Living Will Dessertation

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Living Wills in India: A Safeguard to a Patient’s Right to Death with Dignity
Bhargavi Vadeyar* & Lavanya Singh**
Introduction
“To presume that the incompetent person must always be subjected to what many rational
and intelligent persons may decline is to downgrade the status of the incompetent person by
placing a lesser value on his intrinsic human worth and vitality.”1
- Justice Liacos, 1977.
In 2011, the Supreme Court of India in its landmark judgement, Aruna Ramchandra
Shanbaug v. Union of India and Ors.,2 legalised passive euthanasia. This decision was made
in agreement with the principle of a right to die with dignity. Through this paper we attempt
to analyse whether the procedure laid down by the Court for allowing passive euthanasia in
individual cases truly upholds the right to die with dignity. We first analyse the doctrine of
this important right and the law with regard to it in India. We further attempt to provide an
alternative solution to the multifaceted problem of allowing euthanasia, keeping in mind the
patient’s right to self-determination and to die with dignity. In this context, we examine the
concept of living wills and how they can help safeguard the right to self-determination and
death with dignity of a patient.
The Right to Death with Dignity
Although the issue of euthanasia has a long historystretching back to the Ancient Greeks,
Romans,3 and Indians,4 the right to a death with dignity was brought to the fore recently.
Before this right was considered, the arguments surrounding euthanasia related more to

*
Bhargavi Vadeyar, Undergraduate Student, National Law University, Delhi.
**
Lavanya Singh, Undergraduate Student, National Law University, Delhi.
1
Superintendent of Belchertown State School v Saikewicz, 370 NE2d 417, 428 (Mass 1977) (USA).
2
Aruna Ramchandra Shanbaug v Union of India and Ors, (2011) 4 SCC 454 (India) [Aruna].
3
Ian Dowbiggin, A Concise History of Euthanasia: Life, Death, God and Medicine, 1st ed, (United States of
America: Rowman and Littlefield Publishers, 2005) at 11.
4
Frederick Lowy, Douglas M Sawyer & John R Williams, “Canadian Physicians and Euthanasia: 4. Lessons
from Experience” (1993) 148 Canadian Medical Association Journal 1895 at 1896.
Electronic copy available at: https://ssrn.com/abstract=2305897

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morality (as with the Roman Stoics)5 and religion (for example, Judeo-Christian philosophy
considered suicide to be irreligious).6
The 18th Century was dominated by utilitarian philosophers who advocated that suicide was
not necessarily immoral.7 If life, due to suffering, has ceased to maximise happiness, the
society should not prevent a person from ending it.8 One of the first mentions of a right to
death with dignity came from John Stuart Mill who claimed that “the only freedom which
deserves the name is that of pursuing our own good in our own way”.9 He thus supported the
concept of self-determination.10
Recently, the right to death with dignity has been supported by Ronald Dworkin. According
to Dworkin,people are concerned with how they will be remembered and therefore do not
wish to be remembered as a burden on others or as people who lived the last part of their
lives in circumstances they would consider degrading.11 It has come to be agreed that when a
person is in such pain that her life has lost all meaning apart from the fighting of that pain,
she loses herhuman dignity. In such circumstances, a respect for her former dignity may be
the justification necessary for euthanasia.12
The debate over the right to death with dignity has gained momentum in recent times with the
increase in dialogue about euthanasia.13 This is mainly due to the modern advances in
medical science, in particular the development of life-support systems. The right to die with
dignity, as a result, has become much more relevant now than it was in the past.14Currently,
this right is widely accepted as the principle behind euthanasia, resulting in legislations
accepting euthanasia all over the world.
The Law in India

5
Ibid at 1895.
6
Norman L. Geisler, Christian Ethics: Contemporary Issues and Options, 2nd ed (United States of America:
Baker Academic, 2010) at 171.
7
Paterson, Craig. A History of Ideas Concerning Suicide, Assisted Suicide and Euthanasia, online:
<http://ssrn.com>.
8
Ibid.
9
On Liberty, online: J S Mill, <www.books.google.co.in. >.
10
Sivakumar Sathasivam, “Ethical Considerations in Physician-Assisted Suicide” (2011) 11 Advances in
Clinical Neuroscience and Rehabilitation 25 at 25.
11
Raphael Cohen-Almagor, “The Patients’ Right to die in dignity and the Role of Their Beloved People” 4
Annual Review of Law and Ethics 213 at 217 [Cohen-Almagor].
12
Jyl Gentzler, What is a Death with Dignity? (2003) 28 Journal of Medicine and Philosophy 461 at 466.
13
Hazel Biggs, Euthanasia: Death with Dignity and the Law, 1st ed (Oxford: Hart Publishing, 2001) at 146.
14
Airedale NHS Trust v Bland, (1993) All E.R. 82 (H.L.) (UK) [Airdale].

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Before the case of Aruna Ramchandra Shanbaug v. Union of India,15 little was clear in India
about the law applicable to terminally ill patients who wished to die a natural death by
refusing modern medical life-sustaining treatment.16 The 196th Report of the Law
Commission of India had made a study of the law relating to euthanasia and its related facets
and had proposed a Bill for its implementation. However, euthanasia was not given legal
validity until this landmark judgement.
It was alleged in the writ petition of this case that allowing Aruna Shanbaug, who had been in
a Persistent Vegetative State (PVS) for thirty-six years, to live, was a violation of her
fundamental right to a life with dignity and therefore she should be allowed to die. The case
recognised the legality of passive euthanasia and laid down a procedure to be followed. The
judgement was tremendously useful in providing concrete answers on euthanasia in India.17
The Supreme Court examined the law of India and other countries.18 The case law in India
regarding euthanasia was at that time unclear. The Supreme Court had previously ruled in
VikramDeo Singh Tomar v. State of Bihar19 that, “the right to live with human dignity is the
fundamental right of every Indian citizen.”20 In P. Rathinam v. Union of India,21 the Supreme
Court struck down as unconstitutional Section 309 of the Indian Penal Code.22 This decision
was overruled by the Supreme Court in GianKaur v. State of Punjab.23 The bench upheld the
validity of Sections 309 and 306 of the Indian Penal Code (the attempt to commit suicide and
the abetment of suicide respectively).24 However, they left the law open for the possibility of
euthanasia by distinguishing it from suicide.25
In Aruna Ramchandra Shanbaug v. Union of India and Ors., the Supreme Court examined
the legal issues involved in euthanasia. It noted that there are two kinds of euthanasia, active
and passive.Active euthanasia refers to the definite commission of an act done towards the
termination of life. Passive euthanasia refers to an omission, usually the withholding of
medical treatment, such as antibiotics or a ventilator, which is necessary for the continuance

15
[Aruna], supra note 2.
16
Law Commission of India, Medical Treatment to Terminally Ill Patients and Medical Practitioners, Report
No. 196, (2006) at 20 [196th Report].
17
18
Ibid.
19
Vikram Deo Singh Tomar v State of Bihar, AIR 1988 SC 1782 (India).
20
Ibid.
21
P Rathinam v. Union of India, (1994) 3 SCC 394 (India).
22
[196th Report], supra note 16.
23
Gian Kaur v State of Punjab, (1996) 2 SCC 648 (India) [Gian].
24
[196th Report], supra note 16.
25
[Gian], supra note 23.

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of the patient’s life. The judgement recognised passive euthanasia and maintained that active
euthanasia is illegal.26
Euthanasia can be further categorised into voluntary and non-voluntary euthanasia. Voluntary
euthanasia refers to a situation in which the patient opts for passive euthanasia by refusing
treatment while non-voluntary euthanasia refers to a situation in which it is not possible to
obtain the consent of the patient e.g. when he is in a coma or a persistent vegetative state. In
the first instance, there is no legal difficulty; the patient has a right to refuse treatment if she
so desires.27
In the second instance however, the patient is unable to communicate her wishes, and this is
where the legal difficulty arises.28 Who is best qualified to make such a decision for the
patient and on what grounds? The case of Aruna Shanbaug attempted to address these two
questions with the help of case law and legislation from other countries.
The Supreme Court observed that, “if we leave itsolely to the patient’s relatives or to the
doctors or next friend to decide whether to withdraw the life support of an incompetent
person, there is always a risk in our country that this may be misused by some unscrupulous
persons who wish to inherit or otherwise grab property of the patient”.29 They therefore
provided that the family or next friend of a patient can petition the High Court which will, in
consultation with a panel of medical experts, decide the issue.
The judgement upheld the right to die with dignity laid down in Gian Kaur v. State of
Punjab.30 It was held that,
“The right to life including the right to live with human dignity would mean the
existence of such a right up to the end of natural life…this may also include the right
of a dying man to die with dignity when his life is ebbing out. But the ‘right to die’
with dignity at the end of life is not to be confused or equated with the right to die an
unnatural death curtailing the natural span of life.”31
With this principle in mind, the Supreme Court of India has legalised passive euthanasia by
allowing High Courts to sanction it. Although leaving the decision to the judiciary appears to

26
27
Ibid.
28
Ibid.
29
Ibid.
30
[Gian], supra note 23.
31
Ibid.

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be the most logical method, keeping in mind the sanctity that the law places on the lives of
the people, the question that one has to ask is whether the procedure is really protecting the
patient’s right to die with dignity.
While the court is right in preventing the family or doctor of the patient from having the final
say in the matter, this process of applying to the court for every instance of non-voluntary
euthanasia would, without a doubt, be costly and time-consuming and would exert pressure
on our already over-burdened courts. We must also consider whether the patient would have
made the same choice.
The Advance Medical Directive
It may so happen that a patient does not desire to be kept in a vegetative state, without any
hope of recovery or of a normal life. How then can she retain the right of privacy over her
body, the right to self-determination and the right to die with dignity?32 A solution to this
problem can be found in the Advanced Medical Directive (AMD), which ensures that a
person unable to communicate her wishes is given some say in whether or not her life is
taken away.
Black’s Law Dictionary defines an advance medical directive as “A legal document

explaining one’s wishes about medical treatment if one becomes incompetent or unable to
communicate.”33 The idea behind such a document is that if a patient is in a vegetative state
or any other condition which would preventher from communicating, there will be concrete
proof of what she would wish for herself regarding treatment. These wishes should be given
primary importance when considering the question of euthanasia.
When deciding a course of treatment, doctors must consider the two cardinal principles of
medical ethics: the patient’s right to self-determination and beneficence (also known as the
principle of deciding in the patient’s best interests).34 Without an AMD, a comatose,
unconscious or otherwise incapacitated patient will simply be treated in accordance with rule

32
Luis Kutner, “Due Process of Euthanasia: The Living Will, A Proposal” (1969) 4 Indiana Law Journal 539 at
550 [Kutner].
33
Black’s Law Dictionary, 7th ed, sub verbo “advance medical directive”.
34

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of beneficence.35 Under the current law in India, the patient’s fate would be decided by the
judiciary.
Would not the right to die with dignity be better protected by the application of the first
cardinal rule of medical ethics, the patient’s right to self-determination? This principle, also
known as the principle of patient autonomy, states that every human being of adult years and
sound mind has a right to determine what shall be done with her own body.36
When the patient is unable to exercise autonomy due to the seriousness of her condition, the
patient may make her wishes known previously through a formal advance directive.37 This
can protect the patient’s right to death with dignity. For this reason, many countries have now
implemented procedures for the making of formal advance directives, notably the United
States of America and the United Kingdom.
Advance medical directives include both the living will and a medical power of attorney. It is
put forth that India should acknowledge the legality only of living wills and not of medical
powers of attorney. As the Supreme Court observed, leaving the power to decide to the
relatives of a patient may cause a risk of unscrupulous use of such power to gain a patient’s
porperty or inheritance.38
Living Wills: The Benefits
Apart from protecting the patient’s right to self-determination, a living will has many
advantages. Firstly, it helps safeguard against the abuse of euthanasia by making the patient’s
wishes binding on doctors (unless proven that the patient’s wishes should not be followed).39
The use of a living will would lead to easier and more reliable decision making, with clear
proof of the patient’s choice.40
Secondly, a living will can legitimise a physician’s actions of withdrawing treatment by

providing proof of a patient’s intentions. This protects a doctor from accusations of homicide.

35
Shaun D. Pattinson, Medical Laws and Ethics 517 (2nd ed. 2009); Aruna Ramchandra Shanbaug v. Union of
India and Ors., (2011) 4 SCC 454 (India).
36
Scloendorff v Society of New York Hospital, 211 NY 123, 126 (1914) (USA).
37
T D Dogra & Lt Col Abhijit Rudra, Lyon’s Medical Jurisprudence & Toxicology, 11th ed (New Delhi: Delhi
Law House, 2010) at 103; Aruna Ramchandra Shanbaug v. Union of India and Ors., (2011) 4 SCC 454 (India).
38
39
Jochen Taupitz and Amina Salkić, “Advance Directives and Euthanasia under German Law” in Stefania
Negrii, ed, Self-Determination, Dignity and End-of-Life Care: Regulating Advance Directives in International
and Comparative Perspective, (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2012) 331 at 346.
40
K Jomadar, Ravish. Euthanasia: The Legalisation of the Right of Life - Myth or Reality, online:
<http://ssrn.com>.

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Thirdly, a living will can help to provide patients and their loved ones with a sense of control
over death, which can be an important psychosocial outcome of an AMD. Death, once central
to social and religious life, has been made taboo, making it difficult to think about.41 People
usually resist thinking about the death of their loved ones. AMDs can act as aids in
encouraging people to overcome their fears and face the decisions that must be made.42
Fourthly, as Dworkinhas pointed out, most patients realise that their suffering causes anguish
to their families and are therefore inclined to minimise the burden that their illness imposes
on others.43
Finally, decisions about death are heavily influenced by cultural and personal values. To
safeguard patient autonomy, physicians should give due recognition to a patient’s wishes.44 A
decision taken by the High Court influenced by a panel of medical experts who have no
relation to the patient or the physician treating her will be impersonal. It may have no relation
to what the patient would have chosen had she been conscious.
Much has been made of the diversity of India’s cultures and people. A study of attitudes
among people of Chinese origin found that they had a world view that values
interdependence, compassion and protection in contrast with independence and autonomy.
For many other people, however, the principle of autonomy may be a dominant ethical
consideration in their value system.45
A decision by an impartial party such as the judiciary, though just, may not take into
consideration these complex values according to which a person wishes to live and,
presumably, die. Such a decision may then be an imposition of the values of the decision
makers, rather than a reflection of the values of the patient in question. This, surely, is
counter-productive to the right to a death with dignity, one of the core components of which
would be a chance to die on one’s own terms, according to one’s own values.
Criticism of Living Wills

41
Douglas K. Martin, Linda L. Emanuel & Peter A. Singer, “Planning for the End of Life” (2000) 356 The
Lancet 1672 at 1673 [Martin].
42
Henry S. Perkins, “Controlling Death: The False Promise of Advance Directives” (2007) 147 Ann Intern Med
51 at 52.
43
[Cohen-Almagor], supra note 11.
44
[Martin], supra note 41.
45
Ibid.

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In the 196th Report of the Law Commission of India, called the “Medical Treatment to
Terminally Ill Patients (Protection of Patients and Medical Practitioners)”, proposed a Bill for
the legalisation of passive euthanasia. In it, the Law Commission criticised living wills and
advised against their implementation in India.46 This Report was made in 2006, before the
decision of the Supreme Court in Aruna Ramchandra Shanbaug v. Union of India and Ors.47
The Supreme Court did not address the issue of living wills in this decision.
The 241st Law Commission Report of August 2012 (“Passive Euthanasia – A Relook”),
which reported on the feasibility of legislation of euthanasia, taking into consideration the
196th Report and the recent decision in Aruna Ramchandra Shanbaug v. Union of India and
Ors., agreed with the previous Report that, as a matter of public policy, living wills should be
made legally ineffective, overriding the common law right to self-determination.48
Although living wills have been permitted in several countries, most notably the U.S.A. and
the U.K., the Law Commission felt that they would create complex problems in India. The
Report proposed in its Bill to make living wills void. The Report clarified that it was not
criticising a refusal for medical treatment given by a competent patient immediately before
such treatment. Their criticisms dealt with directives given “at a distant point of time”, before
a patient becomes unable to communicate due to the seriousness of her condition.49
The criticism brought up by the Report focused on the difficulties that arise when considering
the question of whether a living will continues to be valid. The Report relied on the complex
issues that have been created in the U.K. by advance medical directives and used case law to
demonstrate its arguments.50
In the U.K., the formal legislation that deals with the incompetent patients is the Mental
Capacity Act, 2005. This statute, however, has taken its principles from case law.51 The
landmark U.K. case which condoned passive euthanasia, Airedale NHS Trust v. Bland,52 held
that a patient of sound mind could refuse the continuation of life support. The court noted
with approval what was laid down in by the Court of Appeal in Re T,53 which is that a refusal

46
[196th Report], supra note 16 at 17.
47
48
Law Commission of India, Report No. 241, Passive Euthanasia – A Relook 11-12 (2012).
49
Law Commission of India, Report No. 196, Medical Treatment to Terminally Ill Patients and Medical
Practitioners 320 (2006).
50
Ibid.
51
Elizabeth Wicks, Human Rights and Healthcare, 1st ed, (Oxford: Hart Publishing, 2007) at 116.
52
[Airedale], supra note 14.
53
Re T, (1992) 4 All ER 649 [Re T].

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can also take the form of a declaration of intention not to consent in some future
circumstances.54 The court declared that an advance refusal has the same legal force as a
contemporaneous refusal if it is “clearly established and applicable in the circumstances.”55
Such a refusal would not make the patient guilty of suicide or the doctors guilty of murder or
abetment of suicide.56
The first among the cases relating to living wills is Re T,57 in which the patient’s mother was
a Jehovah’s Witness. Although the patient had an advance refusal for blood transfusions, her
father and boyfriend applied to the court for a declaration that it would be lawful to
administer blood. Her advance refusal was not accepted by the Court of Appeal because it
was not an informed decision and had been influenced by her mother. The court held that it
would be advantageous for the doctors to consult the patient’s close relatives so that they
could give information as to whether the patient was competent to make an advance directive
when she did so.58
The law relating to living wills and their continued validity was addressed again in the
important decision of HE vs. A Hospital NHS and Anr.59 In the landmark case on passive
euthanasia, Airedale NHS Trust v. Bland,60 it was implied that the physicians or the Court
must see if an earlier directive continues to be valid in circumstances that may occur years
later.61
In this case, the patient was born into a Muslim family. When her parents separated, her
mother became a Jehovah’s Witness, a religion that does not support blood transfusions. The
patient thereafter executed a living will saying that she did not want blood transfusions.
When she required surgery, her father, who remained a Muslim, applied to the court for
permission to give a blood transfusion. He argued that the living will did not stand since his
daughter had renounced her faith and entered into a relationship with a Muslim.62

54
John Keown, Euthanasia Examined: Ethical, Clinical and Legal Perspective, 1st ed, (Cambridge: Cambridge
University Press, 1997) at 301.
55
Shaun D. Pattinson, Medical Law & Ethics, 2nd ed (London: Sweet and Maxwell, 2009) at 516 [Pattinson].
56
57
[Re T], supra note 53.
58
Ibid.
59
HE v A Hospital NHS Trust. [2003] EWHC (Fam) 1017 [HE].
60
[Airedale], supra note 14.
61
62
Ralf Jox, Vegetative State - A Paradigmatic Problem of Modern Society: Medical, Ethical, Legal and Social
Perspectives on Chronic Disorders of Consciousness, 1st ed, (Zurich: LIT Verlag, 2012) at 188.

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Judge Munby permitted blood transfusion, notwithstanding the living will. He laid down
certain principles relating to the efficacy of advance directives,63 which have now been
incorporated in the Mental Capacity Act, 2005. Briefly, he held that a living will must be
valid and applicable to be effective. The question of whether a living will is valid and
applicable is one of fact which must be proved on a balance of probabilities.The court said
that in case of a doubt, “that doubt falls to be resolved in favour of the preservation of life, for
if the individual is to override the public interest, he must do so in clear terms”.64
The Judge also acknowledged the problem, brought up by Lord Donaldson in Re T,65 that an
advance directive may have been based on assumption that has been falsified, in which case
examination of the assumption is necessary. If it found to be false, the refusal ceases to be
effective. He noted that a living will must be considered with “especial care” to ensure that it
is still applicable.66
In conclusion, the law in the U.K. is that a living will of a patient is effective when the patient
is of full capacity. Care must also be taken to ensure that such anticipatory declarations are
still representative of the wishes on the patient, by investigating how long ago, with what
knowledge and in what circumstances the wishes were expressed.67
The Law Commission has thus argued that while there is an inherent right to self-
determination under which a living will should be accepted as per common law, they have
created complex legal and factual issues in the U.K. and should therefore be made void in
India.It has been put forth that if a living will is oral, it can create serious problems of proof.
When it is in writing, it must be proved that it was based upon the informed consent of the
patient who had knowledge of her illness and of the medicines and technology available.
Again, this requires the presentation of oral evidence and it must be taken into consideration
that due to changes in circumstances or on account of development in medicine, the advance
directive may have rendered inapplicable.68
The Law Commission opined that in a country where there is a high level of illiteracy and a
lack of knowledge about the developments in medicine, there is scope for living willsbeing
based on wrong assumptions. A lot of the proof required will be oral and may be conflicting.

63
[HE], supra note 59.
64
65
[Re T], supra note 53.
66
67
68
Ibid.

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They also argued that this confusion would lead to an increase in litigation against doctors.
They concluded their arguments by saying that living wills, whether written or oral, are
controversial and can lead to mischief and therefore should be made legally ineffective,
overriding the common law right of self-determination.69
It is argued in this paper that the criticisms made by the Law Commission, though valid, can
be overcome by the implementation of proper safeguards through legislation, as has been
done in the U.K. and in the U.S.A. We therefore propose an addition to The Treatment of
Terminally Ill Patients Bill, 2006 which will regulate living wills.
A Proposal for Living Wills in India with Essential Safeguards
From a study of the existing legislations in the U.K. and U.S.A., we have tried to formulate a
set of procedures to be followed in the making and implementation of living wills in the
Indian circumstances. Since a living will is similar to a will in its execution, we have used the
Indian Succession Act to help us adapt the U.K. and U.S.A. laws to the Indian circumstances.
Although India has a variety of laws based on religion and domicile, the general law of the
land for regulating wills is the Indian Succession Act, 1925.70 Chapters II to VI of the Indian
Succession Act deal with wills.71
In the U.K., the Mental Capacity Act, 2005 expressly deals with living wills from Section 24
to 26.72 Since the principles laid down by the Supreme Court of India in Aruna Ramchandra
Shanbaug v. Union of India and Ors. are heavily based on English law, our recommendations
will predominantly use the law laid down in the Mental Capacity Act. Following the Supreme
Court of U.S.A.’s judgement in Cruzan v. Director, Missouri Department of Health,73 the
Congress enacted the Patient Self-Determination Act of 1990.74 Unlike the U.K. law, which
is uniform, the law in the U.S.A. varies among its states.75

69
70
Poonam Pradhan Saxena, Family Law Lectures: Family Law II, 3rd ed., (Gurgaon: LexisNexis Butterworths
Wadhwa, 2011) at 23.
71
Paras Diwan, Law of Intestate & Testamentary Succession, 3rd ed, (New Delhi: Universal Law Publishing
Co. Pvt. Ltd, 2006) at 436.
72
[Pattinson], supra note 55.
73
Cruzan v Director, Missouri Department of Health, 497 US 261 (1990) (US).
74
Michael A Salatka, “Commentaries: The Patient Self-Determination Act of 1990: Issues Regarding the
Facilitation of Advance Directives, Patient Autonomy, Assisted Suicide, and Euthanasia” (1992) 1 The Journal
of Pharmacy & Law 155 at 155 [Salatka].
75
Living Wills, Health Care Proxies, and Advance Health Care Directives, online: American Bar Association
<http://www.americanbar.org> [American Bar].

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A recommended legislation for living wills, therefore, will have to begin with a definition of
what a living will is. A living will could be defined as ‘a will made by a person who has
reached the age of 18, when he has the capacity to do so, that if at a later time he develops a
terminal illness, and a medical treatment is proposed to be carried out or continued by a
person providing health care for him, and at that time he lacks the capacity to consent to the
carrying out or continuation of the medical treatment, the wishes expressed in such a living
will regarding such medical treatment are to be complied with.’76 This definition is based on
the Mental Capacity Act.
The words ‘terminal illness’ and ‘medical treatment’ have been taken from the proposed
‘Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical
Practitioners) Bill’ and are to be defined as they have been in that Bill. ‘Medical treatment’
can be defined as “treatment intended to sustain, restore or replace vital functions which,
when applied to a patient suffering fromterminal illness, would serve only to prolong the
process to dying”.77
‘Terminal illness’ can be defined as “(i) such illness, injury or degeneration of physical or
mental condition which is causing extreme pain and suffering to the patients and which,
according to reasonable medical opinion, will inevitably cause the untimely death of the
patient concerned, or (ii) which has caused a persistent and irreversible vegetative condition
under which no meaningful existence of life is possible for the patient.”78 The legislation
should then define ‘capacity’ as has been laid down in the Mental Capacity Act and through
English case law and provide illustrations demonstrating the case law.
Of course, no advanced directive can sanction the deliberate causing of death through active
euthanasia. A patient cannot authorise a doctor to actively terminate her life. This would be
illegal and contrary to public policy. In such a case, public policy considerations would
outweigh the rights of a patient.79 It should also be made clear that the making of a living will
is optional. In the event that no living will has been made, the doctors and courts are to act
according to the principle of the ‘best interests’ of the patient as laid down in Aruna
Ramchanmdra Shanbaug v. Union of India and Anr.80 It is further recommended that the

76
Mental Capacity Act, 2005, s 25; [196th Report], supra note 16 at 422-424.
77
[196th Report], supra note 16 at 422-423.
78
Ibid at 423-424.
79
[Kutner], supra note 32.
80

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legislation should recognise the validity only of a written living will and not an oral one, in
order to make the existence and validity of it easier to prove.
Some basic aspects of a living will should be that only a major can make it,81 that the person
making it shall sign or affix her mark to it82 and that two witnesses shall be required. It may
be prudent, in order to prevent the misuse of living wills, to follow the example of some of
the U.S. states and make it compulsory that the witnesses must be people who do not
financially benefit from the person’s death and who will not execute the person’s estate. They
also should not be related by blood or marriage to the patient or be responsible for the paying
of her medical bills.83
There should also be a section which makes a living will influenced by coercion or fraud
void.84 Furthermore, it should be made compulsory for the person making the living will to
explicitly specify that the decisions expressed in it are to apply to the treatment in question
even if life is at risk.85 The legislation must also provide that no liability shall be incurred for
the consequences of withholding or withdrawing treatment in accordance with a living will if
a physician reasonably believes that such directive is valid and applicable.86 The legislation
should state that in the case of any doubt with regard to the existence, validity or applicability
of a living will, the physician or family member or next friend of the patient should apply to
the court for a declaration.87
Some states in the U.S.A. provide a standardised document for living wills.88 Since the
construction of the language of a living will can be a cause for great confusion, the Indian
statute should also provide a standardised format. This could help to do away with problems
such as linguistic vagueness and poor communication that have been the drawbacks of living
wills in other countries.89
The format should start with an introduction statement to the patient. It should encourage
people to talk with their loved ones and physician regarding what they wish to convey.90 This

81
Mental Capacity Act, 2005, s 24.
82
Indian Succession Act, No. 39 of 1925, s 62
83
[American Bar], supra note 75.
84
Indian Succession Act, No. 39 of 1925, s 61.
85
86
87
Ibid.
88
[American Bar], supra note 75.
89
Linda L Emanuel & Ezekiel J Emanuel, “Medical Directive: A New Comprehensive Advance Care
Document” (1990) 10 Estates and Trusts Journal 134 at 138 [Emanuel].
90
[Emanuel], supra note 89.

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emphasis on discussion of the values that the patient wishes to convey is significant, as it can
help to clarify the intentions of the patient and provide oral evidence.
The main body of the living will should be a consideration of scenarios and the choices of the
patient with regard to them. These scenarios will allow patients to state their preferences with
regard to specific circumstances and treatments. This will help to make the living will more
informative, flexible91 and relevant to the circumstances in which it will have to be applied.
It is put forth that the scenarios should cover the various instances of ‘terminal illness’ as has
been defined earlier.92 These categories of illness should also be illustrated by examples to
aid people in understanding them. In each scenario, a patient should indicate whether or not
she would want a specific medical treatment, for example, artificial feeding,
artificialventilation, etc.93
The form would not only permit either refusal of care or affirmative requests for care but
would also permit a patient who is unsure of whether or not they would like such treatment or
who would like to specify a time limit during which such treatment to continue.94 There can
also be a provision for an expression of the patient’s general thoughts at the end of the
official format, to clarify their intentions.It is important note that this section of the document
will not be binding. In India, with its high level of illiteracy, it is doubly important to provide
such a framework as without it, people may have no knowledge of the real medical situations
in which their living will may be used, causing problems of applicability later on.
As under English law, a living will can only be effective if it is valid and applicable. A living
will shall not be valid if the patient has done anything clearly inconsistent with it,95 for
example, the changing of the patient’s religion in the case of HE vs. A Hospital NHS and
Anr.96 It will also not be valid if a patient has withdrawn it when she had the capacity to do
so, that is by revoking or altering it, similar to the provision for the revoking and alteration of
wills under the Indian Succession Act.97 Modes for revocation and alteration can be modelled
on the Indian Succession Act.98

91
[Emanuel], supra note 89 at 139.
92
[196th Report], supra note 16 at 423-424.
93
[Emanuel], supra note 89 at 139.
94
Ibid.
95
96
[HE], supra note at 59.
97
Indian Succession Act, No. 39 of 1925, s 62; Mental Capacity Act, 2005, s 25.
98
Indian Succession Act, No. 39 of 1925, ss 70-71.

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We must not forget that for the proper utilisation of such a provision for living wills,
awareness is requisite. In an increasingly complex world, choices about medicine are difficult
and it cannot be expected that everyone will know enough about the medical practices and
remedies available to be able to make an informed decision on their own. It is therefore the
duty of healthcare providers to fully brief patients about the medical treatment which
available to them. Especially in India, where there is a lack of literacy and many people may
struggle to understand the technicalities of medicine, it is vital that doctors play a teaching as
well as a treating role.
Apart from keeping patients informed about the options available to them, healthcare
providers would also have to make patients aware that they have the right to make a living
will. In the U.S.A., the Patient Self Determination Act requires that institutions inform
patients that they can execute a formal living will and provide them information about state
laws.99 We recommend that it should be the duty of healthcare providers to inform patients
that they have the right to ensure that their wishes will be conveyed, even when they are
incompetent.
Conclusion
Although India has definitely moved a step forward towards recognizing the right to death
with dignity, what the law lacks is an efficient institution that safeguards the autonomy of an
individual even while she is on the death bed. The law as it is currently does not protect the
constitutionally guaranteed right to life of an individual, which when expansively interpreted
includes her right to death with dignity. It is thus suggested that implementing living wills
with proper safeguards is the best way to fill up this current gap in the law which does not
allow for the protection of an individual’s right to self determination while unconscious.
In conclusion, the upholding of the right to death with dignity is paramount to the concept of
passive euthanasia. While the judgement in Aruna Shanbaug is truly commendable and
ground-breaking, the question of whether it truly protects the right to death with dignity must
be asked. In our humble opinions, this right can be better upheld through the implementation
of living wills in India. Through the use of legislation implementing proper safeguards for
living wills, we can safeguard the patient’s right to self-determination and death with dignity.

99
[Salatka], supra note 74 at 156; Daniel P. Kessler & Mark B. McClellan, Advance Directives and Medical
Treatment at the End of Life (Nat’l Bureau of Econ. Research, Working Paper No. 9955, 2003) at 5.

Living Will Dessertation

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Living Wills in India: A Safeguard to a Patient’s Right to Death with Dignity

Bhargavi Vadeyar* & Lavanya Singh**

- Justice Liacos, 1977.

The Right to Death with Dignity

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The Law in India

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The Advance Medical Directive

Black’s Law Dictionary defines an advance medical directive as “A legal document

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Living Wills: The Benefits

Secondly, a living will can legitimise a physician’s actions of withdrawing treatment by

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Criticism of Living Wills

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A Proposal for Living Wills in India with Essential Safeguards

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