News By/Courtesy: Vidisha Gupta | 07 Apr 2020 22:34pm IST

HIGHLIGHTS

  • Advance Directives
  • Aruna Shaunbaug case
  • common cause of india case

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

To conclude, the author suggests that a legislation governing advance directives should be introduced by the Government of India as soon as possible. This is because in a country like India, instruments like Advance Directives can be misused by the public at large in the absence of a proper legislation governing it. As it has also been held by the Supreme Court that till the time the Parliament comes up with a legislation the guidelines laid down by the Court will be governing Advance Directives in India. Thus, while formulating the legislation the following factors should be considered:

  • The procedure for the execution of such instruments should be made precise as opposed to what has been laid down by the Supreme Court in the guidelines.
  • A provision imposing penalty on the physician for not honouring the advance directive should be incorporated.
  • An Official Body for keeping an account of the advance directives of various people should be constituted.

Section Editor: Pushpit Singh | 08 Apr 2020 0:02am IST


Tags : Advance Directives

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