Report No. 196
Question arises whether Advance Directives (Living will) should be allowed legal sanctity in our country?
It is true that there is an inherent right of self-determination under which an Advance Directive can be given, as a matter of common law. It can be in writing or oral. If the patient becomes incompetent at a later stage on account of illness, the doctors will be bound to go by the Advance Directive unless such directive has become inapplicable or invalid due to passage of time or change in circumstances, advances in medicine and technology, etc. Question is, if such a right has given rise to serious issues of law and fact in U.K., whether Advance Directives should be allowed to be valid in our country.
In our view, if an Advance Directive can also be oral, it can create serious problems of proof and may also lead to serious abuse.
Coming to Advance Directives in writing, we have seen the legal position. It must be proved that the Advance Directive was based upon informed consent of the patient, with knowledge of state of his or her illness and of the medicines or medical technology available. This again requires oral evidence to be adduced. Then again, due to change in circumstances or on account of delay or developments in medicine/technology which have improved and which give scope for living longer without pain or suffering, the earlier Directive may have been rendered inapplicable or invalid on account of latter circumstances. There may also be oral evidence of withdrawal of a written or oral directive. This can also create serious problems of proof.
In our view, there is not only scope for contentious and complex issues of fact and law being raised in every case relating to oral or written Advance Directives, but in a country where there is considerable illiteracy and lack of knowledge of developments in medicine and technology, there is scope for Advance Directives being based on wrong assumptions or requiring proof that they were, as a fact, made or that they continue to be applicable and valid or have not been withdrawn and there is large scope for abuse and litigation. A lot of evidence will be oral and may be conflicting. Doctor's consequential actions can give rise to any amount of litigation.
In our view, as a matter of public policy in India, Advance Directives oral or written are controversial and can lead to mischief and should be made legally ineffective, overriding the common law right.