Advance Directive, Nominated Representative and mental healthcare

With some clarity about the rights of a person with mental illness (PMI) under the Mental Healthcare Act, 2017, Gopal set out to understand Advance Directive, Nominated Representative and medical treatment of a PMI.

Advance Directive (AD)

An AD by a person specifies:

• the manner in which he wishes to be cared for and treated for a mental illness

• the manner in which he wishes not to be cared for and treated for a mental illness

• the individual/s, in order of preference, he wants to appoint as his nominated representative

It must be according to the law, made in writing and registered with the Mental Health Review Board (MHRB). For a minor, the legal guardian has the right to make an AD. The AD may be made by a person irrespective of his past mental illness or treatment. It can be used only when the person does not have the capacity to make mental healthcare treatment decisions. It continues to have effect till he regains this capacity.

It is the duty of medical officers and psychiatrists, in charge of a person’s treatment, to provide treatment in accordance with the AD.

The person, writing the AD, and his nominated representative is required to ensure that the medical officer, practitioner or mental health professional has access to the AD when required. If he is not given a copy a valid AD, he cannot be held liable. A mental health professional is not liable for any unforeseen consequences if he follows a valid AD.

Nominated Representative (NR)

Every adult has the right to appoint a NR. Such nomination is to be made in writing with his signature/thumb impression. The NR must be an adult, competent to discharge his duties and give his consent in writing. For a minor, the legal guardian is the NR.

If no NR is appointed, the following persons (in order of precedence) are deemed to be NR:

• (a) individual appointed as NR in the AD;

• (b) relative, or if not available or unwilling to the NR;

• (c) care-giver, or if not available or unwilling to be the NR;

• (d) if no such person is available, the MHRB appoints the Director, Department of Social Welfare or his designated representative as the NR

A person, representing a registered organization working for persons with mental illness, may be temporarily engaged by the mental health professional to perform the duties of NR pending appointment by the MHRB.

Duties of NR

The NR is required to:

• consider current and past wishes, life history, values, cultural background and the best interest of the PMI

• pay attention to the PMI’s views to the extent that he understands the nature of the decisions under consideration

• provide support to the PMI with high support needs in making treatment decisions

• exercise the right to seek information on diagnosis and treatment to provide adequate support to the PMI

• have access to the family or home based rehabilitation services for the PMI

• be involved in discharge planning

• apply to the mental health establishment for admission

• apply to the MHRB on behalf of the PMI for discharge

• apply to the MHRB against violation of the rights of a PMI in a MHE

• appoint a suitable attendant

• have the right to give or withhold consent for research.

Medical treatment

Medical treatment of PMI requires the informed consent of the NR. Psychosurgery is permitted only after MHRB consent and clearance. The patient can be restrained only if it is the only way to prevent imminent and immediate harm to him or others.

The law prohibits electro-convulsive therapy without the use of muscle relaxants and anaesthesia, chaining and sterilization as a treatment for PMI. Restraints, seclusion and solitary confinement are permitted only if absolutely needed and must be in the least restrictive mode.

Obligations towards PMI

• * PMI found wandering: When a PMI is found wandering by himself and is incapable of taking care of himself or poses a risk to himself or to others and is brought to the police station for protection, the police is required to inform the person and also the NR about the need for custody and treatment. The PMI is not to be put in jail. The PMI is to be taken to the nearest public health establishment within 24 hours for assessment and treatment. All treatment to the PMI is to be reported to the magistrate. If on assessment, no mental illness is found, the person is to be handed over to the police for taking him to his residence.

  If a PMI is found wandering, a missing person report is to be filed and efforts made by the station officer to trace the family of such person and inform the family about the whereabouts of the person.

• Report of ill-treatment towards PMI: If a PMI is ill-treated or neglected in a private residence, it must be reported to the police, who are then required to report it to the Magistrate. The Magistrate may cause the PMI to be produced before him and pass an order that the PMI is to be admitted to a public health establishment.

• Prisoners with mental illness: If a prisoner is suffering from mental illness, an order is to be passed under the Prisoners Act, Code or Criminal Procedure or other applicable law directing the admission of a prisoner with mental illness into a suitable mental health establishment for care and treatment.

With this understanding, Gopal felt he was in a better position to respond in handling his neighbour’s situation that he had earlier found quite overwhelming.

The author has her focus on education, legal issues and governance and enjoys working with individuals and organizations towards enhancing their effectiveness