is a fundamental right under the ambit of Article 21 of the Constitution of India, as previously held by its 1996 constitutional bench judgment in the case of Gian Kaur v State of Punjab.
The Common Cause judgment set out guidelines for the execution of AMDs and the circumstances under which medical treatment can be withheld or withdrawn. However, practical challenges arose in implementing some of the guidelines (mainly because of the AMDs having to be signed by a judicial magistrate/other bureaucratic hurdles), leading to the Indian Society of Critical Care Medicine (ISCCM) seeking clarifications from the Supreme Court through an application. This led to the Supreme Court passing an order in the application filed by ISCCM in Miscellaneous Application No. 1699 of 2019 in Writ Petition (Civil) No. 215 of 2005, modifying certain aspects of the Common Cause judgment to address the challenges faced in the practical implementation of AMDs.
Set out below is a surmise of the extant guidelines for the preparation and preservation of AMDs, as prescribed by the Common Cause judgment and modified by the ISCCM order:
- AMDs are required to be in writing by an executor of sound mind, who has attained majority. AMDs must be made without any coercion, after fully comprehending the circumstances in which the AMD is being made and the implication thereof.
- AMDs should specify the manner/mode of end-of-life care which acceptable, which treatment is not desired, and the name of one or more guardian(s) or close relative(s) (“Healthcare Attorneys”) 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 AMD.
- AMDs are required to be executed in presence of two, preferably independent, attesting witnesses and authenticated by a gazetted officer or notary.
- Copies of AMDs are required to be handed over to the Healthcare Attorney(s), the family physician and the Competent Officer of the Municipal Corporation, appointed as the custodian of the document.
AMDs come into effect in the event the executor becomes extremely ill and does not have decision-making capacity. At this stage, the executor’s treating physician, when made aware about their AMDs, is required to ascertain the genuineness and authenticity with reference to existing health records of the executor or from the Competent Officer of the Municipal Corporation. The executor’s AMD is then required to be implemented in a time bound manner, adverting to the hospital’s primary and secondary medical boards as constituted under the Common Cause judgment and modified by the ISCCM order.
IV. Conclusion:
AMDs are crucial for protecting an individual’s right to self-determination and decision-making in cases of mental or physical illness, which render the individual incapacitated. While the ISCCM order has greatly mitigated the practical concerns in making and implementing ADMs, a few challenges still remain. For example, several municipalities are yet to notify the competent officer authorized to receive and place in their custody ADMs executed in their supervisory zone. The fear of legal implications of carrying out such directives are also a concern with kin of patients and medical practitioners– this however can be easily navigated if the legal nuances of AMDs are understood.
This article has been authored by Prakruti Joshi, Associate at Dhruve Liladhar & Co., Advocates, Solicitors & Notary.