Advancing the Law for Advance Medical Directives

The law is inextricably intertwined in relation to palliative care, especially in India, not always for the good. The law is misunderstood (“withholding/withdrawing life-sustaining treatment is euthanasia”), it is misinterpreted (“palliative sedation is illegal”), and it is misdirected (“discharging patients against medical advice will protect doctors from liability).

This is partly because the legal framework in India on palliative care, specifically end-of-life care and advance medical directives, is confusing. However, it is also because the law has been used as a shield by some sections of the medical community to stave off difficult conversations about death and dying.

The celebration of Legal Services Day on 9th November this year, combined with the theme of this year’s World Hospice and Palliative Care Day (“Ten Years Since the Resolution: How are we doing?”) affords the opportunity to reflect on harnessing the positive power of the law to promote access to palliative care throughout the country.

While there has been strategic litigation, draft Bills and Law Commission reports, all of which have attempted to disentangle the legal position on end-of-life care and palliative care in India, an often-overlooked aspect of legal advocacy is awareness generation around advance care planning and advance medical directives. This is an area where lawyers aligned with the goal of palliative care promotion can really make a difference.

Although the execution of an advance medical directive does not formally require a lawyer, by virtue of the fact that it is a legal document and must be signed and attested in the presence of witnesses and a notary/Gazetted officer, it automatically becomes associated with legal processes in the minds of the lay public. The advance medical directive does in fact implicate the law in various forms. Conceptually, it is about the right to exercise autonomy and ensure dignity in death.

Some of the conditions for its execution also draw on concepts that lawyers are familiar with–decision-making capacity, informed consent, the absence of fraud, coercion, misrepresentation and undue influence. The appointment of a healthcare power-of-attorney gives away its reliance on legal instruments by its very name. All of this makes lawyers natural allies in promoting the cause of advance care planning, culminating in the execution of advance medical directives.

This has already been recognised by the Pro Bono Club at Maharashtra National Law University, Mumbai, which has taken the initiative in launching awareness drives around advance medical directives and beginning to assist individuals in drawing up their own and executing them. If replicated by other law schools, this has the potential of filling a real unmet need, especially among the elderly, who are more likely to want to take agency about their care. As the delivery of palliative care moves closer to people’s homes and communities, legal services authorities at the taluk and district levels can also become more closely engaged with advance care planning and the execution of advance medical directives.

Once the groundwork for rights awareness has been laid, lawyers and palliative care advocates can work hand in hand to work out the mechanisms for operationalising advance medical directives, with the ultimate objective of creating a mature framework for advance care planning that is alive to India’s unique socio-economic and cultural realities.

First published on www.palliativecare.in here

Image by Gayatri Sharma