Kerala high court Guidelines for Appointment Of Guardian To Patients Lying In Coma

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

Print Page

Whether hospitals can detain patients for non payment of medical bills?

 Merely because the cities of the hospital treating the patient are outstanding that certainly cannot be a reason to withhold the release of the patient, particularly when the next of kin of the patient is desirous of removing the patient at their own responsibility. As early as on 20.04.2017, the petitioner recorded his grievance with the SHO, PS Rajinder Nagar that his father is being illegally detained by respondent No. 2 only for the purposes of extracting the amount claimed by the hospital towards treatment of the patient. We deprecate this practice.

9. Respondent no. 2/Hospital is directed to prepare the discharge summary in respect of the petitioner's father forthwith, and the petitioner is free to remove his father from respondent no. 2/Hospital at his own responsibility. He shall issue necessary undertaking to this effect to the hospital. The SHO PS Rajender Nagar is directed to ensure compliance of this order.

In the High Court of Delhi at New Delhi

(Before Vipin Sanghi and Deepa Sharma, JJ.)

Devesh Singh Chauhan 

v.

State & Ors. 

W.P. (Crl) 1214/2017 and Crl. M.A. 6828-6829/2017

Decided on April 26, 2017

Citation: 2017 SCC ONLINE DEL 8130

Print Page

How to prove that doctor had agreed to perform operation of patient?

It has to be seen whether the proposal of the original Plaintiffs was accepted by Defendant No. 1 as the promise. If he accepted the promise, there would be an agreement. The agreement is for treating a patient for consideration. It would, therefore, be an agreement enforceable at law and consequently a contract under Section 2 (h) of the Indian Contract Act, 1872. The acceptance by Defendant No. 1 as the promise has to the absolute and unqualified under Section 7 (1) of the Act and be expressed in some usual and reasonable manner under Section 7 (2) of the Act. The relevant portion of Section 7 which runs thus:

7. Acceptance must be absolute.- In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner...

What is the usual and reasonable manner makes for the acceptance by performance or by implications under Sections 8 & 9 of the Act which run thus :

8. Acceptance by performing conditions, or receiving consideration.- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.

9. Promises, express and implied.- In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.

90. Defendant No. 1 accepted the proposal of the original Plaintiffs in the usual and reasonable manner that surgeons do. Surgeons would not accept only by saying "I will operate" but by actually operating, by aiding and assisting in operation as circumstances require, by charging the fees for the operation, by contriving to fix the operation to accommodate themselves as per their schedule and, of course, by being shown as one such surgeon in the records of the hospital. By all of these modes the contract between the parties in this case must be implied and is demonstrated by performance. It is implied by the patient accepting the surgeon's command to fix the operation at his convenience. It is accepted by the fact that it is fixed on a given day, 5 days after his advice in an O.T. adjoining another O.T.  where he admittedly performed another surgery. It is further implied by the charges that are levied to the patient by way of the surgeon's fees as per the schedule prevailing at the relevant time. It is further manifest in the surgeon actually remaining at the door of the O.T. where he was expected to come as per his implied obligations and where he admittedly conferred with another surgeon to understand the medical position of the patient and to command a further act before walking out.

91. This case falls squarely within the aforesaid Sections denoting an absolute and unqualified acceptance expressed by the usual mode which surgeons reasonably adopt. The acceptance is seen by the consideration sought to be charged for his fees. of course, in this case there is no direct acceptance; it could not be because there was a stiff resistance. Nevertheless the charge was demanded. It was stated to be specifically of Defendant No. 1 and none other in the notices of demand, Exhibits O & P in evidence. The charge of the anesthetist was indeed accepted which was in terms of the schedule of fees depending of the charge of the surgeons. The acceptance was not made in so many words "I will operate"; it was implied in the condescending act of Defendant No. 1 to fix the O.T. coordinated with Defendant No. 2 on the day that would convenience none other than he.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

 Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Citation: 2012(1) ALLMR 510

Print Page

Patients have right to their medical records: CIC

New Delhi: Patients have a right to get their medical records from hospitals, both public and private, Central Information Commission has held while ordering disclosure of information to a former RAW official. 

Nisha Priya Bhatia, a former official of country's snooping agency Research and Analysis Wing, sought her medical records from Institute of Human Behaviour and Allied Sciences where she was admitted on the orders of Delhi High Court. 

These records were refused to her as the Institute cited section 8(1)(h) of the RTI Act which allows an authority to withhold information which would impede an investigation.

Print Page