Kerala HC Issues Guidelines For Appointment Of Guardian To Patients Lying In Comatose State [Read Judgment]
"This is an "SOS call" (Save Our Souls call) from two sinking families of the dear ones of a person lying in 'comatose state', finding it extremely difficult to see the ways and means in procuring funds to provide adequate treatment and life support to the victim, who was the sole bread winner of the family, besides the need for their daily sustenance."
The bench comprising Justice PR Ramachandra Menon and Justice N. Anil Kumar observed that no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in 'comatose state'.
The court was considering two writ petitions in which family members of a patient in comatose state had approached the court for appointing them as 'Guardian' of the patient in comatose state as, contending that no legislation in India does provide for appointment of Guardian for a person in comatose state, unlike legislations for appointment of 'Guardian for minors' and persons with other disabilities like mental retardation etc.
The bench described these petitions as an "SOS call" (Save Our Souls call). It said: "This is an "SOS call" (Save Our Souls call) from two sinking families of the dear ones of a person lying in 'comatose state', finding it extremely difficult to see the ways and means in procuring funds to provide adequate treatment and life support to the victim, who was the sole bread winner of the family, besides the need for their daily sustenance."
Earlier a single bench of the High Court had held that the Local Level Committee (LLC) constituted under Section 13 of the National Trust Act was having power to deal with the situation. Another single bench, doubted the correctness of this decision, and had referred the matter to division bench.
Explaining the plight of families of unfortunate victims in comatose stage, the bench said:
"The entire family is affected because of the agony, stress and depression finding their dearest one in 'permanent vegetative state and coma', leaving themselves in an utter state of despair, isolation and abandonment. They have borrowed amounts from different corners and find no other alternative source to tap, having exhausted all their financial resources. Bleak future and helplessness in meeting the huge expenses for medical care and treatment of their dear one, besides the difficulty in meeting their day-to-day needs, being jobless pester them much, even questioning their existence. They are only ordinary individuals who cannot be expected to be Arthur Ashe, the evergreen Tennis legend, who reportedly did not ask the God, "why to me" when he was made known that he was inflicted with AIDS (from blood transfusion during the Heart Bypass surgery). Their emotional breakdown because of the anxiety, depression, uncertainty to future and as to the condition of the patient cannot be treated/resolved, particularly when the patient was the sole bread winner of the family, nor is there any welfare provision in India (but for some personal health insurance coverage , if any) as it prevails in other welfare Countries, where there is an alternative mechanism, whereby the said countries would support the cause of the citizen through adequate insurance or otherwise. In the instant case, despite the fact that the patient/victim is having some properties in his name, the petitioners are not in a position to deal with the same and to raise funds for his treatment, upkeep and also for their living, because of the legal hurdles and for want of any clear legislative provision in this regard."
To see whether any statute contains a provision for appointment of 'Guardian to patients lying in comatose state', the bench examined the provisions of the Guardian and Wards Act, 1890, the Mental Health Act, 1987 (repealed, The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (repealed), The Mental Health Care Act and the Rights of persons with Disabilities Act, 2016.
Disagreeing with the declaration made by the single bench, the court observed that the case of a person, who is in a 'comatose state', does not come within the purview of the National Trust Act. The court said that the said judgment of single bench would stand applicable only with respect to the facts of that case and shall not be treated as a precedent. The court found that, so far as the case of a patient lying in 'comatose state' is not covered by any of the statutes.
The bench then issued the following guidelines/norms as a temporary measure till the field is taken over by proper legislation in this regard:
- Petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state.
- The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist
- A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects.
- The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as 'Social Welfare officer' can be sought to be appointed as a Guardian to the person lying in 'comatose state'.
- The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian.
- The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in 'comatose state'.
- The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her.
- The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in 'comatose state' and adequate provision to keep the Reports filed by the Guardian appointed by this Court.
- It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate.
- If there is any misuse of power or misappropriation of funds or non-extension of requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state, it is open to bring up the matter for further consideration of this Court to re-open and revoke the power, to take appropriate action against the person concerned, who was appointed as the Guardian and also to appoint another person/public authority/Social Welfare Officer (whose official status is equal to the post of District Probation Officer) as the Guardian.
- It shall be for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16.
- The Guardian so appointed shall bring the appointment to the notice of the Social Welfare Officer having jurisdiction in the place of residence, along with a copy of the verdict appointing him as Guardian, enabling the Social Welfare Officer of the area to visit the person lying in 'comatose state' at random and to submit a report, if so necessitated, calling for further action/ interference of this Court.
- The transactions in respect of the property of the person lying in 'comatose state', by the Guardian, shall be strictly in accordance with the relevant provisions of law. If the Guardian appointed is found to be abusing the power or neglects or acts contrary to the best interest of the person lying in 'comatose state', any relative or next friend may apply to this Court for removal of such Guardian.
- The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the person lying in comatose state from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise.