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2009 March - Note 7

Consent - Choosing among relatives of an incompetent adult patient - S. J. Chaurasia, Advocate, Supreme Court of India

The case of Smt. Chitra Bhuwadia & Ors. v. Chirayu Health and Medicare Pvt. Ltd. & Ors. (page a34;j103) poses an interesting question. Whose consent must be taken in case of an adult patient who has lost competency to give consent for treatment. Logically this right will go to his nearest relative. But how should one decide among nearest relatives if there are more than one and each disagrees with the other.

In fact, my opinion was sought by a very reputed hospital in one such case. A patient had become comatose after surgery. The wife wanted to continue treatment in the same hospital, but the mother wanted to shift the patient to another hospital. The relationship between the wife and the mother-in-law was obviously not cordial. The hospital did not want to land in a legal soup for taking instructions from a wrong person.

In case of minors the law is well settled. Their natural parents are the guardians and taking consent from any one of them is legally correct. In their absence the District Civil Court can be approached under The Guardians and Wards Act, 1890, for suitable directions.

However, the problem is in case of adults. There is no statutory law or reported case on this subject. The only source that can be looked upon for some guidance is the law of succession. However, in India we do not have a common personal law that is applicable to all its citizens. As far as succession to the property of Christians and Parsis is concerned, they are governed by The Indian Succession Act, 1925. Hindus are governed by The Hindu Succession Act, 1956, and Muslims do not have a written statutory code. Moreover, different schools of Islam existing in India, such as, Hanafi (Sunnis), Malliki (Sunnis), Shias, and so on, have their own differences.

To find a suitable answer, The Hindu Succession Act, 1956, which has a clear list of relatives and their order of succession, unlike The Indian Succession Act, 1925, would be appropriate and the same is reproduced here.

HEIRS IN CLASS I
Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son.

HEIRS IN CLASS II

I Father
II (1) Son’s daughter’s son; (2) son’s daughter’s daughter; (3) brother; (4) sister
III (1) Daughter’s son’s son; (2) daughter’s son’s daughter; (3) daughter’s daughter’s son;
(4) daughter’s daughter’s daughter.
IV (1) Brother’s Son; (2) sister’s son; (3) brother’s daughter; (4) sister’s daughter
V Father’s father; father’s mother
VI Father’s widow; brother’s widow
VII Father’s brother; father’s sister
VIII Mother’s father; mother’s mother
IX Mother’s brother; Mother’s sister

Please note that this list is only indicative and it does not have a sanction of the law. However, it can certainly be looked upon in difficult times, when the question of taking consent from among relatives of an incompetent adult patient arises.


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