In a landmark judgement
in March last year, the Supreme Court had recognised that a terminally ill patient or a person in a persistent vegetative state has the right to die with dignity. But in order to do so, the person will have to execute what is known as a ‘Living Will’.
Despite the name, a ‘living will’ is not at all like the wills that people use to bequeath property after their death. In fact, quite in contrast to a normal will, a Living Will has no power after death. It is essentially a document that sets out a patient’s wishes on how they want to be treated if they are seriously ill and become unable to communicate their decisions.
Doctors often refer to a Living Will as an ‘advance directive’. Such a document becomes important to a person when their life reaches a point at which attempts to unnecessarily prolong it may only compromise dignity and quality of life.
A Living Will respects the patient’s human rights and in particular their right to reject medical treatment. Even medical professionals benefit from having a Living Will, as it assists them in making difficult decisions with regards to their patient’s healthcare. Such a document also helps to take away the burden of making difficult decisions from family, friends and loved ones.
Although not officially categorised as such, there are six different types of Living Wills to consider. A document that instructs the concerned physician and family members that life prolonging treatments should not be used, thus allowing the person to die naturally, is known as a ‘Living Will Declaration’.
In contrast a document that is the complete opposite of a Living Will, such that it allows the concerned person to ensure that all life-prolonging medical treatments are used to extend life, is called a ‘Life-Prolonging Procedures Declaration’.
There is also a ‘Psychiatric Advance Directive’ that is written to direct the doctors in the treatment of incapacitating mental illness.
Furthermore, patients can also direct healthcare providers not to resuscitate in case of cardiac arrest, with a ‘Do Not Resuscitate Declaration and Order’.
The doctor can also issue an advance directive to indicate the regimen to be followed for a chronically ill patient, so that wherever the patient goes their treatment is not interrupted or changed; this is known as a ‘Physician Order for Scope of Treatment (POST)’.
A document registering a person for organ and tissue donation, is also another type of Living Will.
In all the above cases and wherever a Living Will is used, there has to be a medical power of attorney. This is to ensure that an individual is nominated by the patient to make certain that their wishes about health are carried out as per directions. The legal term for such an individual is ‘Attorney-in-Fact’.
The attorney-in-fact does not have to be a lawyer and it can be any adult the patient trusts. Such an individual is granted the power to act for the person only in the ways clearly listed out in the document. More importantly, the person given the medical power of attorney is not required to accept the responsibility of the outcome.
The document registering the attorney-in-fact should contain the name of the adult chosen, a list of situations in which the attorney-in-fact needs the power to act, a list of the powers granted and a list of powers that are not granted.
A Living Will is an important legal document that has to be prepared in the right way. Although the use of a Living Will is a new concept in India, there are forms available at some hospitals that help you in drafting such a will. If such a form is not readily available, you can still draft a similar directive yourself. (At the bottom of this article is a sample form that you can use and modify as per your requirements.)
Ensure that there are two eyewitnesses, who shall be required to sign the living will document. A doctor’s certificate is also required to ensure the authenticity of a Living Will, as it would help testify to the fact that the concerned person was of sound mind and capable of making their own decisions at the time of drafting the document. In order to make the Living Will a legally binding document, it should be prepared in the presence of a lawyer and all documents should be appropriately notarised.
Once a Living Will document has been officially prepared, it can only be cancelled orally, in writing or by destruction of the declaration by the concerned patient themselves. The cancellation takes effect only when the concerned physician or hospital is informed of the same.
But as the concept is fairly new in India, it still remains to be seen how effective it shall be. Nevertheless, it is a step in the right direction to end the pain and suffering of terminally ill patients.
(Dr Rekha Bhatkhande is a noted gastroenterologist and former Dean of Sushrusha Hospital, Mumbai)
A Sample of a Living Will (we can draw up our own wills as per our requirement or wishes)
Advance Medical Directive (LIVING WILL) and Medical Power of Attorney
This declaration is made by me:
Date of Birth:
I am an adult of sound mind and am making the Declaration of my own free will, voluntarily and after careful consideration.
If the time comes that I can no longer take part in the decision making about my medical treatment, this Declaration will comprise the final expression of my wishes. It is requested that all concerned should take these wishes into account before taking any medical decision regarding my life. If at any time:
I reach the stage of terminal illness and I lapse into a coma with no reasonable expectation of regaining consciousness or
I have a diseased state from which I have no reasonable chances of recovering with any acceptable quality of life or
I reach a persistent vegetative state from which I have no reasonable expectation of regaining any significant cognitive functioning
Then the following steps must be taken.
I request a panel of three very senior doctors not related to my medical treatment be appointed by the hospital to check out if my case falls in any one/all of the above states, once this is confirmed then I should be deemed to have declined any of the chosen life-sustaining measures listed below, and if any such treatment has been started it may be withdrawn:
Multiple Blood Transfusions
Artificial feeding by intravenous route or nasogastric tube, gastrostomy, or nasojejunal tube.
Artificial Respiration (tracheotomy, ventilator support)
Cardio-pulmonary Resuscitation (DC shock, Cardiac Pacemaker, Ventilator)
Very high risk, last ditch surgical procedures
Other wishes: (written by hand)
I request that this Declaration be honoured by my family members and the hospital administration and doctors as a final expression of my legal right to refuse medical and surgical treatment accepting the consequences of such a refusal.
This document may be informed to my regular physician, Dr.______________________________
And to the Hospital_______________________________________________________________
A Medical Power of Attorney
This should be given to my Surrogate Decision Maker or Attorney in Fact to implement my Declaration from time to time on my behalf.
He/ she/they have consented to take this responsibility. My Attorney in Fact should be allowed access to all my medical files and treatment options to be able to take decisions on my behalf even if contrary views are expressed by others.
Date of Birth:
If the above mentioned person is not available then next two persons may be approached in the same order as listed
Date of Birth:
Date of Birth:
In the absence of all of the above authorized attorneys-in-fact, a member of my family or the hospital itself will have the authority to express the wishes on my behalf regarding my current treatment.
I submit that this Declaration and the Medical Power of Attorney shall remain in force during my lifetime and unless I revoke it at any time and until the notice of its revocation has been received by my Attorneys, and the Hospital.
I am fully competent to understand the Declaration and Medical Power of Attorney I have made, and I understand the importance of it.
NAME OF SIGNATORY:
I have signed this document in front of Witnesses who are required by law to validate this document containing the Declaration and the Medical Power of Attorney. I believe them to be competent enough to witness this procedure and sign on the document.
SIGNED IN MY PRESENCE