Capacity to consent assessment for Persons with Mental illness under Mental Healthcare Act, 2017

Capacity to consent assessment for Persons with Mental illness under Mental Healthcare Act, 2017

Capacity to Consent - Mental capacity refers to the ability of an individual to make one's own decisions. Decision-making capacity has been described as the “key to autonomy” and an important ingredient of informed consent. Limited or impaired mental capacity embarks on a minefield of ethical and legal issues, which doctors need to be aware of while dealing with a particular patient.

Persons with mental illness may have to take treatment (as prophylaxis to avoid relapse) for many years even after improving from the illness. Now, the main issue arises is how much leverage needs to be given on, “right to autonomy” (mental capacity) with regard to consent for the treatment or admission versus keeping the “larger interest of the society” from dangerousness of the persons with mental illness if he refuses treatment and relapses. There should be some balance between the “individual rights” (autonomy) versus the “safety of the society” (larger interest of the society). In developed countries, right to autonomy has been coupled with the casting of obligation with compulsory community treatment order on patients, who is refusing to take much-needed treatment (prophylaxis) while in the community. In India, the family plays an important role in providing care for persons with mental illness and the community care order will be a boon providing an additional tool for the care giver. The inclusion of compulsory community treatment orders may play a significant role in providing care for the chronically ill patients and also better lives of the family members and care givers while in the community. Hence, there is a need to have a place for community treatment orders in the legislative process.

There are issues related to capacity to make decisions related to mental healthcare and treatment, and this may have serious consequences because. Section 4 of MHCA 2017, capacity to make mental health care and treatment decisions, is flawed and can have dangerous consequences. In a nutshell, this section dictates capacity in relation to the ability of the patient to (a) comprehend the information or (b) assess risk or (c) communicate his/her decision. If he/she has any one of the above components, a PMI can refuse treatment. That means a psychiatrist will only be able to provide treatment for the minority of the PMI, with difficulty. Hence, there is an urgent need for clarification and for a guidance document to be released for the assessment of the mental capacity, and amendments need to occur for the Section 4. The Section 4 needs to be amended by deleting “or” and introducing “and” between 4 a, b, and c

A PMI may refuse treatment due to (a) absent insight, (b) severe symptoms, or (c) his/her symptoms coming in the way of decision-making. Family members usually find it difficult to manage individuals with serious mental illness who have no insight, and usually, such patients refuse admission and treatment. Chapter 2, Section 4, by default, considers everyone to have capacity, and before initiating involuntary treatment, one has to prove that a PMI lacks capacity. In such context, act gives a provision to treat the patients through a valid advance directive (AD) or in its absence, a NR. Where there is no AD or NR appointed by a person, the law assumes relative or caregiver as NR for the admission and treatment-related decision.


MHCA of 2017 focuses mainly on the human rights of PMI. It is prudent for the lawmaker to account for the culture of the land, newer scientific developments in the mental health field, analyze the met-unmet needs of the patients and families, and make provisions to bridge the treatment gap. There is also a need to make provisions to enhance the resources and skill building among professionals/workers in the field of mental health, to provide comprehensive healthcare services, to promote mental health and well-being, and to make provisions for adequate financial support/budget (for plan and nonplan expenditures).


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