Guardianship of a person who is in a comatose state- Allahabad HC.
On 15th June 2020, the HC of Allahabad granted the wife of a person who was in a comatose state the right to his guardianship. This is a unique judgement as there have been no legislation or acts which grant a person in a vegetative state to have a guardian for himself. Moreover, there were no such precedents where it was likely for a person in a coma to have a guardian except for minors, a person with several disabilities or someone who is mentally challenged.
Uma Mittal & Ors. v. Union of India & Ors In Case - Writ - C No. - 40096 of 2019 case, the patient could not communicate and was breathing through 'Tracheotomy Tube' in his throat. He was being fed with 'Peg Tube' attached to his stomach. Moreover, his position had to be changed after several intervals in order to avoid bedsores. It was very difficult for the petitioner no.1 his wife to handle the situation because there were a lot of financial crunches that the wife had to meet, for the children as well as for the treatment of her husband.
It becomes imperative to have a guardian for someone in a vegetative or comatose state as they require extensive care. From feeding them using a tube to managing their muscle tone, everything requires a lot of care. People in such a state are highly prone to infections and other medical issues such as fever and seizures. Special bedding has to be prepared for them in order to prevent pressure sores. Therefore, guardianship becomes all the more important in such a case to make things easier such as medical decisions and handling of finances for the other loved ones.
This move was taken by the Allahabad HC in the case of Uma Mittal & Ors. v. UOI & Ors was possible through the doctrine of 'Parens Patriae' which has its origin in the British Law and means that the King is the parent of the country and he looks after those who are unable to look after themselves. In this case, the HC invoked this jurisdiction under Article 226 of the Indian Constitution and this doctrine gives the HC the power to give directions which are necessary for subserving the ends of justice when no remedy is provided in any statute with respect to persons lying in a comatose condition. This jurisdiction is invoked by the court in exceptional situations and in this case, there was an exceptional situation as there were no legislation or laws that dealt or gave remedy to a person who was in a vegetative/comatose state to have a guardian.
This is a very legendary decision given by the Allahabad HC, and they have also recommended the Central Government to consider enacting a Legislation which gives the people lying in a comatose state to have a guardian for themselves, as there is no remedy available for them in any statute. It no longer leaves the person lying in a state of coma to be absolutely helpless and not be able to fulfil some important obligations of his life which need immediate action. Some urgent matters of the family can be taken up by the guardian in the absence of that person to meet the need of the hour and to avoid any unfortunate harm.
Some important guidelines issued by the HC, in this case, are as follows:
A person who wants to be a guardian of a person in a comatose state must disclose all his financial assets. This includes bank accounts, shares, debentures, stocks and other investment particulars.
The court will duly get the person in the comatose state examined by a neurologist.
The court will also direct the Tehsildar/SDM to enquire and verify the assertions made by the person who wants to be the guardian of the person who is in a comatose state.
Most likely the spouse or progeny would be appointed as the guardian and the person seeking to be a guardian in the petition will have to disclose all the details of the legal heirs of the person in the comatose state.
Only that person will have the right to be appointed as the guardian who is competent to act as one under Law.
Guardian will have to file a report with the Registrar General of the HC every 6 months.
The Registrar General will have to keep a separate record of the same with the court.
It will be at the perusal of the court to appoint a guardian for a temporary basis or for a limited time frame.
If the guardian misuses his authority then the court has the power to remove that guardian and appoint a new one.
Whatever transactions the guardian undertakes must adhere to the Law.
If the relative or the next friend finds that the guardian is not acting in the best interest of the person lying in a comatose state, then he/she has the right to approach the court for the same.
If the guardian wishes to move the person who is in a comatose state to some other country or hospital for better medical assistance, then the guardian will have to seek the permission of the court before doing so.
ABOUT THE AUTHOR:
Rudra Prasad is a 4th-year student of Law, who is currently pursuing Law from Kirit P. Mehta School of Law, NMIMS, Mumbai.
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