Advanced directives

What are ‘Advanced Directives’

Advanced Directives (ADs) is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. Advance medical directives essentially are the written legal instructions regarding the preferences for medical treatment if one is unable to make decisions for himself in case he becomes incapacitated. Advance medical directive spells out the medical treatments one would or would not want to be used to keep himself alive. Advance Directives are meant to establish a person’s preferences for treatment if the person becomes incompetent in the future or is unable to communicate those preferences.

Psychiatric advance directives, also referred to as “mental health advance directives,” are considered by some as an ideal mechanism for persons with mental health issues to express their treatment preferences in the future. Advance directives are particularly vital with respect to mental illness which is many a time characterized by alternating periods of competence and incompetence; and these advance directives afford a person with mental illness the opportunity to state their treatment preferences when they are in a competent state. Unlike persons making decisions with respect to end-of-life treatment, psychiatric patients have generally experienced both the disorder and the treatment on previous occasions and, therefore, are in a stronger position to make informed choices and meaningful decisions.

Official Definition of Advanced Directives

Mental Healthcare Act, 2017

The Mental Healthcare Act, 2017 provides for Psychiatric Advanced Directives. In the  Mental Healthcare Act, the concept of psychiatric advance directives is often explained in common parlance as the concept of living will, wherein the person states in a competent state of mind how he/she wishes to be treated during the state of incompetency.

An “advance directive” means an advance directive made by a person. This is defined under under section 5 of the Mental Healthcare Act, 2017. Section 5 of Mental Healthcare Act, 2017 grants every adult the right to create a written advance directive regarding their mental health care, specifying preferred or non-preferred treatments and appointing a nominated representative. This directive is applicable regardless of past mental illness and becomes effective only when the individual loses the capacity to make mental health care decisions, remaining valid until capacity is regained. However, decisions made while the individual has capacity override the advance directive, and any directive that contravenes existing laws is void from the outset.

The Mental Healthcare Act, 2017 provides for two broad categories of psychiatric advance directives: instructional directive and proxy directive. An advance directive may also have both the elements of an instructional directive and a proxy directive.

• Instructional include instructions by the person with mental illness about his/her treatment preferences and the reasons for those preferences. these directives are given in respect of Medication details, Medical emergencies, Preference for doctor, clinic, Specific treatment, Identification of persons, and Experimental treatments.

• Proxy advance directive enables the person to designate someone else as a health-care proxy to take medical decisions on behalf of such a person when he/she becomes incapable of taking such decisions because of mental illness.

A directive which has both the elements of an instructional directive and a proxy directive specifies both the instructions as to the way the person wishes to be treated during incompetency, and also nominates a proxy who will act on behalf of the person to execute those directions. In common day parlance, psychiatric advance directives are a combination of both instructional and proxy.

'Advanced Directives' as defined in official government report(s)

Despite acknowledging the recognition of Advanced Directives in other countries, the governemnt reports resisted recognising their legal validity, citing “complex legal and factual issues”, such as subsequent changes in circumstances, or changes in technology, and problems of proof in the event of a subsequent withdrawal.

Law Commission Reports

The Law Commission, in the 196th report on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) , seems to have been greatly influenced by Justice Munby’s considerations in HE v. Hospital NHS and Another, which centred on the efficacy of ADs (in this case in the context of blood transfusions) and a test of their applicability being a matter of proof. The commission seems to have been concerned about the problems of proof in oral ADs, particularly given the level of illiteracy in India.

The 241st report of the Law Commission titled 'Passive Euthanasia – A Relook' upheld the findings of the previous report. Interestingly, some of the questions concerning the subsequent withdrawal of consent, for example, which are found in contemporary discussions of ADs, were cited as reasons for not accepting their validity.

'Advanced Directives' as defined in case law(s)

In India, there has been a lot of discussion on advance medical directives (AMD) post the judgement of Supreme Court of India in the matter Common Cause v. Union of India wherein the Supreme Court laid down guidelines for executing advance medical directive by way of declaration recognized the person’s right to make an advance directive about the course of his or her medical treatment including the removal of life support if such a situation arises, spelt out the safeguards in respect of advance medical directives and issued guidelines and directions regarding who can execute the advance medical directive and how, what should an advance medical directive contain, how should an advance medical directive be recorded and preserved and what should be the course of action if the permission to withdraw medical treatment is refused by the medical board.

The Judgement provided the following guidelines:

• Execution of AMD: A person wishing to execute an AMD could enumerate their wishes on paper and have it signed in the presence of two attesting witnesses and countersigned by the jurisdictional Judicial Magistrate of First Class (“JMFC”), as designated by the concerned District Judge.
• Primary Board and Secondary Board: The AMD would come into operation at the time of Medical Futility of the AMD writer. Such determination of Medical Futility was to be ascertained by a team of doctors of the concerned hospital (“Primary Board”) having not less than twenty years’ of experience in specialised fields including cardiology, neurology, nephrology etc. Once the Primary Board had ruled in favour of Medical Futility, a second team of doctors appointed by the District Collector (“Secondary Board”) having the same professional qualifications as the members of the Primary Board, would then re-assess the condition of the AMD writer and on concurring with the decision of Primary Board, would send their report to the concerned JMFC. After a final assessment, the JMFC would authorise the decision arrived at by the Secondary Board and the AMD would finally come into effect.
• Approaching the High Court: In the event of an adverse conclusion by the medical boards, the guardian or close relative of the AMD-writer, or even their treating doctor or the hospital staff had the right to approach the concerned High Court under Article 226 of the Constitution of India to seek re-assessment by a medical board constituted by the concerned High Court.

In a 2023 order, a Constitution Bench modified the directions to make them more workable and simple. The order provided for

• Attestation before gazette officer: As per the 2023 Order, the requirement to approach the JMFC has been done away with. Now, the AMD-writer can get their AMDs attested before any notary or a gazetted officer who will ascertain the veracity and genuineness of the AMD.
• Flexibility in appointment of guardians: while the 2018 Judgment provided for the appointment of “a” guardian or relative as the surrogate decision maker to act when the AMD-writer lost their capacity, the 2023 Order has modified the language to include multiple guardians and close relatives, thereby providing flexibility and the option to address other contingencies.
• Easing the qualifications for appointment of Primary and Secondary Board: The teams comprising the Primary Board and Secondary Board were earlier required to have an experience of twenty years each in the relevant field which has now been decreased to five years. This issue was also argued at length in the apex court with the Applicant contending that most districts in India may not have the medical teams with twenty years of experience, which will eventually delay the process of implementing the AMD at a critical stage.
• Prescribing time limits: Further speeding up the process, the Supreme Court has now clarified that both the medical boards are now required to form an opinion on Medical Futility ‘within’ forty-eight hours as opposed to no such time limit earlier which could have led to an unforeseen delay in enforcing the wishes of the AMD-writer.
• Digital health records: In order to streamline the process of preserving the AMD, the person executing can get their AMD incorporated as a part of their digital health records for easy accessibility at the time of Medical Futility. The implementation of digital health records in India is still at a very nascent stage and is not widely adopted. Further, privacy concerns, regarding uploading AMDs on the relevant digital health record platform, could also be a deterrent in AMDs being linked to the digital health records.
• Easing of procedural / implementation requirements: In addition to the changes provided herein, the some of the relaxations introduced by the 2023 Order are set out below – (i) the requirement of the AMD being forwarded by the JMFC to the district court has also been done away with under the 2023 Order; (ii) under the 2023 Order, it would suffice for the executor to hand over a copy of the AMD to the decisionmaker (stipulated under the AMD) and the family physician, if any, and the requirement of the JMFC having to inform the executor and family physician (under the Judgement) has been removed; and (iii) the requirement for the JFMC to maintain a copy of the AMD has been deleted.

'Advanced Directives' as defined in other official document(s)

The United Nations Convention on Rights of Persons with Disabilities (UNCRPD) is considered as one of the most important milestones in the disability rights movement. India ratified this convention in May 2008.

Article 12 of this convention enshrines in it an equal recognition before the law for all. It ushered in the paradigm change; capacity is to be presumed until proven otherwise. Those unable to make the required decisions should be supported to that effect with safeguards. This should continue until the person in question is able to make their own decisions even if it is to rid themselves of the support they relied on. Article 12 elaborates on the states’ duties to provide the requisite support so as to ensure the exercise of legal capacity by all persons with disabilities at par with others. Any such support must also take into account the supported persons rights, preferences, and values and must avoid all conflicts of interest. Before the UNCRPD and the Indian MHCA 2017, service users could not have given valid advance instructions and expected them to be followed. One of the barriers would have been the presumption of mental incapacity that goes along with a diagnosis of mental illness. However, this issue has been rectified in Section 4 of the MHCA, 2017.

International Experience

In USA, A legal document that states a person’s wishes about receiving medical care if that person is no longer able to make medical decisions because of a serious illness or injury. An advance directive may also give a person (such as a spouse, relative, or friend) the authority to make medical decisions for another person when that person can no longer make decisions. There are different types of advance directives, including a living will, durable power of attorney (DPA) for health care, and do not resuscitate (DNR) orders. In the United States, the laws for advance directives may be different for each state, and each state may allow only certain types of advance directives.

Research that engages with 'term'

Advance directives and nominated representatives: A critique

This review article focuses on the Advanced Directives from the Indian perspective. The article provides information about five published studies from India related to Advanced Directives in psychiatry. Most notably, all these studies have been conducted in the South Indian states of Karnataka and Tamil Nadu.

• The first examined whether persons with psychotic illness would be able to write valid PADs as per the provisions are given in the draft MHCB of 2011. On average, it took about 20 min for the patients to write a PAD. A qualitative study examined responses from patients and caregivers before and after completing a PAD. Overall, caregivers expressed concerns regarding the misuse of these legal provisions by patients and also sceptical of the patient's capacity to decide on their own treatments.
• Another study, conducted in a premier institute, reported that among inpatients about to be discharged, most tended to make greater use of the prescriptive sections of PADs. The patients, in the majority, agreed with the treatments initiated for them and retained mostly what they had been prescribed.
• In another study in Karnataka, 50 patients were interviewed in a private medical college. Of them, the majority insisted on retaining their current treatments and wanted to know more about PADs. As of now, the concept of advanced decision-making for illnesses is unfamiliar to the patients, and qualitative open-ended questions would reveal only what information regarding PADs was dispensed during the study process.
• An unpublished study was done in the National Institute of Mental Health and Neuro Sciences (NIMHANS) by the author SP examined the feasibility of PADs among outpatients attending the Psychiatry Department. These patients were in remission or minimally ill, with CGI-Severity scores of one or two, and thus stood the best chance at being adjudged as having intact mental capacity. Both accompanying family members and patients were educated in a standardized manner regarding the legislative provisions on PADs. Once educated, they were asked to make their PADs. The family members were then asked for opinions on the PADs made by the patient. Key results were that the average time required by patients to make a PAD was about 15 min. This included the time taken to educate the patients regarding PADs. Furthermore, it was noted that among the 100 patients, two participants could independently write their PADs, one required facilitation only by reminding, and four others required facilitation as assistance in writing. The rest, i.e., 93 participants required both reminding and assistance in writing. Family members agreed to support their ward's PADs only as long as it was effective and practical. Most family members opted for collaborative decision-making models, and the majority recognized patients, family members, and treating professionals as the only stakeholders. Service users’ insight into illness did not show any trends with the PADs written or the opinion of the family members about the PADs. Mean years of education of the participants in this study was lower compared to that of those from another study (eight vs twelve years respectively).

Related terms

• Living will
• Advance Medical Directives
• Advanced Decisions