HC to address concerns over lack of custodian for Living Wills

Mumbai: Nearly a year after the Supreme Court simplified the guidelines of passive euthanasia and directed the respective local government/municipal corporation to appoint a custodian to safeguard the living wills, the Bombay high court will be hearing the Public Interest Litigation (PIL) on the failure from the local administrations in appointing a custodian.

A living will is a written legal document that outlines a person’s wish concerning their medical treatment in the event of a person’s inability to make decisions and what they want their relatives/friends/doctors to do in terms of healthcare.

Dr Nikhil Datar, gynaecologist, and judicial activist, notarized his own will on February 24, 2023, becoming a petitioner in the ongoing efforts to raise awareness about living wills. The SC’s directive mandates individuals to notarize two copies of their living wills, with one copy retained by the decision-maker and the other sent to a local civic body custodian.

In response to the SC order, municipal corporations and panchayats were instructed to nominate a competent authority as a custodian. However, a previous report by Hindustan Times on October 17 highlighted the failure of the corporation to appoint a custodian.

Dr Datar, along with petitioners Dr Anand N Raut and Dr Garima Pal from Maharashtra National Law University (MNLU), has been conducting awareness lectures and offering Pro Bono assistance through MNLU’s Pro Bono Club to help individuals notarise their living wills.

The petition underscores Dr Datar’s struggle to identify the custodian, alleging the Brihanmumbai Municipal Corporation (BMC)’s failure to appoint one and provide clarity on the safeguarding of notarised wills. Despite attempts through Right to Information (RTI) to obtain details of the custodian, the corporation’s executive health officer and law officer remained unresponsive.

The petition expresses concern about the ambiguity surrounding the custodian responsible for safeguarding these important documents within the local administration. It urges the court to intervene and direct the local administration to promptly appoint a custodian.

Additionally, the petition calls for the court to direct the state government and local bodies to create awareness among the public, healthcare professionals, and other stakeholders to prevent citizens from encountering issues while notarising their wills due to a lack of awareness.

Dr Datar was unavailable for comment.

In 2018, the Supreme Court (SC) legalised passive euthanasia, and recognised the “right to die with dignity” as an integral component of the fundamental right to life under Article 21 of the Constitution. For this, the Court said the person should have a living will, or in the absence of it, the members of the person’s family can make a plea before the HC to seek permission for passive euthanasia.