LIVING WILL - PASSIVE EUTHANASIA
(Post is under Construction - We seek additional inputs from our readers for inclusion here , plz mail to :: nkd616@gmail.com)
This Web Post outlines the details of LIVING WILL, how to write and execute it laying down step by step procedure with precise details as obtained from the experts in connection with Passive Euthanasia.
PASSIVE EUTHANASIA means that a terminally-ill patient where there are no chances of recovery in the opinion of the doctors attending on him/her be allowed to die peacefully rather than subjecting the patient to the miseries of life support systems which may extend life by few days.
ACTIVE EUTHANASIA - This means that a terminally-ill patient is administered a lethal drug or substance intentionally in order for them to pass away peacefully. This is not at all legal in our country.
Honourable Supreme Court of India on a PIL filed by a NGO legalised the PASSIVE EUTHANASIA in 2018 and held the "Right to Die with Dignity" as part of the fundamental rights to life under article 21 of the constitution.
Although the 2018 SC order recognised passive euthanasia, the procedure on living wills has been seen as time-consuming and cumbersome where in a living will should be signed in the presence of two attesting witnesses and affirmed by a judicial magistrate. It also involved tedious medical boards under the CMO as well as the DM of the District, permission for passive Euthanasia could be granted.
In mid Jan 2023 , a five-judge Bench of the Supreme Court headed by Justice KM Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’, as laid down in its 2018 judgment in Common Cause vs. Union of India, which allowed passive euthanasia.
The SC has relaxed the guidelines for ‘advance medical directive’ that it issued in its 2018 judgment by which it had legalised passive euthanasia under certain circumstances.
Issue of 'LIVING WILLS' in India
It refers to a written document that a person uses to give his explicit instructions in advance while being in Good Health about the medical treatment to be administered if he becomes incompetent or is unable to communicate in future. In many countries, the concept of Living Wills has been widely encouraged.
A living will is a written, legal document, signed by an adult being in healthy and sound state of mind to understand in his own capacity, that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation. In determining your wishes, do think seriously about your values and make your directions to be written in the Living Will such as "I direct that I be given health care treatment to relieve pain or provide comfort even if such treatment might shorten my life, suppress my appetite or my breathing, or be habit forming".
The Living Will becomes effective if you are terminally ill and unable to express your wishes regarding health care or if you are permanently unconscious. In both cases, two physicians, not just one, must agree that you are beyond medical help and will not recover.
How to Write and Execute a Living Will:
Step by Step Procedure in executing a living will?
Living Will also known as Advance Directives, Advance Healthcare Directives, Advance Medical Directives can only be executed by an adult with a sound mind and who is physically and mentally in condition to communicate, relate and comprehend the objectives and consequences of executing such advance directives document.
Living Will shall be voluntarily executed and without any coercion or inducement or compulsion and after obtaining the full knowledge or information about the conditions in which such Advance Directives can be executed? What treatments shall be given to the person and what not? Who can give effect to those Advance Directives? etc.
It is mandatory for a living will to be in the form of a WRITTEN DOCUMENT clearly mentioning as to when can medical treatment be withdrawn or a specific kind of medical treatment shall be given which will merely have the effect of procrastinating the death of the sufferer that may otherwise only prolong the pain, anguish and suffering of that person.
Step 1 : The “Must contains” of Advance Directives?/Drafting a Living Will? Nowadays, there are multiple ways you can draft your Living Will. You can draft it on your own, you can hire a lawyer to draft one for you, or you can get your Advance Directives drafted from the different websites as wide range of Templates are also available on the internet.
While you are drafting the living will, you must take into account that it shall have the following contents in it: –
(a) Clear Indications : It should clearly mention the decision of the executor relating to the circumstances in which medical treatment can be withholding or withdrawal.
(b) Specific terms and certainty : The Living Will shall be in specific terms and the instructions with the clarity of a crystal and zero unambiguity should be there. Make a section with the name “Directions” clearly specifying the medical conditions where you don’t want any kind of medical treatment like vegetative state, terminal illness, coma with no reasonable grounds of recovery etc or conditions you do want medical treatment severe mental or physical injury making you only making you differently abled.
(c) Clearly mention the kind of treatment you want and the kind of treatment you don’t want (which are only prolonging your life for no good, increasing your suffering, pain etc just to keep you on the earth)
(d) Revocation : It should mention the right of an executor to revoke the instructions/directives/authority at any time and the situations & circumstances under which he/she might do so. You can change your mind and revoke your will at any time for any rationale by informing the same to your agent and the treating physician.
(e) Executor’s Assertion; It should assert the fact that the executor has understood the consequences of executing such directives and the Living Will has not been entered into under any coercion, undue influence, duress etc.
(f) Appointing a Relative or Family Friend : It should mention the name of a guardian or close relative who, in the event when the executor becomes/becoming incapable of taking decisions pertaining to the kind and nature of treatment to be given to him in relevant time shall have the authority to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.
(Such Guardian/relative is called “agent”. Specify your agents carefully whom you trust and on whom you believe can take the second-best decision for you. Also, you can explicitly exclude any person/people from being your agent in your living will. Most people choose their spouse, children as their agents).
(g) Multiple Directives : In case, where there is more than one valid Advance Directive, out of which none has 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.
(h) Witness Statement : Make a witness statement mentioning that the witnesses are known to you and your trustworthy. Mention that they have been come forward to witness your Will voluntarily without any coercion, undue influence, fraud, misrepresentation.
Instructions for End-Of-Life Care
* Withholding and withdrawing or providing life support and other choices about treatment that prolongs the process of dying* Do not resuscitate (DNR) directive* Comfort care treatment and treatment for pain* Artificial nutrition and hydration (tube feeding)* Mechanical ventilation* Dialysis* Cardiopulmonary resuscitation (CPR)* Blood transfusions* Primary health care facility and attending physician preferences* Organ donation* Body disposition such as burial or cremation
Sample of Living Will
For your convenience & comfort, we have made considerable efforts of getting an elaborate template of a Living Will/Advance Directives drafted by the experts, so that our readers have all the inputs, instructions and guidelines in one place .
The Concept of Living Will is comparatively new in India and thus there are not many templates out there which can give you exactly what you are looking for. But that is not in our case, so here is the living will template from our side.
PALLEATIVE CARE
Palliative care is specialized medical care for people living with a serious illness, such as cancer or heart failure. Patients in palliative care may receive medical care for their symptoms, or palliative care, along with treatment intended to cure their serious illness.
- Palliative care in hospitals.
- Residential palliative nursing in a care home or hospice.
- Day care at a hospice.
- Palliative home care.
Palliative care teams are specialists who work together with you, your family and your other doctors. They provide an extra layer of support when you need it most. In addition to treating your symptoms and stress and supporting you and your family, the palliative care team communicates with all of your doctors so that everyone is on the same page. They support you every step of the way.
THERE IS A GOOD CASE FOR ALL STATION MILITARY HOSPITALS TO HAVE PALLIATIVE CARE CENTRES.
SAMPLE WILL - DRAFT - We include here in this post as under a sample will which has been drafted by an expert in this field. There is lots of flexibility in choosing ones options for End of Life Care. Mostly the contents will depend upon the discretion of the person making a Living Will
LIVING WILL (End of Life Care) & INSTRUCTIONS
I, COLONEL IM SMART (Service Number - IC 16841M) S/O Shri SMARTER DAD resident of 1537, Ekta Vihar, Sector-3A Nandgaon (Uttam Pradesh NCR) holder of Aadhaar Card Number 3333 1434 7777 do hereby make this LIVING WILL cum my Instructions for End of Life Care , while being in Good Health and sound state of mind, without any coercion or pressure of any kind this day on the ..... March 2023 at Nandgaon (UP) India.
I make this living Will to lay down and communicate my decisions on my future medical care if ever I am in a terminal condition, a persistent vegetative state or an irreversible coma that I may not be able to communicate at that time. These are my written directions on my health care to my doctors attending on me, my family and my representative and any other person who might be in position to make medical care decisions on my behalf.
My decisions about End of Life Care:
I hereby reduce my wishes, decisions, instructions and directions on my end of life care that I want to be followed for a peaceful end of my life under the provisions as allowed by the Supreme Court of India in 2018 to include this as my fundamental right to Life under para 21 of Constitution and modified in Jan 2023 on Passive Euthanasia. My Instructions and the advanced directions are reiterated in the following paragraphs frm A to F :-
A. Comfort Care Only: If I have a terminal condition, I do not want my life to be prolonged, and I do not want any life- sustaining treatment, beyond comfort care, that may serve only to artificially delay the moment of my death. By “Comfort care” I mean medical treatment in an attempt to protect and enhance the quality of life without artificially prolonging life.
B. Specific Limitations on Medical Treatments I Want: If I have a terminal condition in the opinion of the doctors attending on me, or am in an irreversible coma or a persistent vegetative state that my doctors reasonably believe to be irreversible or incurable, I want just the the medical treatment necessary to provide care that would keep me comfortable. I do not want to be subjected to the following procedures: -
a. Cardiopulmonary resuscitation, such as the use of drugs, electric shock, artificial breathing or any such procedures to delay the end of my life by few days.
b. Artificially administration of food and fluids.
c. To be taken to a hospital if it is at all avoidable.
C. Treatment Until My Medical Condition is Reasonably Known: Regardless of the directions I have made in this Living Will, I do want the use of all medical care necessary to treat my condition until my doctors reasonably conclude that my condition is terminal or is irreversible and incurable, or I am in a persistent vegetative state.
D. Organ Donation - When the end comes I want all usable organs should be harvested from my body and donated to the Indian Armed Forces Soldiers or their family members as a matter of priority and in case no recipient be available these be donated to Poor Families. .
E. Direction to Prolong My Life: I want my life to be prolonged to the greatest extent possible till my condition is incurable or irreversible in the opinion of my doctors
F. REPRESENTATIVE : I hereby declare that Col Ram Bharose, who is our family friend and well known to my wife and children, will represent me when the time comes to implement my desires, instructions and directions laid down by me in this will
VERIFICATION
I, hereby verify this Living Will and sign it on the …. Day of March 2023 in the presence of two independent witnesses and getting the same notarized from the Public Notary as per regulations governing Living Will
Place - Nandgaon (Col IM Smart)
Date . Executer
WITNESSES
A. We certify that we witnessed the signing of this Living Will by Brigadier Narinder Kumar Dhand who appeared to be in absolutely sound state of mind and under no pressure in making his specific choices and signing this document.
B. We fully understand the requirements of being witnesses to this Living Will and confirm the following:
* We are not currently designated to make medical decisions for this person.
* We are not directly involved in administering health care to this person.
* We are not entitled to any portion of this person’s estate upon his
death under a will or by operation of law.
* We are not related to this person by blood, marriage, or adoption.
C. We sign this document as witnesses at the same time of signing by Col IM Smart
WITNESSES No 1
Signatures -----------------
Name -----------------------
address --------------------
WITNESSES No 2
Signatures -----------------
Name -----------------------
address --------------------
NOTARY
My Licence expires on -------------
*********************************************
As aguideline we are also posting a sample of the Living will as in USA, which may be used to select the options.
DECTLARATION & INSTRUCTION
LIVING WILL
This Living Will’s declaration on my life is made on ________________(execution date) by me ________________(your name) born on _____________resident of _________________(your address) at_____________(place of execution). This declaration is addressed to my surgeons, my doctors, my medical care providers, my hospital, my family and all others who are concerned with my health care.
I, being a sound mind person and rational thoughts, wilfully, voluntarily and after the carefully considering and evaluating the consequences on me and on all the people I am concerned with and after consulting with my doctors and lawyers, making this declaration that if I am unable to communicate my wishes, desires and preferences by myself, consequent to which, I am unable to take part in decisions regarding the kind of treatment to be given and not to be given to me, I direct that concerned should take the directions mentioned herein into account for taking any decision regarding prolonging my life.
Further, this declaration and the directions contained herein are an expression of my legal right to refuse medical treatment and care. I expect and rely on my trust on the above-mentioned parties and make them legally and morally responsible to act in accordance with my directions envisaged herein. The above-mentioned parties should, therefore, be free from any legal liabilities for having followed this declaration and the directions contained herein.
MY DIRECTIONS
Withdrawing Life Support: If at any time, I become incompetent or incapacitated because of an incurable and irreversible injury, disease or illness, or if I reach to the stage of terminal illness or go into a coma with no reasonable expectation of recovering my consciousness, or reach a persistent vegetative state with no reasonable expectation of regaining significant cognitive functioning, or have a disease state from which I have no reasonable expectation of coming back to a reasonable quality of life as judged by my physician(s) who has/have personally examined me and has determined that my death is unavoidable and imminent except for death-delaying procedures and I have no reasonable grounds of recovering back, I hereby direct that in such situation I shall be deemed to deny any kind of life-sustaining infusions, nasogastric hydration and nutrition, which would only prolong the dying process be withheld or withdrawn.
Limiting Treatment: I direct that, I wish to die a natural death with only the administration of medication, sustenance, or the performance of any medical procedure deemed necessary by my attending physician to provide me with comfort care. My treatment should be limited to the measures to keep me comfortable and pain-free, including any pain which might occur from the withholding or withdrawing of life-sustaining medical treatment and care.
I direct that if I am in a condition as specified above, I shall not be given following forms of medical treatment and healthcare:
a ........................................
b ......................................
c .....................................
I direct that if I am in a condition as specified above, I shall be given following forms of medical treatment and healthcare:
a .......................................
b .............................................
c. .................................
I hereby direct that if I am in condition as specified above in 1 and also in condition(s)_____________ I shall get following kinds of medical treatment and care:
a .................................
b ................................
c ................................
Agent: I hereby appoint ________________(name of agent), who is my ___________(your relation with agent) resident of____________(address of agent) and_____________(name of second agent) who is my ___________(your relation with second agent) resident of ___________(address of second agent) as my agents for the execution of this living will. They shall be responsible for giving this declaration proper effect and honour my wishes, desires and preferences I have herein specified.
Revocation: I hold the authority to revoke these directives at any time prior to reaching the situation as described in 1, by expressing the same to my agents.
This Living Will Declaration expresses my firm wishes, desires, and preferences and shall remain in force throughout my life unless I revoke it as mentioned in clause 7. I fully understand the importance and consequences of this declaration and I am fully competent to make it.
_________________ (Declarant’s Signature)
(Declarant’s Name)
______________________
______________________ (Declarant’s Address)
____________________
WITNESS STATEMENT
I declare that the declarant who signed and acknowledged this Living Will is personally known to me and that he/she has signed and acknowledged this Living Will Declaration in my presence, and that he/she appears to be a person sound mind and under no coercion, fraud, or undue influence.
____________________(First Witness’ Signature)
(First Witness’ Name)
________________________________________________
________________________________________________
________________________________________________
(First Witness’ Address)
I declare that the declarant who signed and acknowledged this Living Will is personally known to me and that he/she has signed and acknowledged this Living Will Declaration in my presence, and that he/she appears to be a person of sound mind and under no coercion, fraud, or undue influence.
.__________________(Second Witness’ Signature)
(Second Witness’ Name)
________________________________________________
________________________________________________
________________________________________________
(Second Witness’ Address)
NOTE - IT IS NOT NECESSARY TI INCLUDE EVERY THING AS ABOVE BUT INE HAS ENOUGH FLEXIBILITY TO WRITE THE DIRECTIONS.
Step 2
Notarisation of Living Will? When and where to Sign? Who shall be the Witnesses?
In India, there is no statute which deals with passive euthanasia. Though a bill has been proposed but it hasn’t been passed yet. But the Notarisation of the Living Will is mandatory in India as per the latest directive of the Supreme Court issued in Jan 2023.
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