The Concept of Advance Medical Directive in India

A person has right to execute an Advance Medical Directive to know their decision regarding manner and extent of medical treatment given to their body, in case they are incapacitated to take an informed decision. Such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self- determination which are duly protected under Article 21 of the Constitution.

Thu Jun 23 2022 | National & Social | Comments (0)

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The rights to physical integrity and self-determination are fundamental rights, which are available to all human beings. In the event of a terminal disease, a person's decision to utilise or not employ a life-sustaining treatment is a significant personal decision. The concept of an Advance Medical Directive is gaining popularity around the globe. In this regard, various countries have enacted required legislation.

People in several jurisdictions around the world have the right, under common law, to refuse medical treatment, which might be unwanted at a certain age, and no one can be forced to continue such treatment if they do not want to. It is a violation of a person's right to personal liberty to begin a medical treatment against their will.

  1. What is Advance Medical Directive?

The 'Advance Medical Directive' (AMD) is a relatively new concept, which has received widespread acceptance around the world. AMD helps in protecting basic human autonomy, while also shedding light on the concept of dignity in death.

An AMD is a person's  exercise of autonomy on the subject of the level of medical intervention they intend to accept on their own body at a time when they may not be able to express their views. The objective and intent of AMD is to convey a person's medical care preferences in the event that they lose their ability to make decisions.  The use and operation of an AMD should be limited to situations where a person has reached a point where they would become incompetent or are unable to make  informed decisions about their medical treatment. There is no need to consider AMD as long as an individual can make an informed decision about the same. A person has the unrestricted freedom to amend or cancel their AMD based on the passage of time and medical scientific improvement. As a result, a person cannot be held down or bound by instructions provided at a previous time.

In most of the western countries, AMDs  have taken a legalistic form incorporating a formal declaration to be signed by competent witnesses. The laws also makes  provisions for   updating confirmation of its applicability and revocation. Protecting the autonomy of an individual is obviously the primary purpose of an AMD.. The answer as to when a particular AMD becomes operative usually depends upon an assent of when its author is no longer competent to participate in   medical decision making.

  1. Common Cause v. Union of India:

The Supreme Court of India, in the case of Common Cause v. Union of India, discussed the concept of AMD, which is also referred to as ˜living wills  in India. A writ petition was filed under Article 32 of the Constitution of India by the petitioner to seek the following reliefs:

  • The petition challenged the constitutionality of Section 306 of the Indian Penal Code (IPC).
  • The petitioner wanted the Court to declare the right to die with dignity as a fundamental right within the bounds of Article 21 of the Constitution, which guarantees the right to live with dignity.
  • The petitioner further asked the Court to issue directions to adopt suitable procedures, to ensure that persons of deteriorated health or terminally ill should be able to execute a document titled “Living Will” and attorney authorization, which can be presented to hospitals, for appropriate action in event of the executant being admitted to the hospital with serious illness.

Brief background to the case:

In this case, the petitioner was a registered society that provided public services. The petitioner filed a Public Interest Litigation (PIL) to draw the attention of the Supreme Court to the significant problem of violations of the people's fundamental right  to life, liberty, privacy, and the right to die with dignity, as provided by Article 21 of the Indian Constitution.

Citizens with chronic ailments and/or who were nearing the end of their natural life span and were likely to enter a condition of terminal illness, or a  permanent vegetative condition, are robbed of their right to refuse cruel and unwanted medical treatment, like feeding through hydration tubes, being kept on ventilator and other life supporting machines, in order to artificially prolong their natural life span. This can sometimes lead to more pain and suffering, both physical and mental, which they desperately want to end by making an informed decision and clearly stating their preferences in advance (called a living will) in the event that they are unable to voice their preferences.

  1. Right to die with dignity:

As per the Constitution Bench of the Supreme Court in the case of Gian Kaur v. State of Punjab, the right to die with dignity is guaranteed under Article 21 of the Constitution. It is  worth noting that AMD is not  always linked to life-ending  decisions. However, it is critical to ensure that the form of an AMD matches its author's needs and is sufficiently authoritative and practical to allow its requirements to be enforced.

The concept of AMD originated largely as a response to development in medicines.  Many people who are simply alive because of machines   cause   great financial distress to the family with the cost of long term   medical treatment. AMD  was developed  as a means   to   restrict   the   kinds of medical intervention in the event when one becomes  incapacitated. The foundation   for   seeking   direction   regarding this is extension of the right to refuse medical   treatment   and   the   right   to   die   with   dignity. When   a   competent   patient   has   right   to   take   a   decision regarding   medical   treatment,   with   regard   to   medical procedure entailing right to die with dignity, the said right   cannot   be   denied   to   those   patients,   who   have become   incompetent   to  take   an  informed   decision   at   the relevant time. This concept has gained ground to give effect to the rights of those patients, who at a  particular time, are not able to take an   informed   decision.  

Another concept that has gained traction in a number of nations is the recognition of an instrument through which a person appoints a representative to make medical treatment decisions on their behalf. This is referred to as attorney authorization for medical care. There, however, is no legislation in India that governs the same.

  1. AMD under the Mental Healthcare Act:

The Mental Healthcare Act, 2017,  as per Section 5, states that every person, who is not a minor, has  a   right to make an AMD in writing regarding treatment to their mental illness in the way a person   wishes   to   be   treated. The person wishes not to be treated for mental illness and nomination of individual  as his/her representative. Section 5 of this Act prescribes the following

  1. Every   person,   who   is   not   a   minor, has a right to make an advance directive in writing, specifying any or all of the following, namely:
  • the way   the   person   wishes   to be   cared   for   and   treated   for   a mental illness;
  • the way the person wishes not to be cared for and treated for a mental illness;
  • the individual or individuals, in order   of   precedence,  wants to appoint a nominated representative   as   provided   under Section 14 of this Act.
  1. An AMD can be made by a person irrespective of their past mental illness or treatment for the same.
  2. An AMD can only be invoked when a person ceases to have capacity to make decisions pertaining their mental health care or treatment for the same.
  3. Any decision made by a person while they have the capacity  to make  mental health care and treatment decisions will override any previously written advance directive by the same person.
  4. Any advance directive made contrary to any   law   for   the   time   being   in   force   shall be void ab initio .
  5. Guidelines for advance medical directive, which are as follows:
  6. Only adults above the age of eighteen who are of sound mind at the time the advance directive is carried out should be considered competent. Persons with mental disabilities should be included if they are of sound mind at the time of signing an advance directive.
  7. Only properly written advance directives with the notarized signature of the individual performing the advance directive in the presence of two adult witnesses are legal and enforceable in the eyes of the law.
  8. The paperwork should include a statement indicating the individual carrying out the direction made an informed decision. Only advance instructions relating to the termination or withholding of life-sustaining treatment should be considered legal.   The finding that the executor of the advance directive is no longer capable of making the decision, as well as the conclusion that the executor's life would end in the absence of life-sustaining care, should be made in accordance with relevant medical professional regulations or standard treatment recommendations. The formation of an expert panel may also be considered in making this decision.
  9. The medical institution where the person is receiving treatment should have primary responsibility for ensuring compliance with the advance directive.
  10. If a hospital refuses to recognise the legitimacy of an advance directive, family or a next-of-kin may petition the jurisdictional High Court for a writ of mandamus ordering the hospital to carry out the instruction.
  11. The High Court can evaluate whether the directive was correctly implemented, whether it is still valid (whether or not circumstances have fundamentally altered after its implementation, rendering it invalid), and/or whether it is appropriate to the specific circumstances or treatment.
  12. In civil or criminal actions, no hospital or doctor should be held responsible for following a lawfully executed advance directive.
  13. Doctors who claim conscientious objection to the enforcement of advance directives on religious grounds should be allowed to do so, in accordance with their constitutional freedom under Article 25 of the Constitution. The hospital, on the other hand, will continue to be responsible for this requirement.

Conclusion:

The right to execute an advance medical directive is nothing but a step towards protection the  aforesaid right of  an individual, in the event they become  incapacitated to take an informed decision.  The technique and method in which such a right is expressed is a question that must be addressed in order to safeguard the weak, infirm, and elderly from abuse. It is the responsibility of the state to safeguard its citizens, particularly those who are sick, elderly, or require medical attention. The duty of doctors to extend medical care to the patients, who come to them does not  diminish in any manner by recognition of the concept that an individual is entitled to execute an AMD.

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