Who decides?

March 20, 2011 12:00 am | Updated 04:05 am IST

Why was the customary ‘Best Interests' test, where the court should be guided by the interests of the patient alone and not of others, ignored in the case of Aruna Shanbaug, asks JAYNA KOTHARI.

A runa Shanbaug has changed the course of the right to die debate in India. While the Supreme Court rightly rejected the petition seeking permission to remove Aruna's feeding tube, it went a step ahead permitting passive euthanasia for persons in a permanent vegetative state if it is in their best interests and laid down guidelines for it.

Who decides what is in the patient's best interests when she is in a permanent vegetative state? Justice Katju held that it was in the Court's power as ‘Parens Patriae' to decide what is in the best interests of the patient.

The common law doctrine of ‘Parens Patriae' has been generally applied in situations where the State must make decisions to protect the interests of persons who are unable to decide for themselves such as minors and persons who are mentally incompetent. Two tests for deciding the ‘Parens Patriae' jurisdiction on behalf of mentally incompetent persons have been evolved — the ‘Best Interests' test and the ‘Substituted Judgment' test. The ‘Substituted Judgment' test requires the court to step into the shoes of a mentally incompetent person and attempt to make the decision, which the person would have made if she was competent.

Interests of the patient

The Supreme Court in the Suchita Srivastava judgment, where the right to continue the pregnancy of a woman with mental retardation was decided, relied on the ‘Parens Patriae' doctrine encompassing both these standards. In this case, the substituted judgment test was not required as the woman clearly wished to continue her pregnancy. It held that in deciding the ‘Best Interests' test, the Court should be guided by the interests of the patient alone and not of others, including guardians. In this manner, the Court protected the patient's autonomy and refused the termination of her pregnancy.

In Aruna's case, surprisingly, the Court completely ignored this ‘Substituted Judgment' standard, upheld by a three-judge bench in the Suchita case. It only relied on the Airedale judgment of the House of Lords where the substituted judgment standard was not used and permitted passive euthanasia on a low standard of ‘best interests' which should be decided by taking the wishes of parents and relatives in mind.

Denial of rights

Such a ruling denies all recognition of the right to autonomy and self-determination of a person although she may be incompetent to consent. Debates on legal capacity of mentally incompetent persons have moved to protection of their legal capacity and not its usurpation under the criteria of ‘best interests'. In the Nancy Cruzan case, the US Supreme Court held that individuals incompetent to consent retained a right to refuse treatment, but that such a right could be exercised by a surrogate decision maker only when there was clear evidence that the incompetent person would have exercised it. Only when such evidence was lacking could the court still invoke this right in certain circumstances under the “best interest” standards.

The Aruna Shanbaug judgment leaves the door open for passive euthanasia by relatives of persons who are severely disabled, sick and the elderly, with no requirement to see if the patient herself would have consented to it. Are we ready for this?

The author is a lawyer and researcher practising in the Karnataka High Court.

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