“The Pessimist Sees Difficulty In Every Opportunity. The Optimist Sees Opportunity In Every Difficulty.”

A living will enables terminally ill patients who know have been told by the medical experts that they can turn into a permanent vegetative state beyond a certain point. A  living will then comes into the picture. It is a written document in which such patients express their wish regarding medical treatment in the event they become terminally ill or incapable of making decisions themselves about their future at that late stage.

By signing a living will, an individual designates a proxy to make decisions on his or her behalf and instructs proxy as well as others about what he or she wants. The concept of a living will is based on the principle that every person has the right to determine the type of medical treatment to be received or discontinue it when their condition requires it.

Many suffering patients express their wish to fade away rather than undergoing treatment that is bound to prolong their trauma. However, mere verbal expression of such a wish results in just receiving sympathy, which has no legal standing. Owing to the newer techniques and rapid advances in medical science, it is possible nowadays to keep someone alive, but only in name.

Dr. Nikhil Datar, who had been fighting this battle almost singlehanded, is a famous obstetrician and gynecologist at Cloudnine  Hospital in Malad. Recipient of two gold medals, he was selected for the prestigious Commonwealth Professional Fellowship in 2009. He pursued the matter of the living will up to the Supreme Court and has finally achieved success due to the verdict delivered by the Mumbai high court last week.  The SC’s judgment in the case of Aruna Shanbaug, who was on life support at KEM Hospital in Mumbai for decades, has legalised passive euthanasia in the country.

Unless there is a living will, doctors do not end treatment on the request of a patient’s relatives. This is because there is a possibility that some family member or even acquaintance can challenge the decision at a later stage. Hence doctors do not take any risk. Even a small lapse can lead to serious complications for the doctors and the hospital they are attached to.

A living will can prevent such complications because the patient  concerned has already expressed his or her wish in writing. This accords clarity and legal protection for both, the treating doctors and the proxy, who have taken the ultimate step.

Dr Datar has been writing ceaselessly and delivering talks to create awareness about living wills. Even lawyers, too, explain that a living will differs from a standard will. Whereas the former is used before a person passes away, the latter is executed after death.

Till now, making a living will was very tedious and nearly impossible to get it done.  The Supreme Court has now revised  these guidelines so that anyone above the age of 18 can make a living will with the signatures of two witnesses and a notary, according to Dr Datar.

In an article, Dr Datar said, “I always wanted to make a living will but I could only do it now because the process has been simplified. As I was completing all the formalities, I found out that I am likely the first in the country to take this step after the apex court’s order.”

Under the procedure, after writing a living will, one must visit a notary or gazetted officer with two witnesses to sign the document. This done, a copy of the document must be sent to a municipal authority or Panchayat when the person is residing.

When Dr Datar visited a notary for registration, he found hesitancy as the notary had never notarised a living will before and had not heard of such a thing. He had to explain the court’s verdict, show a copy of the court order and provide citations to convince the notary to register the document.

Once notarised, Dr Datar was unsure where to send the document. Since the court judgment was a recent development, there was no established system in the Brihanmumbai Municipal Corporation (BMC) or in any municipal body for handling the matter. He ultimately sent a letter to the municipal commissioner explaining the situation and urged him to preserve his (Dr Datar’s) living will as custodian.

The written legal document consists of an “advance medical directive” (AMD) by the signatory person about what treatment he or she would like to or not to avail at the end of their life along with preferences of medical decisions, including pain management or organ donation.

Last week, a bench of Chief Justice Alok Aradhe and Justice Makarand S Karnik disposed of the PIL filed by Dr. Nikhil Datar and two professors, seeking implementation of the Supreme Court order of 24 January 2023 which has eased the procedure for passive euthanasia. The PIL also sought a mechanism for people to complete the procedure of making living wills and to die with dignity and for speedy retrieval of the said documents years after they have been made.

Government Pleader Neha Bhide submitted that the state’s Public Health, Urban and Rural Development departments have taken steps to implement directions issued by SC. She informed the bench that competent officials have been appointed as custodians of medical directives across several local bodies to receive and keep the living wills of those who wish to die with dignity.

A mechanism for quick retrieval of living will documents shall be put in place by the government in an expeditious manner.

Bhide produced a Government Resolution (GR) of 12 December 2024 whereby the primary medical board which gives its opinion on execution of a living will, along with the secondary medical board or committees, have been constituted in compliance with SC directives.

The state also submitted that it was in the process of issuing GR for Standard Operating Procedures (SOPs) for its officers for implementation of SC directions and a web portal to register living wills will soon be made available. The bench directed the government to put such mechanism for quick retrieval of living will in place within three months.

Disposing of the PIL, the HC bench granted liberty to the petitioner to submit representation to the authority concerned in case of any grievances with regard to non-implementation of the SC orders.

A born crusader, Dr Nikhil Datar’s efforts led to the amendment of the Medical Termination of Pregnancy Act 1971, sparking a much needed conversation about how an outdated and medically unsound law was harming women. Dr Datar’s fight to institure the mechanism for making a living will is a shining example of selfless public service. Such crusaders need to be saluted by society.