दिल्ली उच्च न्यायालय विधिक सेवाएँ समिति



What is a Living Will?

Living Wills are instruments through which persons express their wishes at a prior point and time when they are capable of making an informed decision regarding their medical treatment in the future, by the reason of being unconscious or in a vegetative state or in a coma. Thus, a living Will is one type of advance directive which takes effect when the patient is terminally ill.

Is there any provision for executing a Living Will?

There is no provision presently for executing a Living Will. In the landmark judgment titled as ‘’Common Cause Vs. Union of India’’ dated 09.03.2018, the Hon’ble Supreme Court has recognized that a terminally ill patient or a person in a persistent vegetative state has the right to die with dignity and to do this, the person will have to execute what is called a Living Will.

Is there a particular format prescribed for the Living Will?

No, there is no format prescribed for a Living Will. However, the Hon’ble Supreme Court in the Common Cause Judgment (referred above) has laid down certain guidelines in this respect. According to the same, the document must reflect informed consent clearly, and unambiguously instruct as to when medical treatment may be withdrawn or further treatment may not be given for prolongation of life. In addition, it should also contain a provision for revocation by the executor and must also disclose the name of a guardian who will give consent to refuse or withdraw treatment in accordance with the advance directive.

Is this Will required to be registered?

No, it is not required to be registered. However, the presence of two attesting witnesses is required, who should preferably be independent, and the document must be countersigned by a Judicial Magistrate of First Class who is supposed to record satisfaction as to the voluntariness and informed consent of the executor.

Where is the Living Will to be kept?

A copy of the document along with a digital one is to be preserved with the Judicial Magistrate to prevent any future manipulation and another physical and digital copy is to be preserved with the Registry of the jurisdictional District Court. Further, a copy is to be preserved by the local authority as well i.e. municipality or panchayat as the case may be.

How will the Living Will be given effect to?

(i) The document can be given effect to at the instance of the doctor, only when the patient is terminally ill and after ascertaining the genuineness of the document from the Judicial Magistrate, (ii) The doctor must inform the hospital authorities who will then constitute a medical board consisting of the head of the treating department and three experts from various areas such as medicine, cardiology, nephrology etc. with experience in critical care and overall standing in the profession of atleast 20 years, (iii) The board shall then visit the patient in the presence of the nominated guardian and will certify whether or not the instructions in the document may be carried out, (iv) If this preliminary opinion is in the affirmative, it will be communicated to the jurisdictional Collector, who will then constitute another medical board comprising of the Chief District Medical Officer as the chairman and three expert doctors from various fields such as cardiology, oncology, medicine etc. having a standing of atleast 20 years, except the doctors who were members of the previous board, (v) If on visiting the patient, this board concurs with the opinion of the board constituted by the hospital, the decision will be communicated to the Judicial Magistrate, who will then visit the patient at the earliest to authorise the implementation of the document.

What is the remedy available in case the Medical Board does not grant permission for execution of the Living Will?

In cases where the medical board does not grant permission, it is open to the executor, or the relatives or even the doctor to file a writ petition under Article 226 before the High Court, and the Chief Justice of the said Court will be required to constitute a Division Bench to decide the same. It would be open to the High Court to constitute an independent medical board with the same qualifications as mentioned above and is also obliged to decide the matter expeditiously in the best interest of the patient.