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Living Wills in India



  Apr 09, 2024

Living Wills in India



What is a living will?

A living will is a legal document that allows terminally-ill patients, with no hope of a cure, to withhold or withdraw treatment and die with dignity. It allows them to make choices about future medical care.

When did living wills become legal in India?

Living wills have been legal since 2018, when the Supreme Court of India created a process for their execution.

What is the procedure for creating a living will?

Under the streamlined procedure, living wills have to be signed in the presence of two witnesses, attested before a notary or a gazetted officer, and handed over to a “competent officer” in the local government who will act as a custodian.

What happens if a patient becomes terminally ill?

If the patient becomes terminally ill and does not have decision-making capacity, the treating doctor is to authenticate the living will against the copy held with the custodian or against digital health records, if any.

What are the challenges in implementing living wills?

The guidelines require that the decisions on withholding or withdrawing treatment are certified first by a primary medical board and then confirmed by a secondary medical board. The secondary board must have a doctor nominated by the chief medical officer. This means that hospitals cannot have secondary medical boards unless the chief medical officer has nominated a doctor in the hospital where you are a patient. As a consequence, terminally-ill patients — even those who have made living wills — may not be able to make critical decisions about medical care.

What is the role of the ‘next of kin’ in this process?

The Supreme Court requires the primary medical board, if the patient does not have a living will, to obtain the written consent of the ‘next of kin’ for withdrawing/withholding treatment. However, Indian law does not have a clear definition for ‘next of kin’. When family members disagree about the best course of action, the law does not provide a clear answer about whose decision finally governs.

What steps have been taken by the government to implement this?

Some State governments have issued directions to follow the judgment but did not offer essential guidance or protocols on how to implement it. A more thorough approach is being followed in some states like Odisha, where the State government has formed a committee of experts to consider detailed draft orders for implementing the judgment. The Central government can bridge the gap in expertise by developing and publishing model orders and protocols which can provide State governments the confidence and the guidance to effectively implement the judgment.



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