Book contents
- Mental Health, Legal Capacity, and Human Rights
- Mental Health, Legal Capacity, and Human Rights
- Copyright page
- Contents
- Figures
- Tables
- Boxes
- Contributors
- Preface
- Foreword
- Introduction A “Paradigm Shift” in Mental Health Care
- 1 The Alchemy of Agency: Reflections on Supported Decision-Making, the Right to Health and Health Systems as Democratic Institutions
- 2 Redefining International Mental Health Care in the Wake of the COVID-19 Pandemic
- 3 Reparation for Psychiatric Violence: A Call to Justice
- 4 Divergent Human Rights Approaches to Capacity and Consent
- 5 From Pipe Dream to Reality: A Practical Legal Approach Towards the Global Abolition of Psychiatric Coercion
- 6 The ‘Fusion Law’ Proposals and the CRPD
- 7 Contextualising Legal Capacity and Supported Decision Making in the Global South Experiences: of Homeless Women with Mental Health Issues from Chennai, India
- 8 The Potential of the Legal Capacity Law Reform in Peru to Transform Mental Health Provision
- 9 Advancing Disability Equality Through Supported Decision-Making: The CRPD and the Canadian Constitution
- 10 Decisional Autonomy and India’s Mental Healthcare Act, 2017: A Comment on Emerging Jurisprudence
- 11 Towards Resolving Damaging Uncertainties: Progress in the United Kingdom and Elsewhere
- 12 ‘The Revolution Will Not Be Televised’: Recent Developments in Mental Health Law Reform in Zambia and Ghana
- 13 Supported Decision-Making and Legal Capacity in Kenya
- 14 Seher’s “Circle of Care” Model in Advancing Supported Decision Making in India
- 15 The Swedish Personal Ombudsman: Support in Decision-Making and Accessing Human Rights
- 16 Strategies to Achieve a Rights-Based Approach through WHO QualityRights
- 17 The Clubhouse Model: A Framework for Naturally Occurring Supported Decision Making
- 18 Mind the Gap: Researching ‘Alternatives to Coercion’ in Mental Health Care
- 19 Psychiatric Advance Directives and Supported Decision-Making: Preliminary Developments and Pilot Studies in California
- 20 Community-Based Mental Health Care Delivery with Partners In Health: A Framework for Putting the CRPD into Practice
- 21 Lived Experience Perspectives from Australia, Canada, Kenya, Cameroon and South Africa – Conceptualising the Realities
- 22 In the Pursuit of Justice: Advocacy by and for Hyper-marginalized People with Psychosocial Disabilities through the Law and Beyond
- 23 The Danish Experience of Transforming Decision-Making Models
- 24 The Use of Patient Advocates in Supporting People with Psychosocial Disabilities
- 25 Users’ Involvement in Decision-Making: Lessons from Primary Research in India and Japan
- 26 Involvement of People with Lived Experience of Mental Health Conditions in Decision-Making to Improve Care in Rural Ethiopia
- References
10 - Decisional Autonomy and India’s Mental Healthcare Act, 2017: A Comment on Emerging Jurisprudence
Published online by Cambridge University Press: 20 August 2021
Book contents
- Mental Health, Legal Capacity, and Human Rights
- Mental Health, Legal Capacity, and Human Rights
- Copyright page
- Contents
- Figures
- Tables
- Boxes
- Contributors
- Preface
- Foreword
- Introduction A “Paradigm Shift” in Mental Health Care
- 1 The Alchemy of Agency: Reflections on Supported Decision-Making, the Right to Health and Health Systems as Democratic Institutions
- 2 Redefining International Mental Health Care in the Wake of the COVID-19 Pandemic
- 3 Reparation for Psychiatric Violence: A Call to Justice
- 4 Divergent Human Rights Approaches to Capacity and Consent
- 5 From Pipe Dream to Reality: A Practical Legal Approach Towards the Global Abolition of Psychiatric Coercion
- 6 The ‘Fusion Law’ Proposals and the CRPD
- 7 Contextualising Legal Capacity and Supported Decision Making in the Global South Experiences: of Homeless Women with Mental Health Issues from Chennai, India
- 8 The Potential of the Legal Capacity Law Reform in Peru to Transform Mental Health Provision
- 9 Advancing Disability Equality Through Supported Decision-Making: The CRPD and the Canadian Constitution
- 10 Decisional Autonomy and India’s Mental Healthcare Act, 2017: A Comment on Emerging Jurisprudence
- 11 Towards Resolving Damaging Uncertainties: Progress in the United Kingdom and Elsewhere
- 12 ‘The Revolution Will Not Be Televised’: Recent Developments in Mental Health Law Reform in Zambia and Ghana
- 13 Supported Decision-Making and Legal Capacity in Kenya
- 14 Seher’s “Circle of Care” Model in Advancing Supported Decision Making in India
- 15 The Swedish Personal Ombudsman: Support in Decision-Making and Accessing Human Rights
- 16 Strategies to Achieve a Rights-Based Approach through WHO QualityRights
- 17 The Clubhouse Model: A Framework for Naturally Occurring Supported Decision Making
- 18 Mind the Gap: Researching ‘Alternatives to Coercion’ in Mental Health Care
- 19 Psychiatric Advance Directives and Supported Decision-Making: Preliminary Developments and Pilot Studies in California
- 20 Community-Based Mental Health Care Delivery with Partners In Health: A Framework for Putting the CRPD into Practice
- 21 Lived Experience Perspectives from Australia, Canada, Kenya, Cameroon and South Africa – Conceptualising the Realities
- 22 In the Pursuit of Justice: Advocacy by and for Hyper-marginalized People with Psychosocial Disabilities through the Law and Beyond
- 23 The Danish Experience of Transforming Decision-Making Models
- 24 The Use of Patient Advocates in Supporting People with Psychosocial Disabilities
- 25 Users’ Involvement in Decision-Making: Lessons from Primary Research in India and Japan
- 26 Involvement of People with Lived Experience of Mental Health Conditions in Decision-Making to Improve Care in Rural Ethiopia
- References
Summary
The Mental Healthcare Act, 2017 was enacted in pursuance of India’s obligations under the United Nations Convention on the Rights of Persons with Disabilities. The Act seeks to regulate mental health care and treatment through a rights-based approach while protecting decisional autonomy. It brings forth a significant shift in the law on decisional capacity for persons with mental illness with respect to: (i) admissions in mental health establishments; (ii) access to support for exercising decisional capacity for mental health care and treatment decisions; and (iii) providing informed consent for treatment and care options in accordance with one’s will and preferences. Additionally, emerging constitutional jurisprudence on decisional autonomy and privacy in India has significant implications for enabling the decisional capacity of persons with mental illness under the Act. In this light, this chapter will examine how the Act’s provisions and emerging rights jurisprudence seek to protect decisional autonomy as a fundamental right under India’s Constitution.
- Type
- Chapter
- Information
- Mental Health, Legal Capacity, and Human Rights , pp. 155 - 170Publisher: Cambridge University PressPrint publication year: 2021
References
Ali, F., Gajera, G., Gowda, G., et al (2019). Consent in current psychiatric practice and research: An Indian perspective. Indian Journal of Psychiatry, 61(10), 667–675. https://doi.org/10.4103/psychiatry.IndianJPsychiatry_163_19Google Scholar
Bach, M., & Kerzner, L. (2010). A New Paradigm for Protecting Autonomy and the Right to Legal Capacity. Law Commission of Ontario. www.lco-cdo.org/wp-content/uploads/2010/11/disabilities-commissioned-paper-bach-kerzner.pdfGoogle Scholar
Banner, N. F. (2012). Unreasonable reasons: normative judgements in the assessment of mental capacity. Journal of Evaluation in Clinical Practice, 18(5), 1038–1044. https://doi.org/10.1111/j.1365-2753.2012.01914.xGoogle Scholar
Chakravarty, S. (2020). ‘Nominated representative’ and queer lives. Research Journal of Humanities and Social Sciences, 11(4), 371–373. https://doi.org/10.5958/2321-5828.2020.00059.5Google Scholar
Committee on the Rights of Persons with Disabilities. (2014). General Comment 1: Article 12 Equal recognition before the law.Google Scholar
Common Cause (A Registered Society) v. Union of India and another. (2018) 5 SCC 1. https://indiankanoon.org/doc/184449972/.Google Scholar
Davar, B. (June 2012). Legal frameworks for and against people with psychosocial disabilities. Economic and Political Weekly, 47(52). www.epw.in/journal/2012/52/special-articles/legal-frameworks-and-against-people-psychosocial-disabilities.htmlGoogle Scholar
Duffy, R. M., & Kelly, B. D. (2019). India’s Mental Healthcare Act, 2017: content, context, controversy. International Journal of Law and Psychiatry. https://doi.org/10.1016/j.ijlp.2018.08.002Google Scholar
Glad, B., & Simon, H. A. (1984). Reason in human affairs. Political Science Quarterly, 99(1), 132–133. https://doi.org/10.2307/2150290Google Scholar
Gururaj, G, Varghese, M, Benegal, V, et al. (2016). National Mental Health Survey of India, 2015–16: Mental Health Systems. National Institute of Mental Health and Neuro Sciences. http://indianmhs.nimhans.ac.in/Docs/Report1.pdfGoogle Scholar
Kapoor, A., & Pathare, S. (2018). Radicalising public mental healthcare in India. Seminar, 714. www.india-seminar.com/2019/714/714_arjun_soumitra.htmGoogle Scholar
Kapoor, A., & Pathare, S. (2019). Section 377 and The Mental Healthcare Act, 2017: breaking barriers. Indian Journal of Medical Ethics, 4(2), 111–114. https://doi.org/10.20529/IJME.2018.095Google Scholar
Kelly, B. (2016). Mental and human rights in India and elsewhere: what are we aiming for? Indian Journal of Psychiatry, 58(6), 168–174. https://doi.org/10.4103/0019-5545.196822Google Scholar
Khaitan, T. (2008). Beyond reasonableness – a rigorous standard of review for Article 15 infringement. Journal of the Indian Law Institute, 50(2), 177–208.Google Scholar
Kumar, T. C. R., John, S., Gopal, S. et al. (2013). Psychiatric advance statements: an Indian experience. International Journal of Social Psychiatry, 59(6), 531–534. https://doi.org/10.1177/0020764012443756Google Scholar
Mandarelli, G., Carabellese, F., Parmigiani, G. et al. (2018). Treatment decision-making capacity in non-consensual psychiatric treatment: a multicentre study. Epidemiology and Psychiatric Sciences, 27(5), 492–499. https://doi.org/10.1017/S2045796017000063Google Scholar
Math, S., Basavaraju, V., Harihara, S., et al. (2019). Mental Healthcare Act 2017 – aspiration to action. Indian Journal of Psychiatry, 61(10), 660–666. https://doi.org/10.4103/psychiatry.IndianJPsychiatry_91_19Google Scholar
Narayan, C. L., & Shikha, D. (2013). Indian legal system and mental health. Indian Journal of Psychiatry. 55(6), 177–181. https://doi.org/10.4103/0019-5545.105521Google Scholar
Navtej Singh Johar and Others v. Union of India. (2018) 10 SCC 1. https://indiankanoon.org/doc/168671544/.Google Scholar
Pathare, S., & Kapoor, A. (2020). Implementation Update on Mental Healthcare Act, 2017. In Duffy, R. & Kelly, B., India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights. Springer. 251–265.Google Scholar
Pathare, S., & Shields, L. S. (2012). Supported decision-making for persons with mental illness: a review. Public Health Reviews, 34, 15. https://doi.org/10.1007/bf03391683Google Scholar
Justice K S Puttaswamy (Retd) v. Union of India. (2017) 10 SCC 1. https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/624/Right_to_Privacy__Puttaswamy_Judgment_.pdf.Google Scholar
Quinn, G. (2010). Personhood and legal capacity: perspectives on the paradigm shift of Article 12 CRPD. www.anjalimhro.org/wp-content/uploads/2020/03/Legal_Capacity.pdfGoogle Scholar