Determination of Mental Illness, Advance Directive and Nominated Representative under Mental Healthcare Act, 2017

In the last post, we discussed the Preamble as well as the Definition Clause of the Mental Healthcare Act, 2017. In the present post, we shall discuss the concept of determination of mental illness, Advance Directive and Nominated Representative as has been provided in the Mental Healthcare Act, 2017 (in short, “Act”).

Chapter – II – Mental Illness and Capacity to make Mental Health and Treatment Decisions – (S.3 and S.4)

According to Section 3, mental illness shall be determined in accordance with nationally or internationally accepted medical standards as notified. Section 3 (3) is important as it states that mental illness of a person shall not be determined on the basis of: -

a. Socio-economic, political, cultural, racial, religious status of a person.

b. Non-conformity with moral, political, cultural, racial, religious, work values prevailing.

It is also pertinent to note that Past treatment shall not by itself justify present or future determination of illness and determination of mental illness shall not imply that a person is of unsound mind unless so declared by a Competent Court.

Section 4 states that a mentally ill person shall be deemed to have capacity to make decisions regarding his treatment if he is able to understand the information that is relevant to take a decision or he can appreciate any reasonable foreseeable consequence of a decision or he can communicate his/her decision in relation to the above, by any means. Section 4 further makes it clear that if the abovementioned criteria are fulfilled, then even if a decision is perceived by others as inappropriate or wrong, it cannot be meant to be said that the person does not have the capacity to make a treatment related decision.

Chapter – III – Advance Directive (S.5 to S.13)

Section 5 explains the scope, ambit and meaning of Advance Directive. Every Adult person shall have a right to make an advanced directive by specifying: -

a. The way the person wishes to be treated; and/or

b. The way the person not wishes to be treated; and/or

c. The individuals, in order of precedence, to be appointed as Nominated Representative.

Also, an Advance Directive is to be invoked only when such person ceases to have capacity to make treatment decisions and shall remain effective until such persons regains capacity to make treatment decisions. Such Advance Directive may be cancelled, revoked or amended at any time by such person and the Medical Officers or the Medical Health Establishment, as the case may be, shall be bound to follow such Advance Directive, in accordance with law.

It is pertinent to note that under Section 11 and 12, the Board constituted under the Act shall have the power to review, alter, modify or cancel an Advance Directive after taking into consideration the following grounds: -

a. Involvement of force, undue influence or coercion in making an Advance Directive.

b. Change in anticipated circumstances in which the Advance Directive was intended to apply.

c. Whether the person was sufficiently well-informed and had the capacity to make the decision or not?

d. Advance Directive in contravention of existing laws or constitutional provisions.

Under Section 12, the Central Authority under the Act is given the power to review the use of Advance Directives and make recommendations thereof.

Further, under Section 13, a Medical Professional shall not be held liable for any unforeseen consequences arising out of an Advance Directive and in cases, where the Medical Professional has not been given a copy of Advance Directive.

Chapter IV – Nominated Representative – (S.14 to S.17)

Section 14 (1) states that every adult person has a right to appoint a Nominated Representative. Such appointment must be in writing. In case, a person does not appoint any Nominated Representative, then following persons, in order of precedence, shall be deemed to Nominated Representative of such person: -

a. Any individual appointed as Nominated Representative for the purpose of Advance Directive; or

b. A Relative; or

c. A Care-Giver; or

d. Any person appointed by the Board constituted under the Act; or

e. Director, Department of Social Welfare or his designated representative.

Any appointment of Nominated Representative may be revoked or altered at any time by the Person/Board who made such appointment. Further, under Section 15, it is stated that the Legal Guardians of minors shall be their Nominated Representatives and the Board may appoint any other suitable person as Nominated Representative of a Minor if it thinks that the legal guardian is not fit to act as Nominated Representative or is not acting in the best interests of the minor.

Section 17 defines the duties of Nominated Representative as under: -

a. Consider the wishes, history, value, background and best interests of the mentally-ill person.

b. Assist the mentally-ill person to understand the nature of decision under consideration.

c. Provide support in admission, treatment and discharge of mentally-ill person in Medical Health Establishments and other treatment facilities.

d. Seek information on diagnosis and treatment of mentally-ill person, as and when required.

e. Have access to family or home-based rehabilitation services.

f. Apply to the concerned Board as and when required and against violation of rights of the mentally-ill person in Medical Health Establishment.

g. Appoint a Suitable Attendant in case of Minors and Girls, as stipulated under Section 87.

h. Have the right to withhold consent for research on mentally-ill person.

In the next post, we shall discuss the rights of persons with mental illness.