|Year : 2014 | Volume
| Issue : 2 | Page : 79-82
Need for Mental Capacity Act and its assessment in India
Sarvada C Tiwari1, Nisha Mani Pandey2
1 Professor and Head, Department of Geriatric Mental Health and Chief Medical Superintendant, Gandhi Memorial and Allied Hospitals, Lucknow, Uttar Pradesh, India
2 Post Doctoral Fellow, Department of Geriatric Mental Health Institution, King Georges Medical University, Lucknow, Uttar Pradesh, India
|Date of Web Publication||3-Mar-2015|
Dr. Sarvada C Tiwari
Professor and Head, Department of Geriatric Mental Health and Chief Medical Superintendant, Gandhi Memorial and Allied Hospitals, Lucknow, Uttar Pradesh
Source of Support: None, Conflict of Interest: None
Everyone has the right to live with liberty; but, in India a person with any kind of mental illness often faces inhumane behavior. To avoid such conduct and protect human rights, amendments in legislation will be needed. Modifications have been made in mental health laws to harmonize it with the United Nations Convention for Rights of Persons with Disabilities and a new Mental Health Care Bill was introduced in Rajya Sabha in 2013. However, the bill lacks inclusion of mental capacity assessment related legislation, which is essentially required for welfare of the people with health problems especially in the case of mental health. Mental capacity related legislations advocate the provision of treatment in the patient's best interests and thus, is acknowledged in most of the developed countries of the world. In all spheres of life the mission of the country is to remain dedicated to the best interests of its citizens and so is the case for mental health care. It high time when the country needs concerted efforts of academicians, administration and policy makers to amend the prevailing legislation and introduce and pass an act in favor of human rights.
Keywords: Mental capacity assessments, legislation, amendments, human rights, Mental Capacity Act
|How to cite this article:|
Tiwari SC, Pandey NM. Need for Mental Capacity Act and its assessment in India. J Geriatr Ment Health 2014;1:79-82
| Introduction|| |
The Indian constitution provides equal rights to all its citizens, but the mentally ill often remain unprotected even through legislation. Under the fundamental rights, section 21 of Indian constitution, no person shall be deprived of his life or personal liberty. Personal right includes reading, writing and expressing oneself in diverse forms, freely moving around and mixing with fellow human beings. But when an individual has unsound mind/mental illness, he/she is immediately devoid of his/her constitutional rights and disqualified to hold public offices such as president and vice president. Apart from these disqualifications, he/she also cannot make any contracts under section 12 of Indian Contract Act, 1872; and under Special Marriage Act, 1954 divorce, separation can be obtained. Right to transfer of property and execution of will also get affected. It is clearly evident that a whole lot of activities of a person could be restricted by different laws related to individuals having any kind of mental illness or an unsound mind. Efforts are being made all across the world to find out ways to avoid such episodes of inhumane behavior and protect human rights. Therefore, amendments in existing law are being made. However, in India, there are hardly any laws regarding standardized and uniform norms to assess mental capacity of an individual with illnesses.
| Law and Mental Health in India|| |
Individuals with mental disorders often have to face legal issues during its management, cure, and rehabilitation. Therefore, there is an active association between the concept of mental illness, the treatment of the mentally ill and the law.  Before independence, the Indian Lunacy Act (ILA), 1912, governed mental health in India and to date the Indian mental health legislation has come a long way. In the view of the inappropriateness of the ILA, 1912, after independence, the Indian Psychiatric Society took up an initiative by drafting and submitting a mental health bill to the Government of India in 1950. However, this bill was adopted by the Rajya Sabha in 1986 and Lok Sabha in 1987 and was designated as Mental Health Act (MHA), 1987. This act had a more humane approach towards mentally ill people. Further, this act created central and state mental health authorities, which safeguarded the interests of the mentally ill.
It will be noteworthy that in spite of many positive features, since its beginning, MHA, 1987, faced a lot of criticism as it was not properly oriented toward taking care of human rights issues and the mental health care delivery system.  It was also questioned for its constitutional validity as it involves curtailment of personal liberty without the provision of proper review by any judicial body. 
| Recent Advancements in Mental Health Law|| |
Amendments have been made to make mental health laws to harmonize with the United Nations Convention for Rights of Persons with Disabilities. As a result, a new Mental Health Care Bill came in existence and was introduced in the Rajya Sabha in August, 2013. Ample of modifications have been done in the existing MHA, and this bill bridged the gap between mental health laws in India corresponding to the laws with the ones present across the world. However, there is still no inclusion of mental capacity assessments.
| What is Mental Capacity?|| |
Mental capacity is a multidimensional construct and a central determinant of an individual's ability to make autonomous decisions.  Mental capacity refers to the ability through which an individual:
- Understands information provided to him/her about a particular thing or decision.
- Retains that information long enough to be able to make the decision.
- Weighs the information available to make the decision.
- Communicates their decision.
- Performs particular tasks ranging from routine activities to specific duties.
| Significance of Mental Capacity Act and its Assessment|| |
In countries like England and Scotland, the aim of mental capacity legislation is to provide a framework for people with either severe communication difficulties or cognitive problems (intellectual disability, dementia and other organic brain syndromes). The Mental Capacity Act, 2005 of United Kingdom (England and Wales) provides a constitutional framework for people who may not be able to make their own decisions. The entire act is based on following five principles for assessment of mental capacity: 
- Principle 1: Capacity should always be assumed. A patient's diagnosis, behavior, or appearance should not lead you to presume the capacity is absent.
- Principle 2: A person's ability to make decisions must be optimized before concluding that capacity is absent. All practicable steps must be taken, such as giving sufficient time for assessments; repeating assessments if capacity is fluctuating; and if relevant, using interpreters, sign language, or pictures.
- Principle 3: Patients are entitled to make unwise decisions. It is not the decision but the process by which it is reached that determines if capacity is absent.
- Principle 4: Decisions (and actions) made for people lacking capacity must be in their best interests.
- Principle 5: Such decisions must also be the least restrictive option(s) for their basic rights and freedoms.
The mental capacity related legislations advocate the provision of treatment only if it is in the patient's best interests. This includes consideration of the person's wishes, feelings, beliefs and values (including any written advance statement they made when they had the capacity) and taking into account the views of their friends and family. When considering what would be in someone's best interests in relation to life-sustaining treatment, the decision maker must not be motivated by a desire to bring about the person's death. The act also advocates appointment of a legal representative to execute on a patient's behalf if he/she loses capacity in the future. This is like the current enduring power of attorney, which covers financial decision making, but the act also allows people to choose an attorney to make health and welfare decisions. There is a provision to appoint deputies by the court of protection to make decisions on behalf of a person about matters in relation to which that person lacks capacity. This replaces the current system of receivership covering financial decision making and extends it to include health and welfare. Care-giver and professionals can also lawfully care for someone who cannot consent without incurring liability, for example, by giving an injection or by using the person's money to buy essentials for them. 
| Need for Mental Capacity Act and Assessment in India|| |
This is the largest democracy and seventh largest country in the world subdivided into 28 States and 6 Union Territories. Currently, there are 1210 million individuals residing in the country, which shares about 17% of the world population. The country is facing a rapid transition in almost all spheres of life viz. health status, family structure, working environment, economic conditions, social milieu etc. which has generated many challenges. And, one of the greatest challenges are related to health problems with special reference to mental health ,, for its all citizens, especially those associated with the vulnerable group, that is, children, women and elderly. Studies reveal variable prevalence of mental disorders in India. The lowest prevalence of mental health problems in the country is around 95/1000 and elderly with mental illness is around 20.5%.  In such a situation, Mental Capacity Act and its assessment will deliver protection to the citizens of the state. This not only provides security but also liability for care-givers, healthcare and social staff when carrying out certain tasks. It may offer protection against civil and criminal liability for certain acts done in connection with the care or treatment of a person which would normally require that person's consent (i.e., helping a person to dress, eat or wash).
Assessments of mental capacity have been found to be significantly necessary to assist and support a person with mental illness in decisions about their care and treatment. The jurisdiction of many countries advocates to respect a patient's stated wish regarding refusal of his/her medical treatment unless they can be shown to be legally incompetent. ,, According to the statute of these countries, mental capacity is a continuous quality that may be present to a greater or lesser extent in the individuals whereas, according to law either competence exists or it does not. Legislations related to mental capacity not only protect people who lack the mental capacity to make decisions, but also deals with the specific needs of different groups of patients.
Assessment of mental capacity may relate to any act including criminal law (competency to stand trial, consent, private defense against an insane person) to civil law (contract, marriage, adoption, laws to prevent/treat mental illnesses-health and welfare decisions), choices about the most appropriate place to live, e.g., full time residential or nursing care and also illnesses and legal transactions. During assessment of mental capacity the clinician needs to think carefully about what should be asked and what should not be. The assessor needs to avoid loaded and multiple questions at the time of assessment or questions with yes or no answers, also, he/she should not be judgmental. During the assessment, one needs to verify the cause of patient's impairment/disturbance of mind (mental illness, dementia, brain damage, intoxication) that would lead to partial, temporary variations or change over time. If it's not the case, then that means that there is no lack of capacity. There is also a want to assess the capacity in view of patient's inability to make a particular decision. If there is a temporary incapacity, then if feasible, the decision should be delayed. Such decisions should always be the least restrictive of a person's freedoms.
Patients having any impairment/disturbance/fluctuation of mind, e.g., mental illness, dementia, brain damage, intoxication; which leads to partial or temporary variations or changes over time need clinical assessment of mental capacity. For making clinical interpretation of mental capacity, one needs to have an overview of the collective report of all activities (routine activities, hygiene, medication etc.) along with cognitive, decisional and testamentary abilities of the subject. Thoroughness of the examinations and prognosis during assessment of mental capacity of a vulnerable group like that of the elderly also needs more precautions. In India, to measure and quantify mental capacity, one of the most widely used tool is the Indian Disability Evaluation and Assessment Scale (IDEAS).  IDEAS assess schizophrenia, bipolar disorder, dementia, obsessive compulsive disorders. There is hardly any tool in India for the assessment of mental capacity in any other disorder. Assessment of mental capacity provides adequate information regarding treatment and alternatives to allow informed consent. It also ascertains what a patient would have wanted if he or she had the capacity. The mental capacity related law provides important safeguards to patients' rights and help clinicians in dealing with capacity problems.
In other parts of world, the mental capacity assessment related legislation was introduced specifically when extensive concerns regarding human rights were considered to be important aspect in making decisions about care and treatment of a medically/mentally ill person. In India, mental health legislation still does not use mental capacity assessment related law and a wide range of treatments are given to the patient on the basis of certain general conditions like-incidence of a mental disorder or perceived risk to the patient or others.
Dedicated mental health legislation can help to legally reinforce the goals of policies and plans in accordance with international human rights and practice standards and bridge the mental health gap.  Assessment of mental capacity is of paramount importance for financial, academic and legal reasons especially in patients suffering from certain brain disorders and psychiatric illnesses.  Mental Capacity Act is a considerable issue for legislation, clarifying, strengthening and protecting the rights of people who wish to plan for their future in the event of becoming incapacitated, as well as the rights of those who currently lack capacity. It also clarifies the rights and duties of the care-givers and professionals who assist such people.
As of now, mental health/psychiatry is a renowned medical discipline in the country with various sub/super specialties in India. Systematic assessment of mental capacity of individuals undergoing studies or taking treatment will help in diffusing the ethical controversies.  Further, mental capacity assessments are significantly legitimate, ethically and legally both. It will be noteworthy that for the growth and development of medical discipline like psychiatry, there is a need to endorse the Mental Capacity Act and concerted efforts of academicians, administration and policy makers are needed to amend the prevailing legislation. It is high time when the country needed to review and validate its legislation. Thus, Mental Capacity Act can be introduced along with newly acknowledged Mental Health Care Bill, 2013.
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