Does the “right to live” include the “right to die”?
The question is tricky and requires us to tread a fine balance between an individual’s right to privacy over decisions involving her body versus the state’s responsibility towards the individual as a guardian (parens patriae). This debate has traversed a long journey – from P. Rathinam (1994) to Aruna Shanbaug (2011) – and the Supreme Court has finally acknowledged that the right to live with dignity includes, in certain circumstances, the right to die.
In a lengthy judgment littered with metaphors and references to prose, poetry and a Kishore Kumar song, it recently declared advance medical directives valid in matters of passive euthanasia. It is a significant first step, but the law still needs to address issues that come up in serious medical circumstances.
In theory, an advance directive may take one of two forms – a living will or a durable power of attorney. A ‘living will’ contains a person’s wishes regarding healthcare, property or financial matters and comes into effect when they are incapable of making decisions themselves. A ‘lasting power of attorney’ is a nomination enabling a next of kin or authorised representative to make decisions regarding healthcare, property or financial matters when a person lacks mental capacity but is still alive.
The Supreme Court’s judgment is not the first to confer legal sanctity upon advance directives. The Mental Healthcare Act, 2017 (“MHA”) has recognised them in matters of mental illnesses, but is yet to come into force or finalise a procedure for valid directives. Therefore, the judgment, which restricts itself to advance directives in the context of terminal illnesses and prolonged medical treatment, is likely to provide an indication of how the process works. Some of the guidelines from the ruling are detailed below:
Capacity: A person executing an advance directive has to be in a sound state of mind (healthy, acting without coercion, inducement or compulsion and having full knowledge of information).
What the directive should contain: A valid directive needs to clearly specify (1) The identity of the executor who will act for the person. A guardian or a close relative can also be authorised to make the relevant decisions; (2) The circumstances within which the medical treatment is to be withheld/withdrawn; (3) The executor has understood the consequences of withdrawing the treatment; and (4) If the executor is unable to take a decision, then the consent of the guardian has to be obtained for withdrawal of medical treatment.
Revocation of directives: The maker is entitled to revoke such instructions at any given point of time. Such a revocation or withdrawal has to be clear, unambiguous and in writing. If there is more than one advance directive, the one that is latest in point of time shall be valid.
Procedural requirements: A valid directive has to be signed by the executor, two attesting witnesses and countersigned by the relevant judicial magistrate of first class in charge.
Implementation of advance medical directives
Once an advance directive is in place, there is a procedure for implementation of its contents. The directive will only kick in when the maker is terminally ill and is undergoing prolonged medical treatment, with no hope for recovery or cure. The first step involves obtaining the opinion of a medical board. If the treating physician is of the belief that withholding medical treatment is the appropriate course of action, the hospital shall constitute a medical board to provide a preliminary opinion after examining the patient in the presence of the guardian/close relative. If the medical board believes that the directive should be carried out, it shall inform the jurisdictional collector, who shall then constitute a collector medical board. If this board concurs with the hospital medical board’s opinion, it may endorse the certificate to carry out the instructions contained in the directive. Alternatively, the hospital medical board may make an application to the collector’s medical board for appropriate directions outside the directive. The decision is then communicated by the collector medical board to the magistrate for a sign off.
If the collector medical board refuses to give effect to the directive, the only recourse is for family members/the treating doctor or the hospital staff to file a writ petition before the relevant high court. The division bench hearing this matter is also free to constitute an independent committee consisting of doctors to help in its decision.
If there are no directives in place
The hospital medical board shall discuss options with the family physician and family members, record such discussion in writing and have the course of action and consent of family members certified by it. This is again to be treated as a preliminary opinion. If the collector medical board concurs with the opinion, and if the magistrate signs off, the decision must be intimated to the high court before it is implemented.
In both situations, the process is prolonged and involves several steps, presumably to avoid misuse. However, experience dictates that when processes are overly detailed, there is a greater likelihood of rent-seeking behaviour that doesn’t necessarily serve the interests of the patient or their family. We would therefore need to evaluate whether the procedure prescribed by the apex court necessarily assists the terminally ill and their loved ones.
Further, although the court’s ruling analyses advance medical directives for healthcare-related decisions, neither the judgment nor the MHA deal with responsibility for lesser medical decisions, or the financial consequences of illness and incapacity. However, the Rights of Persons with Disabilities Act, 2016 (RPDA) addresses responsibility for lesser medical decisions and financial consequences for disabled persons. Under the RPDA, if such a patient is not able to exercise legally-binding decisions, a guardian can be appointed to take decisions on their behalf (after consultation). However, a guardianship gives the guardian full control over financial decisions without allowing a person to plan for such circumstances while they have due capacity. Further, the RPDA doesn’t address situations of an advance directive for lesser medical decisions which fall short of disability.
In several countries such as the UK, Singapore, US etc., specific legislations allow individuals to nominate a person as a lasting power of attorney holder to make medical and financial decisions for and in the name of the issuer, if the issuer becomes mentally incapable. Similarly, a living will may specify the manner in which medical/financial decisions may be exercised by next of kin. The process is simple, often templatised and single-step, similar in ease to the process of assigning nominees for financial accounts – for example, in Singapore, a person simply has to file an LPA Form 1 to give the donee wide decision-making powers in a situation of incapacity.
Can a power of attorney serve as an advance directive for financial matters in India?
Powers of attorney (POA) are governed by provisions of the Indian Contract Act, 1872 (ICA) and the Powers of Attorney Act, 1882 (POA Act). A “power of attorney” has been widely defined to include “any instrument empowering a specified person to act for and in the name of the person executing it”. The POA Act is silent regarding the validity and enforceability of a POA upon the incapacity of a principal. However, under Section 201 of the ICA, any agency (which includes a POA) would be terminated automatically if the principal or agent becomes incapacitated. Incapacity could include situations of legal incapacity such as insolvency as well as mental incapacitation/physically incapability to handle affairs etc. This provision would defeat the very purpose of a lasting power of attorney – it would require the drafter to put in place an LPOA while still capacitated, and she would then have no protection or assurance from the LPOA when incapacity kicks in.
One of the few exceptions to this rule is contained in Section 202, which states “where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest”. This means that if the LPOA holder has an interest in the underlying property, the LPOA cannot be revoked by the principal and should not stand terminated in the event of death, unsoundness of mind or insolvency of the principal. This is easier said than done – how should an LPOA holder, say a spouse, be given such an “interest”? A “will” may not constitute a sufficient interest for this purpose as it would only vest upon the death of the testator and not his/her incapacity. Courts have also taken conflicting views regarding the validity of such irrevocable powers of attorney. As a consequence, often the only solution available is for persons anticipating incapacity to set up structures such as trusts. This is not always feasible, nor desirable.
The law needs to address this lacuna. It is harrowing enough to be witness to the mental and physical suffering or deterioration of close family without having to deal with uncertainty relating to financial matters. While wills and nominations provide relatively simple ways to manage financial affairs upon death, short-term and long-term medical/financial incapacity continues to be a grey area. We need to simplify the ways in which we have a say in such situations, and through which our loved ones are conferred authority to take critical medical and financial decisions, if we are unable to.