Coming to the incidental aspects; since 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', it is necessary to stipulate some 'Guidelines', based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure:
i) 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.
ii) 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.
iii) 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.
iv) 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'.
v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian
vi) 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'.
vii) 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.
viii) 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.
ix) 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.
x) 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.
xi) 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.
xii) 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.
xiii) 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.
xiv) 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) Nos. 37278 and 37062 of 2018
Decided On: 20.02.2019
Shobha Gopalakrishnan Vs. State of Kerala and Ors.
Hon'ble Judges/Coram:
P.R. Ramachandra Menon and N. Anil Kumar, JJ.
Citation: 2019 SCC Online Ker 739
1. 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.
2. The victim, lying in a comatose state, is having some properties [immovable/movable] and small bank deposits, but the petitioners are not in a position to deal with the same because of the 'legal hurdles'. They have already incurred huge expenses, as borrowed from different corners, in connection with the treatment. Having exhausted all their financial resources, they are in a state of despair, isolation and abandonment; besides undergoing unending agony, stress and depression on account of the plight of their dear one lying in a 'permanent vegetative state ' and 'coma'. The petitioners are constrained to approach this court for appointing the named petitioner/wife of the patient in comatose state as 'Guardian', 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.
3. The petitioners in W.P(C) No. 37278 of 2018 are the wife and son of Shri T. Gopalakrishnan, who suffered an irreversible brain damage on account of cardiac arrest and was lying in a comatose state from 28.04.2018- the ill fated day on which celebration/reception in connection with the marriage of the second petitioner/son was going on. The victim was immediately taken to the Medical Trust Hospital, Ernakulam, where he was treated for more than one month and was discharged, as the treatment did not show any signs of meaningful neurological recovery. As per Ext. P1 Discharge Certificate dated 01.06.2018, it was certified that, though the patient was hemodynamically stable (with enough pressure in the circulatory system to keep the blood flowing), since he was remaining in 'comatose state', prolonged multidisciplinary hospice care at home was necessary. Thereafter, the patient was admitted in P.S. Mission Hospital, Maradu, which is near to the place of residence of the petitioners. The condition of the patient, at the time of admission on 02.06.2018 and at the time of discharge on 05.10.2018 (after four months' treatment) was in 'comatose state'. As per Ext. P2 discharge certificate issued from P.S. Mission Hospital, it was observed that continued supportive treatments had to be followed up all during his life time. The case of the petitioners is that the patient was the sole bread winner of the family, engaged in his own business; the petitioners have so far spent more than Rs. 20 lakhs towards medical expenses and upkeep of the patient; that the said amount was mobilized with much difficulty on the help of relatives and friends; that both the petitioners are unemployed and are running out of financial resources even to meet their basic needs, but for the minimal rentals they receive. It was in the said circumstance, they seek to appoint the first petitioner as the 'Guardian' of her husband (victim/patient) and also for operating his bank accounts and to deal with his properties on war footing; pointing out that there is no legislation for appointment of a 'Guardian' in respect of persons lying in 'comatose state' and hence immediate interference is necessary.
4. According to the petitioners, neither the Guardian and Wards Act, 1890, the National Trust for the Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereinafter referred to as National Trust Act), the Mental Health Act, 1987, the subsequent Mental Healthcare Act, 2017; nor the Rights of persons with Disabilities Act, 2016 does come to the rescue of the petitioners, in so far as appointment of 'Guardian to a person lying in a comatose state' is concerned.
5. When the matter came up for consideration, before a learned Single Judge, the learned Government Pleader pointed out that another learned Judge of this Court had already held in W.P(C)21082 of 2017 that the Local Level Committee (LLC) constituted under Section 13 of the National Trust Act was having power to deal with the situation. Correctness of the said observation was seriously disputed by the learned Senior counsel for the petitioners. In the said circumstance, the learned Judge thought it fit to refer the matter for consideration by a Division Bench. It is accordingly that the said matter has been listed before this Court.
6. Meanwhile, almost with similar prayer, the petitioners in W.P(C)37062 of 2018 had also approached this Court for invoking the power under Article 226 of the Constitution of India, to declare the first petitioner therein (wife of the patient by name T.V. Varkey) as the guardian of her husband lying in comatose state. The other two petitioners are married daughters. The case projected by them is that the patient/victim met with an accident at home, resulting in severe head injury on 24.11.2017; that he was a retired employee from the FACT Ltd. and was lying in a comatose state ever since then. The petitioners pointed out that the marriage of the third petitioner became the responsibility of the first petitioner (as her husband was lying in comatose state) and that the first petitioner had to struggle much, incurring huge expenses for conducting the marriage and also to meet the medical/family needs. It is pointed out that the patient in comatose state is having some immovable property as a co-owner and since the other co-owners have consented to sell it, seeing the petitioners' plight and since there is no remedy under common law or under any of the statutes enabling the first petitioner to manage the property of her husband lying in comatose state, interference of this Court under Article 226 of the Constitution of India is necessary. In both the cases, decision rendered by a learned Judge of the Madras High Court in Sairabanu Muhammd Rafi vs. State of Tamil Nadu (in W.P. No. 28435 of 2015) and by a Division bench of the Bombay High Court in Philomena Leo Lobo vs. Union of India and others (W.P.(L) No. 28269 of 2017) have been relied on to contend that the power under Article 226 can be invoked to grant the relief. In the said circumstance, W.P(C) No. 37062 of 2018 also came to be tagged along with the former case already listed before the Division Bench.
7. W.P(C) No. 37278 of 2018 is treated as the lead case. In the course of further proceedings, the Union of India represented by its Secretary, Ministry of Health and Family Welfare Department, New Delhi, the Superintendent of General Hospital, Ernakulam, the Manager, Union Bank of India, Poonithura and the Manager, Federal Bank, Poonithura (where the patient was having some deposits/accounts) were caused to be impleaded as the additional respondents 4 to 7 in W.P. (C) No. 37278 of 2018. Similarly, the Union of India represented by its Secretary, Ministry of Health and Family Welfare Department, New Delhi and Superintendent, General Hospital, Ernakulam were caused to be impleaded as the additional respondents 4 and 5 in W.P(C) No. 37062 of 2018 as well.
8. Considering the general importance of the issue involved, we found it appropriate to appoint Mr. V. Ramkumar Nambiar as 'Amicus Curiae' to assist the Court, as per order dated 10.12.2018. As per the order passed on 07.12.2018 in I.A. No. 2 of 2018 in W.P. (C)37278 of 2018, the Superintendent of the General Hospital, Ernakulam (Addl. 5th respondent) was directed to constitute a Medical Board consisting of a Neuro Specialist, Cardiac Specialist and such other faculties as to be decided by the Superintendent, to deal with the situation and to cause the patient lying in comatose state to be examined and to file a report. The petitioners were also required to furnish the particulars of the amounts, if any, lying in deposit with the bankers mentioned in their additional affidavit dated 04.12.2018. Subsequently, as per order dated 10.12.2018 in W.P.(C)37278 of 2018 (whereby the Amicus Curiae was appointed), this Court found it appropriate to call for a report from the 2nd respondent/District Collector as well, as to the condition of the patient, making it clear that, it would be open for the second respondent to depute the Dy. Collector or the third respondent/Tahsildar to visit the patient at his residence and collect all the factual particulars. Similar orders were passed in the connected writ petition as well, though on different dates.
9. Pursuant to the above orders, the Medical Board constituted by the Addl. 5th respondent/Superintendent, General Hospital, Ernakulam (which is an NABH accredited hospital)examined the patient/victim. Medical certificate dated 18.12.2018 issued by the Medical Board in respect of the patient/victim by name Gopalakrishnan involved in W.P.(C)37278 of 2018 reads as follows:
Medical Certificate
"Certified that we the members of the Medical Board, General Hospital; Ernakulam, after referring the medical documents and conducting clinical examination of Sri Gopalakrishnan, 58 years on 11.12.2018 and he is found to have Hypoxic Ischemic Encephalopathy, Resuscitated Cardiac Arrest following Coronary Artery Disease-Acute Anterior Wall ST Elevation Myocardial Infarction on 28.04.2018. He continues to be in persistent vegetative state with stable hemodynamics and no clinical evidence of heart failure"
10. A separate report has been filed by the third respondent Tahsildar after visiting the patient in the said case, pursuant to the direction given on 10.12.2018, which fully endorses the contentions raised by the petitioners as to the plight of the patient lying in 'comatose state' and also as to the frustrating pecuniary condition of the petitioners. The report also points out that the parents of the patient are no more; that the petitioners are not earning members; that the petitioners have already spent nearly Rs. 20 lakhs, as borrowed from different corners; that they are finding it extremely difficult to mobilise further funds for the day-to-day expenses for treatment and upkeep of the patient and as to the dire necessity to deal with the immovable properties and for operating the Bank accounts of the patient to diffuse the volatile situation. Almost similar medical report by the Medical Board, who examined the patient and report of the Tahsildar after visiting the patient at his residence are produced in the other case, W.P. (C)37062 of 2018 as well.
11. During the course of hearing, the necessity to frame some 'Guidelines', if at all interference was to be made by this Court, invoking the power under Article 226 was pointed out by this Court and hence the parties were required to suggest appropriate guidelines/norms in this regard. Pursuant to this, the learned counsel for the petitioners in W.P. (C)37278 of 2018, Shri V. Ramkumar Nambiar, Amicus Curiae appointed by this Court and Mr. N. Manoj Kumar, the learned Special Government Pleader have filed separate suggestions as to the norms/guidelines to be issued. In the course of hearing held on 16.01.2019, it was brought to the notice of this Court that the patient by name Gopalakrishnan involved in W.P.(C)37278 of 2018 and lying in comatose state took his last breath on 13.01.2019 and the learned Sr. counsel sought for permission to address the Court on the various legal issues, as it is a matter of general importance. In the said circumstance, though the petitioners in W.P(C) No. 37278 of 2018, being the sole legal heirs, may not require any declaration as 'Guardian' to deal with the properties of the deceased, we found it appropriate to treat the said writ petition as a 'Public Interest Litigation' and hear the learned Sr. Counsel as to the scope, effect and applicability of the relevant provisions under the various enactments, touching the field/cause of action. This was more so, since the 'Reference' ordered by the learned Single Judge (as per the order dated 23.11.2018) as to the legal question raised requires to be answered by this Court.
12. Incidentally, we also noted that there was some difference in the terminology used with regard to the eligibility/qualification of the Members to be inducted as Members of the Mental Health Review Board under Section 74(1)(d) of the Mental Health Care Act, 2017, on comparison with Section 34(1)(n) (composition of the Central Authority) and Section 46(1)(n) (composition of the State Authority), in so far as, under Section 74(1)(d) of the Mental Healthcare Act, 2017, two members shall be persons with mental illness or care-givers or persons representing organisations of persons with mental illness or care-givers or nongovernmental organisations working in the field of mental health; whereas under the other two provisions, two persons/members are those who represent care-givers or persons with mental illness or organisations representing care-givers to be nominated by the Central Government. This Court was of the view that it required to be ascertained whether the difference in terminology was pursuant to a conscious act/decision or whether there was any inadvertent omission. Taking note of the fact that a lawyer of this Court viz. Dr. Smitha Nizar (Parakkal) Ph.D was having sufficient exposure in the field, particularly in connection with the formative stage of the legislation by virtue of her association while conducting Research at NALSAR (National academy of Legal Studies and Research), Hyderabad, we appointed her as well, to assist the Court as an 'Amicus Curiae'. Taking note of the relevant aspects, Dr Smitha Nizar, Ph.D has filed a report dated 18.01.2019 before this Court.
13. We heard Shri G. Sreekumar, the learned Sr. Counsel and Sri Sunil Nair Palakat, the learned counsel for the petitioners in the above two writ petitions, Mr. N. Manoj Kumar, the learned Special Government Pleader appearing for the State and other governmental authorities and Mr. V. Ramkumar Nambiar and Dr. Smitha Nizar, the two Amicus Curiae appointed by this Court, at length.
14. The primary question to be considered is whether there is any enabling provision for appointment of a Guardian to a patient lying in 'comatose state' under any statute in India. Incidentally, it has to be answered whether the finding of the learned Single Judge in WP(C)37278 of 2018 holding that it will come within the purview of Local Level Committee(LLC for short) constituted under Section 13 of the National Trust Act, in turn giving a direction to have the same considered and finalised by the said Body, is correct or sustainable. If there is no provision, what are the parameters to be mentioned as 'guidelines' while dealing with such matters by this Court till appropriate legislative provisions are incorporated in the relevant statutes by the law makers; form the last question.
15. As mentioned already, there is no dispute as to the plight of the patients/victims concerned, who are living in 'comatose state' as prisoners in their own body, unable to respond to any stimuli and the world around. The entire family is effected 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.
16. In the above background, it will be worthwhile to have a survey of the various legislations in India, to see whether any of such statutes does contain a provision for appointment of 'Guardian to patients lying in comatose state'. The only legislations governing the field, connected with appointment of Guardian for minors or persons with mental illness or physical disability are:
1. The Guardian and Wards Act, 1890
2. The Mental Health Act, 1987 (repealed)
3. The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
4. Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (repealed)
5. The Mental Health Care Act, 2017
6. The Rights of persons with Disabilities Act, 2016.
17. The Guardians and Wards Act, 1890 is an enactment for appointment of guardian for minors. As it stands so, the said Act is not applicable for appointing Guardian to a person lying in comatose state.
18. The Mental Health Act, 1987 provided for appointment of guardian for 'mentally ill' persons under Section 52 of the said Act, conferring the power upon the District Court to pass an order under Section 53 and for appointing a Manager under Section 54 of the said Act. However, the term "mentally ill person" is defined under Section 2(l) of the said Act, which reads as follows:
"(l)" mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation".
19. From the above, it is quite evident that it is in respect of a person who needs treatment for mental illness, whereas there is no treatment for a patient/victim lying in 'comatose state' and the condition of the patient is without any response to any stimuli, because of serious neurological breakdown. This being the position, the Mental Health Act, 1987 is also to be ruled out as having no application apart from the fact that the said statute stands repealed as per Section 126 of the Mental Health Care Act, 2017.
20. Coming to the Mental Health Care Act, 2017, there is provision for appointment of a 'nominated representative'. In fact, the preamble shows that the said statute was enacted pursuant to the Convention on Rights of Persons with Disabilities and its optional Protocol adopted on 13th December, 2006 at the United Nations Headquarters in New York, which convention was signed and ratified by the India on 01.10.2007 with an intent to align and harmonise the existing law with the said Convention. It was accordingly, that the statute was enacted to provide for Mental Health Care and Services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto.
21. As pointed out by Dr. Smitha Nizar (Amicus curiae), earlier, the persons with disabilities were secluded and denied the right to social participation, which suffered a change by the end of the 20th century, though no much efforts were taken to recognize them as subjects of law and to affirm their rights. The "rights-based approach" towards persons with disabilities came to be accorded by the U.N. Convention on the Rights of Persons with Disabilities, 2006, treating the lives of persons with disabilities as valuable as that of any other human being. It is pointed out that the Convention brought a paradigm shift in its approach and attitude towards disability, shifting from a model where the persons with disabilities are treated as "objects of medical treatment, charity and social protection", to the platform where they are recognised as persons with equal rights and vested right of participation. It was accordingly, that the Persons with Disabilities (Equal Opportunities, protection of rights and full participation) Act, 1995 was repealed and the new Act-Rights of Persons with Disabilities Act, 2016 (RPWD Act) was enacted. It was simultaneous to the enactment of the RPWD Act, 2016, that the old Mental Health Act, 1987 came to be repealed giving rise to the Mental Health Care Act, 2017 in tune with the norms of the U.N. Convention, whereby a "rights-based protection" was brought about for mentally ill persons, as mentioned already.
22. With reference to the query raised by us in our order dated 16.01.2019, as to the difference in terminology under Section 74(1)(d) of the Mental Health Care Act, 2017 and Sections 34(1)(n) and 46(1)(n) of the said Act, particularly when the Board is stipulated to be constituted with two members having mental illness, the learned Amicus Curiae points out that, it was a conscious decision taken by the law makers, to provide for 'participative status' to persons with mental illness and to provide a congenial atmosphere, enabling the persons with mental illness to approach the Mental Health Review Board for redressal of their grievance. It is pointed out that the object behind the creation of Central and State Authorities under Sections 34 and 46 of the said Act is to empower the said Bodies to regulate the functioning of the 'Mental Health Establishments' in compliance with the statute, whereas the Mental Health Review Boards are envisaged to play a critical role in protecting the interests of 'persons with mental illness'. According to Dr. Smitha Nizar, the Amicus Curiae, the NALSAR University of Law, Hyderabad was identified as the Legal Consultant to enact the Rights of Persons With Disabilities Act, 2016 and that she had opportunity to work as one of the working group members of the Legal Consultant, who participated in the Parliamentary meetings to negotiate on the Mental Healthcare Act, 2017. She asserts that the intention of the Legislation was to give a space for persons with mental illness to protect the rights of persons with mental illness, as an advanced step towards affirming equal rights for persons with mental illness. This is more so, since such Members would definitely ensure their experience, based on their knowledge, to ensure the "rights based service delivery"; also providing a conducive environment for persons with mental illness to come forward, to take decisions about their treatment, admission, discharge and rehabilitation in mental health establishments; in turn, assuring transparency in the field. It is pointed out that the different terminology used under Section 74(1)(d) is with the above specified intent and not a mistake. With regard to Guardianship, it is stated that the RPWD Act provides only provisions for temporary/limited guardianship, empowering the District Court or the designated authorities under Section 14 to grant the relief. It is also pointed out that since there is absolute need and necessity to frame general norms/guidelines for such practices, this Court can invoke jurisdiction under Article 226 of the Constitution of India.
23. Section 2(s) of the Mental Healthcare Act, 2017 defines the term "mental illness" in the following terms:
"2(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence."
It is quite evident from the above definition, that it is substantial disorder, which does not include mental retardation. Determination of mental illness is dealt with under Section 3(1) of the Act. Sub-section (2) of Section 3 says that no person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered by the Act or any other law for the time being in force. Sub-section (5) of Section 3 says that determination of a person's mental illness shall alone not imply or be taken to mean that the person "is of unsound mind", unless he has been declared as such by a competent court.
24. The term 'unsound mind' and 'competent court' are not seen defined under the Act. It is true that a person having 'mental illness' cannot be said as a person of unsound mind; but a person of unsound mind (if so declared by the competent court) is, of course, a person having mental illness. Since there was a general trend to treat all mentally ill persons as persons of 'unsound mind' resulting in social stigma, proper care has been taken under the new Act (i.e. the Mental Healthcare Act, 2017) to protect the rights of persons with mental illness, as mentioned above. In any view of the matter, the person lying in a 'comatose state', who does not respond to any stimuli and in a 'permanent vegetative state' does not appear to be covered by section 2(s) of the Act. As such, no appointment of any Guardian to such person is seen envisaged under The Mental Healthcare Act, 2017 and no enabling provision in this regard is brought to the notice of this Court by any of the parties.
25. Coming to The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, it is an Act to provide for constitution of a Body at the national level, for the welfare of persons with Autism, Cerebral palsy, Mental retardation and Multiple disabilities and for matters connected therewith or incidental thereto. Obviously, the applicability of the first three limbs (Autism, Cerebral palsy and Mental retardation) are not applicable to the case in hand (for persons lying in comatose state). The point to be considered is whether they will come within the purview of the 4th limb, with reference to 'Multiple disabilities'. The term 'multiple disabilities' is defined under Section 2(h) of the Act in the following terms:
"(h) "multiple disabilities' means a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)"
Section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995(PWD Act, 1995) classifies the disabilities as given below:
"(i) Disability" means
(i) blindness
(ii) Low vision
(iii) leprosy cured
(iv) hearing impairment
(v) Loco motor disability
(vi) mental retardation
(vii) Mental illness.
Section 2(j) of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 defines the term "person with disability", as extracted below:
"(j) "person with disability" means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability. "
It is also relevant to make a reference to Section 2(o) the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, defining the term "severe disability" as given below:
"(O) "severe disability" means disability with eighty per cent, or more of one or more of multiple disabilities."
From the above, it is clear that to identify a person as having multiple disability, existence of two or more disabilities as defined under Section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995(PWD Act, 1995) is essential.
26. From the Scheme of the Statute, it is quite evident that though the bench mark disability as defined under Section 2(r) of the Rights of persons with Disabilities Act, 2016 [RPWD Act, 2016] is only 40%, the person with disability shall suffer 'severe disability' of 80%, as envisaged under Section 2(o) [of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999] and there shall be two or more such extent of disabilities as defined under Section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 [PWD Act, 1995], to constitute 'multiple disabilities' defined under Section 2(h) of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 [The National Trust Act, 1999].
27. Under the Rights of persons with Disabilities Act, 2016 [RPWD Act, 2016], appointment of guardianship is governed under Section 14, which job is assigned to the Local Level Committee constituted under Section 13. Section 13 of the RPWD Act reads as follows:
"13. Legal Capacity:
(1) The appropriate Government shall ensure that the persons with disabilities have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages and other forms of financial credit.
(2) The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law.
(3) When a conflict of interest arises between a person providing support and a person with disability in a particular financial, property or other economic transaction, then such supporting person shall abstain from providing support to the person with disability in that transaction; Provided that there shall not be a presumption of conflict of interest just on the basis that the supporting person is related to the person with disability by blood, affinity or adoption.
(4) A person with disability may alter, modify or dismantle any support arrangement and seek the support of another
Provided that such alteration, modification or dismantling shall be prospective in nature and shall not nullify any third party transaction entered into by the person with disability with the aforesaid support arrangement.
(5) Any person providing support to the person with disability shall not exercise undue influence and shall respect his or her autonomy, dignity and privacy."
Admittedly, The Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995) is no more having been repealed as per Section 102 of the RPWD Act, whereby a comprehensive new legislation-RPWD, 2016 has been brought into force. The important aspect to be noted is that, there is no similar provision defining the term 'disability" as under Section 2(i) of the PWD Act, 1995, anywhere in the RPWD Act 2016. The latter enactment, particularly under Section 2(zc) [of the RPWD Act] defines the term "specified disability", as specified in the Schedule. The Schedule broadly classifies the disabilities into '6':
1. Physical disability (comprising of Locomotor disability, visual impairment, hearing impairment and speech and language disability)
2. Intellectual disability:
3. Mental behaviour
4. Disability caused due to:
(a) chronic neurological conditions such as
(i) Multiple sclerosis" and
(ii) "parkinson's disease"
(b) blood disorder:
(i) "haemophilia"
(ii) "thalassemia"
(iii) "sickle cell disease"
5. Multiple disabilities
6. Any other category as may be notified by the Central Government.
The term "mental behaviour " (third head)reads as follows:
"3. Mental behaviour.
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence."
Similarly, the term "Multiple Disabilities' (fifth head)reads as follows:
"5. Multiple Disabilities (more than one of the above specified disabilities) including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental and educational problems."
28. The patient in 'comatose state' may not be having any hearing impairment or visual impairment as his 'retina' may be alright or the 'cochlea' may be clear and functioning. The problem is with the brain/nervous system, which refuse to receive the stimuli or transmit the response after proper analysis and co-relation. By virtue of the said problem, though the patient in 'comatose state' may be seeing an elephant, he is not in a position to understand whether it is an elephant or a goat. Even if he is hearing the barking of a dog, it is not registered and analysed by the brain and he is not in a position to say whether it is actually the barking of a dog or chirping of a Cuckoo.
29. From the above, it is clearly discernible that a person in 'comatose state' is not one who is having any two or more disabilities constituting 'multiple disabilities' to the requisite extent as mentioned in the statute, so as to come within the purview of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999). In other words, so as to bring it within the purview of the National Trust Act, 1999, to be dealt with by the Local Level Committee constituted under Section 13, the other relevant provisions in the said Act like Section 2(h) and such other provisions of the relevant statutes may require amendment to the requisite extent. As it stands so, the instant case, ie. the case of a person, who is in a 'comatose state' does not come within the purview of the National Trust Act.
30. The verdict passed by the by the learned Single Judge in W.P.(C) 21082 of 2017 makes a reference only to Section 2(j) of the National Trust Act (defining the term 'person with disability') and Section 2(o) (defining the term 'severe disability'). Section 2(h) dealing with 'multiple disabilities' (which makes a reference to section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995) and the requirement to satisfy two or more of such disabilities as mentioned under Section 2(i) of the PWD Act, 1995 was unfortunately omitted to be brought to the notice of the learned Judge. This being the position, the declaration made therein, that the case will be covered under the National Trust Act and the patient will be a person with disability as spoken to in Section 14 of the National Trust Act, enabling appointment of Guardian by the 'LLC' constituted under Section 14 of the National Trust Act cannot have universal application. This Court does not require any further declaration in respect of the said verdict as it stands on a different footing. In the said case, the petitioner had already approached the 'LLC', who had not taken any action to extend the relief as it doubted its powers under the National Trust Act, which made the petitioner to file the writ petition. The prayer was to direct the LLC to consider the application and finalise the same, which relief was granted by the learned Judge. It was for sustaining that prayer and to grant the said relief, that an observation was made that the LLC was having power under the National Trust Act. Based on the submissions made by the learned Spl. Government Pleader and the learned Central Government Counsel, it was made clear in paragraph 10 of the judgment that the declaration made would stand applicable only with respect to the facts of that case and that individual cases will have to be considered on the basis of the facts arising in each of them. Hence, it cannot be treated as a precedent.
31. It will be worthwhile to note the difference between the cases involving Brain death, Permanent Vegetative State etc. The subject came up for consideration before the Apex Court in Aruna Ramachandra Shanbaug vs. Union of India (MANU/SC/0176/2011 : [2011]4 scc 454] which is presumably the longest documented case of person lying in Permanent Vegetative State/Coma in India, as documented (about 42 years). The said case was filed by a journalist seeking to apply 'euthanasia' in the case of the victim, contending that there was a brain death. This was repelled by the Supreme Court, in view of the factual data ascertained and it was much later that she bid farewell to this world. The observations made by the Supreme Court as to the different states, such as 'Brain death', 'Coma', 'Vegetative State(VS)', 'Minimally Conscious State' in paragraph 12 of the said verdict are quite apposite to be noted down, as extracted below:
'Brain death
A state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations.
Explanation: This is the most severe form of brain damage. The patient is unconscious, completely unresponsive, has no reflex activity from centres in the brain, and has no breathing efforts on his own. However the heart is beating. This patient can only be maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain blood pressure, etc). These patients can be legally declared dead ('brain dead') to allow their organs to be taken for donation. Aruna Shanbaug is clearly not brain dead.
Coma
Patients in coma have complete failure of the arousal system with no spontaneous eye opening and are unable to be awakened by application of vigorous sensory stimulation.
Explanation: These patients are unconscious. They cannot be awakened even by application of a painful stimulus. They have normal heart beat and breathing, and do not require advanced life support to preserve life. Aruna Shanbaug is clearly not in Coma
Vegetative State (VS)
The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles. i.e., patients are awake, but have no awareness.
Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, coordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to light, sound, touch or pain. They cannot understand, communicate, speak, or have emotions. They are unaware of self and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools. They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state:
Sleep-wake cycles with eyes closed, then open
Patient breathes on her own
Spontaneous blinking and roving eye movements
Produce sounds but no words
Brief, unsustained visual pursuit (following an object with her eyes)
Grimacing to pain, changing facial expressions
Yawning; chewing jaw movements
Swallowing of her own spit
Non-purposeful limb movements; arching of back;
Reflex withdrawal from painful stimuli
Brief movements of head or eyes towards sound or movement without apparent localization or fixation;
Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug.
Minimally Conscious State
Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for v. These patients demonstrate some behavioral evidence of conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from v. by the partial preservation of conscious awareness."
The aforesaid decision in Aruna Shanbaug's case [MANU/SC/0176/2011 : 2011(4) SCC 454] has been referred to by the Apex Court recently in MANU/SC/0232/2018 : 2018(5) SCC 1 [Common Cause(a registered Society) vs. Union of India and another] as well, while legally recognising and permitting 'passive euthanasia'.
32. Section 2(s) of the Rights of persons with Disabilities Act, 2016 [RPWD Act 2016], defines the term 'person with disability'. This obviously is with reference to a person who is able to interact with others, though not fully, in turn providing for appointment of a 'Guardian' under Section 14. Unlike this, in the case of a person lying in 'comatose state', there is no interaction at all with anybody, as the victim cannot respond to any stimuli and hence Section 2(s) is not attracted. The interest of the patient lying in 'comatose state', particularly with reference to the urgent need to provide treatment and support, besides the immediate requirements of the close relatives to raise funds and to take care of the situation, cannot be ignored or compromised; which justifies invocation of the power of this Court under Article 226 of the Constitution of India.
33. As mentioned already, the Mental Healthcare Act 2017 is an advanced step/legislation overruling the earlier statutes in conformity with the U.N. Convention of 2006, signed and ratified by the Government of India in 2007 and brought into effect thereafter. Chapter-V of the said Act deals with rights of persons with mental illness, by way of such as:
Section 18-Right to access mental health care
Section 19- Right to community living
Section 20-Right to protection from cruel, inhuman and degrading treatment.
Section 21-Right to equality and non-discrimination
Section 22-Right to information
Section 23-Right to confidentiality
Section 24-Restriction on release of information in respect of mental illness
Section 25-Right to access medical records
Section 26-Right to personal contacts and communication
Section 27-Right to legal aid
Section 28-Right to make complaints about deficiencies in provision of services.
Section 29 - speaks about the duties of appropriate Government in promotion of mental health and preventive programmes,
Section 30 - is with regard to creation of awareness about mental health and illness and reducing stigma associated with mental illness.
34. Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in 'comatose state'. It is something like 'parens patriae' jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [MANU/UKHL/0024/1978 : 1978 (1) WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [MANU/SC/0529/1991 : 1991(2) SCC 87 explaining the principle of 'causes omissus' is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to "re-write" the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N. Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in 'comatose state' is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly.
35. Coming to the incidental aspects; since 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', it is necessary to stipulate some 'Guidelines', based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure:
i) 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.
ii) 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.
iii) 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.
iv) 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'.
v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian
vi) 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'.
vii) 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.
viii) 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.
ix) 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.
x) 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.
xi) 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.
xii) 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.
xiii) 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.
xiv) 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.
36. In view of the above discussion, we hereby hold and declare that the petitioners in W.P. (C) No. 37278 of 2018 are justified in approaching the Court for appointment of Guardian to the person by name Gopalakrishnan (husband of the first petitioner and father of the second petitioner), who was lying in 'comatose state' to get the first petitioner declared as the Guardian of Gopalakrishnan, the victim.
37. Coming to the properties owned and possessed by Gopalakrishan, (the victim in comatose state), the petitioners have furnished the property particulars and Bank details in respect of the assets owned and possessed by the victim. The details are given below:
Bank Details:
1. Union Bank of India
Name : Gopalakrishnan T.
Account Number: 550502010000321
IFSC Code : UBIN0555053
Branch : Poonithura, Ernakulam
2. Federal Bank
Name : Gopalakrishnan T.
Account Number: 12190100096671
IFSC Code : FDRL0001219
Branch : Poonithura, Ernakulam
True copies of the updated pass books in respect of the Bank accounts of the victim in the Poonithura Branch of the Union Bank of India and Poonithura Branch of the Federal Bank have been produced as Exts. P4 and P5, along with I.A. No. 3/2018. In view of the submission made on behalf of the petitioners that the victim lying in 'comatose state' had passed away on '13.01.2019', as noted in our interim order dated 16.01.2019 and also in view of the submission that the petitioners are the sole legal heirs of the deceased Gopalakrishnan, we do not find it necessary to pass any specific order appointing the first petitioner as the Guardian of her husband Gopalakrishnan, who was lying in 'comatose state' any further. It is quite open for the petitioners to proceed with further steps in respect of the properties owned, possessed and enjoyed by late Gopalakrishnan, by virtue of their accrued rights, in accordance with law. It is not necessary for them to file any report before the Registrar General of this Court as to the transactions dealing with properties, as further transactions in respect of the properties/Bank accounts is not in the capacity as Guardian of the victim lying in 'comatose state', but as the legal heirs of the deceased Gopalakrishnan.
38. Coming to W.P.(C) No. 37062 of 2018, an affidavit dated 18.01.2019 has been filed by the first petitioner/wife of the person lying in 'comatose state' pointing out that the only property available as belonging to her husband is the right as a co-owner in Ext. P2 property having an extent of 3.0180 hectares in Block No. 18, Re.Sy. No. 500/2 (Old Sy. No. 200/IA) of Kalpetta Village, by virtue of the Sale Deed No. 1192/2011 of the SRO, Kalpetta. It is also stated in the said affidavit that there are no movable or immovable properties in her name, other than the Joint S.B. Account bearing No. 1372101005699 (in her name and the name of her husband T.V. Varkey- the victim) in the Canara Bank, Panampilly Branch, Ernakulam. We declare the first petitioner (wife of the person by name T.V. Varkey, who is lying in 'comatose state') as the Guardian of the latter, to deal with the property covered by Ext. P2 on behalf of the co-owner by name T.V. Varkey, subject to the condition that she shall satisfy the guideline No. (vii) as mentioned in paragraph 35 above, submitting a report, containing all the relevant particulars in respect of the transactions (including as to the utilisation of the fund received and spent by her), before the Registrar General of this Court. She shall be bound to act, as mentioned in the other guidelines as well, to the extent they are relevant, including by giving notice to the Social Welfare Officer, having jurisdiction over the area as to her appointment as Guardian, as stipulated under Clause No. (xii). It goes without saying that she shall be answerable and accountable to those who may later come in the class of 'Legal heirs' of the victim in 'comatose state'.
39. We record and extend our appreciation to Mr. V. Ramkumar Nambiar and Dr. Smitha Nizar (Parakkal), the Amicus Curiae appointed by this Court, for their earnest efforts in working up the legal position and bringing up the relevant aspects, helping this Court to facilitate proper adjudication of the subject matter.
40. The Registry is required to forward a copy of this judgment to the Secretary, Dept. of Justice, Ministry of Law and Justice, Government of India, New Delhi for information and appropriate steps, if any [as the Union of India, represented by the Secretary to the Ministry of Health and Family Welfare Department alone is in the party array].
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