Treatment of incapacitated persons poses tremendous challenge to the medical fraternity due to the manifold legal issues associated with it. Since the incapacitated persons are not in a position to provide informed consent, which is the essence of medical interventions across the globe, the medical practitioners or the hospital authorities have the task of obtaining the consent of incapacitated patient’s legal guardian. This is not an easy task in the cases wherein several persons, clowely related or associated with the incapacitated patient, come forward to establish themselves as guardians, and express contrary views on the treatment of the patient. Even if the problems are not encountered in zeroing down the legal guardian of an incapacitated patient, the medical practitioners would be in a fix as to the genuineness of consent given by the legal guardian. This is more so in case of physician assisted suicide or withdrawal of life support system of an incapacitated patient. Due to the inherent limitations in testing the veracity of consent given on behalf of the incapacitated patient, medical practitioners would have difficulties in arriving at a wise decision. It is to be noted that while his decision to act on the consent given on behalf of incapacitated patient might go against the interest of the patient, his failure to act on it may subject him to the burden of bearing the cost of treatment, which the guardian of the patient may refuse to pay. This is why the Indian Supreme Court in the historic judgment of Aruna Ramachandra Shanbaug v. Union of India and Others observes that the decision to withdraw the life support can only be done with approval of the concerned High Court, which should act as parens patriae to protect the best interests of the patients.
While above are the concerns of the medical fraternity, the legal guardians of incapacitated patient also find difficulties in certain decision-making. On the one hand, it is difficult for them to see the sufferings of the patient, and on the other hand, they would not be willing to give consent for the termination of life of their dear one. The economic factors, ranging from the guardian’s capability to bear the expenses of treatment to the benefits gained by the guardian out of any decision, may play a key role in arriving at a conclusion by the guardian, which may be detrimental to the interests of the incapacitated patient. Thus, all these factors open up the Pandora’s Box of determining good faith of the guardian in the decision-making. Simlilar problems at the guardian’s level may also arise with respect to giving consent for medical experiments or surgical interventions, which may be risky but inevitable as a last ray of hope for recovery of the incapacitated patient. In the wake of these ethico-legal dilemmas, the present paper would first probe into the determination of guardianship for incapacitated paitents. In the second part, difficulties faced by the medical practitioners and hospital authorities in relying on the consent of the guardian would be looked into. The third part would highlight the guardian’s dilemma in various instances while taking a decision on medical intervention for incapacitated patient. Finally, the paper would conclude with suggestions to address these issues effectively.
Dr. Sandeepa Bhat is working as Associate Professor (Law) at National University of Juridical Sciences (NUJS), Kolkata. He has more than twelve years of teaching and research experience at National Law School of India University (NLSIU), Bangalore and NUJS, Kolkata, which rank among the top Law Schools in India. He did his LL.B. from Mangalore University with Third Rank and gold medal. He has done his specialization in International Law and Business and Trade Law (LL.M.) with First Rank and double gold medal at University of Mysore. His Ph.D. is in the field of Space Law.
Dr. Bhat has the experience of researching on World Bank’s Major Research Project on Public Health Laws and Regulations, and Indian Space Research Organization’s (ISRO) Major Research Project on Laws Relating to Satellite Financing. He is currently researching (as Principal Investigator) on WB Judicial Academy’s Major Research Project on Medical Negligence and Ministry of Justice’s Major Research Project on ADR and Legal Aid. He has the distinction of being the member of International Institute of Space Law (IISL), Paris, France.
Dr. Bhat is the founding Editor-in-Chief of the Asian Journal of Air and Space Law and is also associated with various other publications in different capacities. He has edited two books on Space Law and one book on Medical Law. His two more books on medical laws are in the process of publication. In addition, he has published more than thirty articles in the journals of international and national repute. He has presented more than twenty five research papers in the international and national conferences At NUJS, he also coordinates Post Graduate Diploma in Air and Space Law and Post Graduate Diploma in Public Healthcare and Medical Laws. In addition, he has the distinction of being the member of ISRO Expert Advisory Group for drafting the National Space Act for India.
Dr. Bhat’s areas of interest are Air & Space Law, International Trade Law, and Medical Law & Ethics.