Capacity for mental healthcare decisions under the Mental Healthcare Act.

Mental Healthcare Act (MHCA), 2017 aims to protect and promote the rights of patients during mental health care. This Act promotes patient's autonomy and choice for those with ability to make decisions on mental health care, independent of the level of risks or complexities. Supported decision-making can vary from minimal or no support to complete support for decision-making. A decision by a nominated representative is restricted to those with incapacity for mental healthcare decisions. Capacity assessment for mental healthcare is a specific task in the clinical application of the act. This article is meant to guide clinicians on capacity assessment during the implementation of MHCA.

INTRODUCTION

MHCA 2017[1] is now in force all over India. This article focuses on the concept of capacity for mental healthcare decisions and its place in this act. The discussion on capacity in this article is restricted to capacity for decisions regarding mental healthcare (mental healthcare under the Act includes analysis, admission, treatment, and rehabilitation of mental illnesses).

RISK-CAPACITY INTERFACE IN MENTAL HEALTH CARE

Mental illnesses often put the patient and others at various types and levels of risks, often associated with a low level of appreciation of the illness. Unlike physical illnesses, compulsive treatment was hence authorized under mental health legislation in many jurisdictions. The past few decades have witnessed an increasing awareness of the rights of people with mental illnesses. Capacity is the ability to make decisions after understanding and appreciation of the different options. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)[2] emphasizes equality before the law for people with mental illnesses. Intact capacity is to be presumed for everyone, unless the contrary is proved. Some patients with mental illnesses lack capacity for mental healthcare decisions through the illness. Mental health legislations in many jurisdictions sanction best interest decisions and involuntary treatments for mental illnesses presenting with risks, irrespective of the status of capacity of the individual.

In India, the Mental Health Act, 1987[3] allowed involuntary treatment based on the level of risks posed by the mental illness and the potential benefits of treatment. This balancing of the benefits and risks posed by the mental illness and/or treatment was to be done primarily by the treating team (by the medical officers) and/or the magistrate (substitute decision-making). Little, if any, involvement was expected of the person in receipt of treatment at times of involuntary treatment.

The overarching global trend in mental health care in the past few decades is towards an increasing role for decision making capacity of the individual. Some jurisdictions have restricted involuntary treatment for mental illnesses to people who lack capacity for mental healthcare decisions (Scotland is one such example).[4] Some other jurisdictions (England and Wales, for example) have brought in restrictions and safeguards (like a second opinion from an approved professional) to ensure patient choices are listened to, even when people are detained for treatment.[5] Some jurisdictions have specific legislation to address mental incapacity (like the Mental Capacity Act of England and Wales).[6] The respect for capacitous decision-making is also reflected in many court judgments. India does not have any specific legislation to address incapacity for decision-making.

India signed and ratified UNCRPD in 2007. Subsequent to the ratification, India found it necessary to rewrite its Mental Health Act. One of the major changes in MHCA is the pivotal role of capacity.

CAPACITY IN MENTAL HEALTHCARE ACT (2017)

Capacity in MHCA is the capacity for mental healthcare (Section 4 of MHCA, Chapter II). Mental healthcare includes analysis and diagnosis of a mental condition, treatment, care, and rehabilitation of a person with diagnosed or suspected mental illness. The opinion of the assessor or a third party about the decision made by the patient (even if the decision is felt “unwise” to a third party) shall not influence capacity assessment.

Capacity is considered specific to a task and time. For example, the capacity to decide regarding a surgery will need to be assessed independently from the capacity for admission into a hospital for mental healthcare. As a general principle, the capacity of an individual for a particular task is assessed by the person competent for the task. For example, a surgeon (rather than a nurse in the team) is the person responsible for assessing capacity to consent for the surgery. There might be situations where decisions regarding capacity may need a joint assessment by a psychiatrist and other professionals.

MHCA makes a binary decision regarding capacity. Choice, wishes, and preferences of a capacitous patient rank higher than anything else in designing the treatment package. When one is incapacitous, decision-making should be guided by the best interpretation of choice, wishes, and preferences of the patient. A decision making for the patient by another person or agency must regard the above factors.

In MHCA, substitute decision-making for an incapacitous patient by the treating team is replaced by various options. These include support, advance directives (AD), and nomination of representatives. It is only at times of incapacity that (1) supported admission is considered, (2) AD come into effect, and (3) nominated representatives (NR) can take decisions on consent on behalf of the patient.

The concept of support is discussed below. Discussions on AD and NR are beyond the remit of this article.

SUPPORT

UNCRPD describes support as any action which gives effect to patient's choice, will, and preferences. This can take the shape of (1) opinion of a trusted person (for example, NR), (2) AD, (3) support for comprehending information and for communication, (4) advocacy for patient welfare, or (5) independent advice.

At times, patient and the NR may have views contrasting with each other. A coercive action by the NR to get patient agreement cannot be understood as support.

Under this Act, support is considered on a continuum ranging from decision-making with no or minimal support from NR (an independent decision of an individual) to complete (nearly 100%) support in decision-making (decision-making by NR). MHCA allows people receiving treatment independently to have only minimal, if any, support from NR. If the person requires a high level of support (approaching 100%, as in the Act), independent admission is not lawful. Situations requiring 100% support for mental healthcare decisions lead to supported admissions, under MHCA.

ASSESSMENT OF CAPACITY

Clinical use of MHCA requires routine use of capacity assessment for every individual requiring mental health care. A formal assessment of capacity will be necessary at the time of supported admission.

General principles of capacity assessment

These principles are derived from the Mental Capacity Act 2005 UK and clinical practice guidance on this issue from the National Institute for Health and Care Excellence.[6]

Capacity is specific to a time and a task.

Capacity assessment is to be systematic, rather than arbitrary based on a person's condition or behavior.

Information provided is to be understandable to the individual.

Maximum effort to enhance decision-making ability is to be made before capacity assessments.

Capacity assessment is to be done in the background of a trusting and collaborative professional relationship.

Effective assessments are thorough and proportionate to the complexity, importance, and urgency of the decision.

Whether one has the capacity for a mental health-care decision under MHCA will rest on three components (Section 4, Chapter II of MHCA):

Understanding of relevant information to make a decision regarding treatment, admission, or personal assistance

Appreciation of reasonably foreseeable consequence of a decision or a lack of decision regarding the mental health care

Communication of the decision by any means.

An individual will be capacitous if the above are satisfactory. The principles of the Act and reading of UNCRPD suggest that everybody will be presumed to be capacitous, until proved otherwise. This will be reflecting equality before the law for people with mental illness (Article 12 of UNCRPD); however, the wordings of section 4 (1) of MHCA indicate that one will be capacitous when “understanding,” “appreciation,” or “communication” is present. The presumption of capacity as a starting point and the requirement of all three aspects to be satisfactory for being capacitous are the clarifications necessary of the Law.

It is notable that the assessment of capacity for mental health-care decision according to the MHCA does not require categorization of the mental disorder involved. Assessment of physical health and structural disorder of the brain or mind are also not mandatory prerequisites. The risks involved with either of the options for decision also should not have any bearing on the decision on capacity.

A committee constituted by the Central Mental Health Authority is expected to develop and issue guidance to practising clinicians on capacity assessment under this Act.

OTHER SEMI-STRUCTURED ASSESSMENTS OF CAPACITY

There are many semi-structured and standardized assessment tools for capacity. MacArthur Competence Assessment Tool for Treatment[7] is one of the well-accepted tests for a semi-structured assessment of capacity. In the previous studies, this test was considered to be of high inter-rater reliability.[8]

Components of MacArthur tool for capacity for healthcare decisions

MacArthur tool has two components – a structural test and a functional test. The functional test is to be completed only after the structural test.

Structural test regarding the presence of a disorder of the brain or mind.

Functional test regarding impairment of decision-making. The functional test will include understanding relevant information, retention of the information, usage, and weighing of the different options, choice, and communication of the choice.

PLACE OF CAPACITY IN MENTAL HEALTHCARE ACT PROVISIONS

Whether one is unable to make mental healthcare decisions independently (or incapacitous for mental healthcare decisions) is central to decisions on inpatient care under MHCA. Sections 86 (3), 89 (c), and 90 (c) of MHCA clarifiy the following: (1) only a capacitous patient can be admitted independently and (2) only incapacitous patients can be under the categories of supported admissions (sections 89 and 90). Interpreting these (in the spirit of the protection of the right for autonomy of every patient as a guiding principle of this act) suggests an assessment of capacity for every prospective admission into a mental health establishment.

Independent admissions (Section 86)

Anybody with capacity for mental healthcare decisions can only be treated independently with her/his informed consent under the MHCA. The NR cannot make decisions for an individual capacitous for mental healthcare decisions. ADs made by an individual can be effected only when the person lacks capacity. Those lacking capacity or needing a high support decision cannot be treated independently. It will be a good clinical practice to conduct capacity assessments before all independent admissions and consents for treatments under MHCA.

Supported admissions (Sections 89 and 90)

Being incapacitous or requiring very high support for decision-making is a prerequisite for an individual to be provided as a supported admission. A formal assessment of capacity will be necessary at the time of supported admission. Even if admitted under the category of supported admission, treatment of a patient can only commence with either the consent from NR or a consent from the patient (though with a high-support need). Any valid AD made by the patient will come into effect as the patient loses the capacity for mental health-care decisions. Anybody lacking capacity and being treated with the consent from the NR needs the capacity reassessed by the treating doctor periodically (every week in the case of Section 89 admissions and every fortnight in the case of Section 90 admissions). Treatment with consent from NR and supported admission are to end as soon as capacity is regained.

Admission of minors (Section 87)

The decision maker for a minor is the NR; however, the views of the minor are to be listened to.

Research (Section 99)

Research on people with mental health problems can occur only with an informed consent. Any research program on incapacitous patients can occur only with prior approval of the research project from the State Mental Health Authority and consent from the NR.

RISING QUESTIONS

Giving a central place to capacity puts patient's autonomy and choice at the center; however, this raises many questions.

Indian mental health legislation allows supported admission and treatment for mental illnesses only when the individual lacks the capacity for mental health-care decisions. However, this is not the case in many other jurisdictions. For example, England and Wales allow involuntary treatment of mental illnesses irrespective of the capacity of the individual (if they meet the rest of the criteria). Capacitous patients receiving treatment for their mental illnesses involuntarily can form up to 15% of patients detained under the Mental Health Act of England and Wales (this is from a study in an acute adult psychiatric ward in London).[9] This subset of patients cannot be involuntarily treated in an inpatient setting in India now. Notable among this subset will be a group of patients with substance misuse disorders and personality disorders who often retain their capacity for mental health care.

Several factors influence capacity assessment to varying degrees. The complexity of the decision, risk levels, the seriousness of the outcome of the decision, understanding of the wishes and preferences of the individual, and several psychosocial factors influence capacity assessment. This complex relationship is clear in judgments from various courts.[10] Can capacity ever be considered an independent concept in itself remains a valid question. Whether decisions on capacity can be reduced to a binary option is another debate.

Incapacitous individuals may need support with various decisions (including physical health care), beyond the remit of the MHCA. India lacks a statutory law governing/guiding decisions for incapacitous individuals.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.