Months after SC order, BMC yet to appoint custodian for living wills

Mumbai: Nine months after the Supreme Court cleared the hurdles for passive euthanasia by simplifying the process of creating a ‘living will’, the right to die with dignity is still distant. The BMC, which was supposed to appoint a custodian to safeguard living wills, has yet to do so.

As per the SC order, a person desirous of creating a living will has to notarise two copies of it. While one copy remains with the person who is supposed to take decisions on the will maker’s behalf, the other has to be sent to the local civic body custodian. During the execution of the will, this has to be shown to the doctor by the proxy holder, who will then verify it with the custodian’s copy.

In the last few months, nine people from Mumbai and Navi Mumbai have notarised their living wills after attending the awareness lectures by gynaecologist and judicial activist Dr Nikhil Datar. Dr Datar himself became the first person in the country on February 22 to notarise his living will. “In the last few months, my aim has been to create awareness among citizens, including doctors and lawyers,” he said.

The activist added that many people were keen to notarise their wills but with the absence of a mechanism at the municipal corporation level, it was a huge roadblock, leading to them demurring. “As per the SC order, the municipal corporation is obliged to nominate a competent authority as a custodian to hold the living will documents,” he said.

After notarising his will, Dr Datar wrote several letters to the BMC to find out who the civic body had appointed as a custodian to safeguard his will. He also filed an RTI application in July, which was directed to the health department but received no response. “It is an important document, and my concern is that it should not get lost among other files,” said Dr Datar. “With increased awareness, we have managed to get more people to notarise their living wills. It is high time we had a custodian.”

In 2018, the Supreme Court 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 that persons who wanted could make a living will—in the absence of this, members of his or her family could make a plea before the high court to seek permission for passive euthanasia. The apex court, in January this year, amended the existing guidelines to simplify the process of creating living wills.

The Maharashtra National Law University (MNLU) in Mumbai is helping people notarise their living wills on a pro bono basis, and has notarised eight wills out of the nine so far. “Through Dr Datar’s sensitisation programmes, we received applications from as many as 35 people willing to notarise their living wills,” said Dr Anand N Raut, a functionary of MNLU’s Pro Bono Club. “But there was a lack of awareness about the requisite mechanism among various stakeholders, including doctors, police officers and government officials. So when it came to getting the will notarised, people were slightly sceptical about its actual implementation since the BMC has not appointed a custodian.”

Dr Raut added that when law students involved in notarising the wills approached BMC officials, including local ward health officers, the latter were clueless. “They were unaware of the living will concept and knew nothing about the custodian part,” said Dr Raut. “Some of them asked us to check on this on the BMC website.”

Prachi Mhatre, 54, who notarised her will with the help of MNLU, said she first heard about the living will from her classmate Dr Datar. “After I saw the Hrithik Roshan movie ‘Guzaarish’, where he is a quadriplegic (all four limbs paralysed), I always thought: what if I am in such a condition and unable to take a decision?” she said. “I don’t want to burden my family with any such dilemma, and I too don’t want to suffer, so a living will is a good option. But if the BMC has not nominated a custodian, how will things work when the time arrives?”

Dr Datar said that since the BMC had not appointed a custodian when he notarised his living will, he sent it to municipal commissioner I S Chahal. “However, it’s been eight months now,” he said. “I still don’t know who the custodian is and which department is safeguarding my will document.”