On 15th June 2020, the Allahabad HC invoked the doctrine of Parens Patriae. The Court was acting under Article 226 of the Constitution of India and granted the guardianship of a husband in a vegetative state to his wife. It is a unique judgment. So far, there is no legislation which allows a guardian to a person in a vegetative state. Moreover, there were no such precedents where a person in a coma to have a guardian. Only minors, persons with several disabilities or mentally challenged persons could have guardians.
The doctrine of Parens Patriae
Parens Patriae is a Latin term which refers to the parent of the country. The doctrine of Parens Patriae gets its roots from English Common Law. It dates back to the Chancery Courts of England during the middle ages. The primary role of Chancery Courts was to handle cases relating to the welfare of the children. They were mainly concerned with guardianship cases. In such cases, the King had the authority to act as the father to the children whose custody was secure with the King. It justified the Court’s intervention in the lives of children and their families.
In Uma Mittal & Ors. v. UOI & Ors, the patient (petitioner’s husband) could not communicate. He was also breathing through a ‘Tracheotomy Tube’ in his throat. He was being fed with a ‘Peg Tube’ attached to his stomach. Moreover, caregivers had to change his position after several intervals to avoid bedsores. It was very difficult for the petitioner No.1, i.e. his wife, to handle the situation. The main reason was that there were a lot of financial crunches that the wife had to meet. It was because the children required treatment as well.
It becomes imperative to have a guardian for someone in a vegetative or comatose state. These people need 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 prone to infections and other medical issues such as fever and seizures. Caregivers have to prepare exclusive bedding for them to prevent pressure sores.
In this case, the Allahabad HC invoked the doctrine of Parens patriae. The doctrine gives the HC the power to give directions when no remedy is provided in any statute. In this way, the Court serves the ends of justice. The Court invokes this jurisdiction in exceptional situations. In the instant case, there was no specific legislation that gave the remedy of a guardian to a person who was in a comatose state.
The Court also recommended the Central Government to consider enacting a special Legislation. It would enable the people lying in an unconscious state to have a guardian for themselves. This legislation is the need of the hour. As of now, there is no remedy available for persons lying in an unconscious condition in any statute. It no longer leaves the person lying in a state of coma to be helpless.
It would enable them to fulfil some important immediate obligations of their life. Some urgent matters of the family can be taken up by the guardian in the absence of that person. It will be beneficial to meet the need of the hour and to avoid any unfortunate event.
Guidelines laid down by the High Court
The High Court went on to lay down some guidelines on the issue of guardianship for a person in a comatose state. These guidelines, the Court said, are temporary. They are meant to apply only until the legislature passes an appropriate enactment. The guidelines are as follows:
- A person who wants to be a guardian of a person in an unconscious state must disclose all his financial assets. It includes bank accounts, shares, debentures, stocks and other investment details.
- The Court will get the person in the unconscious state examined by a neurologist.
- The Court will also direct the Tehsildar/SDM to verify the assertions made by the potential guardian.
- Most likely, the Court will appoint the spouse or progeny as the guardian. The potential guardian will have to disclose all the details of the patient’s legal heirs.
- The Court will only appoint as guardian a person who is competent to act as a one, under Law.
- The guardian will have to file a report with the Registrar General of the HC every six 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.
- The Court has the authority to appoint a new guardian in case the first one misuses his authority.
- Whatever transactions the guardian undertakes, they 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 patient, then he/she has the right to approach the Court for the same.
- The guardian must seek the Court’s permission before moving the patient to another country or hospital.
A two-judge bench passed the judgment. It is high time that the Central Government take the right steps by acting promptly on the said matter. The legislature must fill the legislative chasm. It must make specific provisions regarding guardians for comatose patients. Until then, it is only appropriate for the Courts to issue guidelines to fill the lacunae.
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