Remedying the Malady: Laws on Advance Directives in India

by Tejas Popat

Advance Medical Directive, (hereafter ‘directive/s’) or what is commonly known as a ‘living will’ is a document indicative of an individual’s wish to continue medical treatment or not when he is artificially kept alive.

Recently, the Health Ministry released a draft of, ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’ (hereafter ‘Terminally Ill Patients Bill’) for public comment. Section 11 of the Bill states that directives shall be void, of no effect and therefore not binding on doctors. This draft bill has been released at a time when a petition for declaring directives as legal and valid is pending before a Constitution Bench of the Supreme Court in Common Cause v. The Union of India. On the other hand, a bill which allows mentally ill patients to effect an advance directive was passed by the Rajya Sabha – the Mental Health Care Bill. It now awaits approval of the Lok Sabha. This has resulted in a contradictory position.

Presently, as mentioned above, two contrasting laws are in the pipeline. The Health Care Bill allows for Directives to be executed by an adult. This directive shall specify the way he wishes to be treated for a ‘mental illness.’ ‘Mental Illness’ has been defined in Section 2(s). On the other hand, the latest draft of the Terminally Ill Patients Bill also includes in its ambit mental illnesses. Though not individually defined, it finds place in Section 2(m) under the definition of ‘terminal illness.’  Therefore, the later law does not allow for directives uniformly while the previous one does.

Apart from that, there is an overlap in terms of its scope as both cover mental illnesses. There are no indicia for determining which bill shall make way for the other in that regard. The ‘special law’ test would also be of little help. In addition, the contradictory stand as to the validity of directives is a matter of concern as one would find justification for two exactly contrary acts, i.e. of acts under the guidance of a directive, of being bound by a directive or not and others.

The two legislations create two classes of people who are unable to give consent, one being those who would be covered under the Health Care Bill,able to execute a directive and the rest unable to do so because of them falling within the ambit of the new law. Thus, the peculiarity of a patient’s illness would allow or disallow him from exercising his right to execute a directive. In that respect, the Mental Health Care carves out an exception in the general law which would not recognize a directive. The rationale for creating an exception aren’t discernible from the draft of the bill. A challenge to the law under Article 14 then is a real possibility. In that light, a change in the draft Bill would suffice. This would not only bring the laws in conformity but also be a welcome step towards recognizing a vital right to effect advance directives. Or one could wait for the litigation to come to an end in the Supreme Court!

(I would like to thank Vasujith Ram and Ayushi Singhal for their comments and suggestions.)

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