What is a living will, and the new Supreme Court order for simplifying passive euthanasia procedure?

Last Updated28/01/2023

Recently, a five-judge Bench of the Supreme Court agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.
It was laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.

Meaning: Practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
Type: Administered only by a physician, can be either ‘active’ or ‘passive’.
Active euthanasia: It involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
Passive euthanasia: Withdrawing life support or treatment that is essential to keep a terminally ill person alive.
Legality: Legalised in India by the Supreme Court in 2018.
Condition: Contingent upon the person having a ‘living will’ or a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.

Allowed passive euthanasia: Also recognised the living wills of terminally-ill patients who could go into a permanent vegetative state, and issued guidelines regulating this procedure.
No Parliament legislation: This has not happened, and the absence of a law on this subject has rendered the 2018 judgement the last conclusive set of directions on euthanasia.
Questions raised: Who would execute the living will, and the process by which approval could be granted by the medical board.

P Rathinam vs Union Of India, 1994: In a case challenging constitutional validity of Section 309 of the IPC (mandating up to one year in prison for attempt to suicide), SC deemed it to be a “cruel and irrational provision”.
Smt. Gian Kaur vs The State Of Punjab, 1996: A five-judge Bench said that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then.
Law Commission of India, 2006: It recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
Law Commission’s ‘241st Report On Passive Euthanasia, 2008: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.
2018 guidelines on living wills: A living will was required to be signed by an executor in the presence of two attesting witnesses & to be further countersigned by a Judicial Magistrate of First Class (JMFC).

Conditions for treating physician: It was required to constitute a board comprising 3 expert medical practitioners with 20 years of experience, who would decide whether to carry out the living will or not.
If medical board granted permission: The will had to be forwarded to the District Collector for his approval.
Collector to form another medical board: The board will constitute 3 expert doctors, including the Chief District Medical Officer.
If the second board agrees: The decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.

Both boards to be formed by the hospital: The requirement of 20 years of experience for the doctors has been relaxed to five years. The requirement for Magistrate’s approval replaced by an intimation to the Magistrate.
Medical board to communicate its decision within 48 hours: The earlier guidelines specified no time limit.
A notary or gazetted officer can sign the living will: It will be signed in the presence of two witnesses instead of the Magistrate’s countersign.
If medical boards refuse permission: It will now be open to the kin to approach the High Court which will form a fresh medical team.

Netherlands, Luxembourg, Belgium: They allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
Switzerland: It bans euthanasia but allows assisted dying in the presence of a doctor or physician.
Canada: It announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023.
United States: It has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.