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 Table of Contents  
Year : 2015  |  Volume : 31  |  Issue : 2  |  Page : 112-118

Capacity to consent in mental health care bill 2013: A critique

1 Department of Psychiatry, National Institute of Mental Health and Neuro Sciences, Bengaluru, Karnataka, India
2 Department of Psychiatry, CSI Holdsworth Memorial (Mission) Hospital, Mysore, Karnataka, India

Date of Web Publication6-Jan-2016

Correspondence Address:
Suresh Bada Math
Department of Psychiatry, National Institute of Mental Health and Neuro Sciences, (Institute of National Importance), Bengaluru - 560 029, Karnataka
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Source of Support: None, Conflict of Interest: None

DOI: 10.4103/0971-9962.173290

Rights and Permissions

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. The objective of this article is to critically analyze the provisions of “capacity to consent” in Mental Health Care Bill (MHC Bill 2013), under the framework of the United Nations Convention on the Rights of Person with Disabilities (UNCRPD 2006). This article also attempts to offer a practical legal framework and some concrete suggestions, for psychiatrists operating in an ethically and legally challenging area of mental capacity. Some of the highlights include attempts to translate aspirations of the UNCRPD into MHC Bill 2013, which were out of context given the available resources, the family structure of our society, and inadequate research inputs. However, there is a need to introduce the capacity to consent to the MHC Bill 2013 after comprehensive research and to study the impact of such a revolutionary idea on the family aspects of our society. There is an urgent need to formulate and validate a capacity assessment tool for our population. The MHC Bill needs to consider the repercussion and impact of capacity to consent, thereby making room for the compulsory community treatment order empowering affected family members in providing much needed treatment for persons with mental illness.

Keywords: Capacity, competence, Mental Health Care Bill, mental health legislation

How to cite this article:
Math SB, Moirangthem S, Krishna K R, Reddi V S. Capacity to consent in mental health care bill 2013: A critique. Indian J Soc Psychiatry 2015;31:112-8

How to cite this URL:
Math SB, Moirangthem S, Krishna K R, Reddi V S. Capacity to consent in mental health care bill 2013: A critique. Indian J Soc Psychiatry [serial online] 2015 [cited 2022 Oct 5];31:112-8. Available from: https://www.indjsp.org/text.asp?2015/31/2/112/173290

  Introduction Top

Mental capacity is defined as a person's ability to understand, retain, and weigh up information relevant to a decision to arrive at a choice, and then to communicate that choice.[1] In simple words, mental capacity means being able to make one's own decisions.[2] Decision-making capacity has been described as the “key to autonomy.”[3] It is considered one of the many fundamental ethical principles in medicine.[4] An impaired mental capacity is associated with varying degrees of difficulty in making decisions affecting an individual's self-determination and autonomy. Mental capacity is specific to the problem in hand and at the same time dynamic also. The decision-making capacity varies across problems and also for the same problem over a period of time, and hence it needs to be reviewed periodically and especially in an adversarial condition. The degree of the capacity required increases with the complex problem in hand and if it has potential consequences on the life of the individual.[2] Hence, this limited or impaired mental capacity embarks on several of ethical and legal issues, which doctors need to be aware of when dealing with such a patient or individual. This issue gets particularly highlighted in cases where consent to medical procedures is required or when consent is not provided. The health professional proposing the intervention needs to decide whether the patient has the capacity to consent.[5] There are two important overarching human rights and ethical values governing the psychiatrist-patient relationship with regard to mental capacity. The first is patient, as any other human being, who is entitled to exercise his will. The second principle is beneficence, which states that the psychiatrist, as a professional with privileged status is obligated to act in a way that benefits the patients.[6],[7]

Doctors are required by law and medical ethics to obtain the informed consent of their patients before initiating diagnostic or therapeutic procedures.[8] A person who is capable of making a decision about his health care must have that decision respected by the treatment provider. To proceed against the person's wishes would amount to the deprivation of liberty, the tort of trespass to the person and, in some cases, criminal assault.[3] In addition, if consent is obtained from an incompetent patient is usually considered invalid by the law, in such situations physicians may be subject to claims of having treated the person without informed consent.[9] It is a double-edged sword in treating persons with mental illness. Hence, mental health professionals need to assess mental capacity before proceeding to obtain informed consent. At the same time, it is also essential to differentiate between mental capacity and mental competence. Mental competence is a legal construct, and it is specific to the task at hand.[2] Mental capacity is a continuous quality that may present to a greater or lesser extent, which is assessed by a clinician. Mental competence is categorical either entitled or not entitled,[2] which is determined by the court of law.[9]

The objective of this article is to critically analyze the provisions of “capacity to consent” in Mental Health Care Bill 2013[10] (MHC Bill 2013), under the framework of United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).[11] This article attempts to offer a practical legal framework and some concrete suggestions, for psychiatrist operating in an ethically and legally challenging area of mental capacity. In certain areas, the authors themselves are unable to provide solutions; in such situations authors have made attempts to frame the question clearly so that the debate concerning an insufficiently discussed topic can be generated in near future through academic debate and systematic research.

  The United nations Convention on the Rights of Persons With Disabilities' View on Mental Capacity Top

The UNCRPD [11] (UNCRPD 2006), Article 12 (equal recognition before the law) provides for a paradigm shift in thinking about legal capacity. Article 12 has a direct impact on the persons with mental illness, intellectual disability, and organic brain injury in decisions related to finances, health care, personal care, and day-to-day functioning. It applauds respect for inherent dignity, individual autonomy, including the freedom to make one's own choices, and independence of persons. State parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (Art 12).

Article 12 of (UNCRPD 2006)[11] reports that “the equal recognition before the law,” further casts obligation on the State parties to reaffirm that persons with disabilities have the right to recognition, enjoy legal capacity on an equal basis with others, to offer required support in exercising their legal capacity with adequate, appropriate and effective safeguards to prevent abuse in accordance with international human rights law.

Making autonomous choices about their lives and enjoying legal capacity on par with general population depicts equal personhood. For example, choices of day-to-day life, voting choices, controlling financial affairs, making treatment choices, unrestricted access to cinemas and other leisure activities and henceforth, come under the purview. Hence, there is a need to develop a legal procedure acknowledging that the person with mental illness may require support to exercise their decision-making ability, and that the provision of such support does not make the person a nonperson (or invalid) before the law.

India by signing and ratifying the UNCRPD, has made a commitment to its citizens and to the international community to fulfill certain specified obligations and to raise standards relating to the protection, inclusion, and empowerment of disabled people in India. Hence, there has been an initiation for amendments to the Disability Act, 1995[12],[13] and Mental Health Act, 1987.[14] The UNCRPD makes a paradigm shift in attitudes and approaches to persons with disabilities and views them not as “objects of charity,” but “subjects with rights.”[15] This signifies a move from charity to a rights-based approach, from paternalism to empowerment and a shift from the withdrawal of legal capacity of persons with mental illness to the right to exercise legal capacity.

  Reflection of Mental Capacity in Developed Countries Top

The principle, “a person must be assumed to have capacity unless it is established that he lacks capacity” has been well translated in Mental Health Act, 2007,[16] and Mental Capacity Act, 2005,[17] the United Kingdom. The Mental Capacity Act, 2005,[17] goes a step ahead and even emphasizes that, only because a person seems to others to have made an unwise decision, it does not depict his inability to have legal capacity. The Mental Capacity Act, 2005,[17] formalizes the area assessing whether the patient is mentally capable of making the decision. Mental Health Act, 2007,[16] describes the very limited circumstances when a patient may be forced to be hospitalized for assessment and/or treatment against their wishes. Further, in April 2009, a new procedural safeguard, known as “Deprivation of Liberty Safeguards” was introduced in the United Kingdom to protect individuals from the unlawful deprivation of their liberty. They have been introduced to fill what had been described as “the Bournewood gap.” This referred to an apparent “gap” in the law relating to deprivation of liberty that was identified in a case involving Bournewood Hospital.[18] In this case, the House of Lords ruled that a man who had been informally admitted to a psychiatric hospital without capable consent had not been unlawfully detained under the common law. Later, the European Court of Human Rights ruling, however, found that the man had been unlawfully deprived of his liberty in the meaning of Article 5 of the European Convention on Human Rights.[18] Deprivation of liberty without lawful justification is prohibited under the Mental Capacity Act [17] and the Mental Health Act.[16] Both these legislations comprehensively provide a statutory framework to empower and protect vulnerable population who are not able to make their own decisions.

In Australia, the mental capacity of the patient is usually weighed against the risk involved and the treatment is given against the will, if it is in the larger interest of the society. Hence, on comparing the mental health legislations of Australia and Canada, Australian mental health legislations have a relatively stronger “treatment” focus than Canadian.[19] Most of the Australian states focus on initiating treatment when there is a likelihood of “serious harm” to self or others, or “serious” mental or physical deterioration. The beautiful argument put forward is compulsory/involuntary treatment is initiated to restore their liberty, not to curtail their liberty. However, in Canada the rights of the persons with mental illness get precedence over initiating treatment even there is a likelihood of “serious harm.” Treatment can usually be initiated after the judicial inquisition. The majority of the developed countries argue and support for compulsory community treatment order keeping the larger interest of the society.

  Capacity to Consent for Treatment in Mental Health Care Bill, 2013 of India Top

Chapter-II, Clause-4 of the MHC Bill, 2013[10] discusses the mental illness and capacity to make MHC and treatment decisions. The drafted clause was further revised by the report-74 of the parliamentary standing committee, 2013,[20] as shown in [Table 1].
Table 1: The provisions recommended by drafters of MHC Bill 2013 and (Parliamentary Standing Committee Report [2013]) on Mental Capacity

Click here to view

This Clause-4 of the bill takes a revolutionary static stand that “every person, including a person with mental illness, shall be deemed to have the capacity to make decisions regarding his MHC or treatment,” which is a direct descent of Article-12 of UNCRPD, 2006.

On closer look of the Clause-4 of the bill, it states that any person who is able to (a) understand information (b) retain information (c) use or weigh information and (d) communicate his decision are considered to have the capacity to make treatment decision. The limitations of the above four criteria are not been taken into consideration as shown in [Table 2]. For example, a person with mental illness symptoms may fulfill all the above four criteria yet he may refuse to acknowledge that he/she is suffering from illness and may refuse treatment. Similar issue on the capacity to consent for treatment was faced by the Supreme Court of Canada (SCC) in Starson v Swayze case.[21]
Table 2: MHC Bill, 2013 and capacity to consent

Click here to view

The SCC's first case involving capacity and the refusal of involuntary psychiatric treatment involved, a self-proclaimed “Professor” who had been referred to as “Canada's beautiful mind.”[21],[22] While considered incapable of making a treatment decision by psychiatrists and a review board on one hand, three levels of court, including the SCC, found him to be capable on the other. “Professor” Starson, therefore, continued to refuse treatment for his psychosis and spent over 7 years detained because he refused the treatment required to become well enough to be released safely into the community.[22] Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes, do not allow a person to refuse the treatment required to restore their liberty.[22] This right to refuse treatment based on the capacity to consent affects the patient the most, family members next and finally it affects the public. A law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided, is not justifiable in a caring democratic jurisdiction.[22] This capacity to consent for treatment can be a paradox in psychiatric care and may lead to honorthe “Penrose Law.”[23] This Penrose's Law states that, as the number of psychiatric inpatients decline, the number of persons with mental illness as prisoners, increase.[23],[24]

The capacity to consent for treatment, in our opinion therefore, needs to take the following issues into consideration such as, (a) if patient's symptoms themselves come in his way of decision making process, (b) a severe mood state which may impair the decision-making capacity, (c) patients with absent insight into their illness refuse treatment (d) frequent change of decision and (e) dangerous to self or others and/or unable to care for himself. Hence, there is an urgent need to add one or more criteria to highlight under what circumstances; his/her decisions needs to be considered incompetent.

  Capacity to Consent for Admission in Mental Health Care Bill, 2013 of India Top

The proposed bill discusses the admission of persons with mental illness into mental health establishments in Chapter-12, Clause 95, 96, 98, and 99 of the MHC Bill (2013).[10] There are four types of admission procedures described in this Bill, such as admission of person with mental illness as an independent patient (Clause-95), admission of minors (Clause-96), supported admission up to 30 days (Clause-98) and supported admission beyond 30 days (Clause-99). It is very important to note that the involuntary admission (supported admission) under the Bill is based on following criteria (i) has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself; or (ii) has recently behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him; or (iii) has recently shown or is showing an inability to care for himself to a degree that places the individual at risk of harm to himself.

Involuntary admission is not based on the “capacity to consent” criteria but on the basis of “dangerousness to self or others and/or inability to care for himself,” as important criteria. This broader criterion is essential to keep the society safe considering the various degree and spectrum of mental illness for admission into mental health establishment. This has enabled the family members or the society to admit persons with mental illness to the health establishment. However, this does not automatically translate into consent for treatment. There is an urgent need to amend the bill and provide legal framework that “capacity to consent for treatment” is waived off, if patient is detained under Clause 98, 99 and 103 or only to reintroduce mental capacity after certain time frame as in UK Mental Health Act [16] which requires consent to treatment after 3 months of involuntary admission and treatment, with adequate safeguard procedures.

In our opinion, considering the family support, man power resources (medical and judicial), time taken for judicial procedure, role of State, and to facilitate treatment, the best checks and balances would be to (a) take an independent opinion from another psychiatrist and (b) to take surrogate/legal guardian consent compulsorily, (c) confirmation of the same by a legal authority with equal opportunity for legal representation of the patient (d) ratified by a council comprising of an independent psychiatrist, legal member, and consumer representative.

Capacity to consent for special procedures

The MHC Bill (2013)[10] discusses and prohibits certain procedures (such as unmodified electroconvulsive therapy [ECT], sterilization, and seclusion), regulates psychosurgery and emphasizes strict monitoring of procedure of restraint. ECT is allowed only with the use of muscle relaxants, and anesthesia and ECT is prohibited in minors. The Parliamentary Standing Committee Report (2013)[20] has suggested banning of seclusion and emergency ECT in the bill. This blanket banning is going to cause chaos in managing certain severely violent persons with mental illness, both in the mental health establishment and in society. Hence, it would have been prudent to regulate it rather than banning it. These issues should have been handled very well with criteria based on dangerousness to self or others and/or inability to care for himself criteria. The professional bodies should be allowed to make a determination based on evidence base of the treatment procedures. Further, much needed treatment could have been facilitated by taking an independent opinion from another psychiatrist and mandatory surrogate/legal guardian's informed consent.

Assessment of capacity to consent

The assessment of the patient's mental capacity to make decisions is an intrinsic aspect of every physician patient interaction.[9] Patients whose mental capacity is impaired are commonly found in an emergency, Intensive Care Unit, medical, and surgical inpatient units. One study of 302 medical patients admitted with acute conditions estimated that as many as 48% were incompetent to consent to medical treatment.[25] In another study involving 112 persons with mental illness, 49 (43.8%) lacked treatment-related decisional capacity.[26] A systematic review of 37 studies of capacity to consent to treatment for psychiatric patients was undertaken. In it, twenty-nine different capacity assessment tools were identified which reported that studies were highly heterogeneous in their measurement and definitions of capacity.[27] Psychosis, the severity of symptoms, involuntary admission, and treatment refusal were the strongest risk factors for incapacity.[27] However, there are no systematic studies or validated instruments available on the Indian population to assess mental capacity. Another important issue is that there is sparse published literature across India regarding the interaction of mental capacity and mental health legislation. There is no information that exists on patients, who have been detained under mental health legislation and their capacity to consent. Information on such issues will help in making policy and drafting legislations. There is an urgent need to develop and validate the capacity to consent assessment tool before the legislation is enacted.

Unfortunately, during the process of development of MHC Bill 2013, it did not address the logistics, resources in hand, and research issues with regard to capacity assessment. This is highlighted in the Chapter-3, Clause-6 (b), which states that, “An advance directive shall be made in writing on a plain paper with the person's signature or thumb impression on it and signed by a medical practitioner certifying that the person has the capacity to make MHC and treatment decisions at the time of making the advance directive and that the person has made the advance directive of his own free will.” The challenging issue is when a psychiatrist finds it difficult to assess mental capacity; MHC bill 2013, entrusts the responsibility of assessment of mental capacity to the medical officer, which in most cases finds it difficult to give opinion on mental capacity. This issue needs to be amended at the earliest because in the absence of structured assessment for the Indian population and no training module being available, enacting the bill would have very serious repercussions for patients, care givers, and health care providers with potentially disastrous consequences.

”Capacity to consent” versus “larger interest of the society.”

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 “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. This concept of compulsory community treatment orders has been justified and argued by the community members keeping the public interest in various developed countries [28] such as Canada,[29] Australia,[30] New Zealand,[31] the United Kingdom [32], and the United States.[33] This has legalized the greater use of outpatient commitment, wherein, it allows someone to live in the community provided they follow a court ordered treatment plan such as staying on medication even if the patient has refused consent to same. Many studies have convincingly established that compulsory treatment order may be an important part of treatment efforts to reduce the risk of violent behavior [34] and also conflict with criminal justice involvement among people with serious mental illness.[35],[36] There are various legislations on community treatment order which have been implemented across the world in developed countries such as Brian's Law of Ottawa also called Ontario Mental Health Act, 1990,[37] Kendra's law of New York [38], and Laura's Law of California State.[39] 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.

Limitations of “Mental Health Care Bill” regarding “capacity.”

The MHC Bill 2013 takes the major stride of inculcating the aspirations of the UNCRPD, but unfortunately, it has failed to do so both from the view of principle and also from logistics of implementation. The capacity to consent needs to be introduced into the MHC Bill 2013 after comprehensive research and studying the impact on the family aspects of our society. The United Kingdom has dedicated a one complete comprehensive legislation on mental capacity; on the contrary MHC Bill, 2013, has addressed this issue in Clause-2 of the bill, which is narrow, restricted, and incomplete, and which can be very dangerous to the persons with mental illness. Mental capacity assessment, guidelines for managing the mental capacity deprived individuals, safeguards to manage them inside the community and also in a hospital setting is completely missing. In addition, best interest principle is overlooked, supported decision-making has not been emphasized and above all that there is an urgent need to draft the capacity to consent instrument and which is pertinent to the Indian context. There is also a need to consider revamping the Clause-2 of the bill and to consider dangerousness criteria for treatment purposes if the persons with mental illness are admitted under Clause 98, 99, and 103, with adequate safeguard procedures to initial and periodical review of the same. The psychiatrist professionals, care givers, and service users need to urge the government to consider a separate comprehensive legislation on mental capacity after systematic research and consultation.

The issue of legally empowering the medical officer to assess the mental capacity without proper training in assessment of mental capacity and psychiatric disorder could be a recipe for disaster. The issue of “mental capacity” and “right to autonomy” of persons with mental illness is accompanied with fundamental duties toward the society. This issue is well highlighted in the developed countries legislation in which right to autonomy is coupled with compulsory community treatment order for patients who relapse after refusing to take medication. Hence, MHC Bill needs to consider the repercussion and impact of capacity to consent and make room for compulsory community treatment order to empower the family members to provide much treatment to persons with mental illness.

  Conclusions Top

To conclude and translate the aspirations of the UNCRPD into MHC bill, the drafters have overlooked the available manpower resources, family structure of our society, poor representation of consumers, lack of participation of the family members in raising their concerns, coupled with insignificant role played by the State in providing MHC, concerns of the society at large and inadequate legal research inputs. These issues need to be addressed, which are highly essential in implementing the Mental Health legislation. There is an urgent need to formulate and validate a capacity assessment tool for our population. If above issues are not addressed, then it would be an excellent recipe for disaster in providing MHC.

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Conflicts of interest

There are no conflicts of interest.

  References Top

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  [Table 1], [Table 2]

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