When Silence Speaks: Advance Medical Directives and the Right to Die with Dignity (Who Decides When You Cannot?)

By – Asmita Narula and Kaushiki

Table of Contents

Introduction

Death is the one certainty attached to every human life, yet modern medicine has increasingly blurred the line between prolonging life and prolonging the process of dying. The medical advancements over the years has enabled physicians to sustain bodily functions for extended periods, even where recovery is medically improbable. While such advanced interventions have saved innumerable lives, they have also raised fundamental questions about personal autonomy, bodily integrity, dignity, and the right to determine the course of one’s own medical treatment. It is within this intersection of law, ethics, and medicine that the concept of Advance Medical Directives assumes profound significance.

Having examined the legal recognition of passive euthanasia in India in our previous article, it becomes essential to explore the emergence of Advance Medical Directives, which finds its roots in the very foundation based on which the courts in India have recognised passive euthanasia – personal autonomy, bodily integrity and the right to die with dignity. The discourse on passive euthanasia in India has fundamentally shifted from asking whether a person has a right to die under Article 21, to recognizing that every individual has a right to die with dignity. However, an important practical question remains – how can a person communicate their end-of-life choices when they are no longer capable of speaking for themselves? It is this question which led to the legal recognition of Advance Medical Directives, which serves as a means for individuals to preserve their autonomy even in incapacitation. As the next step in India’s evolving end-of-life jurisprudence, Advance Medical Directives represents the legal embodiment of the right to die with dignity.

Understanding Advance Medical Directives (AMD)

Advance Medical Directives (“AMD”) are legal documents which define the preferences, wishes and desires of an individual with respect to their medical decisions and treatment. It enables the individual to maintain control over their medical decisions in case they are unable to make such decisions in the future. AMD is a mechanism that effectively bridges the gap between present competence and future incapacity¹.

There are several kinds of AMD, for instance Living Wills, Medical Power of Attorney, Do Not Resuscitate Order (“DNRO”), Physician Orders for Life-Sustaining Treatment (“POLST”), Medical Orders for Life-Sustaining Treatment (MOLST), Physician Orders for Scope of Treatment (POST), Clinician Orders for Life-Sustaining Treatment (COLST), etc. The most used forms of AMD are Living Wills, Medical Power of Attorney, DNRO and POLST. Medical Power of Attorney allows an individual to appoint a trusted person to take healthcare decisions on behalf of such individual in a situation where he is unable to take such decisions. DNRO means that the individual does not wish to be resuscitated in the event of respiratory or cardiac arrest. POLST, which is newer form of AMD, is essentially an agreement between a patient and his physician regarding his condition and treatment.

AMD serves an important humanitarian purpose as well. End-of-life decisions often place immense emotional and psychological burden on the family members who may have to make such difficult decisions if their loved one is incapacitated. AMD provides guidance during such circumstances and can reduce uncertainty, conflict, and emotional distress.

Several critics argue that medical circumstances can evolve in unpredictable ways. Decisions made at a point in time may not accurately reflect the wishes of a patient at a later stage in life. There is also a possibility of medical advancements in the future which may provide a treatment or cure for a medical situation or ailment, which did not exist at the time when the AMD was executed. Concerns have also been expressed regarding the potential for misuse, coercion, or misinterpretation of such directives. These concerns warrant ensuring that AMD are executed voluntarily, with informed understanding, and are periodically reviewed to reflect changing personal circumstances, wishes and medical realities.

Despite these challenges, the growing recognition of AMD reflects a broader shift towards patient-centred healthcare and respect for individual choice. As societies grapple with the ethical implications of life-sustaining technologies, AMD offers a mechanism through which individuals can retain control over deeply personal decisions concerning their own bodies and medical treatment. In an era where medicine increasingly possesses the power to prolong biological existence, AMD serves as a reminder that the quality and dignity of life continue to be of profound personal significance.

Understanding Living Wills

A Living Will is a type of AMD. It is a written legal document executed by a mentally competent person, specifying the medical treatment he wants or does not want to receive if he becomes incapable of making informed medical decisions. It can address several medical issues, such as use of ventilators or other artificial respiration, cardiopulmonary resuscitation, artificial nutrition and hydration, organ donation preferences, pain management and palliative care, and end-of-life treatment.

A Living Will is different from an ordinary Will, which governs the distribution of movable and immovable property after the death of the executor. A Living Will, on the other hand, governs the course of medical treatment of a person during his lifetime, where he is no longer capable of making such decisions. The underlying principle is patient autonomy.

The term ‘Living Will’ first appeared in the year 1969 in an Indiana Law Journal article authored by Luis Kutner². The author observed that life-sustaining interventions intended to save lives could also merely extend suffering and deprive individuals of a dignified death. This critical legal and ethical gap was recognized by the author. When a patient becomes unconscious, terminally ill, or otherwise incapable of communicating his wishes, his medical decisions are often taken by physicians or family members, with little certainty as to the patient’s own wishes. This raised a fundamental question – should a person lose control over such decisions simply because they can no longer speak for themselves? The author proposed the concept of a ‘Living Will’ to address this fundamental question.

By providing clear directions with respect to end-of-life care, a Living Will ensures that an individual’s autonomy, dignity, bodily integrity and treatment preferences remain respected even after they are unable to express them personally. Just as individuals can legally determine the manner of distribution of their properties after their death, they should be able to take their end-of-life medical decisions during their lifetime. This right is increasingly being recognised as an essential component of personal liberty and dignity. It provides reassurance that treatment decisions will reflect the patient’s values, beliefs, and understanding of quality of life, rather than being determined solely by a medical necessity or the preferences of others.

The author suggested certain essential requirements for a reliable and legally enforceable document to ensure authenticity, clarity, and voluntariness. For instance, a Living Will should only be made by a person who can give consent to treatment and it should be notarised and attested by at least two witnesses. In addition thereto, each individual case should be referred to a hospital committee, board or a committee of physicians to determine the intent of the patient and determine whether the condition of the patient was indeed such that he would no longer want any treatment.

Legal recognition of AMD in India

The foundation for the recognition of AMD in India was laid down as early as in 1994, when the Supreme Court recognised the right to die as an integral aspect of the right to life under Article 21 of the Constitution of India³. Although this position was subsequently overruled by a Constitution Bench⁴, the decision marked an important jurisprudential turning point in India’s constitutional discourse on end-of-life rights. It paved the way for later judicial developments that gradually acknowledged the ‘right to die with dignity’ as an integral facet of Article 21. In Aruna Ramachandra Shanbaug v. Union of India⁵, while the Supreme Court did not permit withdrawal of treatment in the particular facts of the case, non-voluntary passive euthanasia was recognised for the first time in India and the Court laid down the guidelines to be followed till a legislation is framed on this subject. During arguments, there was a passing reference to Living Wills, which set the stage for the legal recognition of AMD in subsequent decisions. 

As discussed in detail in our previous article on passive euthanasia in India, the most significant constitutional development took place when a five-judge Constitution Bench of the Supreme Court recognised the ‘right to die with dignity’ as an intrinsic facet of Article 21 in the landmark judgment of Common Cause v. Union of India (2018)⁶. One of the reliefs sought in this case was to enable persons of deteriorated health or terminally ill patients to execute a document titled ‘My Living Will and Attorney Authorisation’. In its discussion, the Court used the terminology ‘Advance Medical Directives’ and not ‘Living Wills’ and recognised the absence of a legal framework in India with respect to AMD. The Court believed that AMD would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity, dispel any doubt with respect to the treatment and also assure the doctors that they are acting in a lawful manner. 

The Supreme Court laid down comprehensive guidelines for AMD, giving due weightage to autonomy, bodily integrity, privacy, and informed consent as constitutional values central to such decision-making. Owing to difficulties in implementation and execution, the guidelines were revised in Common Cause v. Union of India (2023)⁷ to make the mechanism more accessible and practical. The following guidelines were laid down:

1. AMD can be executed only by an adult, who is of a sound and healthy state of mind and is able to communicate, relate and comprehend its purpose and consequences. It should be in writing, have characteristics of informed consent without any undue influence or constraint, and should be executed voluntarily, with full knowledge or information, and without any coercion, inducement or compulsion. It should clearly mention when medical treatment may be withdrawn or no specific treatment should be given.
2. AMD should contain (i) a decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to, (ii) absolutely clear and unambiguous specific terms and instructions, (iii) a statement that the instructions / authority may be revoked at any time, (iv) a declaration that the executor has understood the consequences of executing the AMD, and (v) name of a guardian(s) or close relative(s) authorised to give consent to refuse or withdraw treatment if the executor becomes incapable of taking such a decision.
3. Where there are more than one unrevoked AMD, the most recently signed AMD will be considered as the last expression of the patient’s wishes and will be given effect to.
4. AMD should be signed by the executor in the presence of two attesting witnesses (preferably independent) and attested before a notary or gazetted officer. The witnesses and notary / officer shall record their satisfaction that the AMD was being executed voluntarily and without any coercion, inducement or compulsion and with full understanding.
5. The executor shall inform and handover a copy of the AMD to the person(s) named therein, the family physician (if any) and a competent officer of the local Government / Municipal Corporation / Municipality / Panchayat, who shall nominate a custodian for the AMD. The executor can also make the AMD a part of his digital health records (if any).
6. The treating physician, when made aware of the AMD, shall ascertain its genuineness and authenticity from (a) the digital health record or (b) the custodian.
7. The instructions in the AMD must be given due weight by the doctors, after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment / surviving on life support and that the illness is incurable or there is no hope of recovery or cure.
8. Once satisfied, he shall inform the person(s) named in the AMD about (a) nature of illness, (b) availability of medical care, (c) consequences of alternative treatment forms, and (d) consequences of remaining untreated. The doctor must ensure that he believes on reasonable grounds that the said person understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
9. A Primary Medical Board shall be constituted in the prescribed manner, who shall visit the patient and form an opinion whether to certify carrying out the instructions or not (preferably within 48 hours of reference). If permission is refused by the Board, the person(s) named in the AMD may request the hospital to refer the case to the Secondary Medical Board.
10. If the Primary Board certifies that the instructions ought to be carried out, a Secondary Medical Board shall be constituted in the prescribed manner, who shall visit the patient. The Board shall endorse the certificate to carry out the instructions if it concurs with the Primary Board’s decision (preferably within 48 hours of reference). The Board must ascertain the executor’s wishes if he can communicate and understand the consequences of withdrawal of medical treatment.
11. The hospital, where the executor is admitted, shall convey the decision and the consent to the jurisdictional JMFC before giving effect to the decision.
12. If the Secondary Board denies permission, the person(s) named in the AMD / treating doctor / hospital staff can approach the High Court under Article 226 of the Constitution, which petition shall be decided by a Division Bench at the earliest, after affording opportunity to the State. It shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.
13. The High Court shall be free to constitute an independent committee of doctors in the prescribed manner. It would also be open to the Court to constitute a Medical Board to examine the patient and submit a report about the feasibility of acting upon the instructions.
14. The executor can revoke, withdraw or alter the AMD in writing at any stage before it is acted upon and implemented when he has the capacity to do so. The procedure will be the same as for recording an AMD.
15. AMD shall become inapplicable if there are reasonable grounds for believing that circumstances exist which were not anticipated at the time of making the AMD and would affect the decision.
16. The Medical Boards shall not give effect to the AMD if it is not clear and unambiguous, in which case the guidelines for patients without AMD shall be made applicable.

InHarish Rana v. Union of India and Others⁸, which is India’s first court-approved passive euthanasia case, the Supreme Court examined the guidelines laid down in Common Cause⁹ and emphasised on the principle of “best interests of the patients” and the mandatory requirement of satisfying three conditions before enforcing AMD i.e., (a) patient must be diagnosed to be suffering from a medical ailment and be classified as terminally ill or in persistent vegetative state or like conditions, (b) patient must be undergoing prolonged medical treatment indicating that the intervention has ceased to be temporary, and (c) ailment must be irreversible i.e., incurable condition or no hope of being cured. This judgment has been analysed in detail in our previous article.

Position across the world

The concept of AMD has gained widespread acceptance across several jurisdictions, reflecting a growing recognition of patient autonomy and the right to make decisions concerning medical treatment. While the legal frameworks differ in scope and procedure, most jurisdictions permit individuals to record their wishes regarding life-sustaining treatment in anticipation of future incapacity.

In the United States of America, California was the first state to enact a legislation to recognise Living Wills through the Natural Death Act, 1976, paving the way for similar statutes across the country. The evolution occurred in several phases. The initial wave in 1960s and 1970s focused on statutory Living Wills. During the 1980s and 1990s, the legal framework expanded. In 1990, the United States Congress enacted the Patient Self-Determination Act, which acknowledged the rights of the patient to either refuse or accept treatment, following which all 50 States enacted legislations for AMD. The Act requires healthcare institutions receiving federal funding to inform patients of their rights to formulate Advance Directives and to participate in decisions concerning their medical treatment. By promoting awareness and implementation of AMD, the Act reinforced the principle of patient autonomy and informed consent. Several States also permit patients to appoint a healthcare proxy, which becomes effective once the patient is unable to make decisions. The National Right to Life Committee also came up with another form of Living Wills, namely ‘Will to Live’, which is a positive declaration for patients who want to continue treatment and not refuse treatment. Florida also witnessed the growing recognition of DNRO. 

The United Kingdom has recognised AMD under the Mental Capacity Act, 2005 which provides that a competent adult may make an ‘Advance Decision to Refuse Treatment’. Such directives may specify the refusal of a medical treatment, including life-sustaining treatment, in identified circumstances.  The Act also recognises the right of a patient to appoint a healthcare proxy i.e., ‘lasting power of attorney’.

In China, the concept of Living Wills has historically faced significant challenges as it was perceived to be inconsistent with prevailing social values, familial decision-making norms, and medical ethical standards. For many years, Living Wills lacked formal legislative recognition. The concept gradually gained public acceptance through academic advocacy and public awareness initiatives. In 2013, a group of experts and scholars established the Beijing Living Will Promotion Association, which introduced China’s first civilian Living Will document, titled ‘My Five Wishes’, enabling individuals to express their preferences regarding end-of-life medical care, life-sustaining treatment, and other healthcare decisions in advance. A major legislative breakthrough occurred in June 2022 with the promulgation of the revised Shenzhen Special Economic Zone Medical Regulations, which recognised Living Wills and accorded legal effect to it for the first time in China. This development marked a significant step towards strengthening patient autonomy in China, potentially serving as a model for broader legislative reform.

Australia has well-established principles governing Advance Health Directives by way of different legislations in each State, except in Tasmania. For example, Queensland provides a specific statutory form under the Power of Attorney Act, 1998 and Guardianship and Administration Act, 2000 and in New South Wales, a directive can be valid without a prescribed form if it is clearly expressed and properly witnessed.

In Canada, Advance Directives are recognised under 11 different provincial legislations rather than under a single federal framework. Most provinces permit individuals to issue instructions concerning future healthcare decisions or appoint substitute decision-makers who can act on their behalf in the event of incapacity. Canadian courts have generally upheld the principle that competent adults possess the right to refuse medical treatment, and advance directives serve as an extension of that right.

Taiwan enacted the Hospice and Palliative Care Act, 2000, granting terminally ill patients the legal right to make end-of-life medical decisions. In Thailand, a Living Will is recognised under the Thailand National Health Care Act, 2007, giving the right to refuse treatment in a terminal stage of life. Spain and Netherlands have also established statutory frameworks recognising Advance Directives. Several European countries have also incorporated advance directives into their healthcare and legal systems. Germany has formally recognised Advance Directives through legislation enacted in 2009. France recognises “Directives Anticipees”, which enable individuals to record their wishes concerning end-of-life treatment.

Conclusion

Advance Medical Directives (AMD) represent a significant development in India’s evolving end-of-life jurisprudence, embodying the constitutional values of autonomy, dignity, bodily integrity, and informed consent. By legally recognising the right of an individual to determine the course of medical treatment in situations of future incapacity, AMDs ensure that deeply personal healthcare decisions remain rooted in the patient’s own wishes rather than being dictated solely by medical necessity or the preferences of others. The recognition of AMD in India, through judicial pronouncements, aligns with this broader global movement towards patient-centred healthcare and the protection of individual choice at the end of life.

The judicial recognition of AMD reflects the attempt of the Supreme Court to strike a careful balance between protecting patient autonomy and preventing misuse through procedural safeguards. While the framework in India remains largely judge-made and procedurally rigorous, it marks an important shift towards acknowledging that the right to life under Article 21 includes not merely the right to exist, but the right to live and die with dignity.

As medical technology continues to advance and the ability to prolong biological life becomes increasingly sophisticated, questions surrounding the quality, dignity, and autonomy of such prolonged existence will become even more pressing. In this context, AMDs serve not merely as legal documents, but as instruments of self-determination that allow individuals to preserve their voice even in silence. Moving forward, greater public awareness, institutional readiness, and eventually a comprehensive legislative framework will be crucial to ensure that AMDs become a practical and accessible reality rather than a right existing only in principle.

FAQs

References –

1. Common Cause v. Union of India, (2018) 5 SCC 1; and Harish Rana v. Union of India and Others, 2026 SCC OnLine SC 358
2. Luis Kutner, “Due Process of Euthanasia: The Living Will, A Proposal”, Indiana Law Journal, vol. 44, no. 4, 1969
3. P. Rathinam v. Union of India and Another, (1994) 3 SCC 394
4. Gian Kaur v. State of Punjab, (1996) 2 SCC 648
5. (2011) 5 SCC 1
6. (2018) 5 SCC 1
7. (2023) 14 SCC 131
8. 2026 SCC OnLine SC 358
9. supra

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