CROSS-CULTURAL PERSPECTIVES ON ADVANCE DIRECTIVES: A COMPARATIVE STUDY OF HEALTHCARE DECISION-MAKING IN THE USA, UK, AND INDIA BY - SRAVYA KONDURI
CROSS-CULTURAL PERSPECTIVES ON ADVANCE DIRECTIVES: A
COMPARATIVE STUDY OF HEALTHCARE DECISION-MAKING IN THE USA, UK, AND INDIA
AUTHORED BY - SRAVYA KONDURI
Abstract:
An
Advance Directive is a legally binding document that empowers adults, who have
attained a legal age, to predefine their healthcare choices involving
end-of-life care. It specifically articulates an individual's healthcare
choices for situations in which they may be terminally ill and unable to make
decisions due to unconsciousness. It must be in written form, providing clear
specifications for when a medical treatment can be halted or when a treatment
that only prolongs suffering and indignity should be avoided. This paper
explores the ethical and legal significance of advanced directives and its
related international conventions, assesses the legal framework Advanced
Directives in USA, UK and India and provides recommendations for enhancing the
legal framework of Advance Medical Directives in India.
Keywords:
Living
Will, Advanced Directive, Healthcare proxy, Individual Autonomy, End-of-Life
decisions, Palliative care
I.
Introduction:
An Advance
Directive[1]
is a legally binding document that can be created by any adult who has attained
the age of majority. It outlines an individual's healthcare preferences for
situations when they are terminally ill and unable to make decisions due to a
lack of consciousness. It further provides guidance to healthcare providers on
the medical choices to make, on the individual's behalf.
An
Advanced Directive may include one or both of the following components:
1.
A Living Will[2]
This outlines an individual's healthcare preferences and treatment
choices in advance. It is designed for situations where the individual is
incapacitated, such as when they lose consciousness or face a terminal illness.
Individuals can express their preferences and refusal for specific medical
treatments, including decisions about interventions like mechanical
ventilation, cardiopulmonary resuscitation (CPR), and intubation in critical
health situations, particularly those involving end-of-life care.
An appointment
of a health care proxy is another type of an advanced directive. In this,
individuals designate a reliable representative to serve as their healthcare
agent, empowered to make medical decisions on their behalf when they are unable
to do so due to unconsciousness. This allows the chosen individual to make
decisions in the person’s best interest, using the individual's established
preferences and values as a guiding principle.
An
Advanced Directive can be written by any person with a sound mind and a
capacity to understand the nature and consequences of their healthcare
decisions. They must be of a legal age and should make this decision
voluntarily without any undue influence or coercion from others.[4]
II.
Ethical and Legal
Significance:
1.
Ethical Significance:[5]
·
Respect for Autonomy:
Advanced directives respect individual autonomy, enabling pre-made healthcare
decisions, even when patients cannot communicate.
·
Beneficence and Non-Maleficence: Advanced
directives guide providers to do what is best for patients, promoting ethical
principles of beneficence (doing good) and non-maleficence (avoiding harm).
·
Reducing Moral Distress: In
challenging situations, advanced directives alleviate moral distress for both
patients and healthcare professionals by providing clarity on the treatment
preferences of the patient.
2.
Legal Significance:
·
Legal Validity and Protection:
Advanced Directives are legally binding. They protect individuals from unwanted
treatments while also providing legal protection for healthcare providers who
adhere to patients' documented wishes.
·
Regulatory Framework: Many
countries and states have established legal frameworks for advanced directives,
which outline the requirements for their creation and implementation.
·
Informed Consent:
Advanced directives are considered as a form of informed consent, ensuring that
individuals make healthcare decisions with a clear understanding of the
potential consequences.
·
Reduction of Legal Disputes:
Advanced directives can help reduce legal disputes and family conflicts by
providing clear guidance on a patient's healthcare preferences.
From
an ethical perspective, advanced directives uphold individual autonomy, patient
values, and patient-centred care. Legally, they offer a well-defined framework
to honour patient wishes, shield healthcare providers, and ensure compliance
with the law in healthcare decision-making.
III.
International Conventions regarding
Advanced Directives:
There
is no single international convention or treaty that specifically governs
advanced directives or living wills on a global scale. The legal frameworks and
regulations surrounding healthcare decisions, including advance directives,
tend to be established at the national or regional level, and they can vary
significantly from one country to another.
However,
some international conventions and guidelines touch on the broader topics
related to patient autonomy, medical ethics, and end-of-life care. These
conventions may indirectly impact how advanced directives are handled in
various countries. Some of these conventions include:
1.
Universal
Declaration on Bioethics and Human Rights[6]: Adopted by the United Nations Educational, Scientific
and Cultural Organization (UNESCO) in 2005, this declaration sets out
principles and guidelines in the field of bioethics. It highlights the
significance of respecting the autonomy and dignity of individuals, giving
special consideration to the protection of those unable to give consent due to
a lack of capacity which is relevant to advance directives.
2.
European Convention on Human Rights and
Biomedicine[7]:
This Council of Europe treaty, also known as the Oviedo Convention, addresses
various issues related to biomedical ethics, including consent to medical
treatment, which can be relevant to advance directives.
3.
World Medical Association's Declaration
of Lisbon on the Rights of the Patient[8]:
This declaration outlines principles related to patient rights, including the
right to make decisions about medical treatment when the patient is unconscious.
While not a legally binding convention, it influences medical ethics globally.
4.
Hague Convention on the International
Protection of Adults[9]: The
Hague Convention focuses on providing a legal framework for the international
protection and support of adults who may lack the capacity to manage their
personal and financial affairs, especially when they have cross-border
interests. The convention establishes principles for recognizing and enforcing
protective measures and legal appointments in multiple countries to ensure the
rights and interests of the protected adult are respected internationally.
IV.
Legal Framework of
Advanced Directives in
United States of America:
In
the United States, the legal framework for advanced directives, including
living wills and durable powers of attorney for healthcare, is primarily
established, and regulated at the state level. Each state in the USA has its
own laws and regulations that govern the creation, execution, and recognition
of advance directives, so the legal framework can vary from state to state. However,
the Patient Self-Determination Act (PSDA) is a federal law that relates to
advanced directives in the context of healthcare facilities that receive
Medicare and Medicaid funding.
The Patient
Self-Determination Act (PSDA) was enacted in 1990 and requires healthcare
facilities to inform patients about their rights to create advance directives
and to maintain written policies and procedures for implementing these
directives.[10]
While the PSDA emphasizes patient education and documentation within healthcare
facilities, it does not regulate the specific content or format of advance
directives.
Further,
the Uniform Law Commission proposed a Uniform Health-Care Decisions Act in 1993
with the aim of creating a single form that could fulfil the requirements of
all states as a national law. However, only seven states—Alaska, Delaware,
Hawaii, Maine, Mississippi, New Mexico, and Wyoming—have adopted the act, and
even in those cases, they have introduced their own variations.[11]
State
laws typically prescribe specific legal formalities for the creation and
execution of advanced directives. These may include requirements for witnesses,
notarization, or specific language to be included in the documents. Many states
have specific laws that address end-of-life decision-making, including
Do-Not-Resuscitate (DNR) orders and Physician Orders for Life-Sustaining
Treatment (POLST) forms, which may be used in conjunction with advanced
directives.
Several
states mandate various legal procedures for the completion of advance
directives. While a standard legal form is often provided as an optional
template, it is commonly seen as a good choice. Usually, you only need two
adult witnesses to sign a directive, but these witnesses must meet specific
qualifications. The named agent, the healthcare provider treating you, and
staff at the facility are usually not allowed to be witnesses.
Further,
numerous states stipulate that the directive must explicitly cover certain
issues, such as nutrition and hydration, in precise terms if the individual
intends to authorize their withdrawal. In eight states, specific notifications
to individuals executing health care powers of attorney are compulsory.[12]
Some
states have set limitations on decision-making authority for healthcare
proxies, including:
·
Living will laws usually require a medical diagnosis,
like a terminal condition or permanent unconsciousness, before any action is
taken. In twelve states, there is an extra need for a diagnosis before an agent
can decide to stop life-sustaining treatments. The complexity of the diagnosis
process and documentation varies by state.
·
In thirty-three states, there are special rules about
when agents, default surrogates, or guardians can decide to stop artificial
nutrition or hydration. These rules vary, including situations where default
surrogates are completely restricted or when certain medical conditions must be
diagnosed beforehand.
·
Most states restrict the execution of advance directives
if the patient is pregnant.
·
In twelve states, surrogates are not allowed to agree
to important or controversial medical procedures like sterilization, abortion,
or psycho-surgery.[13]
The
"portability" principle often allows advanced directives created in
one state to be honoured and accepted in other states. However, there may be
variations in interpretation and local requirements, so it is advisable to have
advance directives reviewed when moving to a different state.[14]
Patients
are advised to furnish copies of their advanced directives to healthcare
providers to ensure proper documentation. While healthcare professionals
routinely review a patient's medical records including any previously provided
advanced directives, in critical emergencies, immediate awareness of such
directives may not always be possible before administering care.
In
situations where patients are unconscious or unable to communicate, healthcare
providers may consult with family or friends who are familiar with the
patient's directives, given the time permits. To enhance accessibility of
crucial information during emergencies, some individuals carry emergency
medical cards or wear alert accessories indicating the presence of advanced
directives. These items often include contact details for the patient's
designated healthcare agent or pertinent information.[15]
Additionally,
certain states have established registries where individuals can voluntarily
register their advanced directives, allowing healthcare providers to verify
their existence and content efficiently.
Failure
to adhere to advanced directives can result in legal and ethical consequences
for healthcare providers and institutions, including potential liability.
However, the validity of an Advance Directive relies upon the awareness of the
healthcare providers therein.
At
its recent 132nd Annual Meeting in Honolulu, Hawaii, the Uniform Law Commission
(ULC) approved the new Uniform Health Care Decisions Act, 2023. This updated
law has similar goals to the Uniform Health Care Decisions Act from 1993, but
it is changed to fit how healthcare is given now, considering new family types,
living situations, increased use of electronic documents, and more focus on
separate advance directives for mental health care. The Act aims to be better
than the 1993 Act based on years of learning about how people make healthcare
decisions and the challenges with creating and using advance directives.[16]
V.
Legal Framework of
Advanced Directives in United Kingdom
(England and Wales):
In
the United Kingdom, Advanced Directives are often referred to as "Advance
Decision to Refuse Treatment" or ‘ADRT.’ The United Kingdom has a unified
legal framework to safeguard individuals who lack capacity to make decisions
about their own affairs due to mental incapacity or impairment, with the
following acts:
·
The Mental Capacity Act 2005 governing England and
Wales,
·
The Adults with Incapacity (Scotland) Act 2000 in
Scotland, and
·
The Mental Capacity (Northern Ireland) Act 2016 in
Northern Ireland.
The
main emphasis of this article is on the Mental Capacity Act 2005, which
pertains to the legal framework governing decision-making in England and Wales.
The Mental Capacity Act, 2005 is built upon the below five key principles that
provide a foundation for decision-making on behalf of individuals who may lack
capacity. [17]
·
Presumption
of Capacity: Assume a person has
capacity unless proved otherwise.
·
Enablement
and Participation: Do not treat people as incapable of making a decision
unless all practicable steps have been tried to help them.
·
Right to
Make Decisions (and to Make Unwise Decisions): A person
should not be treated as incapable of making a decision because their decision
may seem unwise.
·
Best
Interests: Always do things or take decisions for people without
capacity in their best interests.
·
Least
Restrictive Option: Before doing something to someone or making a
decision on their behalf, consider whether the outcome could be achieved in a
less restrictive way.
The
section 24 to 26 of the Mental Capacity Act, 2005 deal with Advance Decisions
to Refuse Treatment (ADRT). An "advance decision" is a choice made by
an individual, who is 18 years or older and possesses a decision-making
capacity. It can include both the specification of treatment preferences and
the appointment of a "welfare attorney" (a healthcare proxy) in a
single document. It is important to emphasize that the key principle of the
Mental Capacity Act presumes that a person has capacity unless proven
otherwise. [18]
Advance
directives are typically documented in writing, however, they may also exist as
witnessed oral statements or notes in patients' medical records, excluding
cases where they pertain to refusing life-sustaining treatment.
To
be considered legally binding, an advance directive must be clear, unambiguous,
and reasonably proximate. It does not apply to life-sustaining treatment unless
the individual affirms in writing that it remains valid even in situations
risking their life. Moreover, it must be in writing, signed by the individual
or someone they have asked to sign on their behalf, and witnessed. An individual possesses the right to modify or
revoke (or partial revoke) an advance decision when they have the capacity, and
this adjustment need not be in writing unless it pertains to refusing
life-sustaining treatment.[19]
If
an individual has an advance decision and, in the outlined circumstances, a
healthcare provider proposes a specific treatment that the person cannot agree
to at that time, the suggested treatment should not proceed. Also, when
understanding what treatment or circumstances were specified, the decision
counts even if it is said in a layman’s language.[20]
Validity and Applicability:
Section
25 of the Mental Capacity Act, 2005 deals with the validity and applicability
of the Advanced Decisions. An Advance Decision does not apply to a specific
treatment if, at the relevant time, the individual has the capacity to either
give or refuse consent to it. Also, it affects the responsibility a person may
bear for conducting or persisting with a treatment concerning an individual
only if, at the relevant time, the decision is both valid and relevant to the
specific treatment. [21]
The
validity of an Advance Decision is compromised under certain circumstances. It
is considered not valid if:
·
an individual, at a time when they have
decision-making capacity, decides to revoke the decision.
·
any actions taken by the individual that clearly go
against the enduring nature of the Advance Decision as their ultimate choice.
·
after creating the Advance Decision, the individual
establishes a lasting power of attorney, granting authority to the designated
agent(s) to approve or deny consent for the specified treatment. The existence of any lasting power of
attorney other than one mentioned here does not prevent the advance decision
from being regarded as valid and applicable. [22]
An
advance decision is not applicable to the treatment in question if:
·
that treatment is not the treatment specified in the
advance decision,
·
any circumstances specified in the advance decision
are absent, or
·
there are reasonable grounds to believe that
unforeseen circumstances, not anticipated at the time of the advance decision,
exist, and would have influenced the individual's decision had they anticipated
them.[23]
Healthcare
providers are both legally and ethically obligated to act in the best interests
of patients, even if the advanced decisions conflict with their personal
beliefs or values. They should not delay emergency treatment to look for an advance
decision if there is no clear indication that one exists.
Some
individuals carry emergency medical information cards, wear medical alert
bracelets, or use digital services where their Advance Decision is recorded.[24]
These items may contain contact information for the patient's designated
healthcare agent or provide other relevant details. The patient or their family
members may also inform healthcare providers about the existence of an Advance
Decision. The National Health Service in England maintains a Summary Care
Record that may also include information about a patient's Advance Decision.
A
Court of Protection is established to make decisions on behalf of individuals
who lack capacity when disputes or complex issues arise. It ensures decisions
are made in the individual's best interests.
Furthermore,
Schedule 3 of the Act specifically addresses the International Protection of
Adults. The Court of Protection invokes its jurisdiction under the Act when
handling cases involving international elements, determining the applicable law
in different situations, and facilitating cooperation between authorities in
England and Wales and those in other Convention countries. [25]
VI.
Legal Framework of Advanced Directives
in India:
In
India, there is no dedicated statute specifically for Advanced Medical
Directives (AMD) for terminally ill patients. However, the Hon'ble Supreme
Court of India issued guidelines for Advance Medical Directives (AMDs), as
reported in the judgement of the Common Cause (A Registered Society) v. Union
of India and Anr (2018) 5 SCC 1 case. Subsequently, in January 2023, these
guidelines were revised. This revision occurred in response to a petition filed
by the Indian Society of Critical Care Medicine, citing the complexity of the
initially provided guidelines. The guidelines address both the below scenarios
where:
·
An individual, foreseeing a potential terminal illness
creates an AMD (with procedure to execute) and
·
A patient with a terminal illness, undergoing extended
treatment for an incurable ailment without hope of recovery, does not have an AMD.
Creation
of Advanced Medical Directive:[26]
·
The Advance Directive can only be created by
an adult of sound mind who can comprehend the purpose and consequences of the
directive being created. And, it must be done voluntarily, free from coercion
or undue influence.
·
The Advance Directive should explicitly
outline conditions for withholding or withdrawing medical treatment using
precise and unambiguous language. It should also designate guardian(s) or close
relative(s) to authorize medical decisions if the executor is unable to decide,
as outlined in the Advance Directive. Additionally, it should specify that the
creator has the authority to revoke the instructions at any point and
comprehends the implications of the document.
·
The executor should sign it in front of two
witnessing individuals, preferably independent, and have it validated by a
notary or Gazetted Officer.
·
The executor should inform and provide a copy
of the Advance Directive to the individuals named in the document, as well as
to the family physician, if one is involved. A copy must also be given to the
relevant local government authority, be it the Municipal Corporation,
Municipality, or Panchayat. These authorities will designate a responsible
official to safeguard the document. Additionally, the executor may decide to include
their Advance Directive in their digital health records, if such records exist.
·
If there are multiple valid Advance
Directives, with none being revoked, the most recently signed one will be
considered the patient's last and most current expression of their wishes, and
it will be followed.
·
An individual can modify or cancel the
Advance Directive while they possess the capacity to do so, using the same
process outlined above for creating an Advance Directive. The withdrawal or
revocation must be in writing.
Implementing
AMD:[27]
To
implement the decisions stated by the executor in an Advance Medical Directive
(AMD) during such circumstances, the below outlined process must be followed:
·
Upon notification of the Advance Directive,
the attending physician should validate its authenticity by checking the
patient's existing digital health records, if accessible, or by consulting the
custodian of the document at the pertinent local government authority, whether
it is the Municipal Corporation, Municipality, or Panchayat.
·
If the attending physician is convinced that
the instructions in the document should be followed, they should inform the
individuals mentioned in the document. They must explain the illness, available
medical care, treatment outcomes, and consequences of not receiving treatment.
The physician should ensure the person understands, has considered the choices,
and firmly believes that refusing or withdrawing medical treatment is the best
decision.
·
The hospital, caring for the executor, will establish
a Primary Medical Board consisting of the treating physician and a minimum of
two subject experts with at least five years of experience. Their goal is to
assess the patient's condition alongside their guardian or close relative,
aiming to make a recommendation within 48 hours on whether to proceed with the
instructions for withdrawing or rejecting additional medical treatment. This
decision serves as an initial recommendation.
·
In situations where a patient with no hope of
recovery is receiving prolonged treatment for a terminal illness, and has no
Advanced Directive executed, the physician may inform the hospital.
Subsequently, the hospital will establish a Primary Medical Board following the
above-described process. This board, in consultation with the patient's family
physician and next of kin, friend, or guardian, will document the discussions.
Throughout, the patient's representative will be briefed on the pros and cons
of withdrawing or refusing further medical treatment. With their written consent,
the Primary Medical Board may certify the recommended action, ideally within 48
hours. This decision serves as an initial recommendation.
·
Upon certification by the Primary Medical
Board to follow the Advance Directive or upon receiving the initial
recommendation (in case of absence of AMD), the hospital forms a Secondary
Medical Board comprising a registered medical practitioner appointed by the
District's Chief Medical Officer and two subject experts with a minimum of five
years' experience in the relevant field who are not a part of the Primary
Board. They assess the patient, and if aligning with the initial decision, they
may authorize the execution of the Advance Directive, ideally within 48 hours.[28]
·
The hospital caring for the patient will
transmit the determinations of both the Primary and Secondary Medical Boards,
along with the consent of the individuals designated in the Advance Directive
(in case of if AMD exists), to the relevant JMFC (Judicial Magistrate First
Class) before executing the decision to discontinue the medical treatment
provided to the executor.[29]
·
If the Secondary Medical Board rejects the
request to withdraw treatment, those mentioned in the Advance Directive, the
attending doctor, or hospital staff can file a writ petition under Article 226
of the Constitution to the High Court. In response, the Chief Justice of the
respective High Court will form a Division Bench to determine whether to grant
or deny approval. The High Court may appoint an independent committee,
consisting of three doctors specializing in critical care fields with at least
twenty years of experience, to evaluate the case.[30]
·
The High Court will promptly hear the
application, allowing the State counsel an opportunity to express their views.
The High Court is empowered to designate a Medical Board, as per its order, to
assess the patient and provide a report on the feasibility of adhering to the
instructions in the Advance Directive. It is crucial to underscore that the
High Court must reach a swift decision in such cases. The High Court should
offer explicit reasons for its decision, taking into account the principle of
the "best interests of the patient."[31]
·
If the Primary Medical Board chooses not to
adhere to an Advance Directive during a person's treatment, the individuals
specified in the Advance Directive can ask the hospital to send the case to the
Secondary Medical Board for review and guidance on the Advance Directive.[32]
·
If there are reasonable grounds to believe
that circumstances have arisen, unforeseen at the time of creating the Advance
Directive, which would have influenced the person's decision had they
anticipated them, the Advance Directive will not apply to the specific
treatment in question.[33]
·
In addition, it is important to address a
crucial aspect: when life support is withdrawn, the Magistrate will also inform
the High Court. The information will be maintained in digital format by the
High Court's Registry, alongside the hard copy, which will be securely disposed
of three years after the patient's passing.[34]
Conversely,
The Mental Healthcare Act, 2017 allows and outlines the procedure for the
execution of advance directives concerning the treatment of mental illness.
VII.
Recommendations for
Enhancing the Legal Framework of
Advance Medical Directives in India:
While
the procedures for Advanced Directives vary among the three countries—USA, UK,
and India—they share both key similarities and differences. The USA, as a
federal state, has individual state laws overseeing the creation, execution,
and recognition of advance directives. The United Kingdom possesses a dedicated
statute, the Mental Capacity Act 2005, regulating Advanced Decisions to Refuse
Treatment, and India relies on issued guidelines for the same purpose. While
there is room for enhancing the legal framework in each of these nations, let
us concentrate on the areas for improvement in India's legal framework.
1.
Awareness: There
is a lack of awareness among citizens about an option to create an advanced
directive and the process to establish it. It is imperative to instruct
healthcare providers to offer guidance and raise awareness among patients
regarding their right to create advance directives. In the USA, the Patient
Self-Determination Act (PSDA) mandates healthcare facilities to inform patients
about their rights to establish advance directives and maintain written
policies and procedures for their implementation.[35]
2.
Emergency Situations: The
guidelines do not account for emergency scenarios in the implementation of
advanced directives. In situations where an individual creates an advanced
directive and is admitted to the hospital in an emergency, the current
guidelines prioritize preserving life over individual autonomy if resuscitation
or immediate ventilator support is required. This approach compromises the
intended purpose of creating an advanced directive, favouring only those
situations where time is not a constraint.
3.
Timelines:
The objective of drafting an advanced directive is to honour an individual's
autonomy and spare them from undesired medical treatments. The existing
guidelines, with a 48-hour timeline for obtaining authorization from both the
primary and secondary medical boards before forwarding the final decision to
JMFC for execution, may subject the patient to unnecessary treatment during
these four to five days, contrary to their wishes. There is a need for further
simplification in the decision-making process, particularly when a patient has
an advanced medical directive, to prevent the defeat of the provision's
intended purpose.
4.
Accessibility: The
utilization of digital databases for storing a patient's medical information is
not highly advanced in the country and a copy of Advanced Directives is
retained by an appropriate local government authority, which appoints a
responsible official to ensure the document's protection. The guidelines
stipulate that the attending physician must consult the custodian of the document
at the pertinent local authority to verify its authenticity, a process deemed to
be time-consuming.
In countries like USA and UK, there are non-profit companies like
MedicAlert that maintain a database of members' medical information that is
made available to medical authorities in the event of a medical emergency.
Members supply critical medical data to the organization and receive a
distinctive metal bracelet or necklace tag which is worn at all times. It can
be used by first responders, such as emergency medical personnel or
law-enforcement agents, to access wearers' medical history and special medical
needs.[36]
5.
Qualification of Witnesses: The
guidelines should be stringent and unambiguous regarding the qualifications of
individuals acting as witnesses during the creation of an Advanced Directive to
prevent potential misuse, particularly concerning senior citizens. In many
states of the USA, witnesses are required to meet specific qualifications,
typically excluding the named agent, the patient's healthcare provider, and
facility staff from serving in this capacity.[37]
6.
Capacity: It
is imperative to confirm the mental capacity of an adult with sound judgment
during the creation of an Advanced Directive, and this verification should be
integrated into the creation process to prevent potential misuse. Implementing
a requirement to attach a medical certificate affirming the individual's sound
mental state or employing other rigorous processes would be beneficial in
averting misuse of this provision.
7.
Revoking or Modification Process: A
patient's preferences may evolve over time, and the patient might not have
foreseen their current clinical situation or mental state when initially
drafting the directive. Additionally, advancements in medical technology may
occur after the directive is drafted. Therefore, the modification or revocation
process should allow for spontaneous changes, unless it specifically relates to
the refusal of life-sustaining treatment. The existing guidelines specify that
the same procedural steps employed in creating an Advanced Directive must be
adhered to when revoking an already issued directive.
Under the UK's Mental Capacity Act 2005, an individual has the right to revoke,
amend or partially revoke an advance decision when they possess the capacity to
do so. This amendment or revocation need not be in writing unless it pertains
specifically to the refusal of life-sustaining treatment.[38]
8.
Suicide Attempt: In
instances where an individual has executed an Advance Directive to withhold
life-sustaining treatments and subsequently attempts suicide, resulting in an
end-of-life situation, it is crucial to establish explicit guidelines for
healthcare providers. The existing provision, Section 115 of the Mental Health
Care Act, presumes that a person attempting suicide is under severe mental
stress unless proven otherwise. It further mandates the government to provide
care, treatment, and rehabilitation to individuals experiencing severe stress
and attempting suicide.[39]
Therefore, in these ambiguous situations, clear guidelines are essential to
prevent multiple interpretations.
9.
Protection of Health Care Providers: It
is crucial to establish provisions safeguarding healthcare providers from
violence, particularly from family members who may disagree with the patient's
directives. Also, clear consequences and liabilities should be defined for
healthcare providers who deviate from advanced directives based on their personal
or ethical beliefs. While there are existing provisions in the Indian Penal
Code (IPC) for causing grievous harm[40]
and state laws in most states, there is a necessity for specific regulations
addressing the protection of healthcare providers against violence and
outlining their liabilities when they fail to adhere to advanced directives
despite being aware of their existence.
10. Cross-border
implementation: Comprehensive guidelines are essential for
adhering to the advance directives of individuals who have created such
directives in other countries and come to India for medical treatment. These
guidelines should apply to both non-residential citizens of India and citizens
of other countries.
VIII. Conclusion:
Attaining
legal recognition for passive euthanasia and validating advance directives
marks a noteworthy milestone in India. However, within this juncture of
accomplishment, there exists a significant need for the enhancement of laws
pertaining to this matter. The current necessity demands the creation of
specific legislation or statutes, meticulously designed to furnish precise
provisions that address diverse situations. This legislative refinement is
essential to mitigate ambiguity and furnish explicit specifications for the
guidance of both individuals and healthcare providers.
Bibliography
Statutes:
1.
S.325, Indian Penal Code, 1860
2.
S.115, The Mental Healthcare Act, 2017.
3.
S.24 | Mental Capacity Act 2005 | (United Kingdom)
4.
S.25 | Mental Capacity Act 2005 | (United Kingdom)
5.
S.63 | Mental Capacity Act 2005 | (United Kingdom)
Cases:
1.
Common Cause (A Registered Society) v. Union of India
and Anr, (2023) SCC Online SC 99
Books:
2.
Hui Yun Chan, Advance Directives: Rethinking
Regulation, Autonomy & Healthcare Decision-Making, (1st ed., 2018)
3.
Peter Lack, Nikola Biller-Andorno, Susanne Brauer, Advanced
Directives, (Springer, 1st ed., 2014)
Websites:
1.
Advance Care Planning: Advance Directives for Health
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[1] Advance Care Planning: Advance
Directives for Health Care, National Institute on Aging, available at Advance
Care Planning: Advance Directives for Health Care | National Institute on Aging
(nih.gov), last seen on 11/11/2023
[2] Ibid
[3] Ibid
[4] Common Cause (A Registered
Society) v. Union of India and Anr, (2023) SCC OnLine SC 99
[5] Advance Care Planning &
Advance Directives, UW Medicine, available at https://depts.washington.edu/bhdept/ethics-medicine/bioethics-topics/detail/54,
last seen on 11/11/2023.
[6] Universal Declaration on Bioethics
and Human Rights,
UNESCO, available at https://www.unesco.org/en/legal-affairs/universal-declaration-bioethics-and-human-rights?hub=66535,
last seen on 11/11/2023
[7] Oviedo Convention and its
protocols, Council of Europe available at, https://www.coe.int/en/web/bioethics/oviedo-convention,
last seen on 11/11/2023
[8] WMA statement on advance directives
(living wills), World Medical Association, available at https://www.wma.net/policies-post/wma-statement-on-advance-directives-living-wills/,
last seen on 11/11/2023
[9] Convention of 13 January 2000
on the International Protection of Adults, HCCH, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=71,
last seen on 11/11/2023
[10] The Evolution of Health Care
Advance Planning Law and Policy, National Library of Medicine, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2980344/,
last seen on 11/11/23
[11] Can My Advanced Directives
Travel Across State Lines?, American Bar Association, available at https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue_1_october2016/advance-directives-across-state-lines/,
last seen on 11/11/2023.
[12] Supra 10
[13] Supra 10
[14] Supra 10
[15] MedicAlert, Wikipedia,
available at https://en.wikipedia.org/wiki/MedicAlert,
last seen 14/12/2023.
[16] Five New Acts Approved at ULC's
132nd Annual Meeting, Uniform Law Commission, available at https://www.uniformlaws.org/discussion/five-new-acts-approved-at-ulcs-132nd-annual-meeting,
last seen on 11/11/2023
[17] Mental Capacity Act 2005 at a
glance, SCIE, available at https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance,
last seen on 12/11/2023
[18] S.24 | Mental Capacity Act 2005
| (United Kingdom).
[19] Ibid
[20] Ibid
[21] S.25 | Mental Capacity Act 2005 |
(United Kingdom).
[22] Ibid
[23] Ibid
[24] Supra 15
[25] S.63 | Mental Capacity Act 2005 |
(United Kingdom)
[26] Supra 4
[27] Supra 4
[28] Ibid
[29] Ibid
[30] Ibid
[31] ibid
[32] Ibid
[33] Ibid
[34] Ibid
[35] Supra 10
[36] Supra 15
[37] Supra 10
[38] Supra 18
[40] S.325, Indian Penal Code, 1860