Plea in Kerala High Court to ensure local authorities appoint custodian of living wills

A 70-year-old retired doctor has filed a petition before the Kerala High Court challenging the Kochi Municipal Corporation's failure to appoint a custodian to verify advanced directives or living wills [Martha Jacob v State of Kerala & ors]..The petitioner-doctor has submitted that the Kochi Corporation's failure to appoint such a custodian is hindering the execution of her living will and that such a lapse violates her right to dignity under Article 21 of the Constitution of India. The petition came up before the Bench of Justice Gopinath P on Friday. The Court has asked the State counsel to get instructions and posted the matter for further hearing on December 2..A living will or an advance directive is a document that persons with deteriorating health can execute in advance, which indicates their medical treatment preferences for a time when they may no longer be able to make their own decisions due to their health status.By executing such a will, a person can choose not to remain in a vegetative state with life support system. This document could then be presented to a hospital for appropriate action in the event the executant’s health worsens.In 2018, the Supreme Court recognised the validity of living wills and issued various guidelines on how they are to be enforced. This ruling came in the case of Common Cause v. Union Of India.By this judgment, and a subsequent clarification in 2023, the top court recognised the fundamental right to die with dignity under Article 21, allowing individuals to execute living wills to specify healthcare directives for end-of-life care.Among other guidelines, the top court had said that a copy of the living will is to be handed over local authorities, who should nominate a competent official to be the custodian of the said document.In her petition before the Kerala High Court, Dr. Martha Jacob has pointed out that without such verification by local authorities, it is not possible for even a doctor to execute a patient's living will. .Dr Jacob disclosed that she had suffered a serious stroke in May 2023, due to which she was bedridden and was highly dependent on caregivers.With an informed understanding of her medical condition and its implications, she executed a living will on September 14, 2023, as per the Supreme Court’s guidelines in the Common Cause case. She anticipated that there may be a time when she could lose her decision-making capacity.However, she is not able to enforce her living will due to the failure of the Kochi Municipal Corporation to appoint a custodian, she pointed out.Even the physician treating her cannot act on her living will during critical medical emergencies, unless its authenticity was verified by the custodian, as outlined in the Supreme Court's guidelines, Dr. Jacob highlighted."The inaction on the part of the (Kochi Municipal Corporation) in nominating a competent officer as the custodian of living will has resulted in denial of the dignity of life as guaranteed under Article 21 of the Constitution of India," her plea added. .Dr. Jacob has, therefore, urged the High Court to direct the Kochi Corporation to immediately nominate a competent officer to act as custodian and to ensure the proper acceptance and registration of her living will. Additionally, she has called on the Court to direct the State to ensure that such custodians are nominated by all local bodies in Kerala. .The petition was filed through advocates Jikku Seban George, Deepti Susan George, and Babitha Babu.