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)
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.
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.
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:
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.
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.
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
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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