Who Decides?

March 20, 2011 | Jayna Kothari

Aruna 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.


Jayna Kothari, 'Who Decides?' (20 Mar 2011) <https://www.thehindu.com/todays-paper/tp-features/tp-sundaymagazine/Who-decides/article14954461.ece> accessed on 24 May 2024