If you are stuck in such a situation, here is what to do.

Mr. Rohan Verma is an avid trekker and adventure sports enthusiast. His passion takes him on frequent trips across different states, including Suryapur, Chandrapur, and Pavitranagar. While Mr. Verma is meticulous about safety, he is aware of the inherent risks. A significant concern for him is the possibility of an accident leaving him in a permanent vegetative state, unable to communicate his wishes regarding medical treatment.

He wants to create an Advanced Medical Directive (AMD), often called a living will, to ensure his preferences are legally respected. He is particularly interested in understanding how to make this document legally sound and enforceable across the different states he travels to, especially in light of the Supreme Court’s recent, simplified guidelines. He wonders if the directive can be used for conditions like permanent paralysis and how to word it to avoid future legal complications for his family.

Advice in such cases

Executing a legally sound Advanced Medical Directive is a proactive step to ensure your right to die with dignity. Here is some crucial advice:

• Understand the Scope: An AMD is for passive euthanasia, which means withdrawing or withholding life-sustaining treatment. It applies when you are terminally ill or in a permanent vegetative state with no hope of recovery. It does not permit active euthanasia (e.g., a lethal injection).
• Draft with Clarity: The document must be unambiguous. Clearly state the circumstances under which you wish to refuse medical treatment. It’s advisable to consult both a medical professional and a lawyer to cover various medical scenarios accurately.
• Follow the Procedure: The Supreme Court has simplified the process. You must sign the AMD in the presence of two independent witnesses, and it must be attested by a Notary or a Gazetted Officer.
• Ensure Accessibility: A copy of the directive should be given to your family, your family physician, and the competent local government authority (like the municipal corporation). It is also intended to be part of the National Health Digital Record for easy access by hospitals anywhere in India.
• Appoint a Guardian/Executor: Designate a trusted person in your AMD who will be authorized to communicate your decisions to the medical team and ensure your wishes are followed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

The legal framework for Advanced Medical Directives in India is not governed by a specific statute but by the landmark judgment of the Supreme Court of India in the case of Common Cause (A Registered Society) vs. Union of India & Anr. (2018). The right to die with dignity was recognised as an integral part of the Right to Life under Article 21 of the Constitution.

In 2023, the Supreme Court modified and simplified the original guidelines to make them more practical and accessible. The process no longer requires attestation by a Judicial Magistrate. It’s crucial to understand that passive euthanasia, when carried out following these established legal procedures, is not considered an offence of culpable homicide or abetment of suicide under the Bharatiya Nyaya Sanhita (BNS), 2023.

If you are the complainant

If you are a family member or the appointed guardian trying to enforce a loved one’s AMD, you are acting as the “complainant” on their behalf to ensure their wishes are honoured.

• Inform the Hospital: Immediately provide a copy of the AMD to the treating hospital and doctors.
• Cooperate with the Medical Board: The hospital is required to form a primary medical board to certify the patient’s condition. If they agree with the AMD’s directive, a secondary board will be constituted by the District Medical Officer for a final decision. Your role is to facilitate this process.
• Seek Legal Recourse if Delayed: If the hospital or medical boards cause unreasonable delays or refuse to act, you have the right to approach the High Court for the enforcement of the directive.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

If you are the victim

If you are the person creating the AMD, you are safeguarding your future autonomy. You are the potential “victim” of a medical condition where your wishes might be ignored.

• Be Informed: Thoroughly understand what an AMD entails. Discuss your wishes with your family and the person you intend to appoint as your guardian to ensure they are prepared to honour them.
• Choose Witnesses Carefully: Your two witnesses must be independent, meaning they should not be your family members or potential heirs.
• Store Safely and Share Widely: Keep the original document in a safe place and ensure your appointed guardian, family members, and family doctor have copies and know where the original is located.
• Review Periodically: While an AMD is valid until revoked, it is good practice to review it every few years to ensure it still reflects your wishes, especially if your health or personal circumstances change.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

How the police behave in such cases

The police have a very limited role in the enforcement of an Advanced Medical Directive. Their involvement is generally restricted to cases where there is a suspicion of foul play or if the death is unnatural for reasons other than the withdrawal of life support. If the hospital follows the Supreme Court-mandated procedure involving the two medical boards, the police will not interfere. The process is a medical and judicial one, not a criminal one. The hospital is required to maintain all records, which can be produced if any questions arise later.

FAQs people normally have

Here are answers to common questions regarding living wills:

• Can an AMD be used for legally assisted termination of life if I am paralyzed? No. An AMD is for passive euthanasia in cases of a medically certified terminal illness or a persistent vegetative state. Paralysis, while a debilitating condition, does not typically fall into this category unless it leads to a terminal state with no hope of recovery.
• If I live in Suryapur but travel to Chandrapur and Pavitranagar, where should I register my AMD? The new guidelines have removed the need for registration with a Judicial Magistrate. You should sign it before a Notary/Gazetted Officer, give a copy to your local municipal authority in Suryapur (where you reside), and ensure it is part of your digital health records. This makes it nationally accessible, regardless of which state you are in when a medical emergency occurs.
• How can I ensure my AMD is comprehensive and doesn’t lead to a legal battle? The key is precision and clarity. Instead of using vague terms, specify the medical conditions and the treatments you wish to refuse. For example, explicitly state your wishes regarding mechanical ventilation, artificial nutrition, and hydration. Consulting with both a lawyer and a doctor is the best way to create a robust and legally sound document. Institutions like the ‘Sunrise Multispecialty Hospital’ in ‘Rajgarh’ that offer consultations can be very helpful in this process.

What evidence is required?

To enforce an Advanced Medical Directive, the primary evidence required is:

• The original, validly executed Advanced Medical Directive document.
• The opinion and certification from the primary medical board constituted by the treating hospital, confirming the patient’s condition meets the criteria specified in the AMD.
• The final certification from the secondary medical board constituted by the District Medical Officer, which validates the primary board’s findings.

How long will the investigation take?

This is not an “investigation” in the criminal sense but a process of medical and legal verification. The 2023 Supreme Court guidelines were specifically designed to expedite this process. While there is no fixed timeline, the guidelines imply a sense of urgency. The primary and secondary medical boards are expected to be constituted and to give their reports promptly. If there are undue delays by the medical professionals, the family has the right to approach the High Court, which is expected to decide on the matter expeditiously.

Advocate Sudhir Rao, Supreme Court of India