ADVANCE DIRECTIVES (A COMPARATIVE ANALYSIS)

Abstract

In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of Advance Medical Directives emerged in various countries. . An advance medical directive is “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.” The supporters of Advance Medical Directives argue that the concept of patient autonomy for incompetent patients can be given effect to, by allowing new methods by which incompetent parties can in advance communicate their choices which they will make while they are competent. Advance Directives can be divided into three categories: Living Will, Power of Attorney and Health-care proxy. 

Advance Medical Directives have been granted legal status in various countries like United States and United Kingdom by the way of legislations. In India the issue of legality of Living Wills has been a topic of debate and has also been adjudicated by the Supreme Court in the case of Common Cause v. Union of India. In this case the Supreme Court held the Advance Medical Directives to be a legally valid document by further laying down certain guidelines relating to the execution of such instruments. Through this case the debate on passive euthanasia was brought back into focus which had been adjudged upon by the Apex Court in the landmark judgement of Aruna Shanbaug where it was declared that a person may opt for withdrawal of treatment under exceptional circumstances. In the 196th and 241st Law Commission Report the contention of passive euthanasia was also supported by the Government on the subject of it being regulated by certain measures and restrictions. For dealing with the ambiguities which were left unclarified by the Supreme Court in the Aruna Shanbaug case, the Government introduced the Terminal Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill of 2016.

This paper analyses the judgement given by the Apex Court on the subject of Living Will in  the recent case of Common Cause v. Union of India and another. It further aims to incorporate laws regulating Living Wills in other countries like the U.S and U.K where Living Wills have been valid since a considerable time, in addition to the guidelines laid down by the Supreme Court in the above-mentioned judgement.