Mental capacity including testamentary capacity.

INTRODUCTION

The term “mental capacity” defines the ability of an individual to make sound decisions. Mental capacity is a multidimensional construct. People with adequate mental capacities have the right to make independent choices that are valid and free. Understanding, assessment, and utility of the concept of mental capacity are increasing in the present healthcare system. “Testamentary capacity” refers to the ability of the person to make a valid “Will.” Mental capacity is a broader construct and refers to decision-making in several areas of life. Testamentary capacity (TC) is considered a part of overall mental capacity. An individual with sound mental capacity is expected to have the ability to make a testament (Will), i.e., TC. Various conditions that compromise mental capacity are also likely to compromise TC. Mental capacity is essential for the normal functioning of an individual in a real-world setting. The scope of legislation related to mental capacity is vast. The medicolegal implications of mental capacity are specifically evident in legal cases related to making a Will, giving consent, criminal offenses, sex, marriage, fitness to stand trial, and obtaining a license, etc. [Figure 1]. This document will discuss various dimensions of mental capacity and TC. The clinical practice guideline published under the aegis of the Indian Psychiatric Society in 2009 talked about mental capacity/TC.[1] This article is an update and up-gradation of literature on this very same topic. As TC is described in the context of making a Will or testament, it is necessary to understand various components and necessities of the “Will.” This article mainly discusses TC in detail and the relevance of mental capacity in various other contexts.

Figure 1

Relevance of mental capacity in various psycho-social domains

WILL

A “Will” is a legal declaration or a document of a person’s written wishes regarding the disposal of all of his or her movable or immovable property and all worldly possessions (all of which are together called “Estate”) after death. According to section 2(h) of the Indian Succession Act, 1925, “A Will is a legal declaration of the testator’s intention, concerning his property which he desires to be carried into effect after his death.” If the individual has not made a Will, the disposition or distribution of his/her estate is done as per the prevailing laws of succession. Hence, for the proper disposal of one’s estate according to its wishes, the Will is a necessary document. Otherwise, the distribution of one’s estate may or may not happen according to a person’s wishes. A testator (male) or testatrix (female) is the person who writes the Will. For ease of writing and reading, this document now onwards only uses the testator and male gender in further discussions.

The essential elements and features of a Will are as follows:

Who can make a Will?

A Will can be made by anyone who is of sound mind and is not a minor

An insane person can make a Will during an interval (Lucid interval) when he is of sound mind

Deaf, dumb, or blind people can form a Will if they understand its nature and consequences

No person can form a Will if he is in a condition of mind where he is unsure of what he is doing, whether due to intoxication, illness, or any other reason.

A Will is a voluntary act on the testator’s part and is made on the testator’s own free Will and without under any undue influence. At the time of making the Will, the person must know and understand that he is making a Will and the implications of the act of executing the Will

A Will becomes enforceable only after the death of the person who has made it

The Will may be made with the help or legal assistance of a solicitor. However, this is not a legal requirement, and one can choose to compose a Will without any legal aid

The Will has to be a written document, except for Muslims, in which case, it may be oral (vide infra). It may be made either on plain paper or stamp paper as per, and no particular form has been prescribed by law for the purpose. The testator has to sign or fix the Will clearly and legibly on every page of the Will and at the end of the Will

Registration of the Will-After making the Will, it may be registered after paying the stamp duty under section 18 of the Indian Registration Act, 1908. Under the act, this registration is optional, and the Will is perfectly valid without being registered. However, the expressed Will is always more in approval than an unregistered Will. The testator has to personally present the executed Will along with the witnesses after payment of the required registration fee. The endorsement of the registrar is sufficient to prove the fact of the execution of the Will

It can be revoked or altered by the testator if he is competent to dispose of his property

A Will should specify that it is the last Will executed by the testator

The Will should include the list of the properties owned by the testator. Before making the Will, the testator should know the nature and extent of his property and be aware of his legal heirs, i.e., potential beneficiaries

The testator may also mention that the Will covers the properties not known by the testator at the time of making the Will

The testator can also bequeath properties, incomes, and interests that he may acquire after the execution of the Will

The Will must be attested and signed by two or more witnesses, who have to sign the Will simultaneously and in the presence of the testator. The witnesses, who have signed on the Will, cannot be beneficiaries or be married to the recipients of the Will. While the witnesses must attest and sign the Will, it is not legally necessary for them to see and be aware of the contents of the Will

The Will should also identify an executor responsible for executing the Will after the testator’s death

Secrecy of the Will: Once the Will is made, it should be kept secret, though the testator may inform him that he has made a Will to some persons he has trust and confidence

Safe Custody of the Will: The Will could be kept in a secure location, such as a bank or a solicitor’s office. A registered will can be preserved at the registrar’s office in a sealed cover with the testator’s and agent’s names on it

Obtaining probate for the Will: The Will may require to be probated before being executed after the testator’s death. A probate is a legal recognition obtained to a Will regarding its genuineness and legality from a competent court. When an application of probate is made to a competent court, the invites objection to the Will in a prescribed manner. The court grants probate if there is no objection to the Will. Otherwise, it has to consider and examine the complaints and pass the necessary orders according to the law. All Wills are not required to be probated, but obtaining probate has distinct advantages besides being a legal necessity in some cases. Probate received on the Will is conclusive evidence of the genuineness of the Will.

After the death of the person, his property may be disposed of as follows:

If no Will is made, according to the prevailing laws of succession-i.e., intestate

If a Will is made, according to the content of the Will-i.e., testamentary.

LAWS OF SUCCESSION IN INDIA

The laws of succession and inherence deal with the situation when someone dies without making the Will. The rules listed in the statutes provide the basis for the distribution of property and other possessions to the family members after the individual’s demise.

India has a well-developed set of succession laws regulating a person’s property after his/her own death. Applicability of law is dependent on the religion of the person.

Following are the Laws operating in India concerning succession:

The Indian Succession Act 1925

The Hindu Succession Act, 1956

The Hindu Succession (Amendment) Act, 2005

Muslim Personal Laws

The Indian Registration Act 1908.

Aside from these Acts, each state in India has its own amendments of the Hindu Succession Act 1956, based on local prevailing norms.

The Indian Succession Act 1925 refers explicitly to Wills and Codicils of Hindus, Buddhists, Sikhs, Jains, Jews, Christians, and Parsis

The Hindu Succession Act, 1956, is enacted to amend and codify the law relating to intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs. The act establishes a uniform and comprehensive system of inheritance and succession into one act. The Hindu Succession (Amendment) Act, 2005, was subsequently enacted to deal with gender discriminatory provisions on property rights inbuilt in the Hindu Succession Act, 1956. It aimed at modifying rules on coparcenary property, giving daughters of the deceased equal rights with sons and subjecting them to the same liabilities and disabilities. The amendment primarily facilitates equal rights between Hindu males and females in society through legislation. It was a revolutionary step in Indian law concerning women’s rights in India

Muslim personal laws are applicable to Muslims. The Indian Succession Act, 1925, does not apply to Muslims. A Muslim can also make a Will, which can be either written or oral. However, a Muslim cannot dispose of more than one-third of the net assets by way of a Will after allowing the debts and funeral expenses of the testators. Even for bequeathing the one-third share, the Muslim has to obtain the consent of other heirs (Gulam Mohammad. vs. Gulam Hussain, AIR 1932 PC 81). A Muslim wife cannot be disposed of her share, but it is distributed equally if there is more than one wife. Sons get twice the share of daughters under Muslim personal laws. An heirless Muslim can bequeath his entire property.

CODICIL

A codicil is a supplement or an additional legal document to a Will. This is made when a testator intends to make any minor alterations in his already existing Will, for example, a change in the number of trustees. According to Section 2(b) of the Indian Succession Act 1925, codicil means an instrument made in relation to a Will and explaining, altering, or adding to its disposition and shall be deemed to form the part of the Will. Therefore, a codicil is executed and attested in the presence of witnesses just like a Will (Section 64, Indian Succession Act 1925).

A codicil may be endorsed on the original Will itself, or it may be a separate document. Its nature is not substantive but adjective. An addendum may stand even though the Will to which it is supplementary is revoked. However, a codicil is not considered an independent document. When proposed alterations to the Will include major changes, a fresh Will revoking the earlier Will should be executed.

TESTAMENTARY CAPACITY

TC is a legal term used to describe a testator’s level of understanding to make a valid Will.

However, the construct is based on legal and medical domains, necessitating a collaborative approach in its definition and assessment. A medical practitioner may be called upon to determine TC as it is helpful in the legal determination of the validity of the Will. The medical practitioner may be asked to conduct medical assessments in relation to the assessment of TC and provide an opinion regarding this capacity before making a Will. The medical practitioner may also be asked to give an opinion about TC after the demise of the testator by reviewing the medical notes, interviewing relevant informants and other available information deemed suitable. However, medical advice is considered only a piece of the information, and ultimately the court of the law takes the final decision about the TC. If it is discovered that a testator lacked TC at the time of the making of Will, the Will becomes legally void.

TC is a fundamental aspect of estate litigation. Often the circumstances that call a Will into question include the testator’s cognitive decline and undue influence. A study comparing the morbidity structure among testators whose Wills were challenged with expert opinion on testamentary incapacity found that if medical experts were given the opportunity to correctly assess the TC of a person’s at the time of Will making, several litigations and many expenses could be avoided.[2]

Mental capacities are primarily determined by two fundamental constituents’ factors: An ability to understand the relevant facts and an appreciation of the consequences of taking or not taking specific actions.[3] In the assessments of mental capacity, the following two ethical principles are considered essential-autonomy or self-determination versus beneficence or the need to support and protect the rights of vulnerable individuals.[4]

Legal aspects

The court assumes that a testator has adequate cognitive capacities to comprehend the concept of the Will, knowledge of his assets, awareness of who might have a claim on those assets, and the ability to communicate the disposition of his estate after his death.[5] Assessment of TC is expected to evaluate whether the testator understands what is required of him to compose a legally valid Will, i.e., it is a task, situation, and context specific. The assessment does not aim at evaluating whether the person is at the peak of his/her performance. The overall mental functioning needs not to be mandatorily perfect. The Banks Vs. Goodfellow Criteria (1870) were given as a court judgment in a commonly cited case of England. The testator, John Banks, had a persistent and serious mental illness, but his delusions had no effect on the allocation of his assets. Therefore he was deemed capable of executing his Will. In this case, Lord Chief Justice Cockburn described his understanding of a “sound disposing mind,” and these descritptions are considered valuavble in assessing TC till now. It is recommended that the medical practitioner should essentially consider including these criteria into their assessment.

Medical aspects

The following cognitive components are required for a person to have a mental capacity to comprehend important facts and appreciate the precise conditions and implications of a given action or decision.

Intellect: the faculty of reasoning and understanding objectively, especially with regard to abstract matters

Emotionality includes feelings and motivations

Control or expression of behaviour.

All these are although different from each other but interact with each other in context to mental capacity and TC.

WHEN IS A MEDICAL ASSESSMENT OF THE CLIENT REQUIRED FOR TESTAMENTARY CAPACITY?

Golden rule

Lawyers should undertake an initial assessment of the TC while drafting a Will. In certain circumstances, they may consult with medical professionals. The recommendations are based on the English case of Kenward v Adams.[7] Assessment of TC becomes important, preferably when the testator is of advanced age and is suffering from any serious mental or physical illness.[8] The legal practitioners are also advised to obtain an expert medical opinion in cases where the testator has a large estate, complicated family situation, a legal challenge to the Will is expected and/or where sudden or unusual changes are made to a Will by the testator.

All mental capacities are time and situation-specific

This is one essential rule for the assessment of TC, and all legal and medical personals involved in the assessment must understand this cardinal concept. The task specificity refers to the absence of capacity to execute the task in one area does not imply that person is not capable of completing the task in a different area. Hence, due to advanced age, mental or physical illness, disability, etc., the testator may be incapable of doing several activities of his daily living like driving, cooking, walking, shopping, etc., but may be capable of producing legally valid Will. In addition, the complexity of the testator’s milieu and environment and its relationship with mental capacity (cognitive functions and emotional stability) needs to be carefully considered on the case-to-case basis. The more dynamic and contradictory the world and situations around a testator is and the more complicated is the Will itself, the higher the degree of cognitive function or emotional maturity is required to be considered competent for making valid Will. A certain degree of cognitive impairment or neuropsychological dysfunction may not interfere with the TC for one person. However, in a complex or conflictual family setting or in the case of a complicated Will, the same degree of impairment or dysfunction can affect the ability of the individual to understand or consider related issues.

Specific areas for probing and assessments

If the testator is making abrupt or significant changes to his previous Will, he should be able to explain the reasons for the same coherently. The assessor should attempt to assess the continuity in his values, beliefs, wishes, and consistency in thinking regarding the distribution of his assets. The assessment should include whether or not the changes are being made based on any delusion or disorder of the mind. Other considerations include.[34]

The testators understanding and evaluation of any conflict and complexities in his environment and family situations

Understandings of consequences and effect of a particular distribution on the beneficiaries and specifically nonbeneficiaries who may have a natural claim on the assets of the testator like spouse or children

Clarification of concerns of the individuals who are potential beneficiaries but are excluded from Will or lesser than expected portion have been allotted to them. Any delusions or overvalued ideas or cognitive dysfunctions in this context needs careful evaluation in this context

Frequent changes in the Will are sometimes made to receive attention, care, and support from the significant others. Evaluation of wishes and understanding in this context is also important.

Basic principles for clinical assessment of testamentary capacity

The assessment of TC should be temporally done in as close proximity to Will making as possible.

The clinician should assess the client’s understanding of the assessment and its potential consequences and take consent (preferably written) for the assessment. The examination is better carried out in the absence of someone who stands to gain from the Will or who may exert control on the testator.

In addition to the direct assessment of the testator, a family member or friends can be interviewed for obtaining further information and having an objective evaluation of the situation. However, this is to be considered that often, a conflict of interest may be involved in such situations for persons available for assessments near the clients.[6]

Before the clinical assessments of the TC are made, experts are advised to pay attention to the following suggestions.

To determine whether the clinician has sufficient knowledge and expertise for the same, including awareness of relevant medicolegal literature in reference to TC

Who is requesting the assessments, i.e., lawyer or client or anyone else, and any reason for it?

Fee decide in advance about the amount of fee, who is making payments

A verbal or written report is required

Following material, if available, should also need to be reviewed. Any previous Will, current Will, list of testators estate from a verified source, medical records, reports, and treating doctors note.[4]

Clinical assessment needed for testamentary capacity

The clinical assessment may proceed as a routine clinical assessment, including history, relevant physical examination, and mental status evaluation. During the clinical assessment, leading questions should be avoided, and open questions should be utilized as much as possible. The assessment is primarily focused on whether an individual has the task-specific capacity to execute a Will in the context of a specific environment. The individual’s purpose, which is to whom and how he or she chooses to dispose of his or her property and justify his or her desires and expectations in a reasonable manner, is probably the most critical component of Will’s validity and at the same time the most difficult element to evaluate in an objective manner.[9]

Some of the specific questions are mentioned here which needs to be asked to the testator and it may help in elucidating and probing the relationship between task-specific and situation-specific factors:[3]

Can you tell me the reason(s) that why did you decided to make changes in your Will?

Can you enlist the reasons for dividing the estate in this particular fashion?

Do you understand how individual A might feel, having been excluded from the Will or having been given a significantly less share than normally expected or promised?

Do you understand the economic implications for individual B of this particular distribution in your Will?

Can you describe the important relationships of your family and other people close to you?

Can you describe the nature of any family or personal disputes or conflcits that may have altered your distribution of assets to beneficiaries?

While considering a testator’s intentions to allocate his properties, the practitioner should always be open to the possibility that what might sound like an unusual and unpredictable decision may still be absolutely valid if the individual possesses appropriate TC.[7]

The assessments relevant to the case, like cognitive assessments or specific issues relevant to TC may be evaluated as mentioned earlier. Usually, the assessment can be completed in one interview. However, depending on the complexity of the situation and clinical situation, more than one assessment can be planned for a thorough evaluation. If needed for complete assessments, more formal neuropsychological or radiological investigations may be ordered. Specific rating scales such as Mini–Mental Status Examination, clock drawing test, Montreal Cognitive Assessment, or other standardized tools for clinical assessment may be used. However, with all of these standardized tests of cognitive function, medical practitioners should be careful to understand the common pitfall of automatically equating a poor score on cognitive rating scles with the absence of TC. A testator who scores poorly in these tests may well fully satisfy the Banks v Good fellow criteria.[7]

If any pathological findings are obtained on the evaluation, i.e., delusion, its extent, firmness, and impact on the decision, should be assessed. Whether the person can clearly and comprehensively express his/her ideas, opinions, and beliefs in context to the Will and persons influenced by it are to be clearly mentioned. Medication history should be evaluated. Details of any recreational drug, psychoactive substances, and alcohol use need to be assessed. Due diligence should be paid for assessing the possibility of the testator’s capacity being impaired by concurrent treatment with medication and/or withdrawal from previously used medications or drugs, with particular care provided in cases where the testator is receiving palliative care for any terminal illness.[10] If the person has any illness limiting his ability to communicate, i.e., deaf, dumb, dysphasia, etc., an alternative avenue for communication is established like sign language, written text, etc. The detailed case records and reports should be preserved as they may need to be produced later in court. It has also been suggested that a video film record of assessment can be kept in cases with a high probability of being challenged in court.[7] A sample format for making a report of the testamentary capacity is given as Annexure 1.

Specific situations

Psychiatric illness and neurological disorders

Psychiatric illnesses and delusional beliefs may be a common reason for challenging a Will to the court. A delusion is a fixed false belief that is held despite evidence to the contrary. To influence TC, the delusion must directly impact on the decision related to one’s asset distribution. A testator should be free from any delusions that directly affect the distribution of his estate. A person suffering from mood disorders may suffer from cognitive distortions, compromised judgments, impulsiveness, and vulnerability to undue influence. Such changes in mental state may be episode specific but, in some cases, they can become chronic. Dementias, such as Alzheimer’s disease, vascular dementia cognitive impairments due to other causes may affect the TC of the individual. These conditions may be associated with an executive impairment which can affect perception and judgment and even persecutory delusions. Therefore, it is necessary to keep these things in mind while making the assessment of TC.

The person should not be under the influence or intoxicated with any drug or alcohol at the time of making Will. However, even patients with chronic drug or alcohol use may make a valid Will if they understand the nature and consequences of their Will.

Medicolegal report

The assessor should identify the testator and should confirm the identity with a valid identity proof like Aadhar card, PAN card, Driving license, Passport or Voter ID card etc. The report should include details of history and MSE, score of testing. The Banks v Goodfellow criteria should be discussed with reference to the testator. Documentation of the testator’s verbatim, in response to the questions that are put to him, represents good professional practice and adds to the validity of the report. The medical practitioner should report if any medical or psychiatric illness influences the testator’s capacity. If undue influence is suspected, the practitioner should outline physical or mental health issues, personality or social circumstances that can impact vulnerability to such influence. Finally, the medical practitioner should provide a diagnosis if a medical illness is there.

Retrospective assessment of testamentary capacity

A medical practitioner may be occasionally asked to make a retrospective assessment of TC. The physician should try to find out and carefully examine all the medical records, results of any neuropsychological examinations, neuro-imaging results, references as to the mental state or behavior from spouse, relatives, friends or business associates, financial documents such as business records, income tax records, checkbooks, diaries, etc. Evidence of specific mental and neurological disorders and psychiatric symptoms at the time of execution of the Will has to be ascertained while making a retrospective assessment. The Will itself and any notes of the legal practitioner while preparing the Will may offer additional information into the testator’s mental state. Based on all this information and evidence, the physician can assess whether the testator had or was likely to have had the TC.

Challenging testamentary capacity and validity of the will

This is a common situation in a court of law. Keeping in view of the complexity of modern life the disposition of assets is a sensitive matter. An increasing number of elderly people in the population has resulted in an increased prevalence of dementia and cognitive impairments. These conditions commonly constitute the ground for challenging the TC. Therefore, it is essential to remain aware of legal, medical, and psychological issues that are needed to assess TC.

UNDUE INFLUENCE

The execution of a Will has to be done without any outside pressure or influence. This is particularly relevant in cases where a person can no longer clearly and accurately identify his or her intentions clearly and rationally at the time of making Will. The person may be influenced by others and may not be able to decide about the distribution of his/her estate freely.

Undue influence is defined as engaging in manipulation or deception to significantly impair the ability of a testator to freely decide on the distribution of his property.[7]

The assessor should also try to find if there is any evidence of undue influence being exerted on the testator. Some of the clues of undue influence may be as follows.

Someone other than the testator or his lawyer makes the appointment

The individual who asks for assessment states that it is merely a “routine” examination or tells an entirely different purpose

The person is reluctant to allow the assessor to interview the testator privately

The testator is hesitant to provide the details required the testator appears vague about specific items in the Will

The testator is hesitant to provide information about potential heirs

A confidential relationship existed between the testator and influencer that created an opportunity for the influencer to secure a change in the distribution of the testator’s asset, resulting in undue benefit to the concerned beneficiary.[10]

Undue influence is a legal concept, and it aims to describe the role of external factors in making a Will. It is considered one of the most commonly attempted and successful challenges of the validity of the Will.[1] The onus of proof of undue influence in the court of law is on those challenging it. If the court finds evidence of undue influence on evaluation, the Will is rendered invalid. One of the key roles of the medical practitioner in assessing TC is to identify individuals who are vulnerable to undue influence. Such vulnerability may result from either physical or psychological dependency on caregivers or the mental burden of terminal disease coping. Where there is discord between the testator and his family, the assessor should ask testator to reflect on it. The clinician should document evidence of the testator’s ability to understand any personal or familial conflict and implications that it has had on his Will. A written record of the testator’s opinion on his family relationships and interpersonal dynamics can be helpful to the court in understanding the rationale behind the Will and in the decision of its validity.

MENTAL CAPACITY IN OTHER CIRCUMSTANCES

Mental capacity and consent

It is important to understand the relevance of mental capacity for consenting. Consent is a process that gives permission or approval for something to happen. It needs an agreement with certain terms and conditions. As understanding is essential for giving consent, an intact mental capacity is required. In medical settings, consent is often required for examination, treatment (particularly for carrying out a procedure/intervention), and research. An individual with compromised mental capacity cannot understand the pros and cons of the act/procedure; hence the consent obtained from the individual becomes invalid. Consent also requires the ability to make decisions.[11] A minor, an individual with any mental or neurological illness that compromises mental capacity or an individual with an intellectual disability, is often incapable of making decisions and has difficulty understanding an act; hence, their consent becomes invalid. Therefore, there is a need of a legal guardian who consents for the individual.

Mental capacity and sex

Sex needs mutual understanding as well as permission. It also needs some amount of negotiation skills. All these things are driven by mental capacity. Hence, consenting for sex needs adequate mental capacity.[1213] As per section 375 of the Indian Penal Code, rape is considered when consent for sex is obtained under the conditions that compromise the mental capacity (intoxication, unsoundness of mind) to the extent that the individual is not able to understand the nature and consequences of the act.[14] Being a mental health professional, it is important to evaluate the individual’s mental capacity, who consented for sex, if there is an allegation of rape, and the case is referred for psychiatric evaluation. The mental health professionals need to evaluate for the:

Intellectual functioning

Evidence of intoxication

Evidence of mental illness that compromises the mental capacity

Neuro-cognitive performance.

Mental capacity and contract

Any individual of sound mind can make a contract, according to the Indian Contract Act of 1872. A person is considered to be of sound mind for the purpose of making a contract if, at the time of making it, he is capable of understanding it and making a logical decision as to its effect on his interest, according to Section 12 of the Act. A person who is generally of unsound mind but rarely of sound mind may make a contract, when he is of sound mind. When a person is normally of sound mind but occasionally of unsound mind, he is not permitted to enter into a contract during the period of unsoundness of mind.

Mental capacity and marriage

Marriage needs the ability to handle lots of responsibilities. Marriage needs decision-making at every crucial steps. Mental capacity is of utmost importance to understand the contract, handle responsibilities, and take decisions. The ability to give valid consent and soundness of mind are prerequisites in a marriage under the Hindu Marriage Act, 1955 and Special Marriage Act, 1955. One of the conditions of marriage is that neither party is incapable of giving valid consent as a consequence of unsoundness of mind. Under the prevalent Muslim Law, marriage is a type of contract. Therefore, a Muslim who is of sound mind and has attained puberty is qualified to marry. However, if the guardian of a person of unsound mind considers such a marriage to be in his interest and the interest of society and is willing to take up all the monetary obligations of the marriage, then such a marriage can be performed.[15] Under Christian Law, marriage is voidable if either party is a lunatic or idiot. Mental illnesses that compromise the individual’s mental capacity to understand the marriage contract and its repercussions are considered the ground for divorce.[16] Apart from India, many other countries (more than one-third of countries) prohibit the marriage of individuals with mental illness.[17] As an individual can develop a mental illness at any point of time during their life and many mental illnesses follow fluctuating and episodic course, it is often difficult to predict whether unsoundness of mind and compromised mental capacity existed at the time of marriage or not.[1618]

Mental capacity and the representation of people act, 1950

According to the Representation of People Act, 1950 (sec 16), a person can not contest an election if he is of unsound mind and stands so declared by a competent court. Therefore, the disqualified person cannot hold public offices under the Constitution like President, VicePresident, Ministers or Member of Parliament and State Legislatures.

Mental capacity and criminal responsibility

An important aspect of assessing mental capacity is in the context of criminal responsibility. As per the prevailing law, an act is not considered as offense, if it is committed due to unsoundness of mind, that compromises the mental capacity.[15] If an individual with mental illness commits crime due to compromised mental capacity, then that individual needs to be treated, than being punished.[15] McNaughton’s rule describes criminal responsibility. This rule says: “To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”[19] It has been adopted and incorporated to the section 84 of Indian Penal Code, which says, “Nothing is an offense, which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”[16] Mental health professionals need to access the individual’s mental capacity, review the history of psychiatric illness, and treatment records (if any) of the individuals,[20] whom the court sends for evaluation of mental capacity and its relevance with respect to the offense.

Mental capacity and fitness to stand trial

When an individual is presented before the court to face a trial, that person should understand the proceedings, comprehend the questions, and be cross-examined by the lawyer.[21] A significant number of individuals with compromised mental capacity cannot access and understand the legal proceedings; hence, they are not fit to stand trial. As per the Pritchard criteria: An individual is considered sane only if the individual has sufficient intellect to understand the sequence of legal proceedings during the trial to have adequate defense. This explains that individuals lacking these abilities (i.e., mental capacity) are not sane; hence unfit to stand trials.[21] The Dusky criteria used in the context of the assessment of fitness to stand trial also mention that to be fit to stand trial, the individual should be capable of understanding the charges against him or her and should be able to defend himself in the court of law.[21]

Competency to stand as a witness

Section 118 of Indian Evidence Act, 1872, mentions - ”Any person is competent to testify as a witness provided, he understands the obligation of Oath.” He should be able to understand the nature of questions put to him. An insane person is not incompetent to give evidence unless he cannot understand the questions or is unable to give rational answers to them. If such a person can only describe the facts he sees (without making interpretations), it can be accepted. The presiding officer of the court decides the competency for this purpose.

Mental capacity and license

Several responsible activities require licensing (License to drive and license to have firearms like a gun). It has been seen that mental capacity plays an important role in licensing for these activities. A study found that more than 4/5th of the patients with mental illness failed to meet the minimum requirement for licensing.[22] However, there is conflicting evidence regarding the assessment of fitness to drive.[23] Similarly, possessing a firearm (gun) needs a lot of responsibility. Individuals with mental illness with poor mental capacity may not be able to handle the responsibility of possessing fire arm.[24] The mental capacity of the client needs to be evaluated before recommending a license for driving and possessing a firearm.

Mental Capacity assessment and Mental Healthcare Act–2017

The new Mental Healthcare Act–2017 (MHCA-2017) has several implications related to mental capacity assessment. As the MHCA, several clauses like nominated representative and advanced directive need a sound mental capacity. When an individual with mental illness chooses a carer to be their representative to make decisions, it has several long-term repercussions. Similarly, deciding the future course of treatment for mental illness in advance also needs intact intellectual functioning. Hence, before selecting of nominated representative and mentioning the advanced directive, the individual should be assessed for mental capacity. MHCA also emphasizes the relevance of mental capacity regarding decision-making regarding treatment, including hospitalization.[25]

Capacity assessment must consider the following facts [Figure 2]:

Figure 2

Domains of mental capacity assessment

Ability to comprehend information related to mental healthcare (treatment, hospitalization, and support)

Ability to weigh the pros-and cons of a particular decision related to mental healthcare

Ability to communicate the decision.

CONCLUSION

Understanding and assessment of mental capacity and TC are highly crucial in forensic psychiatry. Every mental health professional should be familiar with these forensic mental health evaluations.[26] A good capacity assessment protects human rights. As capacity assessments are a dynamic phenomenon, there is a need for periodic assessment of these abilities as per the need of the situation.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

The banks versus Goodfellow criteria – Reproduced from [67]

The person must be capable of understanding

The nature and effect of making a Will (i.e., the person understands the nature of a Will, when it comes into effect, that it can be changed at a later date, the role and responsibilities of the executor, etc.)

Knowledge of the nature, extent and values of one’s estate (i.e., property jointly or solely owned by testator, other movable and immovable assets, insurance policies and other investments, etc.)

Knowledge of people who have a justifiable claim to be beneficiaries whilst the competent testator Will ultimately decide who the beneficiaries shall be, he/she must demonstrate understanding of the logical claims of those who might expect to benefit from his or her Will. This understanding applies to both those being included and those being excluded from the Will

Understanding of the impact of the distribution of the assets of the estate (i.e., who receives what, the impact of the Will on the beneficiaries and on those who are excluded, the impact on any preexisting Will, the impact of changes from previous Will, the impact of any conditions attached to the Will, that a beneficiary might predecease him/her, etc.)

Ability to express point of view clearly, coherently, and consistently in an orderly plan of disposition

The testator should not have a mental illness which influences him/her regarding the bequests in the Will that he/she would not otherwise have included or excluded